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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Smith v. CSK Auto, Inc. (03/10/2006) sp-5995
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| TERRY SMITH, | ) |
| ) Supreme Court No. S- 11791 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 4FA-04-2053 CI |
| ) | |
| CSK AUTO, INC., d/b/a SCHUCKS | ) O P I N I O N |
| AUTO SUPPLY and DOE, | ) |
| ) | |
| Appellees. | ) No. 5995 - March 10, 2006 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Charles R. Pengilly, Judge.
Appearances: Terry L. Smith, pro se,
Fairbanks. James H. Juliussen, Eric J.
Jenkins, Davis Wright Tremaine LLP,
Anchorage, for Appellee CSK Auto, Inc., d/b/a
Schucks Auto Supply.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
MATTHEWS, Justice.
I. INTRODUCTION
This appeal centers around the dismissal of pro se
appellant Terry Smiths second lawsuit against his former
employer, CSK Auto. The superior court found all of Smiths
claims barred by collateral estoppel. We affirm the superior
courts ruling in all but one respect. The dismissal of Smiths
wrongful termination claim is reversed because it constitutes a
different cause of action than his other claims.
II. BACKGROUND
Smiths lawsuits are mostly based on an injury that he
claims to have suffered while working as a driver for CSK. He
traces the injury to a back-support belt provided to him by CSK.
Smith sued CSK in superior court in April 2004. His
complaint stated claims for (1) negligence, (2) fraud, (3) bad
faith, (4) breach of contract, (5) violations of AS 18.60.075(a),
(6) strict products liability, and (7) breach of warranty. The
complaint substantively alleged that CSK knowingly gave Smith a
defective support belt and failed to warn him of the dangers
associated with the belt. It also alleged that CSK fraudulently
interfered with the distribution of medical benefits owed to
Smith after his injury.
Citing diversity of citizenship, CSK removed the case
to the United States District Court for the District of Alaska.
CSK then successfully moved to dismiss Smiths complaint with
prejudice, and the court entered judgment against him. The
court found Smiths claims to be barred by the exclusive remedy
provisions of the Alaska Workers Compensation Act and the
relevant statutes of limitations.
Not long after losing in federal court, Smith filed the
complaint at issue here. Most of the second complaint is
identical to the first. It states claims for (1) negligence, (2)
fraud, (3) bad faith, (4) breach of contract,1 and (5) violations
of AS 18.60.075(a). Again these claims are based on allegations
that CSK knowingly gave Smith a defective support belt, failed to
warn him of the dangers associated with that belt, and interfered
with his medical benefits after the injury. There are three
additional claims in the second complaint that do not appear in
the first. They are (1) a claim for intentional infliction of
emotional distress, (2) violation of certain unnamed Occupational
Health and Safety Administration rules, and (3) a claim for
wrongful termination in violation of the Medical Leave Act.
CSK successfully moved to dismiss Smiths second
complaint for failure to state a claim upon which relief can be
granted. The superior court found the entire second complaint to
be barred by res judicata and/or collateral estoppel and
dismissed it with prejudice. Smith appeals.
III. DISCUSSION
Smith contends that neither res judicata nor collateral
estoppel precludes the claims in his second complaint.
A. Res Judicata
The doctrine of res judicata provides that a final
judgment in a prior action bars a subsequent action if the prior
judgment was (1) a final judgment on the merits, (2) from a court
of competent jurisdiction, (3) in a dispute between the same
parties (or their privies) about the same cause of action.2
There is no question that the federal court is a court of
competent jurisdiction or that Smiths two lawsuits were between
the same parties. Therefore, the res judicata effect of Smiths
first complaint depends on two things: (1) whether the dismissal
of the complaint constitutes a final judgment on the merits and
(2) whether the claims in the second complaint can be considered
part of the same causes of action as those brought in the first
complaint.
Whether res judicata applies is a question of law that
we review de novo.3
1. Final judgment on the merits
A final judgment on the merits for res judicata
purposes does not require a full trial on the merits.4 The
defense of res judicata may be based upon a prior dismissal on
the merits of plaintiffs action against [the] defendant.5
Additionally, a dismissal with prejudice is treated as a
dismissal on the merits and is, therefore, a final judgment on
the merits.6 Put differently, [t]he term with prejudice,
expressed in a judgment of dismissal, has a well-recognized legal
import; and it indicates an adjudication of the merits, operating
as res judicata.7
The status of an appeal from a preclusive judgment
typically has no effect on the finality of that judgment.
Specifically, the act of taking an appeal does nothing to defeat
the preclusive effect of a judgment.8 Nor does the failure to
appeal a judgment render that judgment non-final.9
Here, the federal district court dismissed Smiths first
complaint with prejudice. Therefore, although the judgment
against Smith did not result from a trial, it operates as an
adjudication on the merits nonetheless. Smiths appeal to the
Ninth Circuit does not change this result.10
2. Same cause of action
Res judicata prevents a party from bringing a cause of
action that has already been litigated and decided.11 A cause of
action in this realm includes more than the exact claim already
litigated. New claims arising from the same transactions as
those in the first suit are also barred from litigation in the
second suit.12
a. Repeat claims
The inquiry into many of Smiths claims in his second
complaint is straightforward because they are nearly exact
replicas of those in his first complaint and are therefore
plainly barred. The second complaint contains ten counts. Each
count contains at least one claim for recovery. The claims
within each count that are similar enough to those in his first
complaint to be considered the same, on their face, are detailed
below.
Count I
Count I alleges that CSK used fraud and coercion to
interfere with medical benefits owed to Smith under an implied
contract between the parties. These are exactly the same
allegations that appear on page three of Smiths first complaint.
Count I in the second complaint also alleges that CSK
violated AS 18.60.075 by failing to provide safety equipment
without a reasonable justification or excuse. This matches the
allegations on page four of Smiths first complaint that CSK
violated AS 18.60.075 by sending plaintiff out on a delivery
without protective safety equipment.
Counts II, VI, & VII
Count II is several paragraphs long, but each paragraph
simply rephrases the general allegation that CSK wrongfully
failed to warn Smith of the dangers associated with the support
belt provided to him. Counts VI and VII state the same
allegation. This claim appears almost verbatim on page four of
Smiths first complaint, where he charges CSK with failing to warn
employee of hazard of wearing employer supplied back support
belts.
Count III
Count III is also several paragraphs long and
purportedly charges CSK with negligent concealment. In fact,
this is a reiteration of Smiths argument in the first action that
the discovery rule should have tolled the statutes of limitations
on his tort claims. In other words, we take his point here to be
that CSKs alleged concealment efforts delayed Smiths discovery of
his claims. Therefore, he believes that the statute of
limitations began to run only upon his actual discovery of his
claims. This point was litigated and decided in the first
action.
Count IV
Count IV repeats the allegations on page four of the
first complaint, as well as Count I of the second complaint, that
CSK violated AS 18.60.075 by failing to provide Smith with proper
safety equipment.
Count V
Count V charges CSK with violating AS 18.60.075 by
failing to keep the employee safe. This corresponds with page
four of Smiths first complaint, where he claims that CSK failed
to protect employee in violation of AS 18.60.075.
Because each of these claims is a duplicate of one
already adjudicated in Smiths first action, the superior court
did not err in ruling that they are all barred by res judicata.13
b. New claims
There are three claims in Smiths second complaint that
do not appear in the first. They are his allegations of (1)
intentional infliction of emotional distress, (2) the violation
of certain Occupational Safety and Health Administration rules,
and (3) wrongful termination. Because they are new, the
preclusive effect of the first action on these three claims
depends on whether they stem from the same transaction as the
claims made in the first complaint.14
What factual grouping constitutes a transaction in this
setting is determined by whether the facts are related in time,
space, origin, or motivation, and whether they form a convenient
trial unit. 15 The inquiry is a pragmatic one, which also
compares the evidence and witnesses that may be relied on to
prove each claim16 and the expectations of the parties.17
Importantly, the legal theories on which multiple claims are
based are not considered when determining whether those claims
arise from the same transaction. One cannot avoid the preclusive
effect of an earlier judgment by alleging the same facts under a
new legal theory.18
Intentional Infliction of Emotional Distress & Rules
Violations
Smiths claims for intentional infliction of emotional
distress and Occupational Safety and Health Administration (OSHA)
rules violations plainly stem from the same transaction as the
claims in his first complaint. At the core of each claim in
Smiths first complaint is either his injury or CSKs alleged
interference with his medical benefits. His new claim for
intentional infliction of emotional distress is based on extreme
and outrageous behavior exhibited by CSK in its dealings with
Smith regarding the injury and medical treatment.19 The emotional
distress claim is therefore just a new legal theory derived from
the same facts alleged in the first complaint. Similarly, the
OSHA claim charges CSK with contributing to Smiths injury by
improperly packing cases of antifreeze. It thus involves the
same transaction his injury as his earlier claims against CSK
for failing to provide proper safety equipment. For these
reasons, we agree with the superior courts conclusion that Smiths
new emotional distress and OSHA claims are precluded.20
Wrongful Termination
Smiths second complaint alleges for the first time that
CSK secretly terminated employee while employee was under worker
compensation system in violation of Medical Leave Act. Whether
this claim is precluded because it stems from the same
transaction as Smiths earlier claims depends on the breadth with
which the relevant transaction is defined. CSK offers two
theories of the transaction. First, it contends that the
transaction should be defined to include the entire employment
relationship between the parties. CSK alternatively defines the
transaction to include all of the dealings between the parties
after Smiths injury. We do not agree with either theory.
Preliminarily, it is not clear from Smiths complaint
that he was able to bring his wrongful termination claim in the
first action.21 That alone may be enough to withstand a res
judicata attack.22 More importantly, Smiths wrongful termination
claim stems from a different injury, caused a different harm, and
would require different proof than the claims in his first
complaint. His contention appears to be that CSK violated the
Medical Leave Act by terminating his employment while he was
somehow protected by the workers compensation system. The injury
and harm the loss of his job and the damages caused thereby are
different than those at issue in his earlier claims that sought
recovery for damages caused by physical injury and hampered
medical treatment. It is also likely that Smiths claim for
wrongful termination requires different proof than his claims
stemming from his physical injury. Therefore, we conclude that
the complaint does not conclusively establish that Smiths
wrongful termination claim stems from the same transaction as his
earlier claims. It is thus not precluded.23
According to CSK, the superior courts dismissal of
Smiths wrongful termination claim for failure to state a claim
upon which relief can be granted should remain intact in spite of
our conclusion that it is not precluded by res judicata. CSK
correctly notes that Smith has not identified the exact law CSK
is alleged to have violated. CSK argues that, as a matter of
law, neither the federal Family and Medical Leave Act24 nor the
Alaska medical leave laws support Smiths claim. It is true that
AS 39.20.305 only guarantees medical leave to public employees
and so cannot support Smiths claim for wrongful termination.25
Yet we disagree with CSKs position that the federal law cannot,
as a matter of law, support Smiths claim.
According to CSK, Smith cannot state a claim under the
federal act because the law only guarantees twelve weeks of leave
and Smith has not been able to work for nearly four years. This
presumes Smiths allegation to be that CSK allowed him twelve
weeks of leave and then refused his request to return to work.
However, our inquiry here is limited to the allegations in the
pleadings,26 and the wrongful termination claim in Smiths
complaint does not limit itself in the way that CSK suggests.
For example, the date on which Smith was allegedly terminated is
not evident from the pleadings. It is therefore possible that
Smiths claim is based on actions taken by CSK before the relevant
twelve-week period lapsed. Under that scenario, it is
conceivable that the federal medical leave law supports Smiths
claim. We do not suggest that this must be the crux of Smiths
wrongful termination claim, or even that his claim may withstand
a motion for summary judgment. Instead, we merely conclude that
the pleadings in their current state do not support CSKs
contention that Smith has not, as a matter of law, stated a claim
for wrongful termination.
B. Collateral Estoppel
Smith also challenges the superior courts alternative
conclusion that collateral estoppel barred the claims in his
second complaint. To the extent that we affirm the superior
courts dismissal of Smiths claims, we do so because they are
precluded by res judicata. Therefore, we do not need to consider
the courts alternative grounds for dismissal.
C. Smiths Additional Claims
Smiths remaining points on appeal challenge the federal
courts decision on the merits and allege that he was denied due
process.
1. The federal courts decision
Smith contends that the federal court erred in its
conclusion that his tort claims were time-barred. That issue is
not properly before this court. A partys remedy for an alleged
erroneous decision in an earlier action is limited to an appeal
from that action.27 Relitigation of the issues or claims is not
permissible simply because the party alleges error in the first
action.28
2. Due process
Smith claims that because he was refused an opportunity
to conduct discovery, he was also denied the essential elements
of due process law. It is not clear whether this contention is
aimed at the federal court proceedings, the state court
proceedings, or both. However, to the extent that he again
attacks the validity of the federal courts decision then his only
redress lies with his appeal to the Ninth Circuit.29 In addition,
the proceedings in the superior court appear to have been
adequate. Smith initiated the proceeding, had notice of CSKs
motion to dismiss, and had a fair opportunity to (and in fact
did) present his case before the court dismissed it for failure
to state a claim.
IV. CONCLUSION
The superior courts dismissal of all but Smiths claim
for wrongful termination is AFFIRMED. The dismissal of the
wrongful termination claim is REVERSED and that claim is REMANDED
for further adjudication.
_______________________________
1 In his second complaint, Smith labels his breach of
contract claim as one for tortious interference with contractual
relations. Yet, as he did in his first complaint, he alleges
that CSK denied him certain benefits owed under an employment
contract. Therefore, the contract claim is best taken as one for
breach.
2 Plumber v. Univ. of Alaska Anchorage, 936 P.2d 163, 166
(Alaska 1997).
3 DeNardo v. Calista Corp., 111 P.3d 326, 329 (Alaska
2005).
4 See id. at 332 (stipulation to dismiss with prejudice
is final and on the merits).
5 Shepherd v. Bering Sea Originals, 578 P.2d 587, 589
(Alaska 1978).
6 See Tolstrup v. Miller, 726 P.2d 1304, 1307 (Alaska
1986) (stipulated dismissal with prejudice amounts to a final
judgment on the merits for res judicata purposes).
7 46 Am. Jur. 2d Judgments 609 (2005) (citations
omitted).
8 Holmberg v. State, Div. of Risk Mgmt., 796 P.2d 823,
829 (Alaska 1990); 18A Charles Alan Wright & Arthur R. Miller,
Federal Practice & Procedure 4433 (2d ed. 2002).
9 Myers v. Bull, 599 F.2d 863, 865 (8th Cir. 1979); see
Holmberg, 796 P.2d at 829 (pendency of appeal does not deny a
judgment its res judicata effects).
10 See Holmberg, 796 P.2d at 829.
11 Alderman v. Iditarod Props., Inc., 104 P.3d 136, 141
(Alaska 2004).
12 Id.
13 See Alderman, 104 P.3d at 141.
14 Plumber, 936 P.2d at 166.
15 Id. at 167 (quoting Restatement (Second) of Judgments
24(2) (1980)).
16 Id.
17 Alderman, 104 P.3d at 141.
18 White v. State, Dept of Natural Res., 14 P.3d 956, 959-
60 (Alaska 2000).
19 Smiths claim for intentional infliction of emotional
distress does not make any specific factual allegations.
Instead, it states that [t]he behavior and conduct on the part of
[CSK] as described herein above caused Smith emotional distress.
The behavior described . . . above in the complaint is CSKs
actions related to the support belt and Smiths medical treatment.
Therefore, it is appropriate to conclude that the intentional
infliction of emotional distress claim stems from those facts.
20 See White, 14 P.3d at 960 (new legal theory arising
from same facts as earlier claim barred by res judicata).
21 The complaint does not allege a date on which he was
fired, for example.
22 See Finch v. Greatlands Foods, Inc., 21 P.3d 1282, 1290
(Alaska 2001) (res judicata inapplicable where new claim could
not have been asserted in the earlier action).
23 See id.
24 29 U.S.C. 2612 (West 2005).
25 AS 39.20.305 (applies only to officers or employees of
the state).
26 See Kollodge v. State, 757 P.2d 1024, 1026 (Alaska
1988) (motion to dismiss for failure to state a claim inquiry
generally limited to the material contained in the pleadings).
27 McDowell v. State, 23 P.3d 1165, 1167 (Alaska 2001).
28 See id.
29 See id.
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