City of Fairburn v. Cook

Sognier, Judge,

dissenting.

I dissent because I would affirm the trial court’s December 1988 judgment awarding prejudgment interest to Cook and striking the City of Fairburn’s objections and defenses to that award on the basis that they were barred by the doctrine of res judicata.

The majority reverses the trial court’s judgment based on its conclusion that the doctrine of res judicata does not control the issues raised by the City. The majority does not deny that res judicata is applicable here; the majority does not deny that, properly applied, the doctrine of res judicata demands the affirmance of the trial court’s order. No attempt is made by the majority to distinguish the body of case law which compels the application here of res judicata. The majority simply concludes that the established law of this State “must give way” to avoid an “unjust and unconscionable result.”

In view of the facts of this case, it is difficult to understand why the majority feels compelled to ignore the law in this instance. Because the doctrine of res judicata is applied as to all matters put in issue or which might have been put in issue, OCGA § 9-12-40, there have been parties far more deserving of sympathy than the City here. After all, it is uncontroverted that the City was aware the prejudgment interest was objectionable as soon as it was awarded; clearly, the City had every opportunity to litigate the matter below and indeed did argue its objection persuasively in its motions and briefs to the trial court; unquestionably, the City could have raised its objection in this court. While I do not expect parties on appeal to anticipate every possible holding this court might reach, I cannot agree with the majority that it was asking too much of the City to expect it to foresee that this court might uphold the jury verdict and its liability for $1.25 million. But, even assuming that is asking too much, why then did the *270City not raise the matter in its motion for rehearing?

Decided March 16, 1990 Rehearing denied March 30, 1990 Eidson & Talmadge, James A. Eidson, John E. Talmadge, Glaze, Fincher & Bray, Kirby A. Glaze, Laurel E. Henderson, for appellant. Scoggins, Ivy & Goodman, Charles Ivy, Joseph C. Chancey, Heyman & Sizemore, William B. Brown, for appellee. Gambrell, Clarke, Anderson & Stoltz, Seaton D. Purdom, amicus curiae.

Possibly the majority feels that the application of res judicata here exacts too hefty a penalty from the City of Fairburn. The result may sound “unconscionable” when $1,089,221.94 is involved; perhaps res judicata would not appear so “unjust” were only $1,089.22 in issue. But res judicata is the law of this State. Applying it without regard to the amount involved or the party appealing promotes stability and eliminates any possibility of favoritism or prejudice, dangers inherent in the failure to apply established law equably. If we excuse the City’s liability because it failed to raise the proper objection in a timely fashion, does that mean this court will excuse the next erring party? Or will we return to strict adherence to the law? Will we apply the exception when the appealing party is a municipality, or is it applicable only where the money involved exceeds a million dollars?

By doing what it considers to be justice to the City, the majority is doing injustice to the law. Therefore, I must dissent.

I am authorized to state that Presiding Judge Banke joins in this dissent.