Barbian v. Lindner Bros. Trucking Co., Inc.

• Decision Date: 02 March 1982
• Docket Number: No. 80-1040,80-1040
• Citation: 106 Wis.2d 291,316 N.W.2d 371
• Parties: James N. BARBIAN and Joan L. Barbian, his wife, Plaintiffs-Appellants-Petitioners, v. LINDNER BROS. TRUCKING COMPANY, INC., Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 371

316 N.W.2d 371

106 Wis.2d 291

James N. BARBIAN and Joan L. Barbian, his wife, Plaintiffs-Appellants-Petitioners, v. LINDNER BROS. TRUCKING COMPANY, INC., Defendant-Respondent.

No. 80-1040.

Supreme Court of Wisconsin.

Argued Feb. 2, 1982.

Decided March 2, 1982.

Hugh R. Braun, Milwaukee (argued), for plaintiffs-appellants-petitioners; Godfrey & Trump, Milwaukee, on brief.

Truman Q. McNulty, Milwaukee (argued), for defendant-respondent; Kluwin, Dunphy, Hankin & McNulty, Milwaukee, on brief.

DAY, Justice.

This is a review of a decision of the court of appeals which vacated an order of the circuit court for Milwaukee county, Hon. Louis J. Ceci, Judge, dismissing the complaint of plaintiffs-appellants-petitioners, James N. Barbian and Joan L. Barbian (hereinafter Barbians) on the ground of res judicata. The court of appeals remanded the matter to the trial court with orders that summary judgment be entered in favor of defendant-respondent, Lindner Bros. Trucking Co., Inc. (hereinafter Lindner).

The issue in this case is whether the judgment dismissing an earlier declaratory judgment action brought by the Barbians against Lindner, two affiliates of Lindner, and the city of Milwaukee, is res judicata as to the current action, which alleges that Lindner's use of a driveway adjacent to the Barbians' home as access to a warehouse constitutes a nuisance, entitling the Barbians to an injunction prohibiting such use and damages.

We hold that the earlier judgment, which held that certain rezoning of land by the city of Milwaukee was constitutional and that the doctrine of laches precluded the Barbians from obtaining an injunction against Lindner, is res judicata as to the Barbians' claim for an injunction but does not bar the Barbians' claim for damages.

We therefore affirm that part of the court of appeals decision vacating the order of dismissal and remanding to the trial court. We reverse that part of the court of appeals decision ordering entry of summary judgment for the defendant Lindner. We remand the matter to the trial court for a trial on the merits of the damage claim and with instructions to dismiss Barbians' request for an injunction.

The Barbians live on the west side of South Sixth Street in Milwaukee. The land behind their house and a lot next to it are zoned industrial. The land along Sixth Street on which their house is located is zoned residential except for the aforementioned next door lot. In 1974, Advanced Transportation Company, an affiliate of Lindner, purchased a plot of industrial zoned land adjacent to, and south and west of, the Barbians' land for the purpose of constructing a warehouse. That plot had no access to a public road save by a private driveway which ran through the lot next to the Barbian home. This lot, which was also purchased by Lindner, was zoned residential at the time of the purchase.

In 1976, Lindner constructed a 100,000 square-foot warehouse on the land behind the Barbian residence. The Barbians complained to the city of Milwaukee building inspector about the noise and dirt generated by the increased number of vehicles using the driveway next to their house. The building inspector's office ordered the construction halted because the use of the lot next to the Barbians to gain access to the warehouse was an impermissible use of a residentially zoned lot. This order was subsequently reversed, and the city building inspector ruled that the driveway constituted a "legal non-conforming use" of the residential lot.

In 1976, the Barbians commenced an action against Lindner to enjoin it from using the residentially zoned lot for access to the warehouse. In March, 1977, the Barbians commenced another action seeking damages from Lindner resulting from the use of the driveway. On July 11, 1977, the city of Milwaukee rezoned the lot containing the driveway from residential to industrial, which permitted access to the warehouse. On July 27, 1977, the Barbians commenced a declaratory judgment action against the city of Milwaukee and Lindner. The two earlier actions were consolidated with the declaratory judgment claim. The action sought a declaration that the zoning change was illegal and void, and that the Barbians were entitled to both an injunction prohibiting Lindner from using the driveway and damages.

A trial was held before Milwaukee County Circuit Judge William R. Moser. Judge Moser granted judgment for the defendants, holding that the zoning change was within the city's powers and that the request for an injunction was barred by laches. The Barbians appealed the case to the court of appeals which upheld the trial court decision. This Court declined to review the Court of Appeals decision.

On December 7, 1979, the Barbians commenced a new action against Lindner seeking damages and an injunction to prevent Lindner from using the driveway. Lindner moved that the action be dismissed on the ground that the earlier judgment was res judicata as to the present action. This motion was granted by Milwaukee County Circuit Judge Louis J. Ceci on January 28, 1980. The Barbians moved for reconsideration of the decision and, on May 5, 1980, Judge Ceci reaffirmed his earlier order. The court of appeals, in a decision dated March 24, 1981, upheld the trial court's conclusion that the earlier case was res judicata but vacated the order dismissing the Barbians' complaint and remanded the case directing that judgment be entered on behalf of Lindner. The Barbians petitioned this court to review the court of appeals decision which was granted.

The earlier action, which the courts below determined was res judicata as to the current action, named Lindner, two affiliates of Lindner, and the city of Milwaukee as defendants. The portions of the earlier complaint which alleged a cause of action against Lindner were as follows:

"... 8. That to gain access to the property, Lindner Bros. Trucking Co., Inc. constructed an asphalt driveway from the terminal to South Sixth Street, crossing the residentially zoned land approximately 15 feet from the north wall of the plaintiffs' residence. That 30 to 40 semi-trailer trucks use the driveway each day and substantially impair the usability of the plaintiffs' property. That at the time Advance, Lindner and J & L Terminals purchased the land and constructed the warehouse and access road, they knew or should have known that access to the warehouse could not be legally obtained across the residentially zoned land north of the plaintiffs' property....

"WHEREFORE, the petitioners pray for a declaration of their rights and for judgment pursuant to the provisions of sec. 806.04 determining: ...

"AS TO ADVANCE, LINDNER AND J & L TERMINALS:

"B. That the plaintiffs are entitled to an injunction restraining the defendants, Advance, Lindner and J & L Terminals, from using land north of their property as access to the industrial land to the west.

"C. That the plaintiffs are entitled to recover damages from the defendants, Advance, Lindner and J & L Terminals, as a result of the illegal use of the residential land north of their property since June 1, 1976.

"D. That the plaintiffs are entitled to costs and disbursements of the action."

The action did not ask directly for an injunction or damage award, but sought a declaration of rights and judgment that the Barbians were entitled to such relief pursuant to the declaratory judgment statute, section 806.04, Stats. (1977). ¹ Because the complaint was dismissed on its merits the question of supplemental relief under section 806.04(8) never became an issue.

In order for the first action to bar the current action under the doctrine of res judicata, there must be an identity of parties and an identity of causes of action in the two cases. Leimert v. McCann, 79 Wis.2d 289, 294, 255 N.W.2d 526 (1977). Both the Barbians and Lindner are parties to both actions. The issue is whether the causes of action are identical.

Generally, an earlier judgment is res judicata as to all matters which were or might have been litigated in that proceeding. Leimert, 79 Wis.2d at 293-94, 255 N.W.2d 526. However, the Restatement of Judgments, section 77, comment b (1942), states that the general rule does not apply to declaratory judgments:

"b. Effect of declaratory judgment on subsequent controversies. The effect of a declaratory judgment in subsequent controversies between the parties depends upon the scope of the declaration of rights made by the judgment. As to matters not declared by the judgment, although a declaration might have been made as to them, the parties are not so precluded.

"Where a plaintiff seeks a declaratory judgment, he is not seeking to enforce a claim against the defendant. He is seeking rather a judicial declaration as to the existence and effect of a relation between him and the defendant. The effect of the judgment, therefore, unlike a judgment for the payment of money, is not to merge a cause of action in the judgment or to bar it. The effect of a declaratory judgment is rather to make res judicata the matters declared by the judgment, thus precluding the parties to the litigation from relitigating these matters." (Emphasis added)

Accord: Atchison v. City of Englewood, 180 Colo. 407, 506 P.2d 140, 143 (1973); In re Ditz' Estate, 255 Iowa 1272, 125 N.W.2d 814, 821 (1964); North Shore Realty Corporation v. Gallaher, 99 So.2d 255, 257 (Fla.App.1957). See generally, 22 Am.Jur.2d, Declaratory Judgments, section 102 (1965); Annot., 10 A.L.R.2d 782, 787 (1950). We agree with the rule, as set forth in the Restatement, that a declaratory judgment is only binding as to matters which were actually decided therein and is not binding to matters which "might have been litigated" in the proceeding.

In the declaratory judgment action, Judge Moser rendered an oral decision granting judgment for the city of Milwaukee and Lindner and dismissing the Barbians' complaint on the merits. ² The primary focus of...