Vanover v. Kansas City Life Insurance Co.

VANDE WALLE, Justice,

dissenting.

In Perdue v. Knudson, 179 N.W.2d 416, 421 (N.D.1970), we said:

“Courts will not permit a litigant to try a part of his case and then, if he is disappointed with the outcome of the action, to have another day in court simply by alleging new claims or making a new *528demand for relief, when he could have made such demand in the prior action. In such case, the judgment in the first action is conclusive between the same parties as to all matters tried in that action or which, under the rules, might have been put in issue in the action previously tried, in which judgment was entered and from which judgment no appeal was taken.”

See also Wolf v. Anderson, 422 N.W.2d 400 (N.D.1988).

The majority relies upon Restatement (2d), Judgments § 27 (1982), Comment i, for the proposition that if a judgment of a court of first instance is based on determinations of two issues, either of which standing independently would be sufficient to support the result, the judgment is not conclusive with respect to either issue standing alone. The discussion of this part of the Restatement recognizes that there are valid arguments that the judgment should be conclusive with respect to both issues, i.e., the matter has presumably been fully litigated and decided; an appeal can be taken; and a party who would otherwise urge several matters in support of a particular result may be deterred from doing so if a judgment resting on alternative determinations does not effectively preclude re-litigation of particular issues. Despite these observations the rule is justified by the Restatement Comment:

“First, a determination in the alternative may not have been as carefully or rigorously considered as it would have if it had been necessary to the result, and in that sense it has some of the characteristics of dicta. Second, and of critical importance, the losing party, although entitled to appeal from both determinations, might be dissuaded from doing so because of the likelihood that at least one of them would be upheld and the other not even reached. If he were to appeal solely for the purpose, of avoiding the application of the rule of issue preclusion, then the rule might be responsible for increasing the burdens of litigation on the parties and the courts rather than lightening those burdens.” Restatement (2d), Judgments § 27 (1982) at 259.

The discussion further reflects the uneasiness of the rule but rationalized as follows:

“There may be causes where, despite these considerations, the balance tips in favor of preclusion because of the fullness with which the issue was litigated and decided in the first action. But since the question of preclusion will almost always be a close one if each case is to rest on its own particular facts, it is in the interest of predictability and simplicity for the result of nonpreclusion to be uniform.” Id.

I would not so slavishly adhere to the Restatement. The first of its announced reasons for the rule is condescending to the trial courts, and the second is, at best, speculative. Under the circumstances in this case, where the facts underlying the defamation claim were considered and decided unfavorably to Vanover not once but twice, I would not apply the Restatement and the argumentative and superficial rationale which underlies it.

I would affirm the judgment.

ERICKSTAD, C.J., concurs.