concurring specially in the separate opinion of
JOHNSON, Justice.I concur with the views expressed in the special concurring opinion of Johnson, J., which I understand emphasizes two points:
(1) Decisions of the Court of Appeals upon which review has been denied do express the law of the State of Idaho; and
(2) A transactional approach should be utilized in determining whether a claim has been precluded.
The majority opinion is consistent with the transactional approach when one focuses on the following paragraph quoted by Justice Johnson from the Restatement (Second) of Judgments (1982), Section 24:
What factual grouping constitutes a “transaction” ... [is] to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a *466unit conforms to the parties’ expectations or business understanding or usage. (Emphasis added).
In my view, for public policy purposes, it is virtually never a “convenient trial unit” to compound the trauma of divorce and child custody proceedings with the super-imposition of tort claims. Likewise, such would not conform to the expectations or usage of Idaho citizens, attorneys, or lawyers as I have understood them.
BISTLINE, Justice, concurring only in this Court’s judgment affirming the trial court judgment.Insofar as Idaho law is concerned, there is no precedent one way or the other governing the disposition of the issue presented.
Undoubtedly the law would have been better served had the district court ruled that plaintiff’s cause of action was lost by not having been joined in the divorce action. Or, better yet, if not joined, at the least mentioned with a claim of the right to reserve it for a subsequent independent action. In that manner the defendant would at the least have had fair warning as to what the plaintiff had in store for him. It seems that there was a certain amount of sandbagging, i.e., a pleasant divorce after an unpleasant marriage, but, lo! shortly thereafter followed the tort action which obviously had been part of the game plan. The circumstances, so it could be argued, worked an estoppel.
What should be considered as most disruptive by the majority holding and our unanimous affirmance is that it is another substantial inroad on the doctrine of res judicata. Following on the heels of Duthie v. Gun Club, 104 Idaho 751, 663 P.2d 287 (1983), one might approve today’s opinion on the basis of the ratio decedendi in that case, i.e., that the tort action had not yet quite ripened when the divorce action was before the court.
The legislature lately has fairly well preempted the field of domestic regulations, hence I believe inappropriate for the Supreme Court to sally forth and plough this new ground. This court has already made a shambles of well established case law in the judicial field of res judicata in the Duthie case, and I am not at all as convinced as I would like to be that the innovative trial court ruling should be upheld by this Court.
The defendant Overholser might very well have tried to involve the tort claims in the divorce action if he had advance warning that his wife was waiting in the wings to come after him with a damage action.