dissenting. This appeal from Lonoke Circuit Court raises the question of what effect if any does a trial previously conducted in Pulaski Circuit Court have on the lawsuit pending in Lonoke Circuit Court. Two of the parties in the Lonoke County case who were also parties in the Pulaski County case (John Cheeseman Trucking, Inc. and John Hofstetter) contend that the Pulaski County case did not afford to the parties in the Lonoke County case a trial on the issue as to whether any among the several parties in the Lonoke County case is or are responsible to the Pinson plaintiffs for their damages and if so who and to what degree.
The Pinson plaintiffs specifically withheld their claim for damages from the Pulaski County Circuit Court. The Lonoke County Circuit Court has ruled that nevertheless the issue of liability on the Pinson claims was adjudicated and determined in the Pulaski County proceeding.
I respectfully disagree with the majority. This appeal does not present a question of res judicata. This appeal does not present a question of collateral estoppel.
This appeal presents a question of what issues were tried and adjudicated in the lawsuit in Pulaski County and what issues were specifically reserved from trial and adjudication in the lawsuit in Pulaski County. This will be referred to as the procedural question.
The legal question involved is the power and authority of the Pulaski County Circuit Court to separate the issues into two categories and to designate one category of issues for trial in the lawsuit in Pulaski County and to designate the other category of issues to be reserved and withheld from trial in the Pulaski County lawsuit, and then to proceed to adjudicate those designated for trial in the Pulaski County lawsuit without also adjudicating those reserved from trial in the Pulaski County lawsuit. This will be referred to as the legal question.
The procedural question is initiated by an order of the Pulaski County Circuit Court which it made in ruling upon a motion made by Pinson in the Pulaski County suit. The paragraph numbered one in that order reads:
1. On September 13, 1989, Pinson moved for dismissal of this action pursuant to Arkansas Rule of Civil Procedure 12(b)(8) on the grounds that another action between the same parties arising out of the same transaction or occurrence was pending.
After then reciting some of the procedural history whereby the first lawsuit was filed June 15, 1988, in Lonoke County followed by the filing of the first Pulaski County lawsuit on December 16, 1988, and a second one in Pulaski County on February 14,1989, and still a third one in Pulaski County also on February 14,1989, and an order consolidating the three Pulaski County actions on August 8, 1989, and after naming the 13 individuals and companies who were named party defendants in the Lonoke County action, the order reads:
The Court recognizes that Pinson is entitled to assert her cause of action for damages in a proper venue of her choice. Likewise, the Court recognizes that the other parties hereto are entitled to assert their causes of action for damage in a proper venue of their choice.
The court then proceeded to make a distinction between two types of claims. One type was described as “direct causes of action for damages.” The other type of claim was described as: “claims for contribution and indemnity by alleged joint tortfeasor.”
The court stated that Pinson’s motion asserted the Rule 12(h)(8), ARCP, defense against both types of claims.
The court then cited ARCP Rule 13(a) as applying to all direct claims having the effect of requiring all of the defendants, when sued in the Lonoke County action, to assert all of their direct claims against Pinson in that action. The result was that such defendants could not assert such “direct” claims against Pinson in the Pulaski County action. All direct claims of Pinson against such defendants, and all direct claims of such defendants against Pinson, were excluded from the Pulaski County lawsuit. The order reads in part:
Accordingly, the Court HEREBY ORDERS that these claims for damages against Pinson be, and they hereby are, dismissed without prejudice.
The court then dealt with the “claims for contribution and indemnity by alleged joint tortfeasors.” The court cited the Uniform Contribution Among Tortfeasors Act, Ark. Code Ann. § 16-61-201 (1987) et seq., stating:
This act allows a Defendant to maintain a claim for contribution or indemnity against a joint tortfeasor in the same action in which that Defendant is being sued on a direct claim for damages by another party. Ark. Code Ann. § 16-61-207. Consequently, claims in this action against Pinson for contribution and indemnity relate to claims being asserted by other parties, and are not subject to Rule 12(b)(8).
The court then ruled, in paragraph number 13 of the order as follows:
13. Accordingly, the Court HEREBY ORDERS that all claims against Pinson for contribution and indemnity shall remain in this action [the Pulaski County action].
The procedural question is thus answered. All direct claims for damages by and against Pinson were excluded from the Pulaski County action. All contribution and indemnity claims were retained in the Pulaski County action.
Next, the legal question, does the Pulaski County Circuit Court have the power and authority to do that? To answer that question we look to Arkansas Code Annotated and also to the Rules of the Arkansas Supreme Court.
Arkansas Code Annotated § 16-60-112(a) (1987) provides that the venue for wrongful death actions is in either one of two counties: (1) where the accident occurred or (2) where the person injured or killed resided at the time of injury. Where suits are filed on the same cause in more than one county having venue, the one first acquiring service of summons on the adverse party has the right to continue in that county. Talley v. Morphis, 232 Ark. 91, 334 S.W.2d 652 (1960).
Thus, Pinson, having filed suit first and obtained service of summons, fixed venue of all of her direct claims for her damages in Lonoke County. Subsequent filings by other parties in other counties and their naming of her as a defendant in those lawsuits could not force her out of Lonoke County.
Rule 12(b)(8), Arkansas Rules of Civil Procedure, cited and relied upon by Pulaski Circuit Court, was promulgated by this court. It provides in pertinent part:
(b) Every defense, in law or in fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may, at the option of the pleader, be made by motion: ... (8) pendency of another action between the same parties arising out of the same transaction or occurrence.
Thus, by reason of ARCP Rule 12(b), when Pinson fixed venue of her claim against the named parties in Lonoke County she likewise fixed venue in that county of all of the direct claims of those parties against her. Barkley v. Cullum, 252 Ark. 474, 479 S.W.2d 535 (1972).
What has confused the issue in this case has been the distinction made by the Pulaski Circuit Court between direct claims which it ruled were controlled by ARCP Rule 12(b)(8) and contribution and indemnity claims which it ruled were not controlled by ARCP Rule 12(b) (8) but rather that the same were controlled by Ark. Code Ann. § 16-61-207 (1987). But such a distinction overlooks a very significant reality, which is that in order to resolve the relative responsibilities of parties on the questions of contribution and indemnity some of the same questions must be answered as when dealing with direct claims. Many are identical. Who failed to meet the standard of care required? Whose failures contributed to cause the injuries? If more than one party was negligent and the negligence of more than one party caused the injuries, how do they compare?
Obviously one is submitting many of the very same questions to the jury in one of the trials as will have to be submitted in another trial. Thus the real question is whether the Pulaski Circuit Court can proceed to adjudicate any claims at all which are being made by parties in the Pulaski County action who are also parties to the Lonoke County action when the suit in Pulaski County was filed subsequently to the Lonoke County suit.
Looking at Ark. Code Ann. § 16-61-207, which was relied upon by the Pulaski County Circuit Court in excluding from the effect of ARCP Rule 13(a) claims for contribution and indemnity, it is apparent that § 16-61 -207 does not make it mandatory for a defendant to bring in a third party defendant. The language is that such defendant “may” bring in “a person not a party to the action who is or may be liable as a joint tortfeasor to him or to the plaintiff for all or part of the plaintiff’s claim against him.”
Thus, it would appear that the Circuit Court of Pulaski County was in error in proceeding to adjudicate any of the claims, those for contribution and indemnity as well as direct claims for damages. All claims of all parties to the Lonoke County lawsuit should have been dismissed out of Pulaski Circuit Court.
The motion on which the rulings of the Pulaski Circuit Court were made was made by Pinson but once the issue was before the court it should have ruled correctly for all parties. The trial in Pulaski County Circuit Court should be counted as a nullity insofar as this proceeding in Lonoke County is concerned. Since the rulings in the Lonoke County action not only gave effect to the Pulaski County proceeding as far as the claims of contribution and indemnity were concerned, but also as res judicata and controlling on the “direct claims” as well, it follows that such ruling should be reversed and the case set back for trial in Lonoke County on all claims made in the pleadings, whether direct, for contribution or indemnity.