Fowler v. Vineyard

• Decision Date: 09 July 1991
• Docket Number: No. S91G0272,S91G0272
• Parties: FOWLER et al. v. VINEYARD.
• Court: Georgia Supreme Court

Page 678

405 S.E.2d 678

261 Ga. 454

FOWLER et al. v. VINEYARD.

No. S91G0272.

Supreme Court of Georgia.

July 9, 1991.

Reconsideration Denied July 24, 1991.

Frederick A. Johnson, Stevan A. Miller, Drew, Eckl & Farnham, Atlanta, for Fowler et al.

Barry E. Billington, Atlanta, for Vineyard.

BELL, Justice.

We granted certiorari to consider whether the present action for personal injuries filed by Vineyard against Fowler and Georgia Hi-Lift is barred by res judicata. The bar would result from Vineyard's voluntary dismissal with prejudice of his cross-claim for contribution against Fowler and Georgia Hi-Lift in a previous action in which Vineyard was a co-defendant with Fowler and Georgia Hi-Lift. We reverse the Court of Appeals' holding that res judicata did not bar the personal injury action, Vineyard v. Fowler, 197 Ga.App. 453, 398 S.E.2d 709 (1990).

On January 17, 1987, Vineyard (a MARTA bus driver) and Fowler (the driver of a truck owned by Georgia Hi-Lift) were involved in a collision in which twenty-six persons were injured. Two injured bus passengers filed separate actions against the same defendants--MARTA, Vineyard, Fowler, and Georgia Hi-Lift (hereafter Fowler and Georgia Hi-Lift will be referred to as "the Hi-Lift defendants"). In each of those cases, Vineyard and MARTA filed cross-claims against the Hi-Lift defendants for contribution and indemnification. The parties settled both passengers' suits out of court, and in July 1988 Vineyard and MARTA voluntarily dismissed with prejudice their cross-claims against the Hi-Lift defendants. ¹

In August 1988 Vineyard sued the Hi-Lift defendants for damages resulting from the personal injuries Vineyard sustained in the collision. The Hi-Lift defendants moved for summary judgment, arguing that, because Vineyard dismissed with prejudice his cross-claims for contribution and indemnification, res judicata barred Vineyard's personal injury action. The trial court granted the Hi-Lift defendants' motion for summary judgment, holding that OCGA § 9-12-40, our res judicata statute, barred Vineyard's suit.

The Court of Appeals reversed, Vineyard v. Fowler, supra, 197 Ga.App. at 453, 398 S.E.2d 709, and we granted the Hi-Lift defendants' application for certiorari to consider whether Vineyard's current action is barred by the doctrine of res judicata.

Several important issues, concerning two statutes, are presented for resolution. One statute is § 9-12-40, which is "a codification of Georgia's basic common law rule of res judicata." Lawson v. Watkins, 261 Ga. 147, 401 S.E.2d 719, 723 (1991). The other statute is OCGA § 9-11-13(g), which provides for the permissive filing of cross-claims. We must decide whether the requirements of res judicata have been met in this case, and, if so, whether res judicata should bar Vineyard's current action or whether, because the personal injury claim was a permissive cross-claim in the first action, Vineyard should not now be barred from asserting it. We conclude that the requirements of res judicata have been met in this case, and that res judicata should operate as a bar to Vineyard's personal injury claim, despite the permissive cross-claim provision of § 9-11-13(g). We therefore must reverse the judgment of the Court of Appeals.

1. OCGA § 9-12-40, our res judicata statute, provides that

[a] judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.

For a prior action to bar a subsequent action under the doctrine of res judicata, several requirements must be met: The first action must have involved an adjudication by a court of competent jurisdiction, McCracken v. City of College Park, 259 Ga. 490, 491(2), 384 S.E.2d 648 (1989); the two actions must have an identity of parties and subject matter, Lawson v. Watkins, supra, 261 Ga. at 151-52, 401 S.E.2d 719; and the party against whom the doctrine of res judicata is raised must have had a full and fair opportunity to litigate the issues in the first action, Winters v. Pund, 179 Ga.App. 349, 352, 346 S.E.2d 124 (1986); Sil-Flo, Inc. v. SFHC, Inc., 917 F.2d 1507, 1520(18) (10th Cir.1990).

2. In determining whether the requirements of res judicata have been satisfied, we first address Vineyard's argument that a voluntary dismissal with prejudice, without order or approval of the trial court, cannot be considered a judgment on the merits for purposes of our res judicata statute, § 9-12-40. We disagree.

In cases in which there has been a voluntary dismissal of an action with prejudice upon agreement of the parties and accomplished with an order of court, we have held that the dismissal operates as an adjudication upon the merits and bars the right to bring another action on the same claim. See Rowland v. Vickers, 233 Ga. 67, 68, 209 S.E.2d 592 (1974); Marchman & Sons v. Nelson, 251 Ga. 475, 477, 306 S.E.2d 290 (1983). ² We did not turn these cases upon the fact that the dismissal was pursuant to order of court, and we can see no reason for distinguishing those cases from cases in which a voluntary dismissal with prejudice has been accomplished by the parties filing a stipulation of dismissal with the clerk of court. We believe that a dismissal "with prejudice" should have the same effect in both instances.

OCGA § 9-11-41(a), by analogy, lends support to our conclusion that a voluntary dismissal with prejudice but without order of court should act as res judicata. OCGH § 9-11-41(a) provides that a plaintiff's third voluntary dismissal, without order of court, operates as an adjudication upon the merits. This statute thus makes a third voluntary dismissal a dismissal with prejudice, and even though the dismissal is not by court order, it bars a subsequent suit under the doctrine of res judicata, T.V. Tempo, Inc. v. T.V. Venture, Inc., 182 Ga.App. 198, 199-201(1), 355 S.E.2d 76 (1987).

Finally, we note that commentators, as well as other courts, have concluded that a voluntary dismissal with prejudice, unaccompanied by any court order or approval, is a judgment on the merits for purposes of res judicata. Wright & Miller, Federal Practice and Procedure: Civil § 2367; 5 Moore's Federal Practice, §§ 41.02 and 41.05; Astron Ind. Assoc., Inc. v. Chrysler Motors Corp., 405 F.2d 958, 960(1) (5th Cir.1968).

For the foregoing reasons, we conclude that Vineyard's voluntary dismissal with prejudice constitutes a judgment on the merits for purposes of res judicata. Anything to the contrary contained in Market Ins. Corp. v. IHM, Inc., 192 Ga.App. 441, 442(2), 385 S.E.2d 307 (1989), is overruled.

3. We next examine whether the prior action and the instant action involve an identity of parties and subject matter.

(a) Vineyard's cross-claims and his instant personal injury claim involve an identity of parties. Although the parties in the first litigation were the same, it is still necessary to examine whether Vineyard was in an adversarial relationship with Fowler and Georgia Hi-Lift in that litigation. If he was not, then Vineyard is not bound by the rules of res judicata. See Restatement of Judgments, Second, §§ 34 and 38. We conclude that the cross-claims for indemnification and contribution placed Vineyard in an adversarial relationship with Fowler and Georgia Hi-Lift.

By asserting cross-claims for contribution and indemnification, Vineyard sought affirmative relief from Fowler and Georgia Hi-Lift and thus was in an adversarial relationship with them. A condition to asserting a cross-claim is that the co-party asserting it must actually seek affirmative relief against the co-party against whom it is asserted. Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 1431. As OCGA § 9-11-13(g) and Federal Rule of Civil Procedure (FRCP) 13(g) specifically permit a party to cross-claim for contribution or indemnification, the rules contemplate that such a cross-claim asserts a claim for affirmative relief. This conclusion is inescapable, considering that a party bringing such a claim is asserting

that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant. [OCGA § 9-11-13(g); FRCP 13(g).]

Moreover, Restatement of Judgments, Second, § 38, provides that the necessary adversarial relationship between co-parties is satisfied

where the claims or defenses in the pleadings put parties in an adversarial relation to each other even though they may also be aligned together against a third party. This relation arises between defendants who are parties to a cross-claim, ... Where such claims or defenses have been made, the rules of merger and bar ... are applicable. [Id., Comment (a).]

For the foregoing reasons, we conclude that Vineyard's cross-claims put him in an adversarial relationship with Fowler and Georgia Hi-Lift, and that he is bound by the rules of res judicata. ³

(b) Moreover, we conclude the cross-claims and the personal injury claim involve an identity of subject matter.

In Lawson v. Watkins, supra, 261 Ga. at 149, 401 S.E.2d 719, we noted that

OCGA § 9-12-40 is a codification of Georgia's common law rule of res judicata. The language used in the statute was drawn from Watkins v. Lawton, 69 Ga. 671, S.E.2d (1882), where this court held:

A judgment is conclusive as to all matters put in issue, or which, under the rules of law, might have been put in issue, in a former suit between the same parties concerning the same subject matter in a court of competent jurisdiction. (Emphasis supplied.)

Thus, one must assert all claims for relief concerning the same subject matter in one lawsuit and any claims for relief concerning that same subject matter which are not raised will be res judicata pursuant to OCGA § 9-12-40.

In the instant case it is...