Brad A. Fisher v. Brandy Fisher - State of Indiana

More documents

Recommendations

Info

Brad’s motion. The trial court found that Brad had not met the contingency provided for in the Decree because Brad was not current in his payments at the time of foreclosure. Brad now appeals and Brandy cross-appeals. Additional facts will be provided as necessary. DISCUSSION AND DECISION CROSS-APPEAL On cross-appeal, Brandy asserts that Brad’s present appeal is precluded by the doctrine of res judicata. Specifically, Brandy argues claim preclusion applies because Brad’s appeal raises issues already asserted by him in his prior appeal, which had been dismissed with prejudice. We find Brandy’s cross-appeal to be dispositive. Res judicata prevents the repetitious litigation of that which is essentially the same dispute. In re L.B., 889 N.E.2d 326, 333 (Ind. Ct. App. 2008). The principle of res judicata is divided into two branches: claim preclusion and issue preclusion. Id. Claim preclusion applies where a final judgment on the merits has been rendered which acts as a complete bar to a subsequent action on the same issue or claim between those parties and their privies. Id. Issue preclusion, also referred to as collateral estoppel, bars the subsequent relitigation of the same fact or issue where the fact or issue was necessarily adjudicated in a former suit and the same fact or issue is presented in a subsequent action. Id. When, as here, a party argues that the claim preclusion component of res judicata applies, four factors must be present, namely: (1) the former judgment must have been rendered by a court of competent jurisdiction; (2) the former judgment must have been 6
endered on the merits; (3) the matter now in issue was, or could have been, determined in the prior action; and (4) the controversy adjudicated in the former action must have been between parties to the present suit or their privies. Id. There is no dispute that three of the above requirements are met here. First, there is no dispute that this court did not lack jurisdiction over the parties and the subject matter in both appeals. Second, either party may move to dismiss a claim and a dismissal with prejudice constitutes a dismissal on the merits. Afolabi v. Atlantic Mortgage & Investment Corp., 849 N.E.2d 1170, 1173 (Ind. Ct. App. 2006). Thus, a dismissal with prejudice is conclusive of the rights of the parties and is res judicata as to any questions that might have been litigated. Id. Third, the parties here are identical to those in the prior appeal. Turning to the remaining issue, we consider whether the $20,000 judgment, which Brad argues should have been deemed paid upon the initiation of foreclosure proceedings in July 2010, was or might have been litigated in the prior appeal. We conclude that it was. Brad’s prior appeal resulted from proceedings supplemental brought by Brandy to enforce, modify, as well as remove language pertaining to the $20,000 judgment from the Decree. Although the trial court agreed with Brandy that Brad’s obligation to pay the $20,000 judgment was a support obligation, the December 21, 2010 Order did not remove the language requested by Brandy, nor hold Brad in contempt for failing to make 7
Page 1 and 2: Pursuant to Ind.Appellate Rule 65(D
Page 3 and 4: $152,957. Notably, Brandy received
Page 5: that the trial court had intended t
Page 9 and 10: 9. The [c]ourt should deem the orde

Brad A. Fisher v. Brandy Fisher - State of Indiana

Create successful ePaper yourself

Delete template?

Save as template?