Small Business Administration, Etc. v. Louis Taubman

Ninth Circuit

Small Business Administration, Etc. v. Louis Taubman

459 F.2d 991, 1972 U.S. App. LEXIS 9701

CourtCourt of Appeals for the Ninth Circuit

DecidedMay 8, 1972

Docket25948

StatusPublished

Cited by11 cases

This text of 459 F.2d 991 (Small Business Administration, Etc. v. Louis Taubman) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Small Business Administration, Etc. v. Louis Taubman, 459 F.2d 991, 1972 U.S. App. LEXIS 9701 (9th Cir. 1972).

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Opinion

DUNIWAY, Circuit Judge:

Appellee Small Business Administration (SBA) as Receiver of Newman Capital Corporation, sued appellant Taub-man in this action for $60,000 owed on a note made by Taubman to Newman Capital. Taubman admitted liability on the note, but counterclaimed as the as-signee of Olympic Capital Corporation for an amount allegedly owed to Olympic by Newman Capital. The trial court granted SBA’s motion for summary judgment on the counterclaim on the ground of res judicata. Taubman appeals and we affirm.

Taubman’s counterclaim arose out of a transaction in 1963 in which Olympic loaned $60,000 to one Joseph E. Newman. When Newman failed to repay the loan, Olympic sued Newman individually and Newman Capital asserting that Newman Capital was the alter ego of Newman. The District Court for Colorado granted summary judgment for Newman Capital, but awarded Olympic a judgment against Joseph Newman. That decision is final. As the assignee of Olympic, Taubman now claims that SBA, as Receiver of Newman Capital Corporation, is liable on the note involved in the Colorado District Court litigation.

Res judicata bars a suit on a cause of action which has been judicially determined on the merits in a prior suit involving the same parties or their privies. Lawlor v. National Screen Service Corp., 1955, 349 U.S. 322, 326, 75 S.Ct. 865, 99 L.Ed. 1122. Taubman’s counterclaim asserts the same cause of action asserted by his assignor Olympic in the Colorado case. Both claims arose from the same operative facts; both sought to achieve the same objective. It does not matter that Taubman’s legal theories of “conspiracy” and “joint venture” between Joseph Newman and Newman Capital differ from the alter ego theory asserted by Olympic in the prior action. Wulfjen v. Dolton, 24 Cal.2d 891, 151 *993 P.2d 846 (1944); McCarthy v. Noren, 9 Cir., 1966, 370 F.2d 845, 847, cert. denied 387 U.S. 917, 87 S.Ct. 917, 18 L.Ed. 2d 969 (1967); see also United States v. Kabinto, 9 Cir., 1972, 456 F.2d 1087; Flynn v. State Board of Chiropractic Examiners, 9 Cir., 1969, 418 F.2d 668, and cited cases.

Taubman’s additional contention that summary judgment should not have been granted because a genuine issue of material fact existed with respect to the right of SBA to recover attorney’s fees was waived by Taubman’s failure properly to raise it on appeal and will not be considered by this court.

Affirmed.

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DUNIWAY, Circuit Judge:

Appellee Small Business Administration (SBA) as Receiver of Newman Capital Corporation, sued appellant Taub-man in this action for $60,000 owed on a note made by Taubman to Newman Capital. Taubman admitted liability on the note, but counterclaimed as the as-signee of Olympic Capital Corporation for an amount allegedly owed to Olympic by Newman Capital. The trial court granted SBA’s motion for summary judgment on the counterclaim on the ground of res judicata. Taubman appeals and we affirm.

Taubman’s counterclaim arose out of a transaction in 1963 in which Olympic loaned $60,000 to one Joseph E. Newman. When Newman failed to repay the loan, Olympic sued Newman individually and Newman Capital asserting that Newman Capital was the alter ego of Newman. The District Court for Colorado granted summary judgment for Newman Capital, but awarded Olympic a judgment against Joseph Newman. That decision is final. As the assignee of Olympic, Taubman now claims that SBA, as Receiver of Newman Capital Corporation, is liable on the note involved in the Colorado District Court litigation.

Res judicata bars a suit on a cause of action which has been judicially determined on the merits in a prior suit involving the same parties or their privies. Lawlor v. National Screen Service Corp., 1955, 349 U.S. 322, 326, 75 S.Ct. 865, 99 L.Ed. 1122. Taubman’s counterclaim asserts the same cause of action asserted by his assignor Olympic in the Colorado case. Both claims arose from the same operative facts; both sought to achieve the same objective. It does not matter that Taubman’s legal theories of “conspiracy” and “joint venture” between Joseph Newman and Newman Capital differ from the alter ego theory asserted by Olympic in the prior action. Wulfjen v. Dolton, 24 Cal.2d 891, 151 *993 P.2d 846 (1944); McCarthy v. Noren, 9 Cir., 1966, 370 F.2d 845, 847, cert. denied 387 U.S. 917, 87 S.Ct. 917, 18 L.Ed. 2d 969 (1967); see also United States v. Kabinto, 9 Cir., 1972, 456 F.2d 1087; Flynn v. State Board of Chiropractic Examiners, 9 Cir., 1969, 418 F.2d 668, and cited cases.

Taubman’s additional contention that summary judgment should not have been granted because a genuine issue of material fact existed with respect to the right of SBA to recover attorney’s fees was waived by Taubman’s failure properly to raise it on appeal and will not be considered by this court.

Affirmed.

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459 F.2d 991, 1972 U.S. App. LEXIS 9701, Counsel Stack Legal Research, https://law.counselstack.com/opinion/small-business-administration-etc-v-louis-taubman-ca9-1972.

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