concurring in the result.
While I concur in the result of the Court’s analysis, I pause to question whether the analysis sufficiently addresses the issues.
The Court agrees with the district court in according res judicata effect to a foreign judgment which adjudicated nothing, and had nothing to adjudicate. There was no trial on the merits. The damage award was a sanction imposed upon Farmers Insurance, which to my understanding was imposed for the Farmers’ abuse of discovery proceedings. This can hardly be termed a determination on the merits.
The Court referred to Judge Burnett’s scholarly opinion in Aldape v. Akins, 105 Idaho 254, 668 P.2d 130 (Ct.App.1983), in utilizing the doctrine of res judicata. Strangely, going unmentioned is the statement in Aldape that res judicata will apply only to judgments entered on the merits, after a trial:
Having been defeated on the merits in one action, a plaintiff sometimes attempts another action seeking the same or approximately the same relief but adducing a different substantive law premise or ground. This does not constitute the presentation of a new claim when the new premise or ground is related to the same transaction or series of transactions, and accordingly the second action should be held barred.
Aldape, 105 Idaho at 259, 668 P.2d at 135 (quoting with approval from the Restatement (Second) of Judgments (1982); emphasis added).
Better that the Court’s opinion would provide some discussion and analysis how it is that entry of a default judgment for discovery abuses works a preclusive effect that serves the three purposes of res judicata. Aldape, 105 Idaho at 257, 668 P.2d at 133. First, does it preserve respect for the judiciary by preventing the litigation of the same claim more than once, with the potential for inconsistent results? Of course not, because the first time around, no issues were litigated to a final result. Second, does giving a default judgment preclusive effect protect the court system from repetitious litigation? There is no repetition when there was no first time around, and the second time around is aborted through no fault of the plaintiff. Third, does it protect parties from the specter of repetitive and harassing claims? Perhaps so, but one cannot term something harassment when the defendant might be getting what is coming to it.
Another problem besetting me revolves around jurisdiction, and the fact that Raney was not being sued in the Oregon federal court litigation, which seemingly is used against Diamond. While making no claim as to its validity, the thought which has occurred is that Farmers was likely in as good a position as Diamond to bring Raney into the Oregon action.