Lexington Developers, Inc. v. O'Neal Const. Co., Inc.

• Decision Date: 07 October 1977
• Docket Number: No. 54272,No. 2,54272,2
• Citation: 238 S.E.2d 770,143 Ga.App. 440
• Parties: LEXINGTON DEVELOPERS, INC. v. O'NEAL CONSTRUCTION COMPANY, INC
• Court: Georgia Court of Appeals

Page 770

238 S.E.2d 770

143 Ga.App. 440

LEXINGTON DEVELOPERS, INC. v. O'NEAL CONSTRUCTION COMPANY, INC.

No. 54272.

Court of Appeals of Georgia, Division No. 2.

Oct. 7, 1977.

Richard Feldman, Atlanta, for appellant.

Cunningham & Clarke, Brian W. Wertheim, Raymond A. Cunningham, Decatur, for appellee.

QUILLIAN, Presiding Judge.

On March 29, 1974, Lexington Developers entered into a contract with O'Neal Construction Company, wherein O'Neal was, inter alia, to perform construction work on Colony Square in Albany, Georgia. Before construction was completed, a fire occurred. In June, 1976, O'Neal brought an action against Lexington in Fulton County. Lexington failed to answer and default judgment was taken. Lexington's motion to open default was denied. On December 8, 1976, on the issue of damages, the jury verdict for O'Neal in the amount of $130,000 was made the judgment of the court. Lexington appealed. This court reversed, 142 Ga.App. 434, 236 S.E.2d 98, holding there was defective service as shown on the face of the pleadings. After motion for rehearing was denied, O'Neal petitioned for certiorari. The Supreme Court has not ruled upon that petition. Meanwhile, on December 3, 1976, five days before verdict and judgment in O'Neal's action against Lexington, Lexington brought this action against O'Neal in the State Court of DeKalb County, based upon the same contract, alleging O'Neal materially breached the contract. O'Neal answered and asserted as one of its defenses, res judicata, based on the former judgment obtained in its action against the plaintiff. Lexington contended the former judgment was not final as it was on appeal. O'Neal's motion for summary judgment was granted. Lexington appeals. Held :

Our Code provides that "(a) judgment of a court of competent jurisdiction shall be conclusive between the same parties . . . 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 such judgment shall be reversed or set aside." Code § 110-501. This is the codification of res judicata in Georgia. See 50 C.J.S. Judgments § 592. The issue presented by the facts in the instant case is whether the affirmative defense of res judicata can be asserted in a case when there is a case pending between the same parties on the same contract, in another court of competent jurisdiction.

It is the general rule that a judgment sought to be used as a basis for the application of the doctrine of res judicata must be a final judgment. 46 Am.Jur.2d Judgments § 457; Annot. 9 A.L.R.2d 984. In Georgia a judgment is suspended when an appeal is entered within the time allowed. Code § 110-303. And the judgment is not final as long as there is a right to appellate review. Chlupacek v. Chlupacek, 226 Ga. 520(3), 175 S.E.2d 834. As the first trial in the instant case is not final it cannot act as res judicata because res judicata is a bar to subsequent action between the same parties seeking similar relief. Salter v. Heys, 207 Ga. 591, 593, 63 S.E.2d 376; Walker v. Hamilton, 210 Ga. 155(2), 78 S.E.2d 511.

In addition to the foregoing, this court having reversed the trial court because...