The surprising breadth of res judicata

Posted Wednesday, June 26th, 2019 by Gregory Forman
Filed under Family Court Procedure, Of Interest to Family Law Attorneys, South Carolina Specific

At this point in my career, it’s rare I learn anything significant about legal doctrines from opposing counsels. However, earlier this week, I was completely schooled by an attorney, Jeffrey Thomas Watson, three years out of law school about the breadth of the res judicata doctrine.

That doctrine holds that issues that have been completely litigated–either to conclusion or to a dismissal with prejudice–cannot be relitigated again against the same parties. There are two components to this doctrine. The first is that matters literally cannot be relitigated again. For example, if one files for an adultery divorce and fails to prove the adultery, one cannot bring another claim for the adultery divorce if one obtains better evidence–although one could file again if one obtains evidence of subsequent adultery.

The second component is that once a judicial resolution is made regarding some fact, that factual resolution is binding in subsequent cases between the parties. For example, if, in a protection from domestic abuse proceeding, one obtains a finding of domestic abuse, that finding carries over into any subsequent marital dissolution case. That issue was the gravamen of the appeal I handled in Moore v. Moore, 376 S.C. 467, 657 S.E.2d 743 (2008). In Moore, Husband had been served with a domestic abuse proceeding in the evening for a hearing that took place at 9:00 a.m. the next morning. The family court found domestic abuse and he appealed, arguing it violated his due process rights to have a binding judicial determination made on a petition that he had no time to prepare to defend. The Supreme Court resolved this issue by finding that a domestic abuse petition brought on an emergency basis “does not represent a final adjudication of the merits of the action.” Hence an emergency finding of domestic abuse does not carry over to subsequent proceeding between the parties.

Where I was schooled by my younger colleague on the breadth of res judicata is what “facts” are subject to this doctrine. In South Carolina, it is not only issues that were raised in prior proceedings between the parties but any issues that could have been raised. As stated in Taylor v. Taylor, 241 S.C. 462, 128 S.E.2d 910, 913 (1962), “[t]he doctrine of res judicata has been generally said to bar relitigation not only of issues actually decided in the former proceeding, but also of such issues as could have been there presented for decision.” (emphasis in original).

It’s not surprising I was unaware of a doctrine that had last been applied in a family court appeal in 1962, although the doctrine is mentioned in Ashburn v. Rogers, 420 S.C. 411, 803 S.E.2d 469, (Ct. App. 2017). In my case this week, my client had sought contempt in September 2018 regarding uncivil verbal communications. Earlier that year her ex-husband had also engaged in a series of uncivil written communications, but it was the verbal confrontations that had bothered her the most so she didn’t pursue contempt on the written communications. However, when her ex-husband then pursued contempt over allegedly uncivil written communications from the same time period, she filed a counter-rule to show cause over these communications.

At the start of trial, ex-husband’s attorney provided a return alleging res judicata. While the judge took it under brief advisement to review the file, I did some quick research, noted the Taylor case, and determined he was probably correct. After I asked, the court offered me the right to continue the proceeding to give me time to prepare my defense to the dismissal request, I decided my client’s contempt petition was doomed due to res judicata and the judge did dismiss it. Disappointing but correct.

So for attorneys (like myself) who understood res judicata to be limited to factual issues that had actually been litigated, it is useful to know that it also applies to any facts that could have been litigated.

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