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09/26/83 EDGAR LANDESS v. JOHN SCHMIDT

September 26, 1983

EDGAR LANDESS, PLAINTIFF-APPELLANT
v.
JOHN SCHMIDT, LARRY NICOSEN, HOWARD GUNDRUM, JANICE GUNDRUM, JOHN W. HANSEN, BORDEN, INC., AND NEAL ROSINSKY, DEFENDANTS-RESPONDENTS



Appeal from a judgment of the Circuit Court for Milwaukee County: Laurence C. Gram, Jr., Judge.

Wedemeyer, P.j., Decker and Moser, JJ. Moser, J. (concurring in part; Minority OPINION(S)ing in part).

The opinion of the court was delivered by: Wedemeyer

Edgar Landess (Landess) appeals from a judgment of the trial court granting respondents' motion to dismiss. Landess claims that neither res judicata nor collateral estoppel is applicable to his conspiracy claim under sec. 134.01, Stats. We hold that res judicata bars Landess' conspiracy claim against the respondents, Borden, Inc. (Borden) and its employees, John Schmidt, Larry Nicosen and Neal Rosinsky (collectively referred to as "employees"), and that collateral estoppel bars the conspiracy claim against the respondents, Janice Gundrum, Howard Gundrum and John W. Hansen (collectively referred to as "milk haulers"). We, therefore, affirm the judgment of the circuit court.

Landess operates a milk hauling business in Wisconsin. From September, 1976, until February, 1980, Landess' business consisted of collecting milk from a number of dairy farms and delivering it to Borden's West Allis dairy. Landess did not have written contracts with the farmers or Borden. On February 1, 1980, Borden informed Landess that it would no longer accept milk hauled by him. Borden also notified the farmers that Borden was no longer accepting milk hauled by Landess and that Borden had arranged for different haulers to collect the farmers' milk if they wished to continue to sell to Borden. After February 1, 1980, all of the farmers ceased using Landess' hauling service.

Landess sued Borden in Wisconsin Circuit Court, claiming that Borden had tortiously interfered with his business relations. Borden removed the case to federal district court. Landess amended the complaint to additionally allege that Borden had breached an implied contract with him when it refused to accept milk hauled by him from Borden's producers. The district court granted Borden summary judgment, dismissing the claims. The Seventh Circuit affirmed. Landess v. Borden, Inc., 667 F.2d 628 (7th Cir. 1981).

On February 1, 1982, Landess filed the present claim against Borden, the employees and the milk haulers. Landess contends that Borden, the employees and the milk haulers conspired to injure his reputation and business in violation of sec. 134.01, Stats. Borden and the employees moved to dismiss the complaint claiming that res judicata barred the claim. The milk haulers also moved to dismiss the complaint claiming that Landess is collaterally estopped from bringing this action against them by virtue of the judgment entered in the federal district court. In a memorandum decision entered October 14, 1982, the trial court granted both motions and dismissed the complaint. Judgment was entered October 27, 1982, from which Landess appeals.

Landess raises two issues on appeal:

(1) whether res judicata bars Landess' conspiracy claim, under sec. 134.01, Stats., against Borden, its employees, or the milk haulers; *fn1 and

(2) whether collateral estoppel bars Landess' conspiracy claim against Borden, its employees, or the milk haulers.

RES JUDICATA

We shall separately address the applicability of res judicata as to each respondent.

The doctrine of res judicata makes a final adjudication conclusive in a subsequent action between the same parties, or their privies, as to all matters which (1) were litigated or (2) might have been litigated in the former proceeding. DePratt v. West Bend Mutual Insurance Co., 113 Wis. 2d 306, 310, 334 N.W.2d 883, 885 (1983). Accord Barbian v. Lindner Brothers Trucking Co., 106 Wis. 2d 291, 296, 316 N.W.2d 371, 374 (1982); Leimert v. McCann, 79 Wis. 2d 289, 293-94, 255 N.W.2d 526, 528-29 (1977).

When determining whether res judicata applies, we are presented with a question of law. DePratt, supra. As to questions of law, an appellate court need not give special deference to determinations of a trial court. Id.

A valid and final judgment on the merits in favor of the defendant bars another action by the plaintiff against the defendant on the same claim or cause of action. Id. A summary judgment in favor of the defendant is sufficient to meet the requirement of a conclusive and final judgment. Id. at 310-11, 334 N.W.2d at 885. The purpose of res judicata is to prevent repetitive litigation. Id. Fairness to the defendant and sound judicial administration require that at some point litigation over the particular controversy must come to an end. Id.

Res judicata requires that, for the prior action to bar the current action, there must be an identity of parties and an identity of causes of action or claims in the two cases. Id. In the current action against Borden, there is an identity of parties. We must determine, however, whether there exists an identity of causes of action or claims.

Identity of Causes of Action or Claims

Landess argues that the test of whether there is more than one cause of action is whether there is more than one primary right sought to be enforced. He contends that in the first action he attempted to enforce contractual rights, but that the instant action involves the separate and distinct right not to have two or more persons conspire to destroy one's business. We disagree.

In DePratt the supreme court adopted the "transactional view" of a claim or a cause of action. Id. at 311-12, 334 N.W.2d at 885-86. The supreme court quoted comment a to § 24 of the Restatement (Second) of Judgments:

The present trend is to see claim in factual terms and to make it coterminous with the transaction regardless of the number of substantive theories, or variant forms of relief flowing from those theories, that may be available to the plaintiff; regardless of the number of primary rights that may have been invaded; and regardless of the variations in the evidence needed to support the theories or rights. The transaction is the basis of the litigative unit or entity which may not be split. Id. at 311, 334 N.W.2d at 885-86. [Emphasis added; footnote omitted.]

A plaintiff's claim is barred although he or she is prepared in the second action: (1) to present evidence or grounds or theories of the case not presented in the first action; or, (2) to seek remedies or forms of relief not demanded in the first action. Id. at 312, 334 N.W.2d at 886. The Restatement (Second) of Judgments, § 24, states:

(1) When a valid and final judgment rendered in an action extinguishes the plaintiff's claim pursuant to the rules of merger or bar (see ยงยง 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 ...


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