Wintersteen v. Benning

513 N.W.2d 920, 1994 S.D. LEXIS 36, 1994 WL 106511

Opinions

HENDERSON, Justice.

PROCEDURAL HISTORY/ISSUES

Landlords Glen R. Wintersteen, Lee R. Wintersteen, and Thomas R. Wintersteen, d/b/a Triple W Enterprise (hereinafter Win-tersteens), sought unpaid rent and cleanup costs from tenant Dakota Lamb Feeders, Inc. (DLF) in April of 1989. A jury awarded Wintersteens $13,334.00 for damages, plus pre-judgment interests and costs. DLF paid all but the costs.

On June 13, 1991, Wintersteens, who are appellees, brought this action against appellant Stuart Benning, as guarantor, seeking recovery of the unpaid costs, and, additional ly, attorneys’ fees for this action and the previous April 1989 action. Thereafter, the trial court awarded Wintersteens $2,025.87 for unpaid costs and interest and $22,325.90 for attorneys’ fees and interest paid to the attorneys for prosecution of the first lawsuit.

Benning appeals the award of attorneys’ fees for the first lawsuit, setting forth three issues:

I. Is Wintersteens’ action barred by res judicata?

II. Can the obligations of a guarantor be more burdensome than that of the principal?

III. Are attorneys’ fees in guaranties prohibited by SDCL 15-17-10?

Holding res judicata applies, we reverse and do not reach Issues II and III.

FACTS

In 1983,. DLF rented a feedlot from Rooney Feedlots, Inc., signing a one-year lease with a five-year renewal option. To guarantee performance of DLF’s corporate obligations under the lease, Benning, the principal shareholder and officer of DLF, additionally signed a personal guaranty. Before the first year ended, Rooney sold the feedlot to the Wintersteens who sought to terminate the lease. DLF, however, exercised its five-year option. Wintersteens brought suit seeking eviction, damages for breach of contract and attorneys’ fees. Negotiations were subsequently conducted until April of 1989 when DLF vacated the feedlot. Winter-steens filed an Amended Complaint seeking six months unpaid rent and cleanup costs.

Following a jury trial on the Amended Complaint, Wintersteens were awarded $13,-334.00 for two months unpaid rent plus cleanup costs. Additionally, the trial court added pre-judgment interest and costs. DLF remitted all but the costs, prompting the Win-tersteens to bring this action against guarantor Benning, seeking recovery of the unpaid costs, plus attorneys’ fees for this action and the prior one. Thereafter, the trial court awarded Wintersteens $2,025.87 for unpaid costs and interest plus $22,325.90 for attorneys’ fees with interest for handling the first lawsuit.

Benning appeals the award of attorneys’ fees for the prior action.

DECISION

I. This action is barred by res judicata.

Res judicata bars an attempt to relitigate a prior determined cause of action by the parties or one of the parties in privity to a party in the earlier suit. Du-Al Mfg. Co. v. Sioux Falls Const. Co., 487 N.W.2d 29 (S.D.1992); Melbourn v. Benham, 292 N.W.2d 335 (S.D.1980). This Court applies four factors in determining if this doctrine applies: (1) was the issue decided in the former adjudication identical to the present issue; (2) was there a final judgment on the merits; (3) are the parties in the two actions the same or in privity; and (4) was there a full and fair opportunity to litigate the issues in the prior adjudication? Moe v. Moe, 496 N.W.2d 593, 595 (S.D.1993); Raschke v. DeGraff, 81 S.D. 291, 295, 134 N.W.2d 294, 296 (1965).

In the prior case, Wintersteens sought to recover damages for past rent payments and cleaning costs. Attorneys’ fees were not sought. Instanter, Winter-steens demands attorneys’ fees for seeking past rent payments and cleaning costs. Although the cause of action is based upon the guaranty, the fees in question arise from the prior cause of action, not the guaranty. Res judicata precludes litigation of issues which could have been properly raised and determined in a prior action. Hogg v. Siebrecht, 464 N.W.2d 209, 211 (S.D.1990). That a party could have raised an issue but failed to do so will not prevent the application of res judicata. Nelson v. Hawkeye Security Ins. Co., 369 N.W.2d 379 (S.D.1985).

The prior case has had a final judgment on the merits. Although DLF and Benning are separate legal entities, due to the guaranty contract, the two parties were in privity for the prior action. Wintersteens, well aware of Benning’s connection to DLF and his guaranty, had a full and fair opportunity to liti gate the issues in the prior adjudication.

Footnotes

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* It is a logical practice that if one desires an award of attorneys’ fees in an action, one should raise that issue during that action. Wintersteens did not. To advance a point at the appellate level, counsel should have made his point in an instruction, or at least tried to by requested instruction. Hogg v. First Nat. Bank of Aberdeen, 386 N.W.2d 921 (S.D.1986).

Wintersteens defend alleging that the lease itself does not allow for attorneys’ fees when collecting past rent payments and cleaning costs,, but the guaranty contract does. Therefore, different contract, different issue. When a party to litigation fails to develop all of the issues and evidence available in a case, the party is not justified in later trying the omitted issues or facts in a second action based upon the same claim. Crowley v. Spearfish Ind. School Dist., 445 N.W.2d 308 (S.D.1989). The claim that the lease contract did not allow for attorneys’ fees does not lessen the responsibility to raise the issue at the proper time.

It is the same claim. Wintersteens seek attorneys’ fees for DLF’s actions in the prior case. Without the existence of the prior case, Wintersteens would have no case upon which to claim attorneys’ fees. Clearly, Win-tersteens’ claim existed at the time of the prior suit.

We reverse and remand the Judgment entered in this case, with instructions to strike out the award of attorneys’ fees, leaving only a judgment against Benning for costs incurred in the first action, with interest.

MILLER, C.J., and WUEST and AMUNDSON, JJ„ concur. SABERS, J., dissents.

Dissent contends that Benning agreed to "split” a cause of action. We disagree. Rather, Benning, an individual, guaranteed performance of a contract made by a business entity (DLF) by making himself personally liable. One cause of action, two sources of liability.