I respectfully dissent. Although I agree with the majority that the doctrine of res judicata would ordinarily bar James Judy’s tort action for waste, I believe this case is excepted from claim preclusion under section 26, subsection 1(a) of the Restatements (Second) of Judgments. That section provides:
(1) When any of the following circumstances exists, the general rule of [claim preclusion] does not apply to extinguish the claim, and part or all of the claim subsists as a possible basis for a second action by the plaintiff against the defendant:
(a) The parties have agreed in terms or in effect that the plaintiff may split the claim, or the defendant acquiesced therein;
Restatement (Second) of Judgments § 26 (1982 & Supp.2011) (emphasis added).
In Beazer East, Inc. v. United States Navy, the United States Court of Appeals for the Fourth Circuit cited this Restatement exception, stating, “acquiescence to the filing of two separate lawsuits has also been determined to constitute consent.” No. 96-1736, 1997 WL 173225 (4th Cir. Apr.11, 1997). In that case, the court found the defendant did not acquiesce in the plaintiffs splitting of claims by filing an opposition to plaintiffs motion to consolidate the claims. Id. In the instant case, James requested the probate court consider Ronnie’s willful destruction of the fishing pond located on the Pond Tract in his Petition to Partition Real Property. At the partition hearing, James produced an expert who testified the property was worth $1,000 less per acre without the pond. However, before the probate court issued its order partitioning the property, James requested that the court not consider that loss of value when computing the amount each party would receive. There is no evidence in the record that Ronnie objected to this request. Therefore, in my opinion, Ronnie cannot invoke the doctrine of res judicata as protection against a tort action in circuit court, aimed at righting the wrong he allegedly committed, when he allowed that claim to be ignored during the action for partition in probate court. I would reverse the court of appeals’ decision that the circuit court *176action was barred on the basis of res judicata, and reinstate the circuit court order awarding actual and punitive damages to James.
PLEICONES, J., concurs.