Security State Bank v. Gugelman
| Decision Date | 13 January 1989 |
| Docket Number | No. 87-308,87-308 |
| Citation | 230 Neb. 842,434 N.W.2d 290 |
| Parties | SECURITY STATE BANK, A Nebraska Banking Corporation, Appellant, v. Raymond L. GUGELMAN, Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Res Judicata. The doctrine of res judicata is founded on a public policy and necessity that litigation be terminated and a belief that a person should not be vexed more than once for the same cause.
2. Res Judicata. Any right, fact, or matter in issue and directly adjudicated in a prior proceeding, or necessarily involved in the determination of the action before a competent court in which the judgment or decree was rendered upon the merits, is conclusively settled by the judgment.
3. Res Judicata: Appeal and Error. The law of the case is restricted to questions presented to and decided by this court at the former hearing in the case and those questions necessarily involved in the decision.
4. Res Judicata: Appeal and Error. A decision of this court upon a former appeal is controlling only as to the actual point determined in that appeal.
5. Res Judicata. The doctrine of res judicata does not apply where the court determines that the litigant has not fulfilled a condition precedent to the bringing of the suit and because of such failure is not entitled to the relief sought in the first action.
6. Partnerships: Liability: Debtors and Creditors. Ordinarily, general partners are jointly liable for the debts and obligations of the partnership.
7. Partnerships. General partners may place restrictions on the authority of other partners to bind them as to particular transactions.
8. Partnerships: Debtors and Creditors. A provision in a partnership agreement that the partners shall be general partners in the operation of the partnership, but no partner shall bind the other partner as to each partner's personal and real estate assets, is contrary to law and ineffective to avoid liability for a partnership debt incurred by the other partner within that partner's authority.
James E. Doyle IV, of Cook & Doyle, P.C., Lexington, for appellant.
Charles J. Cuypers, of Sherwood Law Office, Oxford, for appellee.
The plaintiff, Security State Bank, has appealed from the judgment of the district court sustaining the motion of the defendant, Raymond L. Gugelman, for summary judgment and dismissing the petition of the plaintiff for an order of execution against the property of the defendant to satisfy a judgment against the partnership in which the defendant was a partner.
In 1980, the defendant and Marian E. McCoy formed a general partnership known as Antiques Etc. The partnership agreement contained the following provision:
V.
Each partner hereto shall be a general partner in the operation of the partnership only and may bind the other partner only as to the partnership business and assets. Neither partner shall bind the other partner as to each partners [sic] personal and real estate assets outside of the partnership.
Commencing in 1981, McCoy executed a number of promissory notes to obtain funds which were used in the operation of the partnership. It is undisputed that the bank was furnished a copy of the partnership agreement and had notice of paragraph V of the agreement. In 1983, the bank, in separate actions, recovered judgments against the partnership for the amounts due on the notes, but each judgment provided the defendant Gugelman had no personal liability to the bank except under a separate personal guaranty agreement, in which he had personally guaranteed indebtedness of McCoy up to $25,000. The bank then perfected appeals to this court in each case.
In Security State Bank v. McCoy, 219 Neb. 132, 361 N.W.2d 514 (1985), we affirmed the judgments and held that under Neb.Rev.Stat. § 25-316 (Reissue 1985), the bank could not proceed against the individual partners until there was a showing that the property of the partnership had been exhausted.
Section 25-316 provides as follows:
If the plaintiff, in any judgment so rendered against any company or partnership, shall seek to charge the individual property of the persons composing such company or firm, it shall be lawful for him to file a bill in equity against the several members thereof, setting forth his judgment and the insufficiency of the partnership property to satisfy the same, and to have a decree for the debt, and an award of execution against all such persons, or any of them as may appear to have been members of such company, association or firm.
On July 30, 1986, the bank filed its petition against the defendant Gugelman and McCoy, alleging that it had recovered judgments against the partnership on March 24, 1983, in the amount of $44,402.98; that an execution issued May 9, 1986, had been returned unsatisfied; and that the partnership had insufficient property to satisfy the judgments. The petition prayed for a decree charging the individual property of the partners with the amount of the debt and for an award of execution against the partners and their personal property. The plaintiff and the defendant Gugelman filed motions for summary judgment. The defendant's motion alleged that the judgments in the prior actions were res judicata as to all of the issues.
The trial court found that the decisions in the prior actions were the law of the case, sustained the defendant's motion for summary judgment, and dismissed the plaintiff's petition. The plaintiff has appealed.
The assignments of error are that the trial court erred (1) in finding that the decision on the prior appeal was the law of the case and barred any recovery by the plaintiff against the defendant on the judgments against the partnership, and (2) in overruling the plaintiff's motion for summary judgment.
The doctrine of res judicata is founded on a public policy and necessity that litigation be terminated and a belief that a person should not be vexed more than once for the same cause. DeCosta Sporting Goods, Inc. v. Kirkland, 210 Neb. 815, 316 N.W.2d 772 (1982). The doctrine of res judicata encompasses not only issues actually litigated in a prior proceeding, but also issues which could have...
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