Jimmy Martin Realty Group, Inc. v. Fameco Distributors, Inc., 1426

• Decision Date: 08 November 1989
• Docket Number: No. 1426,1426
• Citation: 300 S.C. 192,386 S.E.2d 803
• Court: South Carolina Court of Appeals
• Parties: JIMMY MARTIN REALTY GROUP, INC., a/k/a The Key Company, Inc., d/b/a Great Games, Appellant, v. FAMECO DISTRIBUTORS, INC., Respondent. . Heard

Page 803

386 S.E.2d 803

300 S.C. 192

JIMMY MARTIN REALTY GROUP, INC., a/k/a The Key Company Inc., d/b/a Great Games, Appellant, v. FAMECO DISTRIBUTORS, INC., Respondent.

No. 1426.

Court of Appeals of South Carolina.

Heard Nov. 8, 1989.

Decided Dec. 4, 1989.

Jean P. Derrick, Lexington, for appellant.

Clifton Newman, and Ronnie A. Sabb, Columbia, for respondent.

PER CURIAM:

The only issue presented in this appeal by Jimmy Martin Realty Group, Inc., also known as The Key Company, Inc., doing business as Great Games, is whether principles of res judicata bar it from litigating a claim for breach of contract accompanied by fraudulent acts against the respondent Fameco Distributors, Inc. We hold that they do so and affirm the judgment.

Great Games previously brought an action against fameco alleging Fameco committed a number of unfair and deceptive acts and practices and deliberately breached a contract between the parties regarding coin-operated video-game machines placed by Great Games in a nightclub operated by Fameco. It based its claim on the South Carolina Unfair Trade Practices Act. See S.C.CODE ANN. Secs. 39-5-10 et seq. (1976 & Supp.1988). This court reversed a judgment entered in Great Games' favor, holding that the trial court erred in denying Fameco's motions for directed verdict and judgment notwithstanding the verdict. The Key Co., Inc., d/b/a Great Games v. Fameco Distributors, Inc., 292 S.C. 524, 357 S.E.2d 476 (Ct.App.1987).

Great Games then instituted the instant action alleging a claim for breach of contract accompanied by fraudulent acts. Great Games grounds the claim on the same set of essential facts that it alleged in the prior action, namely that Fameco committed several unfair and deceptive acts and practices and deliberately breached its contract with Great Games regarding Great Games' coin-operated video-game machines.

Fameco moved to dismiss the complaint pursuant to Rule 12(b) of the South Carolina Rules of Civil Procedure, contending Great Games "is now barred as a matter of law" from litigating against Fameco its claim for breach of contract accompanied by fraudulent acts. The hearing judge granted the motion. After finding the earlier action involved "the same parties" and "the same subject matter," he found that there had been "a final determination on the merits of [Great Games'] claim in [the] prior action" and that Great Games "had a full and fair opportunity to litigate the issues in the previous action."

Under the doctrine of res judicata, a final judgment on the merits in a prior action will conclude the parties and their privies in a second action based on the same cause of action as to issues actually litigated and as to issues that might have been litigated in the first action. Hilton Head Center of South Carolina, Inc. v. Public Service Commission of South Carolina, 294 S.C. 9, 362 S.E.2d 176 (1987); Beall v. Doe, 281 S.C. 363, 315 S.E.2d 186 (Ct.App.1984).

Great Games contends the doctrine has no application here because the prior action did not result in a final judgment "on the merits" and because the causes of action alleged in the first and second suits are not the same.

I.

Contrary to Great Games' assertion, the first suit did result in a final judgment on merits. This occurred when we reversed the judgment in Great Games' favor in the prior action because of the trial court's failure to grant Fameco's motion for directed verdict and judgment notwithstanding the verdict. Our reversal necessarily went to the merits, aimed as it was at the failure of the trial court to grant Fameco's motions for directed verdict and judgment notwithstanding the verdict. See McCown v. Muldrow, 91 S.C. 523, 74 S.E. 386 (1912) (a directed verdict motion involves the merits and a judgment rendered thereupon is res judicata as to all questions properly arising under the pleadings); Cutts v. Casey, 278 N.C. 390, 180 S.E.2d 297 (1971) (a defendant is entitled to a judgment on the merits when the court grants a motion for a directed verdict under Rule 50(a)); 88 C.J.S. Trial Sec. 238b at 547 (1955) (a direction of a verdict concludes the controversy and is a bar to a second action); 50 C.J.S. Judgments Sec. 625 at 51 (1947) (a judgment has all the characteristics necessary to constitute it res judicata where the reversal shows an intention finally to...