Judy v. Judy

• Decision Date: 05 August 2011
• Docket Number: No. 26987.,26987.
• Citation: 393 S.C. 160,712 S.E.2d 408
• Court: South Carolina Supreme Court
• Parties: James T. JUDY, Petitioner,v.Ronnie JUDY, Respondent.

393 S.C. 160

712 S.E.2d 408

James T. JUDY, Petitioner,

v.Ronnie JUDY, Respondent.

No. 26987.

Supreme Court of South Carolina.

Heard Feb. 3, 2011.Decided June 20, 2011.Rehearing Denied Aug. 5, 2011.

Capers G. Barr, III, of Barr, Unger & McIntosh, of Charleston, for Petitioner.R. Bentz Kirby, of Orangeburg, for Respondent.Justice BEATTY.

Following the resolution of his partition action in probate court, James Judy (“James”) filed suit in circuit court asserting a cause of action for waste against his brother, Ronnie Judy (“Ronnie”), for the destruction of a pond located on a tract of real property involved in the partition action. A jury found in favor of James and awarded him actual and punitive damages. Ronnie appealed the jury's verdict, arguing the circuit court erred in declining to dismiss the suit against him on the basis of laches, collateral estoppel, or res judicata, and in declining to permit him to amend his Answer to include the defense of waiver.

On appeal, the Court of Appeals affirmed the circuit court's refusal to dismiss Ronnie's suit on the basis of collateral estoppel and laches. The court, however, reversed the circuit court's refusal to dismiss the suit on the basis of res judicata. Judy v. Judy, 383 S.C. 1, 677 S.E.2d 213 (Ct.App.2009). This Court granted James's petition for a writ of certiorari to review the decision of the Court of Appeals as to whether res judicata operated to preclude the waste lawsuit. We affirm.

I. Factual/Procedural History

On May 13, 1983, Vesta Rumph (“Mrs.Rumph”) died testate, leaving three parcels of real property in Dorchester County to be distributed equally between Ronnie and James. The three parcels included: (1) a 10.9–acre tract (“10.9–acre Tract”); (2) a 9.29–acre tract, on which the Rumph family homestead stood (“Homestead Tract”); and (3) a 134.71–acre tract, which included an 11–acre, man-made pond (“Pond Tract”).

Although the property was not formally distributed for many years, the brothers orally agreed that Ronnie would take possession of the Homestead Tract and live in the Rumph homestead, and James would take possession of the remaining two tracts. From July 1983 until October 15, 2001, Ronnie served as personal representative of Mrs. Rumph's estate (“Estate”).

On February 8, 2001, James filed suit in probate court ¹ seeking partition of the Estate's property.² On February 12, 2001, Ronnie executed a Deed of Distribution in his capacity as personal representative of the Estate granting ownership of the three tracts to himself and James as the heirs.

As a result of alleged dubious transactions regarding the property, James petitioned to have Ronnie removed as personal representative of the Estate. On October 15, 2001, the probate court removed Ronnie as personal representative of the Estate and appointed James in his place.

In early May 2003, someone operating a backhoe damaged the earthen dam supporting the eleven-acre, man-made pond on the Pond Tract, and the pond drained completely. On May 5, 2003, detectives with the Dorchester County Sheriff's Office investigated the destruction of the pond. During their investigation, the detectives discovered that the locked gate to the pond had been forcibly torn down, and backhoe tracks were found leading from the breached dam into Ronnie's backyard where his backhoe was located.

On November 7, 2003, James again petitioned the probate court to partition the property. In his petition, James requested the probate court take into consideration the co-devisees' conduct before issuing an order equitably partitioning the subject property, including “Ronnie F. Judy's negligent, grossly negligent, or intentional acts causing the destruction of the fishing pond located on the subject property.” During the partition hearing, James presented expert testimony that established the value of the Pond Tract would have been worth $1,000 more per acre had the pond not been destroyed.

By order dated January 7, 2004, the probate court granted the requested relief. The probate court awarded ownership of the Pond Tract to James and the 10.9–acre Tract and Homestead Tract to Ronnie. In assessing the value of the three parcels, the court did not consider Ronnie's “alleged destruction” of the pond because James specifically withdrew this claim and requested that the court not “factor in such loss of value when computing the amount of property each party shall receive.” The court held “all other issues regarding money owed to either party on these parcels of land to be moot.”

On November 29, 2005, James filed an action against Ronnie in circuit court arising out of the destruction of the man-made pond.³ In his Complaint, James alleged “the acts of [Ronnie] in willfully and maliciously destroying the earthen dam of Rumph's pond constitute[d] waste.” Due to the loss of the pond, James sought actual and punitive damages. In response, Ronnie filed a pro se Answer in which he generally denied the allegations. On the eve of trial, Ronnie's recently-retained counsel moved to dismiss for lack of subject matter jurisdiction on the grounds that James's lawsuit was barred by the doctrines of laches, collateral estoppel, and res judicata. Additionally, counsel moved to amend Ronnie's Answer to add the defense of waiver.

On April 9, 2007, the circuit court conducted a jury trial on James's cause of action for waste. Prior to trial, the circuit court denied Ronnie's motion to dismiss but indicated that the issues could be addressed at the directed verdict stage of the trial.

During the trial, the probate court's order was introduced as evidence and discussed during James's testimony. During James's cross-examination, he acknowledged that he had filed an action in probate court alleging that Ronnie destroyed the dam but requested that the probate court not rule on the matter because he “would settle this at a later date.” James further admitted that his expert, who testified during the circuit court proceedings, testified at the probate court hearing regarding the reduction in the overall value of the Pond Tract due to the destruction of the pond.

At the close of the case, Ronnie renewed his motion to dismiss. In denying the motion to dismiss, the circuit court found an “ambiguity” in the probate court's order that was to be construed in favor of James.

Subsequently, Ronnie moved to amend his Answer to allege the doctrines of laches, waiver, res judicata, and collateral estoppel. Although the court permitted the amendments with the exception of waiver, the court ruled against Ronnie and submitted the case to the jury.

The jury found in favor of James and awarded him $67,350 actual damages and $22,650 punitive damages.

After the circuit court denied Ronnie's post-trial motions, Ronnie appealed to the Court of Appeals. The Court of Appeals affirmed the circuit court's refusal to dismiss James's suit on the basis of collateral estoppel and laches, but found that James's suit for waste was barred on the basis of res judicata. Judy v. Judy, 383 S.C. 1, 677 S.E.2d 213 (Ct.App.2009).⁴ In reaching this conclusion, the court held “the identity of the subject matter of the two suits rests not in their forms of action or the relief sought, but rather, in the combination of the facts and law that give rise to a claim for relief.” Id. at 10, 677 S.E.2d at 218.

II. Discussion

James contends the Court of Appeals erred in finding that his lawsuit for waste was barred by res judicata. In support of this contention, James claims the prior probate court action was conducted for the limited purpose of partitioning the real property of the Estate. Because the subject matter of his waste claim was not identical to the partition action, James asserts that the requisite elements of the doctrine of res judicata were not satisfied. Thus, he avers that he should not have been precluded from pursuing his claim for waste in the circuit court.

There are very few reported cases discussing the tort of waste. However, one decision defined this tort as: “At common law, waste is any permanent injury to lands, houses, gardens, trees, or other corporeal hereditaments done or permitted by the tenant of an estate less than a fee to the prejudice of him in reversion or remainder.” Wingard v. Lee, 287 S.C. 57, 60, 336 S.E.2d 498, 500 (Ct.App.1985). “Waste may be committed by acts or omissions which tend to the lasting destruction, deterioration, or material alteration of the freehold and the improvements thereto or which diminish the permanent value of the inheritance.” Id. “Whether particular acts or omissions constitute waste depends on matters of fact, including: the nature, purpose, and duration of the tenancy; the character of the property; whether the acts complained of are related to the use and enjoyment of the property; whether the use is reasonable in the circumstances; and whether the acts complained of are reasonably necessary to effectuate such use.” Id.

In order for res judicata to operate as a bar to James's lawsuit for waste, the following elements needed to be proven: (1) identity of the parties; (2) identity of the subject matter; and (3) adjudication of the issue in the former suit. Riedman Corp. v. Greenville Steel Structures, Inc., 308 S.C. 467, 419 S.E.2d 217 (1992).

Our courts, however, have found that the doctrine of res judicata is not an “ironclad” bar to a later lawsuit. Garris v. Governing Bd. of the South Carolina Reinsurance Facility, 333 S.C. 432, 449, 511 S.E.2d 48, 57 (1998).

Significantly, the Restatement (Second) of Judgments has recognized exceptions to the application of this doctrine.⁵ See Restatement (Second) of Judgments § 26 (1982 & Supp.2011); id. (noting in commentary that section 26 “presents a set of exceptional cases in which, after judgment that would otherwise extinguish the claim under the rules of merger or bar ..., the plaintiff is nevertheless free to maintain a second action on the same claim or part of...