Walker v. Kroger Co.

Benham, Judge,

concurring in part and dissenting in part.

I agree with the majority that the trial court correctly granted summary judgment to Kroger on Counts 3 and 4 of appellant Walker’s complaint since the theories of recovery raised in those counts were or might have been put in issue in the cause of action actually raised in the federal court suit. However, because I do not believe the doctrine of res judicata bars appellant from asserting the allegations contained in Counts 1 and 2 of his complaint, I must dissent to the majority’s reversal of the judgment in Case No. 73286.

The complaint in the case before us contains four counts in which appellant alleged that a Kroger security guard assaulted him on July 28, 1981 (Count 1); the same security guard allegedly falsely imprisoned him and committed an aggravated assault upon him on July 29, 1981, when appellant revisited the store (Count 2); the same security guard allegedly assaulted appellant on August 17, 1981, while appellant was in his automobile in the shopping center’s parking lot (Count 3); and appellant was maliciously prosecuted by Kroger when, allegedly in response to an affidavit sworn out by the security guard, appellant was arrested at his home on August 18, 1981, and charged with criminal trespass (Count 4). In the earlier complaint, removed to federal court by cross-appellant Kroger, appellant had sought damages arising from his arrest on August 18 pursuant to a warrant issued upon the affidavit of the Kroger security guard. Fifteen months after *749filing the action and after a change in counsel, appellant sought leave to amend his complaint to allege assault and malicious prosecution based on the August 18 incident and on his alleged encounters with the same security guard on July 28 and 29. The federal district court denied appellant’s motion to amend, citing undue delay and prejudice to the nonmovant as reasons for denial.

In determining the applicability of res judicata to the case at bar, the majority queries whether the issues raised in Counts 1 and 2 could have been raised in the federal lawsuit and responds to the query by citing Caswell v. Caswell, 162 Ga. App. 72 (290 SE2d 171) (1982), and stating that where the factual basis of the claims asserted is identical, res judicata precludes the second lawsuit. In Caswell, the two causes of action were identical both legally and factually. The only significant difference was the addition of three new parties as defendants. This court concluded that the trial court properly dismissed the complaint since the liability of the new parties was dependent upon the culpability of the parties who had been adjudged not culpable in the earlier action. In the case at bar, the factual bases in Counts 1 and 2 are very different from that alleged in the federal complaint: while the security guard and appellant remain constants, the dates, sites, and torts alleged differ. It is true that the incidents of July 28 and 29 provide a history of appellant’s relationship with the security guard that culminated in appellant’s arrest in August; however, the earlier incidents are not factually or legally identical to the August allegations. Therefore, the issues of Counts 1 and 2 were not raised in the federal suit.

We must next turn to whether the principle of res judicata bars appellant from now raising the allegations of Counts 1 and 2 because they “might have been put in issue in the cause wherein the judgment was rendered. . . .” OCGA § 9-12-40. This case brings to the forefront the question Presiding Justice Hill wished to address in Nationwide-Penncraft v. Royal Globe Ins. Co., 249 Ga. 687 (291 SE2d 760) (1982), and the question avoided by the Supreme Court in Ga. Farm &c. Ins. Co. v. Musgrove, 254 Ga. 333, 335 (328 SE2d 365) (1985): Whether res judicata bars a plaintiff from bringing as a separate cause of action a claim which the plaintiff could have permissively joined under OCGA § 9-11-18 in an earlier suit against the defendant. Each count in appellant’s complaint states a separate cause of action; therefore, a separate suit could have conceivably been brought on each. While the multiple claims might have been permissively joined pursuant to OCGA § 9-11-18, the Civil Practice Act “does not force a party to judgment on all possible causes of action in one suit.” Nationwide-Penncraft v. Royal Globe Ins. Co., 162 Ga. App. 555 (1) (291 SE2d 760) (1982).

I agree with Presiding Justice Hill that the principle of res judi*750cata does not bar subsequent litigation on a separate cause of action arising between the same parties even though the latter claim could have been joined as an independent claim in the earlier suit. To construe OCGA § 9-12-40 to include any claim which could have been raised under the permissive joinder statute (as the majority impliedly does), turns permissive joinder into compulsory joinder of unrelated claims, thereby doing away with permissive joinder. See Presiding Justice Hill’s dissent from the denial of certiorari in Nationwide-Penncraft v. Royal Globe Ins. Co., 249 Ga. 687, supra. Because I believe that the principle of res judicata requires a party to adjudicate all possible theories of recovery within a cause of action (see Massey v. Stephens, 155 Ga. App. 243, 246-47 (270 SE2d 796) (1980)), and not all causes of action a plaintiff may have against a defendant (see Nationwide-Penncraft v. Royal Globe Ins. Co., 162 Ga. App. 555, supra), I must dissent to the majority’s reversal of the trial court in case no. 73286.

Decided January 21, 1987 Rehearing denied February 12, 1987 James Booker, for appellant. Robert D. Burton, David B. Kitchens, for appellee.

I am authorized to state that Presiding Judge McMurray, Judge Carley, and Judge Pope join in this opinion.