Swofford v. Stafford, 87-325

• Decision Date: 09 May 1988
• Docket Number: No. 87-325,87-325
• Citation: 295 Ark. 433,748 S.W.2d 660
• Parties: Christine SWOFFORD and Harold Swofford, Appellants, v. Mark STAFFORD and Bobby Ward, Appellees.
• Court: Arkansas Supreme Court

Page 660

748 S.W.2d 660

295 Ark. 433

Christine SWOFFORD and Harold Swofford, Appellants, v. Mark STAFFORD and Bobby Ward, Appellees.

No. 87-325.

Supreme Court of Arkansas.

May 9, 1988.

John Wesley Hall, Jr., Little Rock, for appellants.

Mark Stodola, City Atty., Victra L. Fewell, Asst. City Atty., Little Rock, for appellees.

DUDLEY, Justice.

In 1984, in a prior case, the appellant, through other counsel, filed a replevin action against the appellees and the Cities of Little Rock and North Little Rock. The complaint alleged that in 1984 appellees Stafford and Ward "arrested plaintiffs and transported them to the North Little Rock Police Department and placed them in jail and proceeded to interrogate them and to insist upon searching plaintiffs' residence premises." The appellants sought the recovery of the property seized and damages for the wrongful detention of the property. The trial court found that the appellees and the two cities had no right, title, or interest in the property and ordered it delivered to appellants. The order of delivery neither awarded damages nor reserved the issue of damages for future determination. At a later date the trial court, apparently on its own motion under Rule 10 of the Rules of Circuit and Chancery Courts, entered an order of dismissal for failure to prosecute. Still later, in 1987, with present counsel, the appellants filed the case at bar against the appellees. They restate, with more particularity, the circumstances surrounding their 1984 arrest, detention, and interrogation. In addition, appellants aver that appellees Stafford and Ward acted to cause a second and third arrest of appellant Harold Swofford on related charges. They seek damages against the two appellee police officers under 42 U.S.C. § 1983 and under state law for false arrest and illegal search, malicious prosecution, and intentional infliction of emotional distress. The trial court held that the prior action precludes the claim in this action. We affirm that holding.

The claim preclusion part of the doctrine of res judicata bars relitigation of a subsequent suit when (1) the first suit resulted in a judgment on the merits; (2) the first suit was based upon proper jurisdiction; (3) the first suit was fully contested in good faith; (4) both suits involve the same claim or cause of action which was litigated or could have been litigated but was not; and (5) both suits involve the same parties or their privies. Bailey v. Harris Brake Fire Protection Dist., 287 Ark. 268, 697 S.W.2d 916 (1985). Appellants argue on appeal that the trial court erred because factors numbered (1) and (4), a final order and same cause of action, are not present. The arguments are without merit.

Appellants first argue that the claim in the case at bar should not be precluded because there was no final judgment in the first suit. Appellants' abstract does not reflect that this issue was raised below or ruled upon by the trial court. We will not consider issues raised for the first time on appeal. Griffin-Payne, Inc. v. Union Bank, 289 Ark. 182, 710 S.W.2d 201 (1986). Accordingly, we do not consider this point of appeal.

Appellants' next point is that the facts and issues between the two cases are different and that the trial court erred in applying the doctrine of claim preclusion. The trial court ruled correctly.

The complaint in the replevin action recited the operative facts of the arrest of the appellants, their transportation to and interrogation at the North Little Rock Police Department, their incarceration, and the search of their home. The case at bar is based on the same events and subject matter. It only raises new legal issues and seeks additional remedies.

Issues and remedies raised in the subsequent suit do not have to be identical to those raised in the initial suit in order for the claim preclusion part of res judicata to apply. In Benedict v. Arbor Acres Farm, Inc., 265 Ark. 574, 577, 579 S.W.2d 605, 607 (1979), we wrote:

The law of res judicata provides that a prior decree bars a subsequent suit when the subsequent cause involves the same subject matters as that determined or which could have been determined in the former suit between the same parties; the bar extends to those questions of law and fact which "might [well] have been but were not presented."

In Taggart v. Moore, 292 Ark. 168, 171, 729 S.W.2d 7, 9 (1987) (citations omitted), we wrote:

One of the main purposes of the doctrine of res judicata is to put an end to litigation by precluding a party who has had the opportunity for one fair trial from drawing the same controversy into issue a second time before the same or a different court.... Res judicata applies even if the issue was not litigated in the first trial if it should have been included in the former trial.

Accordingly, we affirm the ruling of the trial court that the case at bar is barred by the claim preclusion part of the doctrine of res judicata. Because we affirm the ruling of the trial court on this point, we need not discuss the other point of appeal, which concerns an alternative reason to dismiss this case.

Affirmed.

PURTLE, J., dissents.

PURTLE, Justice, dissenting.

I think the majority is wrong in ruling that the doctrine of res...