Wells v. Arkansas Public Service Commission, 81-2

• Decision Date: 18 May 1981
• Docket Number: No. 81-2,81-2
• Parties: John F. WELLS et al., Appellants, v. ARKANSAS PUBLIC SERVICE COMMISSION et al., Appellees.
• Court: Arkansas Supreme Court

Page 718

616 S.W.2d 718

272 Ark. 481

John F. WELLS et al., Appellants, v. ARKANSAS PUBLIC SERVICE COMMISSION et al., Appellees.

No. 81-2.

Supreme Court of Arkansas.

May 18, 1981.

Rehearing Denied June 22, 1981.

James F. Lane, Little Rock, for appellants.

Steve Clark, Atty. Gen., by Rodney E. Slater, Asst. Atty. Gen., Little Rock, for appellees.

PURTLE, Justice.

Appellants, John F. Wells and Independent Voters of Arkansas, filed suit in the Second Division Pulaski County Chancery Court seeking to enjoin the state-wide reassessment order of the Second Division Pulaski County Circuit Court which was affirmed by this court in an action entitled Arkansas Public Service Commission v. Pulaski County Board of Equalization, 266 Ark. 64, 582 S.W.2d 942 (1979). Appellants sought to enjoin the appellees from performing any duties relating to the circuit court ordered reassessment plan and to enjoin expenditures of any money by any person pursuant to Acts of the General Assembly 1980, No. 1. The chancellor found all allegations of the complaint, except one, were included in the circuit court case and the doctrine of res judicata applied. The one issue not included in the former case was moot at the time and has not been argued on appeal.

Appellants argue three issues for reversal: (1) the trial court erred in finding the issues presented in the complaint were included in the prior trial and therefore subject to the doctrine of res judicata; (2) the Pulaski County Circuit Court had no jurisdiction to order state-wide reappraisal; and (3) the trial court erred in applying the Constitution of Arkansas, Art. 16 § 5, because it had been superseded by Amendment 47 to the Constitution. We do not agree with any of the three arguments.

Appellants have no quarrel with the part of the prior reassessment case in which the word "value" was determined to mean the current market value. However, they argue the circuit court reached beyond its jurisdiction in approving the 5-year schedule of compliances. In short, the real issue to be determined by this court is whether the 5-year compliance schedule attached to the circuit court order was properly decided by this court in Arkansas Public Service Commission v. Pulaski County Board of Equalization, supra. If so, then this case is at an end. If not, the case will have to be remanded for further action at the trial level. We do not discuss the jurisdiction of the chancery court because it has not been questioned nor argued.

We first consider the question of res judicata and when it is applied. Generally speaking, it applies when there has been a final adjudication on the merits of an issue, without fraud or collusion, by a court of competent jurisdiction, on the matters litigated or which might have been litigated. Robertson v. Evans, 180 Ark. 420, 21 S.W.2d 610 (1929); Hastings v. Rose Courts, 237 Ark. 426, 373 S.W.2d 583 (1963), cert. denied 377 U.S. 964, 84 S.Ct. 1645, 12 L.Ed.2d 735 (1964). It is res judicata even though not adjudicated if the matters were necessarily within the issues and might have been litigated in the former suit. Gosnell Special School District No. 6 v. Baggett, 172 Ark. 681, 290 S.W. 577 (1927); Timmons v. Brannan, 225 Ark. 220, 280 S.W.2d 393 (1955); and Hastings v. Rose Courts, supra. The exact same parties are not required as it is sufficient if there is substantial identity of the parties. In Rose v. Jacobs, 231 Ark. 286, 329 S.W.2d 170 (1959). Hastings v. Rose Courts, supra, we quoted 50 C.J.S. "Judgments" § 763, p. 292:

... It has also been held that the true reason for holding an issue res judicata is not necessarily the identity or privity of the parties, but the policy of the law to end litigation by preventing a party who has had one fair trial of a question of fact from again drawing it into controversy, and that a plaintiff who deliberately selects his forum is bound by an adverse judgment therein in a second suit involving the same issues, even though defendant in the second suit was not a party, nor in privity with a party, in the first suit.' "

Appellants do not argue that fraud or collusion was used to procure the circuit court judgment nor that the case was not bona fide and in good faith; these being the only exceptions to a bar in res judicata or second trial. The only other avenue to avoid the doctrine is that of lack of jurisdiction in the trial court and this court. This is what the appellants have tried to do in this case. However, the record of the circuit court case is a part of the record in this case and is listed as an exhibit. We find that the subject of the 5-year plan was proposed in the circuit court trial and that most of the parties approved the schedule. In any case the trial court made it a part of its final judgment and it was argued rather forcefully on appeal. This court, by a majority opinion, held the 5-year plan was a proper procedure and affirmed the action...