Griffith v. Stout Remodeling, Inc., 47900

• Decision Date: 10 April 1976
• Docket Number: No. 47900,47900
• Citation: 219 Kan. 408,548 P.2d 1238
• Parties: Mary B. GRIFFITH, Appellant, v. STOUT REMODELING, INC., Appellee.
• Court: Kansas Supreme Court

Page 1238

548 P.2d 1238

219 Kan. 408

Mary B. GRIFFITH, Appellant, v. STOUT REMODELING, INC., Appellee.

No. 47900.

Supreme Court of Kansas.

April 10, 1976.

Syllabus by the Court

1. K.S.A. 60-208 governing pleadings and K.S.A.1975 Supp. 60-218 governing joinder of claims and remedies are to be read in conjunction with each other since their goals are complementary.

2. Under the foregoing procedural rules consistency of claims is not important at the pleading stage, the practical effect of which is to diminish the doctrine of election of remedies as it was applied under our former procedural code.

3. The spirit of our present rules of civil procedure permits a pleader to shift the theory of his case as the facts develop so long as he has fairly informed his opponent of the transaction or the aggregate of the operative facts involved in the litigation.

4. Where two actions are bottomed on the same set of facts, a final adjudication upon the merits in the earlier action is generally res judicata in the later one.

5. A judgment is not on the merits if it represents a judicial decision upon some point other than the issues of law and fact which must be disposed of in order to determine whether the parties have good claims or defenses under the applicable substantive law.

6. Principles in amelioration of the rigors of res judicata exist which may be applied in special meritorious situations.

7. The doctrine of res judicata expresses a policy designed to protect the defendant from harassment and the public from multiple litigation.

8. The doctrine of res judicata is not available as a bar to a subsequent action if the judgment in the former action was rendered because of a misconception of the remedy available.

9. Plaintiff initially filed a petition in which she alleged defendant had improperly failed to repair the roof of her home in accord with a written contract. At pretrial conference plaintiff was required to elect as to which remedy she was pursuing-tort or contract. She chose the former, which subsequently was shown to be barred by the statute of limitations. A pretrial motion to dismiss was sustained and plaintiff's request to amend the pretrial order was denied. She then filed the instant action to recover damages for breach of contract, which proceeding was dismissed upon defendant's motion. Held: By electing in the initial action to pursue her remedy in tort plaintiff was not thereby precluded from later maintaining a claim for relief based on breach of contract, nor, under the particular circumstances, is the doctrine of res judicata applicable in bar of the contract claim.

Richard J. Rome, Hutchinson, argued the cause and was on the brief for appellant.

Robert C. Martindell, of Martindell, Carey, Hunter & Dunn, Hutchinson, argued the cause and was on the brief for appellee.

HARMAN, Commissioner.

This is an action for damages for breach of a contract to repair a roof. Defendant's motion to dismiss the proceeding was sustained and plaintiff has appealed. The principal issues involve application of the doctrine of election of remedies and res judicata where a litigant has alleged both negligence and breach of warranty in the same incident.

In April, 1969, a hailstorm in Hutchinson damaged the roof of the home of plaintiff Mary B. Griffith. Two days thereafter she entered into a written contract with defendant Stout Remodeling Inc. whereby it agreed to put a new roof on plaintiff's home and in doing so to remove the old shingles from the roof prior to installation of the new one. Stout did the work on April 21, 1969, and on April 23, 1969, plaintiff paid the agreed price. Later plaintiff discovered that Stout had failed to remove the old shingles from the roof prior to installing the new one, with the result the roof leaked when heavy rain occurred and the interior structure of plaintiff's home as well as certain personal property in the house were damaged.

On December 20, 1972, plaintiff filed in the district court of Reno county a petition for damages against defendant Stout. The proceeding was docketed as case No. 20011. The petition recited the contract, that the old shingles were not removed in accordance with it, defendant did not do the job in a workmanlike manner and as a result of the faulty workmanship the new roof leaked, causing plaintiff damage in the sum of $10,785.00. Defendant filed an answer denying its improper performance of the contract.

On December 13, 1973, the judge of division 2 of the trial court held a pretrial conference in the matter at which plaintiff says, and defendant agrees this is correct, she was required by the judge to elect under which of two theories she was proceeding-tort or breach of warranty in the contract. Plaintiff elected to proceed upon tort and in the formal pretrial order the only issue of liability was stated to be: 'Was the defendant negligent in tearing off the old roof and putting on the new roof?'

Defendant then served interrogatories on plaintiff which were answered by her and filed January 16, 1974. The two pertinent here are as follows:

'The Defendant submits to Plaintiff the following interrogatories to be answered under oath:

'1. On what date did you first notice that the roof on the residence began to leak when it rained as alleged in Paragraph 6 of your petition?

'ANSWER:

'Within three to four months after the repair job.

'2. On what date did you attempt to contact Defendant to repair the damaged roof as alleged in Paragraph 7 of your petition?

'ANSWER:

'As soon as I saw the plaster in my bedroom begin to crack from the dampness.'

On January 22, 1974, defendant filed its motion for summary judgment on the ground plaintiff's claim was barred by the statute of limitations. The judge of division 2 agreed plaintiff's negligence action was barred by the two year statute of limitations (K.S.A. 60-513, as amended) and sustained the motion on February 8, 1974. Plaintiff promptly filed a motion for rehearing which was denied February 22, 1974. At one or perhaps both of these hearings plaintiff says she sought to amend the pretrial order so as to proceed on the contract theory. The record is not clear as to this but plaintiff's assertions are borne out in that in making its rulings the court concluded plaintiff had made an irrevocable election at pretrial conference to proceed only on the negligence theory and had thereby abandoned recovery on the contract theory in case No. 20011 but it commented it was not making any ruling as to plaintiff's right to file a new action on the theory of contract.

On March 15, 1974, plaintiff filed a new petition in the trial court, docketed as case No. 21017, in which she alleged the same contract and relied on breach of warranty for recovery of her damages for the defective roofing done by defendant. Defendant filed a motion to dismiss on the ground the summary judgment rendered in case No. 20011 became res judicata on all issues between the parties and further that by electing to proceed in tort in that action plaintiff made an irrevocable election whereby she precluded herself from further litigating the claim on a different theory. The judge of division No. 1, to whom case No. 21017 had been transferred, heard the matter and in a one sentence trial docket entry sustained the motion and dismissed the action. Plaintiff has appealed.

Plaintiff-appellant first complains, and correctly so, that the trial court improperly failed to state the reasons or grounds for its dismissal order. Our rule 116 (214 Kan. xxxvii) contemplates that a trial court shall, in all contested matters submitted to it for decision, in addition to stating the controlling facts required by K.S.A. 60-252, briefly state the legal principles controlling the decision (for discussion of application of this rule see Brown v. Wichita State University, P. E. C., Inc., 217 Kan. 661, 664-665, 538 P.2d 713.) Compliance with rule 116 will be of benefit to everyone concerned.

In making the decisions in the first case the trial court relied on language found in Mackey-Woodard, Inc. v. Citizens State Bank, 197 Kan. 536, 419 P.2d 847, in syllabus para. 5 and the corresponding portion of the opinion to the effect that the payee in a check which has been cashed on a forged endorsement has an election of remedies to proceed either in tort or in contract against the collecting bank and if the payee elects to waive its remedy for the conversion of the check and prosecutes the action to recover for the proceeds of the check as for money had and received, it is an irrevocable election whereby the payee is confined to the remedy which it thus elected to prosecute. Defendant-appellee urges this same language and the doctrine of election of remedies as expressed in our older cases in support of the rulings made in both cases.

The doctrine of election of remedies is an application of one phase of the law of estoppel which prevents one who comes into court, asserting or defending his rights, from taking and occupying inconsistent positions (Taylor v. Robertson Petroleum Co., 156 Kan. 822, Syl. 4, 137 P.2d 150, in which the essential elements of the doctrine are stated: (1) The existence of two or more remedies; (2) the inconsistency between such remedies; and (3) a choice of one of them). (pp. 826-827, 137 P.2d 150.) The purpose of the doctrine is not to prevent recourse to a particular remedy but to prevent double redress for a single wrong (25 Am.Jur.2d, Election of Remedies, § 1, p. 647). In Kansas, at least before adoption in 1964 of our present code of civil procedure, we have consistently adhered to a strict rule on election of remedies to the effect that when the law gives several means of redress or relief predicated upon conflicting theories, the election of one them operates as a bar against the subsequent adoption of the others (see Berger v. State Farm Mutual Automobile Insurance Co., 291 F.2d 666, 668 ...