Taggart v. Moore, 86-271
| Decision Date | 11 May 1987 |
| Docket Number | No. 86-271,86-271 |
| Citation | 729 S.W.2d 7,292 Ark. 168 |
| Parties | James Burt TAGGART, Appellant, v. W.H. MOORE, and Polly Moore, Appellees. |
| Court | Arkansas Supreme Court |
Southern, Allen, James & Jones by Langdon R. Jones, Little Rock, for appellant.
Hoofman & Bingham by Clifton H. Hoofman, N. Little Rock, Friday, Eldredge & Clark by George Pike, Jr., Little Rock, for appellees.
The Pulaski County Circuit Court, Second Division, dismissed appellant's complaint for damages for breach of an alleged oral contract not to collect on a judgment. The trial court dismissed the complaint stating that the action was barred by the doctrines of res judicata and election of remedies and was not in compliance with the opinion of the Court of Appeals in the appeal of a previous action growing out of the same dispute. The appellant argues four points for reversal: (1) the trial court erred in dismissing the complaint on the doctrine of res judicata; (2) the court erred in dismissing on the doctrine of election of remedies; (3) the court erred in dismissing the case because the appellee did not plead the doctrines of res judicata and election of remedies; and (4) the trial court erred in holding that the Court of Appeals' opinion precluded the present action. For reasons stated herein, we find that none of the four arguments requires reversal.
The history of this case is very complex. The dispute arises out of a judgment obtained by the Moores (appellees) in an action on a contract brought by third parties against both Taggart (appellant) and the Moores in which the Moores had cross-complained against Taggart and other codefendants. The appellant bases his complaint on the allegation that he agreed to cooperate with the Moores in the litigation in return for their promise not to collect any judgment which might be rendered against him. The suit against both Taggart and the Moores proceeded to trial and judgment was entered on September 10, 1981. Judgment was rendered against Taggart on the cross-complaint in the amount of $32,903.16.
The Moores attempted to collect the judgment from Taggart, and he filed a complaint in the Pulaski County Chancery Court on February 18, 1982, in which he sought to enjoin enforcement of the judgment based upon the alleged oral agreement not to enforce the judgment. (This judgment has subsequently been paid by the appellant.) The complaint was amended twice. The answers raised several defenses, including lack of jurisdiction, limitations, laches, estoppel, and res judicata. On May 24, 1982, the chancery court transferred the case to circuit court upon the motion of appellees. Notice of appeal from the order of transfer was filed on June 4, 1982.
The appellant stood upon his pleadings after the case had been transferred to the circuit court. The Moores moved for dismissal, and on June 25, 1982, the circuit court dismissed the complaint. The court dismissed the complaint stating that it had no jurisdiction to enjoin enforcement of the judgment and that the remedy sought "is a separate remedy independent of the action giving rise to the judgment itself; such action ... is a chancery matter ...." Notice of appeal was given on July 1, 1982.
The Court of Appeals affirmed on May 4, 1983. See Taggart v. Moore, 8 Ark.App. 160, 650 S.W.2d 590 (1983). Rehearing denied at 164. The Court of Appeals stated that the appellant was entitled to be heard and concluded that the proper forum was the court which entered the original judgment, "but only upon pleadings and a prayer for relief which that court is authorized to grant pursuant to Rule 60(c)(4), Rule 60(d), Rule 60(j) and Rule 62(b), Arkansas Rules of Civil Procedure." Upon petition for rehearing, the Court of Appeals noted again that after the transfer of the case from the chancery court that "there was no amendment of the complaint seeking either modification or vacation of the order or showing a meritorious defense." (Emphasis in original.) See A.R.C.P. Rule 60.
The complaint in the present appeal was filed in the circuit court on June 29, 1983. The prayer for relief sought damages for breach of contract. The contract relied upon was the alleged oral agreement by the appellees not to collect any judgment in their favor against the appellant. The case was transferred to the division of circuit court which entered the original judgment. On August 22, 1986, the original trial court granted appellees' motion to dismiss. In dismissing this second complaint the court held that the action was barred by res judicata and election of remedies and was "not in compliance with the opinion of the Court of Appeals ...." The present appeal is from this order of the original trial court dismissing the complaint for damages for breach of contract.
As the arguments are so interwoven that it is impractical to discuss them separately, they will be addressed together in this opinion.
The question presented is whether a post-trial motion to set aside a judgment pursuant to A.R.C.P. Rule 60 is included within the meaning of "previous litigation" in the context of whether it is an issue which was litigated, or could have been litigated, under the doctrine of res judicata. Under the facts and pleadings of this case we hold that it is.
The appellant was under a duty to present any meritorious defense to the cross-complaint in the original action. Instead of defending on the merits, he entered into an agreement to aid the appellees in exchange for their promise not to enforce any judgment rendered against him. The alleged secret agreement was neither reduced to writing nor was it revealed to the other parties or the trial court. The agreement comes precariously close to collusion between the parties. Such an agreement is quite similar to a "Mary Carter" agreement. See Firestone Tire & Rubber Co. v. Little, 276 Ark. 511, 639 S.W.2d 726 (1982). Firestone required full disclosure to all parties and the court of such agreements. We do not express an opinion on this issue because it was not argued in the briefs.
Both parties agree that the doctrine...
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