Civil Practice and Procedure

Editor:
John S. Sandberg

Res judicata requires identity of parties. Lauber-Clayton, LLC v. Novus Properties Company, No. 98302
(Mo. App. E.D., February 26, 2013), Mooney, J.


Lauber-Clayton sued Novus Holdings and two other defendants for fraudulent misrepresentation and breach of fiduciary duty for the alleged concealment of purchase offer at the time Lauber-Clayton’s interest in a building was bought out by Novus Holdings. An additional case was joined to this case involving a suit about a shopping center by Lauber-Crestwood, LLC and Lauber-Crestwood Sam’s, LLC against various Novus companies including Novus Properties. Ultimately the two different claims were severed for trial. The building case settled during trial. The severed shopping center case was voluntarily dismissed without prejudice. Then Lauber-Clayton sued Novus Properties to collect attorney’s fees and to recover the balance of actual damages it did not recover in the settlement of the building case. Novus properties moved to dismiss the case on res judicata grounds which motion was granted. Lauber-Clayton appealed.

Held: Reversed.
One of the elements required for res judicata to be a defense is there must be identity of the person or parties to the action. A party is identical for purposes of res judicata when it is the same party that litigated the earlier suit or the new party was in privity with that party. Here Lauber-Clayton made no claim at any time against Novus properties in the earlier litigation. Accordingly, there was no prior litigation between the present parties and res judicata did not apply.


Venue in cases involving accidents in different counties. State Ex Rel. Anthony M. Kinsey v. The Honorable Robert G. Wilkins, No. 99450 (Mo. App. E.D., February 26, 2013), Richter, J.

This decision involved the issue of what is the proper venue when there are two separate accidents in different counties but causing similar injuries. Kinsey was involved in an auto accident with Bledsoe in Greene County. Eleven months later he was involved in an accident in Jefferson County with a vehicle operated by Tricia Bieser. In both accidents he sustained injuries to the same parts of his body. Normally joining two separate causes of action in a single petition does not create venue over both actions. However, under the revised venue law, venue is proper in the county of first injury. Joinder here was proper because the statute rule on joinder allows that there to be joinder of a series of transactions or occurrences where there is a common question of law or fact as to both causes of action and here there was as to the responsibility of each for the combined injuries the plaintiff had. Since joinder was proper and the venue statute requires the venue to be in the county where the plaintiff was first injured, the proper venue is that county where the first accident happened. Accordingly the venue was proper in Greene County for both accidents.