Caswell v. Caswell, 63578

• Decision Date: 08 April 1982
• Docket Number: No. 63578,63578
• Parties: CASWELL v. CASWELL et al.
• Court: Georgia Court of Appeals

Page 171

290 S.E.2d 171

162 Ga.App. 72

CASWELL v. CASWELL et al.

No. 63578.

Court of Appeals of Georgia.

April 8, 1982.

Tom Pye, Atlanta, for appellant.

J. L. Edmondson, Lawrenceville, for appellees.

BANKE, Judge.

This is an appeal from an order dismissing the plaintiff's complaint based on application of the doctrines of res judicata and collateral estoppel. The complaint was filed on March 19, 1980, and sought damages against the following defendants for a variety of alleged wrongs having to do with the operation of a corporation in which the plaintiff holds stock and was formerly a director: J. D. Caswell, Carl Caswell, Caswell Construction Company, Inc., Development Corporation of Georgia, Inc., Tucker Investment & Mortgage Company, Inc., Northeast Metro Construction Company, and Lenora V. Caswell. The plaintiff had previously filed a complaint against all of these same defendants, except the last three, but that complaint was dismissed with prejudice on January 3, 1980, as sanction for the plaintiff's repeated failure to comply with discovery procedures and orders. See Caswell v. Caswell, 157 Ga.App 710, 278 S.E.2d 452 (1981). The plaintiff concedes that the instant suit raises many of the same claims as were asserted in the previous suit but urges that it is not barred by the doctrine of res judicata because some new factual allegations have been made, some new relief has been requested, and the three new defendants have been added.

In its order dismissing the complaint, the trial court found as follows: "The cause of action contained in this present action is identical to that brought in the prior action. This can be ascertained from review of the pleadings in both cases. Although there is no doubt that the legal issues raised in both actions are identical, it is extremely clear that the factual basis of these two actions is identical from a comparison of the complaint in the present action and the untimely filed more definite statement and abortive pre-trial submissions in the prior action. The only significant difference between the action now before the court and the prior action which was dismissed is the addition of three new parties: Tucker Investment & Mortgage Company, Inc.; Northeast Metro Construction Company; and Lenora V. Caswell. The court finds as a matter of fact in comparing these two actions that the claims which the plaintiff attempts to raise are claims which were raised, or at least could have been raised in the prior action. Further, the court finds that the liability asserted against the new parties to this action is derivative of the liability which was asserted against the defendants who appear in both cases. The basis of plaintiff's lawsuit has been an attempt to establish that the Tucker Investment & Mortgage Co., Inc., and Northeast Metro Construction...