Lesley v. City of Montgomery

• Decision Date: 14 February 1986
• Citation: 485 So.2d 1088
• Parties: Stanley H. LESLEY v. The CITY OF MONTGOMERY, et al. 84-706.
• Court: Alabama Supreme Court

Page 1088

485 So.2d 1088

Stanley H. LESLEY v. The CITY OF MONTGOMERY, et al.

84-706.

Supreme Court of Alabama.

Feb. 14, 1986.

Rehearing Denied March 21, 1986.

Timothy C. Halstrom of Riggs, Nesmith & Halstrom, Montgomery, for appellant.

J. Bernard Brannan, Jr., Montgomery, for appellee The City of Montgomery.

Jack F. Norton, Chief Counsel and Jerry L. Weidler, Asst. Counsel, for appellees Ray D. Bass and Alabama Highway Dept.

Thomas T. Gallion III of Hooper, Gallion & Wilkerson, Montgomery, for appellee William B. Goodwyn, Inc.

Richard B. Garrett of Rushston, Stakely, Johnston & Garrett, Montgomery, for appellee The Central of Georgia Ry., Inc.

MADDOX, Justice.

This is an appeal by plaintiff Stanley H. Lesley from a motion to dismiss granted in favor of all defendants, namely the City of Montgomery, Central of Georgia Railway, Inc., W.D. Goodwyn, Inc., and Ray D. Bass, the Alabama State Highway Director.

Lesley claims $300,000 damages from defendants for interfering with his right of access to his property by building a three-foot-high retaining wall in front of his property. The lower court held that this action is barred by Lesley's earlier suit seeking to enjoin construction of the wall. We agree.

Lesley is the owner of Griffin Radio and Television, an electronics repair shop on Highland Avenue in Montgomery. He also owns the property upon which the building is located. The building covers almost the entire area of the property.

Immediately adjacent to and west of this property is a railroad track owned and operated by the Central of Georgia Railway. Sometime prior to July 28, 1983, the City of Montgomery announced plans to raise the height of an existing bridge on Highland Avenue, which spans the railroad track, in order to comply with federal regulations. In order to raise the bridge, construction plans required building a retaining wall in front of Lesley's business. It is undisputed that this wall was to be built entirely within the city's right-of-way and 10 to 12 feet from the front of Lesley's business.

On July 28, Lesley filed a complaint with the Circuit Court of Montgomery County requesting a preliminary injunction to halt the construction, alleging that the construction would interfere with his right of access to his business and amount to a taking of his property without compensation. After a full hearing on this complaint on August 17, 1983, Lesley's request was denied. As we indicate in part II of this opinion, we find the judgment to have been an adjudication as to an essential element of this second action.

Lesley filed a notice of appeal of this order, but subsequently moved to dismiss the appeal. This Court dismissed the appeal on January 6, 1984.

By October 12, 1984, construction was complete. On that date, Lesley filed the current action with the Circuit Court of Montgomery County, seeking damages for interference with his right of access to his business. The defendants in this second action were the same as those in the first action, except that Highway Director Ray D. Bass was added as a party.

The defendants filed individual motions to dismiss, raising the defense of res judicata. On March 4, 1985, all defendants except W.D. Goodwin, Inc., were dismissed. On March 19, 1984, W.D. Goodwin was dismissed also. Lesley appeals from those judgments.

In its first order granting the motions to dismiss, the trial court stated:

"The same issues presented here have previously been presented in the case of Lesley v. City of Montgomery, Case No. CV-83-1056-TH., in the Circuit Court of Montgomery County, Alabama. The plaintiff therein requested the court grant a preliminary injunction based upon the taking of property without just compensation. The court was required in that case to determine that there was not a taking without the payment of compensation in denying the plaintiff's request for injunctive relief. The plaintiff alleged that the defendants would take his property and that they had failed to comply with the statutory requirements for the power of eminent domain and because of such should be enjoined. The court determined that because the defendants only acted upon their own right-of-way there was no taking and there was no violation of the law of eminent domain. That case involved the same facts and issues which are presented in the instant case, and the court ruled contrary to the plaintiff. The plaintiff appealed and subsequently dismissed his appeal. This previous trial and judgment in favor of the defendant[s] involving the same facts and circumstances as herein alleged operates as res judicata."

In Wheeler v. First Alabama Bank of Birmingham, 364 So.2d 1190, 1199 (Ala.1978), we set out the elements of res judicata as follows:

"(1) [P]rior judgment rendered by court of competent jurisdiction; (2) prior judgment rendered on the merits; (3) parties to both suits substantially identical; and (4) same cause of action present in both suits."

The doctrine of res judicata prohibits the relitigation of all matters which were or could have been litigated in the prior action. Century 21 v. Alabama Real Estate Comm'n, 401 So.2d 764 (Ala.1981). This doctrine is based on the notion that:

"A party ... is not at liberty to split up his demand and prosecute it by piecemeal, or present only a portion of the grounds upon which special relief is sought, and leave the rest to be presented in a second suit, if the first fails. There would be no end to litigation if such a practice were permissible."

Century 21, 401 So.2d at 768, citing Baltimore Steamship Co. v. Phillips, 274 U.S. 316, 320, 47 S.Ct. 600, 602, 71 L.Ed. 1069 (1927).

I

Lesley first contends that the same cause of action was not present in both suits because the first suit sought injunctive relief pending a final determination of the legal rights of the parties, while the second suit sought damages for the diminution of the value of the property, for lost profits, and for the loss in value of his business. We disagree.

In discussing whether two separate suits were based on the same cause of action, this Court wrote in Geer Brothers, Inc. v. Crump, 349 So.2d 577, 581 (Ala.1977):

"What is a cause of action? Commenting on that very point in Sessions [v. Jack Cole Co., 276 Ala. 10, 12, 158 So.2d 652, 654 (1963) ], this Court quoted from Chappell v. Boykin, 41 Ala.App. 137 , 127 So.2d 636 (1960):

" 'In a majority of jurisdictions in the United States, the rule is that a single act causing simultaneous injury to the physical person and to property of one individual gives rise to only one cause of action, and not to separate causes based on the one hand on personal injury, and on the other on property damage. The basis of the rule is that a 'cause of action' grows out of the wrongful act and not the various forms of damages that may flow from the single wrongful act.'

and then quoted from Birmingham Southern Ry. Co. v. Lintner, 141 Ala. 420 , 38 So. 363 (1904):

" 'It may be stated as a very general if not universal proposition that one who is entitled to sue at all for the consequences of a wrongful act may recover all the damages that such act has proximately inflicted upon him. His cause of action is the one wrongful act of the defendant.' "

Further, the Court stated:

"The test for determining this question is whether the issues in the two suits are the same and whether the same evidence would support a recovery in both suits.... There is no doubt that the issues in the instant action would be identical with the issues in the wrongful death action and would be supported by the same evidence save for proof of each element of damage. This latter circumstance is not grounds for distinguishing the issues of each cause. (Emphasis supplied.)"

Geer Brothers, 349 So.2d at 580, citing Sessions, 276 Ala. at 13, 158 So.2d at 655.

Thus, whether the same cause of action is presented in successive suits depends on whether the act of the defendant is the same in each case, and whether the same evidence would support a recovery in both suits.

Clearly, the defendants' act that Lesley contends is wrongful, namely, constructing a retaining wall, is the same in both suits. Further, in his action for an injunction, Lesley alleged that his right of access to his business would be interfered with if the wall was built. In his second suit, he contends that this same act of interference has caused him damages. The mere fact that the relief sought varies in the two cases, one injunctive and the other monetary, does not mean that there are separate causes of action in the two cases.

Admittedly, there is a division of opinion among the jurisdictions that have considered this question. As one court has stated:

" 'This presents a question upon which there is a sharp division of authority, particularly where the second suit is one at law for damages. A statement by the textwriter in 28 Am.Jur., Injunctions, Sec. 309, indicates that most courts favor the proposition that, where damages are not sought as incidental to an injunction, the decree granting the injunction is not a bar to an action at law for past damages on account of the thing enjoined. However, other courts hold that an injunction decree is a bar to an action at law for past damages regardless of whether the plaintiff in the injunction suit pleaded damages, and regardless of whether there was an attempt to recover damages in that suit. The textwriter's statement as to the majority rule is based upon an annotation in 14 A.L.R. 543. A more recent annotation on the question in 26 A.L.R.2d 446 indicates that most courts, including our own, hold that a decree deciding an injunction suit is res judicata in a subsequent action for damages of all issues determined in the injunction proceeding. Our own cases go further and hold that...