John Kirby June 9, 2019

The Court of Appeals continues to reiterate that a party may not appeal from a ruling in the case before there is a final judgment as to all issues raised in the case. Even where the defendant claims that the case is barred by the doctrine of res judicata, he does not have an automatic right to appeal.

In Denney v. Wardson Construction (February 19, 2019), the plaintiff-homeowner originally sued for breach of contract and fraud and negligence. The trial court dismissed some but not all of these claims. The plaintiff took a voluntary dismissal and refiled the lawsuit, again alleging several theories of recovery. The defendant moved for summary judgment, arguing that except for the claim for breach of contract, the claims were barred by res judicata, based on the previous ruling in the prior case. The lower court denied that motion for summary judgment, and the defendant appealed.

The Court of Appeals again took issue with the appeal. The Court seemed especially irritated that the appealing party simply argued that it could appeal as its defense was based on res judicata. The court noted that although there were much older cases generally holding to this effect, there was a clear modern trend of many cases which hold that a defense of res judicata is immediately appealable only if there is a possibility of inconsistent verdicts. Because there was no possibility of inconsistent because the appellant had not even argued that such a possibility existed, the appeal was dismissed.

A  defense of res judicata essentially means that as an issue or a dispute has been decided once, such that the parties cannot re-litigate the issue in a second case. It is actually not clear if in this case the parties were truly dealing with res judicata, or were instead dealing with collateral estoppel. In any event, the Court of Appeals will take an interlocutory appeal only where it affects a substantial right, and the defense of res judicata by itself does not per se implicate a substantial right.

I have represented many parties in appeals raising the issue of interlocutory appeals and substantial right. I have also litigated cases involving the defense of res judicata. If you have a case that involves these principles, you may call me for a consultation.