Booher v. Richmond Square, Inc.

• Decision Date: 22 April 1974
• Docket Number: No. 1--573A103,1--573A103
• Parties: Richard H. BOOHER, Appellant (Defendant Below), v. RICHMOND SQUARE, INC., Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 89

310 N.E.2d 89

160 Ind.App. 44

Richard H. BOOHER, Appellant (Defendant Below), v. RICHMOND SQUARE, INC., Appellee (Plaintiff Below).

No. 1--573A103.

Court of Appeals of Indiana, First District.

April 22, 1974.

Charles V. Livengood, Richmond, for appellant (defendant below).

Harlan, Schussler & Keller, John R. Brant, II, Richmond, for appellee (plaintiff below).

LYBROOK, Judge.

Appellee Richmond Square, Inc., recovered judgment from appellant Booher for rent due under the terms of a lease of space in a shopping center.

Appellant's principal contention on appeal is that the action was barred under the doctrine of res judicata due to a prior judgment involving the same parties and same lease.

On May 29, 1967, appellant Booher and one Douglas W. Rankin, as lessees, and appellee as lessor, entered into a written lease for a ten year term providing for payment of rents and charges in monthly installments. Lessees opened for business on August 24, 1967, and later abandoned the leased premises April 25, 1969.

On June 30, 1969, Richmond initiated an action seeking unpaid rent accrued to that date in the sum of $2,250.00. The complaint also sought liquidated damages under the provisions of the lease agreement in the sum of $16,200. Subsequently, on November 7, 1969, Richmond filed an affidavit with the court wherein it was sworn that the unpaid rent accrued as of October 29, 1969, was $4,050.00. On November 10, 1969, a default judgment was entered against Booher and Rankin in the sum of $4,050.00.

Appellee Richmond initiated the present action on January 14, 1972, to collect rent and common area maintenance charges accrued in the period from October 30, 1969, to September 31, 1971. The trial court ruled against Booher and Rankin on their theory that the action was barred by the previous judgment and entered judgment for Richmond in the sum of $9,296.80, the same being the exact amount of rent and maintenance charges accruing during the period alleged in the complaint, less a credit of $1053.20 representing income received by appellee in reletting the premises.

Booher then timely filed his Motion to Correct Errors which was overruled, and this appeal follows. Since each of appellant's arguments bear upon the same issue--whether the judgment in the first action constitutes a bar to the instant action--we shall consider them together.

The following definitive statement of the rule of law known as the doctrine of res judicata is found in Town of Flora v. Indiana Service Corporation (1944), 222 Ind. 253, 53 N.E.2d 161.

'. . . There are two well defined branches of the rule of res judicata.

The subject has often been confused by the loose use of descriptive terms. One branch of the subject deals with prior adjudication as a bar. Under it a cause of action finally determined between the parties on the merits by a court of competent jurisdiction, cannot again be litigated by new proceedings before the same or any other tribunal, except by way of review according to law. Such a judgment or decree so rendered is a complete bar to any subsequent action on the same claim or cause of action, between the same parties, or those in privity with them. Every question which was within the issues, and which, under the issues, might have been proved, will be presumed to have been proved and adjudicated. Jordan v. Sisson, 1924, 82 Ind.App. 128, 141 N.E. 881. This rule is perhaps best described as 'estoppel by judgment.'

'The other branch of the subject applies where the causes of action are not the same, but where some fact or question has been determined and adjudicated in the former suit, and the same fact or question is again put in issue in a subsequent suit between the same parties. In such cases the former adjudication of the fact or question, if properly presented and relied on, will be held conclusive on the parties in the latter suit, regardless of the identity of the causes of action, or the lack of it, in the two suits. When the second action between the same parties is on a different cause of action, claim or demand, it is well settled that the judgment in the first suit operates as an estoppel only as to the point or question actually litigated and determined, and not as to other matters which might have been litigated and determined. In such cases the inquiry must always be as to the point or question actually litigated and determined in the original action. This branch of the subject may appropriately be described as 'estoppel by verdict or finding.' See Charles E. Harding Co. v. Harding, 1933, 352 Ill. 417, 186 N.E. 152, 88 A.L.R. 563 (Ann. on p. 574).

'In this connection it should be further observed that where a judgment may have been based upon either or any of two or more distinct facts, a party desiring to plead the judgment as an estoppel by verdict or finding upon the particular fact involved in a subsequent suit must show that it went upon that fact, or else the question will be open to a new contention. The estoppel of a judgment is only presumptively conclusive, when it appears that the judgment could not have been rendered without deciding the particular matter brought in question . . ..'

See also, Linville v. Chenoweth (1949), 119 Ind.App. 515, 84 N.E.2d 473; Beatty v. McClellan (1951), 121 Ind.App. 242, 96 N.E.2d 675.

In determining the applicability of the principle of estoppel by judgment, we must decide whether the instant action is based on a different cause of action, claim, or demand, than was presented in the prior action.

It is generally conceded that an action for rent will not lie until such rent is due and payable. 18 I.L.E. Landlord and Tenant, § 311; 52 C.J.S. Landlord and Tenant § 559. In 24 A.L.R. at 891, it is stated:

'It is too well settled to admit of controversy that rent is not due...