concurring. The result reached by the Court’s opinion has my wholehearted support. Just as wholeheartedly, however, I must disagree with the rationale expressed. The correct basis of the opinion should be collateral estoppel and not res judicata.
Since our decision in Smith v. Roane, 284 Ark. 568, 683 S.W.2d 935 (1985), we have struggled, with some success, to keep the distinction between the two doctrines clear in our minds and thus clear in application. See Toran v. Provident Life Ins. Co., 297 Ark. 415, 764 S.W.2d 40 (1989); East Texas Motor Freight Lines, Inc. v. Freeman, 289 Ark. 539, 713 S.W.2d 456 (1986); Bailey v. Harris Brake Fire Protection Dist., 287 Ark. 268, 697 S.W.2d 916 (1985). I fear this decision is a step back into the past when we tended not to know the difference.
Res judicata does not apply here because the Stubblefield lease is a transaction separate from the others which were sued upon earlier. The majority opinion citation of language from Robinson v. Buie, 307 Ark. 112, 817 S.W.2d 431 (1991), is inapposite because the Stubblefield lease could not have been litigated in the previous action for the reason that it was not sued upon. While that may seem an overly simplistic statement, nothing in the law requires that a party having more than one claim, arising from separate transactions, bring all the claims at one time.
Equally inapposite is the language cited from American Standard v. Miller Engineering, 299 Ark. 347, 772 S.W.2d 344 (1989). This is not a case where the second suit was based on the same “event” or “subject matter” as the previous litigation. It was an entirely different lease; an entirely different transaction although the same issue was involved in the previous litigation as is involved here.
The Restatement of Judgments 2d, § 24., in speaking of claim preclusion, another name for res judicata, states:
(1) When a valid and final judgment rendered in an action extinguishes the plaintiffs claim pursuant to the rules of merger or bar (see §§ 18,19), the claim extinguished includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose.
(2) What factual grouping constitutes a “transaction”, and what groupings constitute a “series”, are 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 unit conforms to the parties’ expectations or business understanding or usage.
Here are two illustrations given under § 24 of the Restatement of series of connected transactions:
A brings an action against B Co., a street railway company, alleging that the motorman was negligent in starting the car while A was alighting and that as a result A broke his arm. After a verdict and judgment for A, A brings a new action against B Co. alleging that after alighting from the car he fell into a trench negligently left by B Co. beside the road and broke his leg. The action is precluded.
On the false accusation that A was engaging in disorderly conduct at a racetrack, B Co., the owner of the track, caused A in successive acts to be assaulted, slandered, physically detained, and prosecuted criminally. A sues B Co. for the assault and slander. If a judgment is rendered that extinguishes the claim, A may not maintain a second action for the detention or for malicious prosecution.
While a plaintiff may not split a cause of action, it is obvious in a case such as this that he has more than one cause of action. Comment h. to § 24 of the Restatement gives this explanation:
h. Joinder of multiple claims. As provided in this Section, a plaintiff who brings an action upon part of a claim and succeeds or loses on the merits may not sue to recover upon the rest of the claim. Thus the plaintiff is under some compulsion not to split a claim. There is no like compulsion on a plaintiff who has a number of claims against a defendant to join them in a single action; he may join them if he wishes, but he is not obliged to do so out of fear that he will lose any claims that he omits to join. Joinder of multiple claims is permissive, not compulsory. Rule 18(a) of the Federal Rules of Civil Procedure is typical. It provides: “Joinder of claims. A party asserting a claim to relief as an original claim, counterclaim, cross-claim, or third-party claim, may join, either as independent or as alternate claims, as many claims, legal, equitable, or maritime, as he has against an opposing party.”
This still leaves the possibility that a plaintiff, actually having a single claim but mistakenly believing that he has a number of them, may commence a limited lawsuit and then run afoul of the rule against splitting. A plaintiff must take this risk into account in framing his action.
* * *
Arkansas R. Civ. P. 18(a) is not different from F.R.C.P. 18(a) in any way that would be significant here.
In my view, the facts of this case fit squarely within the concept of collateral estoppel as that doctrine is described in Restatement of Judgments 2d, § 27:
When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.
The issue now before us was litigated between these parties in the federal proceedings. The decisions there were essential to the judgment rendered. The doctrine of collateral estoppel applies, and Mr. Taylor is precluded from relitigating them.
Dudley and Corbin, JJ., join in this concurrence.