H.L. RABURN v. MASSEY-DRAUGHON, ETC

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Docket Number

Civ. 2265.

Attorney(S)

James L. Shores, Birmingham, for appellant. Julian D. Butler of Butler Potter, Huntsville, and David R. Boyd of Smith, Bowman, Thagard, Crook Culpepper, Montgomery, for appellees.

Judges

WRIGHT, Presiding Judge.

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Smart Summary

Factual and Procedural Background

Plaintiff H.L. Raburn Company filed suit in Montgomery County Circuit Court against Massey-Draughon Business College and Carlos B. Harbison seeking recovery of $5,906.06 for work and labor performed. Previously, the plaintiff had initiated a separate action in Jefferson County Circuit Court against Educational Consultants, Inc. and Carlos B. Harbison for $49,344.99 for similar claims. Defendants Massey-Draughon and Harbison moved to dismiss the Montgomery County suit on the grounds that the prior action was pending. The trial court granted the motion under § 6-5-440, Code of Alabama (1975), finding the claims overlapping. Plaintiff appealed this dismissal.

Legal Issues Presented

Whether the pendency of a prior action bars a subsequent suit under § 6-5-440 when the cause of action and claimed amounts overlap.
Whether the parties in the two suits are sufficiently identical or in privity such that a judgment in the first suit would be conclusive and bar the second suit.

Arguments of the Parties

Defendants' Arguments

The pendency of the prior suit precludes prosecution of the second suit because the claims overlap.
Allowing the second suit to proceed risks double recovery or inconsistent verdicts, contrary to the policy underlying the Alabama Rules of Civil Procedure.

Plaintiff's Arguments

This information was not available in the provided opinion.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Redstone Land Development Company v. Boatwright, 44 Ala. App. 363, 209 So.2d 221 (1968)	The parties in the two suits must be the same for the defense of pendency of prior action to apply.	Used to establish the requirement of identical parties for the prior action defense.
Smith v. Charles E. Jay Co., Inc., 292 Ala. 513, 296 So.2d 885 (1974)	Analogizes pendency defense to res judicata; final judgment in prior suit bars the second if parties and cause are the same.	Supported the court's analysis on identity of parties and cause of action.
Bell v. Jones, 223 Ala. 497, 136 So. 826 (1931)	Res judicata principles relating to finality and bar of subsequent suits.	Reinforced the analogy between pendency defense and res judicata.
Kaplan v. Coleman, 180 Ala. 267, 60 So. 885 (1912)	Principles governing the bar of subsequent suits by prior judgments.	Supported the court's interpretation of the statute and related doctrine.
Betty Abel, as Administratrix of the Estate of Irene Dickie Waters, Deceased v. Donald Waters, 373 So.2d 1125 (Ala.Civ.App. 1979)	Valid judgment bars second suit if parties or those in privity are identical and cause of action is the same.	Applied to determine that the cause of action was the same but parties were not identical for Massey-Draughon.

Court's Reasoning and Analysis

The court examined § 6-5-440, which prohibits a plaintiff from prosecuting two simultaneous suits for the same cause against the same party. The court emphasized that for the defense of pendency of a prior action to apply, the parties must be identical or in privity, and the cause of action must be the same. The court found that the claims in the two suits overlapped, but only Carlos B. Harbison was a party to both suits. Massey-Draughon was not a party to the first suit, nor was it shown to be in privity with any party in that suit. Therefore, the defense barred the suit only as to Harbison. The court acknowledged concerns about double recovery and inconsistent verdicts but noted that the Alabama Rules of Civil Procedure provide remedies such as joinder or continuance to address these issues, rather than dismissal. Consequently, the dismissal was proper as to Harbison but improper as to Massey-Draughon.

Holding and Implications

The court AFFIRMED IN PART and REVERSED IN PART AND REMANDED the trial court's dismissal. The dismissal as to Carlos B. Harbison was affirmed, while the dismissal as to Massey-Draughon Business College was reversed and remanded for further proceedings. The direct effect is that the plaintiff's claims against Harbison remain barred due to the prior pending suit, but the claims against Massey-Draughon may proceed. The opinion does not establish new precedent beyond clarifying application of the pendency defense when parties differ.

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H.L. RABURN COMPANY v. MASSEY-DRAUGHON BUSINESS COLLEGE, a Corporation et al.

WRIGHT, Presiding Judge.

Plaintiff H.L. Raburn Company filed this action in Montgomery County Circuit Court against the defendants Massey-Draughon Business College and Carlos B. Harbison to recover $5,906.06, alleged to be due for work and labor done. Plaintiff had previously filed a separate action in Jefferson County Circuit Court against Educational Consultants, Inc. and Carlos B. Harbison to recover $49,344.99 for work and labor done.

On November 15, 1979, Massey-Draughon and Carlos Harbison filed a motion to dismiss in Montgomery County Circuit Court based on the pendency of the prior action. Upon determining that the money claimed in the suit before it was part of the $49,344.99 claimed in the prior suit, the trial court granted defendants' motion pursuant to § 6-5-440, Code of Alabama (1975). Plaintiff appeals.

Section 6-5-440 as pertinent states:

No plaintiff is entitled to prosecute two actions in the courts of this state at the same time for the same cause and against the same party. . . . [A]nd the pendency of the former is a good defense to the latter if commenced at different times.

In order for the defense of the pendency of a prior action to be sufficient, the parties to the two suits must be the same. Redstone Land Development Company v. Boatwright, 44 Ala. App. 363, 209 So.2d 221 (1968). This defense bears a strong analogy to a defense based on res judicata, and a fair test of its sufficiency is whether a final judgment in the prior suit would be conclusive between the parties and operate as a bar to the second. Smith v. Charles E. Jay Co., Inc., 292 Ala. 513, 296 So.2d 885 (1974); Bell v. Jones, 223 Ala. 497, 136 So. 826 (1931); Kaplan v. Coleman, et al., 180 Ala. 267, 60 So. 885 (1912).

A valid judgment in the prior suit would operate as a bar to the second if the parties, or those in privity with them, are identical in both suits and the same cause of action is involved in both suits. Betty Abel, as Administratrix of the Estate of Irene Dickie Waters, Deceased v. Donald Waters, 373 So.2d 1125 (Ala.Civ.App. 1979).

In this case the cause of action in the first suit was the same as that in the second. The money claimed in the second suit is part of the amount claimed in the first.

The question for this court is whether the parties in the two suits are identical so that a judgment in the first would be conclusive as to the parties in the second.

Harbison is a party to both suits and a judgment in the first suit would be conclusive as to the plaintiff's right to recover against him. The dismissal as to Harbison was therefore proper.

However, a judgment in the first suit would not necessarily be conclusive as to Massey-Draughon. Massey-Draughon is not a party to the first suit. Neither is it apparent from this record that Massey-Draughon is in privity with any of the parties in that suit.

Defendants have argued in brief that to allow the second suit to continue creates the possibility of double recovery or inconsistent verdicts, and is against the policy of the Alabama Rules of Civil Procedure. We would point out that the Rules have provided remedies for a party in the position of the defendants in the first suit. See Rule 21; Rule 12 (b)(7) and Rule 14, ARCP. The possibility of double recovery or inconsistent verdicts may also be removed by the simple device of a continuance in the second suit until the conclusion of the first. Smith v. Charles E. Jay Co., Inc., supra.

The defense of a prior action pending is not available to defendant Massey-Draughon. The dismissal of this action as to the defendant Carlos B. Harbison is affirmed. The dismissal as to the defendant Massey-Draughon Business College, Inc., is reversed and remanded.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

BRADLEY and HOLMES, JJ., concur.