Wolf v. Anderson

• Decision Date: 18 April 1988
• Docket Number: No. 870340,870340
• Citation: 422 N.W.2d 400
• Parties: Leo A. WOLF and Amelia Wolf, Plaintiffs and Appellants, v. Donald M. ANDERSON, Steven A. Herman, Royhl B. Ebert, Greg Holverson, Roger Ledebuhr, Quint Investment Group, a co-partnership, Erwin H. Ledebuhr, and Evelyn P. Ledebuhr, Defendants and Appellees. Civ.
• Court: North Dakota Supreme Court

Page 400

422 N.W.2d 400

Leo A. WOLF and Amelia Wolf, Plaintiffs and Appellants, v. Donald M. ANDERSON, Steven A. Herman, Royhl B. Ebert, Greg Holverson, Roger Ledebuhr, Quint Investment Group a co-partnership, Erwin H. Ledebuhr, and Evelyn P. Ledebuhr, Defendants and Appellees.

Civ. No. 870340.

Supreme Court of North Dakota.

April 18, 1988.

Daniel J. Chapman of Chapman & Chapman, Bismarck, for plaintiffs and appellants.

Joseph J. Cichy of Wheeler, Wolf, Peterson, Schmitz, McDonald & Johnson, Bismarck, for defendants and appellees.

VANDE WALLE, Justice.

Leo A. and Amelia Wolf appealed from a district court judgment ¹ dismissing their action for damages against the defendants, Donald M. Anderson, Steven A. Herman, Royhl B. Ebert, Greg Holverson, Roger Ledebuhr, d/b/a Quint Investment Group, a co-partnership, and Erwin H. and Evelyn P. Ledebuhr, for breach of a contract for deed. We affirm.

On April 28, 1977, the Wolfs executed a contract for deed to sell a parcel of property and apartment building located in Bismarck for $33,000 to the Quint Investment Group, a co-partnership consisting of Anderson, Herman, Ebert, Holverson, and Roger Ledebuhr. The contract for deed provided that the "[s]ellers reserve the right to demand payment of the balance in full at any time upon notice of not less than twelve (12) months." The contract for deed also included a separate default provision which stated that upon default by the buyers, the sellers may, at their option, by written notice declare the purchase price due, cancel and terminate the contract, and keep the payments already made by the buyers as liquidated damages for the breach.

As of January 12, 1979, the co-partners of Quint Investment Group had transferred all of their interest in the contract for deed to Erwin and Evelyn Ledebuhr. In January 1979 the Wolfs demanded payment of the balance due under the contract for deed by January 28, 1980. From February 1979 to October 1979 Erwin and Evelyn made the monthly payments pursuant to the contract. On October 4, 1979, the City of Bismarck condemned the apartment building and ordered that it be demolished on or before January 10, 1980. Erwin and Evelyn did not make any payments after October 1979, and on January 8, 1980, without the Wolfs' knowledge, they filed an undated quitclaim deed transferring their interest in the property back to the Wolfs.

The Wolfs then brought suit against the individual partners of Quint Investment Group and Erwin and Evelyn under the contractual provision permitting them to demand full payment of the balance upon not less than twelve months' notice. The Wolfs sought specific performance of the contract for deed including payment of the balance due of $21,356.05. The trial court dismissed that action because the Wolfs had failed to prove that damages were an inadequate remedy. On appeal in that case, Wolf v. Anderson, 334 N.W.2d 212 (N.D.1983) [Wolf I], we held that the trial court did not abuse its discretion in refusing to grant the Wolfs specific performance because they had failed to establish that their legal remedy of damages was inadequate.

The Wolfs then brought this action, seeking the balance due under the contract for deed ($21,356.05) plus interest or, alternatively, $50,000 for the loss of the property if they were forced to accept return of the property. Erwin and Evelyn moved for a judgment on the pleadings based upon the affirmative defense of res judicata, contending that the issues raised in this case were decided in Wolf I. The district court determined that the Wolfs' exclusive remedy was for liquidated damages as provided in the contract for deed and granted the Ledebuhrs' motion. The Wolfs have appealed.

Although not extensively relied upon by the parties, the dispositive issue on appeal concerns whether or not Wolf I is res judicata as to this action. Our resolution of the dispositive issue is dictated by the decision in Perdue v. Knudson, 179 N.W.2d 416 (N.D.1970), wherein this court held that a previous judgment dismissing a complaint seeking specific performance of an option contract to purchase real estate was res judicata as to a second action for damages based upon the same contract. We said:

"Courts will not permit a litigant to try a part of his case and then, if he is disappointed with the outcome of the action, to have another day in court simply by alleging new claims or making a new demand for relief, when he could have made such demand in the prior action. In such case, the judgment in the first action is conclusive between the same parties as to all matters tried in that action or which, under the rules, might have been put in issue in the action previously tried, in which judgment was entered and from which judgment no appeal was taken.

"The parties to this action are the same as those in the previous action. The plaintiffs' claims are based upon the same agreement, and the action is the same except that in this action the plaintiffs seek to recover damages for failure of the defendant to convey, whereas in the former action they sought...