Nitz v. Nitz, C8-89-2204
| Decision Date | 29 May 1990 |
| Docket Number | No. C8-89-2204,C8-89-2204 |
| Citation | 456 N.W.2d 450 |
| Parties | Karen NITZ, Appellant, v. David NITZ, defendant and third-party plaintiff, Respondent, v. DAVID NITZ, INC., third-party defendant, Respondent. |
| Court | Minnesota Court of Appeals |
Syllabus by the Court
Where two successive suits involve the same parties and seek recovery for the same injuries, though on different legal theories, the dismissal of the first on statute of limitations grounds has res judicata effect on the later suit.
Donald C. Long, Stoneking and Long, P.A., Michael A. Trittipo, Fredrickson and Byron, P.A., Minneapolis, for Karen Nitz.
R. Stephen Tillitt, Barry G. Vermeer, Gislason, Dosland, Hunter and Malecki, Minnetonka, for David Nitz.
William J. Egan, Eric J. Magnuson, Rider, Bennett, Egan and Arundel, Minneapolis, for David Nitz, Inc.
Considered and decided by SCHUMACHER, P.J., and FORSBERG and KLAPHAKE, JJ.
This appeal is from a judgment dismissing appellant Karen Nitz's claims against respondent David Nitz on res judicata grounds. Respondent has filed a notice of review, challenging dismissal of his third-party claims against respondent David Nitz, Inc. ("Corporation"). We affirm.
The facts of this case involve three lawsuits: Nitz I, Nitz II, and Nitz III. This appeal involves dismissal of claims raised in Nitz II.
In May 1980, appellant and respondent, who is her husband and the president of the Corporation, moved into a new home built by the Corporation. Appellant purchased a birdfeeder, which she had installed on a second-story deck by one of the Corporation's employees.
On June 30, 1981, appellant was filling the birdfeeder when the post by which it was attached to the deck gave way. Appellant fell from the deck and sustained permanent injuries to her spine.
In Nitz I, appellant and respondent sued the Corporation for negligent installation of the birdfeeder. The Corporation filed a counterclaim against respondent for contribution or indemnity. In July 1986, the trial court dismissed the complaint with prejudice after determining the suit was barred by Minn.Stat. Sec. 541.051, subd. 1 (1984), the two-year statute of limitations for improvements to real property. The trial court's decision was subsequently affirmed by this court. See Nitz v. Nitz, Inc., 403 N.W.2d 652 (Minn.App.1987).
Nitz II, which is the subject of this appeal, was commenced in August 1986. In Nitz II, appellant sued respondent for negligent maintenance and inspection of the birdfeeder. Respondent brought a third-party action against the Corporation for contribution and/or indemnity.
Nitz III was commenced in June 1987 when appellant and respondent again sued the Corporation, this time for negligent design of the birdfeeder. The Corporation counterclaimed against respondent for contribution and/or indemnity. In May 1988, the trial court consolidated Nitz II and Nitz III.
In connection with Nitz II, respondent moved for summary judgment against appellant on the ground her claims were barred by res judicata. The Corporation followed with motions for summary judgment against respondent in Nitz II and against appellant and respondent in Nitz III. The Corporation's motions were also based on res judicata grounds.
The trial court eventually granted those motions for summary judgment, and dismissed the claims raised in both Nitz II and Nitz III. This appeal followed entry of judgment.
Did the trial court err in dismissing appellant's claims against respondent in Nitz II on res judicata grounds?
Summary judgment is proper where no material issues of fact exist and one party is entitled to judgment as a matter of law. Minn.R.Civ.P. 56.03.
Res judicata bars a second suit for the same claim by the same party. The doctrine has been described as follows:
A judgment on the merits constitutes an absolute bar to a second suit for the same cause of action, and is conclusive between parties and privies, not only as to every matter which was actually litigated, but also as to every matter which might have been litigated therein.
Hauser v. Mealey, 263 N.W.2d 803, 807 (Minn.1978) (quoting The Youngstown Mines Corp. v. Prout, 266 Minn. 450, 466, 124 N.W.2d 328, 340 (1963)) (emphasis deleted).
1. Appellant argues Nitz II involves different claims than those presented in Nitz I. A test for determining whether two successive suits involve the same claims is to inquire whether both actions arise from the "same operative nucleus of facts." Anderson v. Werner Continental, Inc., 363 N.W.2d 332, 335 (Minn.App.1985), pet. for rev. denied (Minn. June 24, 1985).
Here, the facts of the two cases are virtually identical. In both complaints, appellant alleges she was filling the birdfeeder when the post gave way, causing her to fall. Both complaints allege the birdfeeder was not properly or adequately attached to the deck. Both complaints seek compensation for the injuries received as a result of this fall. Thus, there is no material difference between the facts appellant would have had to prove at a trial in either case.
Indeed, the only difference between the two actions is appellant's theory of liability: in Nitz I she and respondent claimed the Corporation negligently installed the birdfeeder; in Nitz II she claims respondent negligently maintained and repaired the birdfeeder. A change in theory cannot be used to avoid res judicata. See Antonson v. Ekvall, 295 Minn. 558, 204 N.W.2d 446 (1973) (); Dollar Travel Agency, Inc. v. Northwest Airlines, Inc., 354 N.W.2d 880, 882-83 (Minn.App.1984) ().
Appellant further asserts she could not have brought a claim for negligent maintenance and repair in Nitz I because the Corporation was not the owner in possession of the property where the injury occurred. However, appellant could have sued respondent directly, and respondent still could have pursued his loss of consortium claim against the Corporation. Regardless of appellant's reasons for not doing so, whether personal or strategic, she is bound by her decision and should not be allowed to split her claims and bring successive suits involving the same set of facts. See Hauser, 263 N.W.2d at 807.
2. Appellant next argues the parties in Nitz II are not identical to those involved in Nitz I. In Nitz I, appellant and respondent sued the Corporation, and the Corporation filed a counterclaim against respondent. Here in Nitz II, appellant is suing respondent, and respondent has brought a third-party action against the Corporation.
The doctrine of res judicata generally applies where "the issues being litigated were...
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