Philip Hicky, II, Special Chief Justice.
This is a wrongful death case. The issues to be decided in connection with this appeal are:
(A) Whether there was a determination as to the issue of liability as between the appellants and the appellees in a previously decided Pulaski County Circuit Court case involving the same parties and the same accident; and,
(B) If the foregoing issue of liability was determined, is the determination of liability in the previously decided case in the Pulaski County Circuit Court preclusive of the issue of liability in this case appealed from the Lonoke County Circuit Court.
The trial judge held that the issue of liability as between the appellants and appellees had been decided in the Pulaski County Circuit Court case and that the decision on that issue in the Pulaski County Circuit Court precluded a retrial of that issue in the Lonoke County Circuit Court and that the parties were bound by the determination as to the issue of liability in the Pulaski County Circuit Court. We affirm the decision of the lower court.
A multi-vehicle accident occurred about 11:45 p.m., on June 8, 1988, on Interstate 40, east of North Little Rock. Eleven vehicles were involved in the accident. Some of the persons involved in the accident were fatally injured and others received personal injuries. The accident occurred at a time when heavy smoke was blowing across Interstate 40 as a result of a fire burning on land adjacent to the travelled portion of Interstate 40.
On June 15th, 1988, appellee Pinson, filed a wrongful death action in the Lonoke County Circuit Court (the “Lonoke County action”) for the death of her husband, Kenneth Ray Pinson, who was killed in the multi-vehicle accident in issue. Subsequent to the filing of the Lonoke County action by appellee Pinson, David Newman and others filed actions in the Pulaski County Circuit Court for recovery of damages arising from the same accident. The Pulaski County actions were consolidated for purposes of a trial into one cause of action (the “Pulaski County action”).
All parties involved in the accident, including appellee Pinson, eventually were either named as plaintiffs, defendants, or third-party defendants in the Pulaski County action. Appellee Pinson was named as a defendant in the Pulaski County action; however, appellee Pinson’s claim for damages remained in the Lonoke County action. All parties to the Lonoke County action were also parties to the Pulaski County action.
The issues of liability and damages were bifurcated in both the Pulaski County action and the Lonoke County action. The issue of liability in the Pulaski County action proceeded to trial first. At the conclusion of a lengthy trial on the issue of liability in the Pulaski County action, the case was submitted to the jury on special interrogatories.
In the Pulaski County action, interrogatories in the following form, as to each party, were submitted to the jury:
Do you find from a preponderance of the evidence that there was negligence on the part of (name of party) which was a proximate cause of the damage to any party?
The jury found that only John Hofstetter, the driver for Cheese-man Trucking, Inc., (hereinafter “appellants”) and Morgan Clay, the driver for Sunbelt Transport/Mallinckrodt, Inc. (hereinafter “Sunbelt Transportation”) were guilty of negligence that was a proximate cause of the damage to any other party. The jury responded “No” as to the fault of all other parties, including Kenneth Ray Pinson. In subsequent interrogatories, the jury apportioned fault for the occurrence at 50 % for appellants and 50 % for Sunbelt Transportation. A judgment was entered in the Pulaski County action on these verdicts in February of 1990.
The appellants and Sunbelt Transportation appealed the bifurcated judgment as to liability in the Pulaski County action. In 1991, this court dismissed the appeal for the reason that the judgment was not a final appealable judgment because damages had not been adjudicated. John Cheeseman Trucking, Inc. v. Dougan, 305 Ark. 49, 805 S.W.2d 69 (1991). A judgment for damages was subsequently entered in the Pulaski County action. The Pulaski County action was appealed to this court and affirmed. John Cheeseman Trucking, Inc. v. Newman, 313 Ark. 229, 853 S.W.2d 278 (1993).
After the judgment was entered in the Pulaski County action, motions for summary judgment were filed in the Lonoke County action by the appellees on the grounds of res judicata and collateral estoppel. The Lonoke County Circuit Court granted summary judgment against appellants and Sunbelt Transportation as to the issue of liability in connection with appellee Pinson’s claim and dismissed all claims against all other parties. Sunbelt Transportation subsequently settled with all parties and was dismissed from both the Pulaski County action and the Lonoke County action. The appellants consented to $400,000.00 in damages for appellee Pinson in the Lonoke County action and now takes this appeal.
The concept of res judicata has two facets. One being issue preclusion and the other being claim preclusion. Issues in connection with this appeal are governed by the issue preclusion facet of the concept of res judicata. Claim preclusion forecloses further litigation on a cause of action. Bailey v. Harris Brake Fire Protection Dist., 287 Ark. 268, 697 S.W.2d 916 (1985). Issue preclusion precludes further litigation in connection with a certain issue. Issue preclusion is limited to those matters previously at issue, which were directly and necessarily adjudicated. Smith v. Roane, 284 Ark. 568, 683 S.W.2d 935 (1985).
The Restatement (Second) of Judgments § 27 (1982) provides:
When an issue of fact or law is actually litigated and determined by a valid and final judgment and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.
When the foregoing general rule of the Restatement (Second) of Judgments on issue preclusion is analyzed and applied to this case, the case must be affirmed.
First, is the issue thought to be precluded the same as the issue involved in the prior litigation? Clearly, it is. The issue of liability as among the parties had to be tried in the Pulaski County action. All parties in the Pulaski County action were also parties in the Lonoke County action. The issue as to liability in connection with each party to the Pulaski County action was submitted to the jury by separate interrogatory.
Second, was the issue of liability actually litigated in the Pulaski County action? The issue of liability was actually litigated in the Pulaski County action and was submitted for determination to the jury and was determined by the jury’s responses to the interrogatories.
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Philip Hicky, II, Special Chief Justice.
This is a wrongful death case. The issues to be decided in connection with this appeal are:
(A) Whether there was a determination as to the issue of liability as between the appellants and the appellees in a previously decided Pulaski County Circuit Court case involving the same parties and the same accident; and,
(B) If the foregoing issue of liability was determined, is the determination of liability in the previously decided case in the Pulaski County Circuit Court preclusive of the issue of liability in this case appealed from the Lonoke County Circuit Court.
The trial judge held that the issue of liability as between the appellants and appellees had been decided in the Pulaski County Circuit Court case and that the decision on that issue in the Pulaski County Circuit Court precluded a retrial of that issue in the Lonoke County Circuit Court and that the parties were bound by the determination as to the issue of liability in the Pulaski County Circuit Court. We affirm the decision of the lower court.
A multi-vehicle accident occurred about 11:45 p.m., on June 8, 1988, on Interstate 40, east of North Little Rock. Eleven vehicles were involved in the accident. Some of the persons involved in the accident were fatally injured and others received personal injuries. The accident occurred at a time when heavy smoke was blowing across Interstate 40 as a result of a fire burning on land adjacent to the travelled portion of Interstate 40.
On June 15th, 1988, appellee Pinson, filed a wrongful death action in the Lonoke County Circuit Court (the “Lonoke County action”) for the death of her husband, Kenneth Ray Pinson, who was killed in the multi-vehicle accident in issue. Subsequent to the filing of the Lonoke County action by appellee Pinson, David Newman and others filed actions in the Pulaski County Circuit Court for recovery of damages arising from the same accident. The Pulaski County actions were consolidated for purposes of a trial into one cause of action (the “Pulaski County action”).
All parties involved in the accident, including appellee Pinson, eventually were either named as plaintiffs, defendants, or third-party defendants in the Pulaski County action. Appellee Pinson was named as a defendant in the Pulaski County action; however, appellee Pinson’s claim for damages remained in the Lonoke County action. All parties to the Lonoke County action were also parties to the Pulaski County action.
The issues of liability and damages were bifurcated in both the Pulaski County action and the Lonoke County action. The issue of liability in the Pulaski County action proceeded to trial first. At the conclusion of a lengthy trial on the issue of liability in the Pulaski County action, the case was submitted to the jury on special interrogatories.
In the Pulaski County action, interrogatories in the following form, as to each party, were submitted to the jury:
Do you find from a preponderance of the evidence that there was negligence on the part of (name of party) which was a proximate cause of the damage to any party?
The jury found that only John Hofstetter, the driver for Cheese-man Trucking, Inc., (hereinafter “appellants”) and Morgan Clay, the driver for Sunbelt Transport/Mallinckrodt, Inc. (hereinafter “Sunbelt Transportation”) were guilty of negligence that was a proximate cause of the damage to any other party. The jury responded “No” as to the fault of all other parties, including Kenneth Ray Pinson. In subsequent interrogatories, the jury apportioned fault for the occurrence at 50 % for appellants and 50 % for Sunbelt Transportation. A judgment was entered in the Pulaski County action on these verdicts in February of 1990.
The appellants and Sunbelt Transportation appealed the bifurcated judgment as to liability in the Pulaski County action. In 1991, this court dismissed the appeal for the reason that the judgment was not a final appealable judgment because damages had not been adjudicated. John Cheeseman Trucking, Inc. v. Dougan, 305 Ark. 49, 805 S.W.2d 69 (1991). A judgment for damages was subsequently entered in the Pulaski County action. The Pulaski County action was appealed to this court and affirmed. John Cheeseman Trucking, Inc. v. Newman, 313 Ark. 229, 853 S.W.2d 278 (1993).
After the judgment was entered in the Pulaski County action, motions for summary judgment were filed in the Lonoke County action by the appellees on the grounds of res judicata and collateral estoppel. The Lonoke County Circuit Court granted summary judgment against appellants and Sunbelt Transportation as to the issue of liability in connection with appellee Pinson’s claim and dismissed all claims against all other parties. Sunbelt Transportation subsequently settled with all parties and was dismissed from both the Pulaski County action and the Lonoke County action. The appellants consented to $400,000.00 in damages for appellee Pinson in the Lonoke County action and now takes this appeal.
The concept of res judicata has two facets. One being issue preclusion and the other being claim preclusion. Issues in connection with this appeal are governed by the issue preclusion facet of the concept of res judicata. Claim preclusion forecloses further litigation on a cause of action. Bailey v. Harris Brake Fire Protection Dist., 287 Ark. 268, 697 S.W.2d 916 (1985). Issue preclusion precludes further litigation in connection with a certain issue. Issue preclusion is limited to those matters previously at issue, which were directly and necessarily adjudicated. Smith v. Roane, 284 Ark. 568, 683 S.W.2d 935 (1985).
The Restatement (Second) of Judgments § 27 (1982) provides:
When an issue of fact or law is actually litigated and determined by a valid and final judgment and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.
When the foregoing general rule of the Restatement (Second) of Judgments on issue preclusion is analyzed and applied to this case, the case must be affirmed.
First, is the issue thought to be precluded the same as the issue involved in the prior litigation? Clearly, it is. The issue of liability as among the parties had to be tried in the Pulaski County action. All parties in the Pulaski County action were also parties in the Lonoke County action. The issue as to liability in connection with each party to the Pulaski County action was submitted to the jury by separate interrogatory.
Second, was the issue of liability actually litigated in the Pulaski County action? The issue of liability was actually litigated in the Pulaski County action and was submitted for determination to the jury and was determined by the jury’s responses to the interrogatories. In the bifurcated trial on the issue of liability in the Pulaski County action, the parties were represented by attorneys in a lengthy trial wherein the issue of liability in connection with the accident in question was heavily contested and actually litigated. All parties prosecuted, or defended, on the issue of liability.
Third, was the issue determined by a valid and final judgment? At the time the Lonoke County Circuit Court granted summary judgment in this case, the Pulaski County action was on appeal to this court; however, the Lonoke County Circuit Court was correct in relying upon the judgment in the Pulaski County action, even though the Pulaski County action was on appeal to this court at the time the Lonoke County Circuit Court granted summary judgment in this cause of action because the pending appeal of the Pulaski County action did not affect the finality of the judgment for purposes of issue preclusion. Arkansas follows the majority rule that a judgment is final for purposes of issue preclusion, despite a pending appeal for a review of the judgment, unless the appeal actually consists of a trial de novo. Boynton v. Chicago Mill and Lumber Co., 84 Ark. 203, 105 S.W. 77 (1907). See also Restatement (Second) of Judgments § 13. In today’s complex litigation involving multiple parties arising from one occurrence, it makes no sense to re-litigate the same issue between the same parties with the possibility of inconsistent results. Once an issue has been litigated in a fair forum, the results should be binding. In addition, this court did on May 17, 1993, affirm the Pulaski County action. John Cheeseman Trucking, Inc. v. Newman, 313 Ark. 229, 853 S.W.2d 278 (1993).
Fourth, was the determination of liability essential to the Pulaski County judgment? The answer to that question is clearly yes. There was no way to reach a decision in the Pulaski County action without making a determination as to the issue of liability among the parties.
The appellants rely upon East Texas Motor Freight Lines, Inc. v. Freeman, 289 Ark. 539, 713 S.W.2d 456 (1986). That case is distinguishable upon its facts. In the East Texas Motor Freight case, there were parties to the second suit which had not been parties to the first suit. In the case at bar, all parties in the Lonoke County action were also parties in the Pulaski County action. The plaintiffs in the second East Texas Motor Freight case wanted to be included in the first East Texas Motor Freight case, but they were excluded by the federal court. The issue of liability and damages were not bifurcated in the East Texas Motor Freight case. The appellee in this case was the first party to commence litigation in connection with the occurrence in issue. She chose Lonoke County as the venue for her cause of action. Arkansas Rules of Civil Procedure, Rule 13 provides that a pleading shall state as a counterclaim any claim which, at the time of the filing of the pleading, the pleader has against the opposing party, if it arises out of the same transaction and occurrence that is the subject matter of the opposing party’s claim, but the pleader need not state the claim if, at the time the action was commenced, the claim was the subject of another pending action. Appellee Pinson chose not to file a counterclaim in the Pulaski County action, even though she was joined as a party defendant, which did require her to submit to the Pulaski County cause of action for purposes of determining the issue of liability. Appellee Pinson participated in the trial on the issue of liability in the Pulaski County action and won on that issue and she should not under the facts in this case be required to try that issue again. Likewise, had appellee Pinson lost on the issue of liability in the Pulaski County action, she would have been bound by the finding on that issue in the Lonoke County action.
No genuine issues of material fact with respect to the appellants’ liability to appellee Pinson exist as a result of the Pulaski County judgment. Therefore, summary judgment on behalf of the appellee Pinson as to the issue of liability in Lonoke County action was proper.
Affirmed.
Special Justice C.C. Gibson, III, concurs. Special Justice Ben Core dissents. Holt, C.J., Newbern and Glaze, JJ., not participating.