Cjs On Actions

CJS ACTIONS SUM 1A C.J.S.
Actions Summary
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. Correlation Table Summary Scope: This title provides definitions of the term "action" and of such related terms as case, cause, proceeding and suit, action at law, equitable action, and private action. In addition, in this title are discussed the nature, grounds and incidents of civil actions in general; their consolidation and severance; conditions precedent to their maintenance; their commencement, prosecution and termination; and stay of proceedings in actions. Further, this title discusses what persons are entitled to sue and defend, distinctions between broad classes of remedies, cumulative and exclusive remedies, what constitutes causes of action and defenses, and the joinder and splitting of causes of action. Treated Elsewhere: Stages in the procedural progress of actions, see C.J.S., Process; C.J.S., Appearances; C.J.S., Pleading; C.J.S., Trial; and C.J.S., Judgments Particular forms of action, see C.J.S., Assumpsit, Action of and C.J.S., Trespass Suits in admiralty, see C.J.S., Admiralty Suits in equity, see C.J.S., Equity Civil procedure in federal courts, see C.J.S., Federal Civil Procedure Actions by or against particular classes of persons or institutions, see C.J.S., Agency; C.J.S., Attorney and Client; C.J.S., Physicians, Surgeons, and Other Health-Care Providers; C.J.S., Associations; C.J.S., Corporations; C.J.S., Counties; and C.J.S., Schools and School Districts Actions and suits or proceedings for relief other than money damages, see C.J.S., Certiorari; C.J.S., Declaratory Judgments; C.J.S., Divorce; C.J.S., Habeas Corpus; C.J.S., Replevin; and C.J.S., Specific Performance Particular provisional or extraordinary remedies in actions, see C.J.S., Arrest; C.J.S., Attachment; C.J.S., Injunctions; C.J.S., Receivers Propriety, necessity, means and effect of choice between different means of redress afforded by law for the same injury, or between different forms of proceeding on the same cause of action, see C.J.S., Election of Remedies or Rights or Theories of Recovery Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS SUM END OF DOCUMENT
2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
CJS ACTIONS I REF 1A C.J.S. Actions I Refs.
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction Topic Summary Correlation Table Research References A.L.R. Library West's A.L.R. Digest, Action 1 , 16 , 17 , 33 to 35
A.L.R. Index: Common Law; Contracts; Criminal Law; Damages; Election of Remedies; Public Policy Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS I REF END OF DOCUMENT
CJS ACTIONS I A REF 1A C.J.S. Actions I A Refs.
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction A. General Considerations Topic Summary Correlation Table Research References A.L.R. Library West's A.L.R. Digest, Action 1
A.L.R. Index: Common Law; Criminal Law Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS I A REF END OF DOCUMENT
CJS ACTIONS 1 1A C.J.S. Actions 1
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction A. General Considerations 1. In General Topic Summary References Correlation Table 1. Definition West's Key Number Digest West's Key Number Digest, Action 1 An action is a legal demand of one's rights in a court of justice, or a legal proceeding in a court of justice to enforce a right or to redress a wrong. Because the word "action" has no precise meaning, and the scope of proceedings included within the term as used in a statute depends upon the nature and purpose of the particular statute in question, courts take a functional approach in their construction of the word.[1] The term has been defined as a lawsuit brought in a court;[2] as the legal or lawful demand of one's right or rights[3] in a court of justice[4] or tribunal;[5] as the legal and formal demand of one's rights[6] from another person or party made and insisted on in a court of justice;[7] and as a proceeding in a court of justice by which one party prosecutes another for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.[8] It is a proceeding at law to enforce a right or to redress a wrong;[9] a judicial remedy for the enforcement or protection of a right;[10] or an ordinary proceeding in a court of justice by which one party prosecutes another for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense,[11] involving process and pleadings and ending in judgment.[12] "Action" has also been defined in procedural terms as a discrete judicial proceeding involving a demand for relief that must be independently commenced and adjudicated;[13] as a formal complaint within the jurisdiction of a court of law;[14] as any court proceeding for the purpose of obtaining such redress as the law provides;[15] and simply as a claim for relief.[16] An action is a judicial proceeding initiated by the filing of a complaint[17] to obtain certain relief at the hands of the court,[18] or a judicial proceeding which will, if prosecuted effectually, result in a judgment.[19] An action encompasses all parties and claims presently and properly before court,[20] and denotes the entire controversy at issue,[21] including all the formal proceedings in a court of justice attendant upon the demand of a right made by one person of another in such court, including an adjudication upon the right and its enforcement or denial by the court.[22]
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[FN1] Conn.Metcalfe v. Sandford, 271 Conn. 531, 858 A.2d 757 (2004). [FN2] U.S.U.S. v. Atlas Lederer Co., 174 F. Supp. 2d 666 (S.D. Ohio 2001). HawaiiLabrador v. Liberty Mut. Group, 103 Haw. 206, 81 P.3d 386 (2003). N.H.Roberts v. General Motors Corp., 140 N.H. 723, 673 A.2d 779 (1996), as modified on denial of reh'g, (Apr. 18, 1996). Wash. Kennedy v. Martin, 115 Wash. App. 866, 63 P.3d 866 (Div. 2 2003), as amended, (Mar. 25, 2003). Wis.In re Estate of Thompson, 261 Wis. 2d 723, 2003 WI App 70, 661 N.W.2d 869 (Ct. App. 2003). [FN3] U.S.Peterson v. A. Guthrie & Co., 3 F. Supp. 136 (W.D. Wash. 1933). Conn.Contadini v. Devito, 71 Conn. App. 697, 803 A.2d 423 (2002). [FN4] Cal.Gil v. Mansano, 121 Cal.App.4th 739, 17 Cal.Rptr.3d 420 (2d Dist. 2004). Conn.Contadini v. Devito, 71 Conn. App. 697, 803 A.2d 423 (2002). [FN5] Tex. Elmo v. James, 282 S.W. 835 (Tex. Civ. App. Fort Worth 1926), writ dismissed w.o.j., (May 5, 1926). [FN6] Tex. Matter of Marriage of Combs, 958 S.W.2d 848 (Tex. App. 1997), rehearing overruled (Nov 24, 1997). [FN7] HawaiiLabrador v. Liberty Mut. Group, 103 Haw. 206, 81 P.3d 386 (2003). Ill.7-Eleven, Inc. v. Dar, 325 Ill. App. 3d 399, 258 Ill. Dec. 826, 757 N.E.2d 515 (1st Dist. 2001), appeal denied, 198 Ill. 2d 608, 262 Ill. Dec. 625, 766 N.E.2d 245 (2002). Wyo.Hill v. Value Recovery Group, L.P., 964 P.2d 1256 (Wyo. 1998). [FN8] HawaiiNelson v. University of Hawaii, 99 Haw. 262, 54 P.3d 433 (2002), as amended on denial of reconsideration, (Oct. 31, 2002). Ill.7-Eleven, Inc. v. Dar, 325 Ill. App. 3d 399, 258 Ill. Dec. 826, 757 N.E.2d 515 (1st Dist. 2001), appeal denied, 198 Ill. 2d 608, 262 Ill. Dec. 625, 766 N.E.2d 245 (2002). [FN9] Ala.Scheuing v. State, 177 Ala. 162, 59 So. 160 (1912). Ariz.State v. Miller, 14 Ariz. 440, 130 P. 891 (1913). Cal. Nassif v. Municipal Court for Desert Judicial Dist. of San Bernardino County (Depner), 214 Cal.App.3d 1294, 263 Cal.Rptr. 195 (4th Dist. 1989).
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Or.Giant Powder Co. v. Oregon Western Ry. Co., 54 Or. 325, 101 P. 209 (1909). [FN10] Ind.White v. White, 98 Ind. App. 587, 186 N.E. 349 (1933). Wash.Thorgaard Plumbing & Heating Co. v. King County, 71 Wash. 2d 126, 426 P.2d 828 (1967). [FN11] Ark.Sosebee v. County Line School Dist., 320 Ark. 412, 897 S.W.2d 556, 100 Ed. Law Rep. 426 (1995). Cal.Gil v. Mansano, 121 Cal.App.4th 739, 17 Cal.Rptr.3d 420 (2d Dist. 2004). HawaiiLeslie v. Estate of Tavares, 93 Haw. 1, 994 P.2d 1047 (2000). OhioState v. Myers, 92 Ohio App. 3d 750, 637 N.E.2d 92 (2d Dist. Greene County 1994). [FN12] OhioState v. Myers, 92 Ohio App. 3d 750, 637 N.E.2d 92 (2d Dist. Greene County 1994). [FN13] Or.Abbott v. Baldwin, 178 Or. App. 289, 36 P.3d 516 (2001), review denied, 334 Or. 75, 45 P.3d 449 (2002) and cert. denied, 537 U.S. 901, 123 S. Ct. 217, 154 L. Ed. 2d 174 (2002). [FN14] Cal.Thompson v. Miller, 112 Cal.App.4th 327, 4 Cal.Rptr.3d 905 (3d Dist. 2003). Ind. Pathman Const. Co. v. Knox County Hospital Ass'n, 164 Ind. App. 121, 326 N.E.2d 844 (1st Dist. 1975). [FN15] Conn.Contadini v. Devito, 71 Conn. App. 697, 803 A.2d 423 (2002). [FN16] Ohio Robinson v. B.O.C. Group, Gen. Motors Corp., 81 Ohio St. 3d 361, 1998 -Ohio- 432, 691 N.E.2d 667 (1998). Statement for relief An action is not a cause number; it is not a piece of paper or caption on complaint; it is most fundamentally an allegation or statement of cause in proper form for legal recovery or relief. Ind.Ware v. Waterman, 146 Ind. App. 237, 253 N.E.2d 708 (Div. 1 1969). [FN17] Cal. Salawy v. Ocean Towers Housing Corp., 121 Cal.App.4th 664, 17 Cal.Rptr.3d 427 (2d Dist. 2004). [FN18] Nev.Seaborn v. First Judicial Dist. Court, 55 Nev. 206, 29 P.2d 500 (1934). Tex.Elmo v. James, 282 S.W. 835 (Tex. Civ. App. Fort Worth 1926), writ dismissed w.o.j., (May 5, 1926). [FN19] Mo.In re Guthland's Estate, 438 S.W.2d 12 (Mo. Ct. App. 1969). UtahDinsmore v. Barker, 61 Utah 332, 212 P. 1109 (1923). [FN20] U.S.McCaskey v. Continental Airlines, Inc., 133 F. Supp. 2d 514 (S.D. Tex. 2001).
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[FN21] Wis.In re Estate of Thompson, 261 Wis. 2d 723, 2003 WI App 70, 661 N.W.2d 869 (Ct. App. 2003). [FN22] Ill.7-Eleven, Inc. v. Dar, 325 Ill. App. 3d 399, 258 Ill. Dec. 826, 757 N.E.2d 515 (1st Dist. 2001), appeal denied, 198 Ill. 2d 608, 262 Ill. Dec. 625, 766 N.E.2d 245 (2002). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 1 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction A. General Considerations 1. In General Topic Summary References Correlation Table 2. Elements West's Key Number Digest West's Key Number Digest, Action 1 To constitute an action, there must ordinarily be a legal proceeding in a court of justice by a plaintiff against a defendant, for a breach of a primary duty owed by defendant with regard to a primary right possessed by plaintiff. Every action, however complicated or simple, must contain these essential elements: a primary right possessed by the plaintiff; a corresponding primary duty devolving upon the defendant; a wrong done by the defendant which consisted in a breach of the primary right and duty; a remedial right in favor of the plaintiff, and a remedial duty resting on the defendant; and the remedy or relief.[1] It has been said that an action requires three parties, the plaintiff, the defendant, and the court,[2] and that a defendant is necessary in every suit or action, whether in personam or in rem, as there must of necessity be someone to cite even when the proceeding is in rem.[3] On the other hand, it has also been said that the general definition of "action" as including a plaintiff and a defendant was not intended to include proceedings or actions in rem, or proceedings in the nature of an inquest of office, and other like proceedings,[4] and that a demand of one's rights may be made judicially in an ex parte proceeding or application.[5]
[FN1] U.S.Vinson v. Graham, 44 F.2d 772 (C.C.A. 10th Cir. 1930); Phoenix Ins. Co. of Hartford v. U.S., 3 F. Supp. 112 (D. Conn. 1932). Conn.Wildman v. Wildman, 70 Conn. 700, 41 A. 1 (1898). Mo.Parker v. Lowery, 446 S.W.2d 593 (Mo. 1969). S.C.Brice v. Glenn, 165 S.C. 509, 164 S.E. 302 (1932). UtahFelt City Townsite Co. v. Felt Inv. Co., 50 Utah 364, 167 P. 835 (1917).
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[FN2] Ala.Wynn v. Tallapoosa County Bank, 168 Ala. 469, 53 So. 228 (1910). [FN3] La.Tennent v. Caffery, 170 La. 680, 129 So. 128 (1930). Conn.Porter v. Ritch, 70 Conn. 235, 39 A. 169 (1898). As to in rem and in personam actions, generally, see 117. [FN4] Conn.Porter v. Ritch, 70 Conn. 235, 39 A. 169 (1898). [FN5] Ark.State ex rel. Arkansas Western R. Co. v. Rowe, 69 Ark. 642, 65 S.W. 463 (1901). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 2 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction A. General Considerations 1. In General Topic Summary References Correlation Table 3. Application and scope of term West's Key Number Digest West's Key Number Digest, Action 1 "Action," unless accompanied by restrictive words, generally applies to any legal proceeding in a court of justice, whether at law or in equity, to enforce a right or redress a wrong. The term "action" may be used in a strict technical sense, or it may be used in a more general and comprehensive sense.[1] As used in a constitutional or statutory provision, its proper meaning and application, whether in a technical or a broad sense, generally depends upon the construction of the language employed in the particular provision,[2] and, except when accompanied by restrictive words, it usually has a broad and comprehensive meaning.[3] When used in that sense, it has been deemed to mean the pursuit of a right in a court of justice without regard to the form of the legal proceedings,[4] and to apply to any of the various proceedings ordinarily allowed in a court of justice for the enforcement of a right.[5] An action is not limited to the complaint or other document initiating the action,[6] but indicates the entire judicial proceeding,[7] at least to the time of judgment,[8] required to perfect the rights involved.[9] Defenses raised in answer to the complaint[10] and third party claims[11] are part of an action. The term has been said, however, not to include a motion ancillary to an action,[12] and a proceeding which has for its purpose only the correction of the judgment record so as to make it speak the truth and accord with the judgment rendered, is not an "action" within the meaning of the statute of limitations.[13] CUMULATIVE SUPPLEMENT Cases: A cross-complaint against subcontractors, by developer and seller of apartment complex with alleged latent construction deficiencies, was an "action" within meaning of general Code of Civil Procedure definition of "action"; developer and seller were proceeding in a court of justice by prosecuting the subcontractors for a declaration of their right to indemnity. Pine Terrace Apartments, L.P. v. Windscape, LLC, 170 Cal. App. 4th 1, 87 Cal.
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Rptr. 3d 630 (5th Dist. 2009), as modified, (Feb. 6, 2009). [END OF SUPPLEMENT]
[FN1] Conn.Mulcahy v. Mulcahy, 84 Conn. 659, 81 A. 242 (1911). Kan.In re Wilcox, 90 Kan. 646, 135 P. 995 (1913). OhioPittsburgh, C., C. & St. L.R. Co. v. Bemis, 64 Ohio St. 26, 59 N.E. 745 (1901). [FN2] Conn.Mulcahy v. Mulcahy, 84 Conn. 659, 81 A. 242 (1911). Wis.Mesar v. Milwaukee Electric Ry. & Light Co., 197 Wis. 578, 222 N.W. 809 (1929). [FN3] Ill.Trustees of Schools of Tp. No. 33 North, Range No. 3 East of Third Principal Meridian, La Salle County, v. Farnsworth, 278 Ill. App. 474, 1934 WL 5195 (2d Dist. 1934), appeal denied. Mass.City of Boston v. Turner, 201 Mass. 190, 87 N.E. 634 (1909). Mich.Ex parte Adler, 171 Mich. 263, 136 N.W. 1120 (1912). UtahDinsmore v. Barker, 61 Utah 332, 212 P. 1109 (1923). Wis.Jansen v. Town of Schoepke, 214 Wis. 350, 253 N.W. 554 (1934). [FN4] Mass.Commissioner of Insurance v. Bristol Mut. Liability Ins. Co., 279 Mass. 325, 181 N.E. 208 (1932). Neb.Grantham v. General Tel. Co., 187 Neb. 647, 193 N.W.2d 449 (1972). [FN5] OhioPittsburgh, C., C. & St. L.R. Co. v. Bemis, 64 Ohio St. 26, 59 N.E. 745 (1901). Kan.In re Wilcox, 90 Kan. 646, 135 P. 995 (1913). UtahDinsmore v. Barker, 61 Utah 332, 212 P. 1109 (1923). [FN6] Cal. Nassif v. Municipal Court for Desert Judicial Dist. of San Bernardino County (Depner), 214 Cal.App.3d 1294, 263 Cal.Rptr. 195 (4th Dist. 1989). [FN7] Wis.Gowan v. McClure, 185 Wis. 2d 903, 519 N.W.2d 692 (Ct. App. 1994). [FN8] As to the question whether an action includes a judgment, see 5. [FN9] Cal.Palmer v. Agee, 87 Cal. App. 3d 377, 150 Cal. Rptr. 841 (4th Dist. 1978). [FN10] Cal.Palmer v. Agee, 87 Cal. App. 3d 377, 150 Cal. Rptr. 841 (4th Dist. 1978). [FN11] U.S.Nolan v. Boeing Co., 919 F.2d 1058 (5th Cir. 1990).
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[FN12] Colo.In re Marriage of Plank, 881 P.2d 486 (Colo. Ct. App. 1994). [FN13] Tex.Waggoner v. Rogers, 108 Tex. 328, 193 S.W. 136 (1917). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 3 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction A. General Considerations 1. In General Topic Summary References Correlation Table 4. Application and scope of termApplicability to criminal proceedings West's Key Number Digest West's Key Number Digest, Action 1 The term "action," used broadly, may apply to both criminal and civil proceedings. The term "action" is typically defined by statute as an ordinary proceeding in a court of justice by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense,[1] and thus includes, by its express terms, both civil and criminal actions.[2] Although in a broad sense, the term "action" is applicable to criminal as well as civil proceedings,[3] or to a penal action commenced by indictment,[4] in a technical sense it is ordinarily restricted to proceedings of a civil nature,[5] and in this sense, as opposed to "prosecution," it includes the modes allowed to individuals for enforcement of civil rights or redress of private wrongs, excluding proceedings instituted by the government for the punishment of offenses,[6] and, accordingly, is inapplicable to a prosecution for crime.[7]
[FN1] 1. [FN2] N.Y.People v. Elliott, 172 N.Y. 146, 64 N.E. 837 (1902). [FN3] U.S.Mason v. U.S., 1 F.2d 279 (C.C.A. 7th Cir. 1924). Neb.Lower v. State, 109 Neb. 590, 191 N.W. 674 (1923). Okla. Fowler v. State, 1914 OK 455, 45 Okla. 351, 145 P. 326 (1914) (overruled in part on other grounds by, Dunn v. State, 1917 OK 269, 65 Okla. 233, 166 P. 193 (1917)). [FN4] Ky.Com. v. Spiller, 165 Ky. 758, 178 S.W. 1089 (1915).
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[FN5] OhioCalkins v. State, 14 Ohio St. 222, 1863 WL 6 (1863). [FN6] OhioPittsburgh, C., C. & St. L.R. Co. v. Bemis, 64 Ohio St. 26, 59 N.E. 745 (1901). [FN7] Mass.Com. v. Gallo, 275 Mass. 320, 175 N.E. 718, 79 A.L.R. 1380 (1931). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 4 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction A. General Considerations 1. In General Topic Summary References Correlation Table 5. Types of proceedings considered to be actions West's Key Number Digest West's Key Number Digest, Action 1 Various types pf proceedings have been considered to be, or not to be, actions. Some older cases have held that the term "action" is restricted to proceedings in a court of justice, and does not include nonjudicial proceedings,[1] such as the acts of a notary in taking and certifying an acknowledgment.[2] This rule applies where the proceeding is before a court, but the court is not acting in a judicial capacity.[3] More recently, however, pursuing a claim before an administrative agency empowered to grant the relief requested has been said to constitute a "legal action" within the meaning of a statute.[4] Although it has been said that a proceeding in court cannot be regarded as an action unless the court has jurisdiction to entertain it,[5] it has also been stated that in determining whether a proceeding is or is not an action, the question of the jurisdiction of the court is entirely immaterial.[6] It has been said that, since the technical legal termination of an action is the judgment, a suit is properly called an action until judgment, but not thereafter.[7] It has also been said, though, that "action" refers to an entire judicial proceeding, at least through judgment.[8] An appeal is a continuation of an original proceeding, and is not a new action.[9] Proceedings deemed to be actions have included suits at law or in equity;[10] certain adversary proceedings during a probate proceeding;[11] an action for declaratory relief;[12] an action for dissolution of marriage;[13] a naturalization proceeding;[14] a proceeding against an administrator to compel the payment of an allowed claim;[15] a remonstrance proceeding to a report of commissioners, to establish a drainage district and assess the benefits;[16] opposition to a discharge in bankruptcy;[17] a proceeding for the voluntary dissolution of a corporation;[18] and the prosecution of a claim against a state in the court of claims.[19] Other proceedings, such as an arbitration proceeding provided for by agreement;[20] a proceeding for an investigation to determine whether the antitrust laws had been violated;[21] a proceeding for the settlement of an estate;[22] a compensation proceeding before a commission under a workers' compensation act;[23] a demand,
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by a ward, for a settlement and accounting in a probate court;[24] a proceeding before a public service commission[25] or a state board of education;[26] and a proceeding for the removal of the disability of minority[27] have been said not to be actions. The term "action" has been found not to include a summary proceeding to compel a father to support a minor child,[28] or to correct erroneous administrative activities,[29] but it has been considered to include a summary proceeding in a justice's court.[30]
[FN1] Minn.Golcher v. Brisbin, 20 Minn. 453, 20 Gil. 407, 1874 WL 3730 (1874). [FN2] Mont.First Nat. Bank v. Roberts, 9 Mont. 323, 23 P. 718 (1890). [FN3] N.C.Patterson v. Murray, 53 N.C. 278, 8 Jones 278, 1860 WL 1949 (1860). [FN4] IowaFisher Controls Intern., Inc. v. Marrone, 524 N.W.2d 148 (Iowa 1994). [FN5] Tenn.Sweet v. Chattanooga Elec. Light Co., 97 Tenn. 252, 36 S.W. 1090 (1896) (overruled in part on other grounds by, Burns v. People's Tel. & Tel. Co., 161 Tenn. 382, 33 S.W.2d 76 (1930)). [FN6] OhioPittsburgh, C., C. & St. L.R. Co. v. Bemis, 64 Ohio St. 26, 59 N.E. 745 (1901). [FN7] Ariz.State v. Miller, 14 Ariz. 440, 130 P. 891 (1913). [FN8] Cal. Nassif v. Municipal Court for Desert Judicial Dist. of San Bernardino County (Depner), 214 Cal.App.3d 1294, 263 Cal.Rptr. 195 (4th Dist. 1989). [FN9] Fla.Pennsylvania Ins. Guar. Ass'n v. Sikes, 590 So. 2d 1051 (Fla. Dist. Ct. App. 3d Dist. 1991) . [FN10] Cal. Salawy v. Ocean Towers Housing Corp., 121 Cal.App.4th 664, 17 Cal.Rptr.3d 427 (2d Dist. 2004). [FN11] Cal. Salawy v. Ocean Towers Housing Corp., 121 Cal.App.4th 664, 17 Cal.Rptr.3d 427 (2d Dist. 2004). Settlement of account A judicial settlement of an executor's account in probate court is an action. UtahDinsmore v. Barker, 61 Utah 332, 212 P. 1109 (1923). Correction of inventory An application for correction of an inventory filed by an executor is an action. Conn.Mulcahy v. Mulcahy, 84 Conn. 659, 81 A. 242 (1911). [FN12] Cal. Salawy v. Ocean Towers Housing Corp., 121 Cal.App.4th 664, 17 Cal.Rptr.3d 427 (2d
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Dist. 2004). [FN13] Cal. Salawy v. Ocean Towers Housing Corp., 121 Cal.App.4th 664, 17 Cal.Rptr.3d 427 (2d Dist. 2004). [FN14] Conn.In re Fordiani, 98 Conn. 435, 120 A. 338 (1923). [FN15] Cal.In re Bell's Estate, 168 Cal. 253, 141 P. 1179 (1914). [FN16] Wyo.In re Organization of Bench Canal Drainage Dist., 24 Wyo. 143, 156 P. 610 (1916). [FN17] U.S.In re Malschick, 217 F. 492 (E.D. Pa. 1914). [FN18] UtahDinsmore v. Barker, 61 Utah 332, 212 P. 1109 (1923). [FN19] N.Y.Pittsburgh & Shawmut Coal Co. v. State, 118 Misc. 50, 192 N.Y.S. 310 (Ct. Cl. 1922). [FN20] N.Y.In re Interocean Mercantile Corporation, 204 A.D. 284, 197 N.Y.S. 706 (1st Dep't 1923), aff'd, 236 N.Y. 587, 142 N.E. 295 (1923). Tex.Temple v. Riverland Co., 228 S.W. 605 (Tex. Civ. App. Amarillo 1921). [FN21] La.State v. United Gas Public Service Co., 178 La. 71, 150 So. 835 (1933). [FN22] Neb.Fischer v. Sklenar, 101 Neb. 553, 163 N.W. 861 (1917). [FN23] Ill.Keller v. Industrial Commission, 350 Ill. 390, 183 N.E. 237 (1932). Wis.Federal Rubber Co. v. Industrial Com'n, 185 Wis. 299, 201 N.W. 261, 40 A.L.R. 491 (1924). Contrary authority However, such a proceeding has been considered to be an action on the theory that the statute contemplates ultimate enforcement in a judicial court. Mass.Pigeon v. Employers' Liability Assur. Corp., 216 Mass. 51, 102 N.E. 932 (1913). [FN24] Tex.Massie v. De Shields, 62 S.W.2d 322 (Tex. Civ. App. Dallas 1933), writ refused. [FN25] Colo.Bonfils v. Public Utilities Com'n of Colorado, 67 Colo. 563, 189 P. 775 (1920). N.Y.People ex rel. Watt v. Zucca, 160 A.D. 578, 145 N.Y.S. 754 (1st Dep't 1914). [FN26] Cal.Saxton v. State Board of Education, 137 Cal. App. 167, 29 P.2d 873 (3d Dist. 1934). Proceeding for increased rates N.Y.Village of Warsaw v. Pavilion Natural Gas Co., 184 N.Y.S. 327 (Sup 1920). [FN27] Okla.Armstrong v. Phillips, 1921 OK 81, 82 Okla. 82, 198 P. 499 (1921).
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[FN28] Me.Head v. Fuller, 122 Me. 15, 118 A. 714 (1922). [FN29] U.S.U.S. v. Goodhues, 53 F.2d 696 (D. Md. 1931). [FN30] N.Y.Giroux v. McCrea, 204 A.D. 192, 197 N.Y.S. 862 (3d Dep't 1923). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 5 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction A. General Considerations 2. Classes and Kinds of Actions Topic Summary References Correlation Table 6. Generally West's Key Number Digest West's Key Number Digest, Action 1 Actions are generally divided into different classes according to the purposes for which they are brought. According to the purposes for which they are brought, actions are divided into various classes, such as civil and criminal,[1] contract and tort,[2] legal and equitable,[3] and in rem and in personam.[4] As a general proposition, the character of an action is determined from the facts stated in, and the issues raised by, the plaintiff's complaint, declaration, or petition,[5] and by the principal rights asserted and the relief sought,[6] rather than by the name or title given the action.[7] It is determined from the substance of the entire pleading, the nature of the grievance, and the relief sought, rather than from the formal language employed or the form of the pleadings.[8] A "summary action" is one which is short, concise and immediate,[9] and in which the established course of legal proceedings may be disregarded.[10] An amicable action is one instituted in a court of justice seriously, but in a friendly spirit, in order that some matter in controversy may be settled definitely by judicial decree, as cheaply and with as little delay as possible.[11] Such an action presupposes a real dispute between the parties concerning some matter of right, and it is essential that there be an actual controversy, and adverse interests.[12] A cross action is an independent suit brought by a defendant against a plaintiff.[13] A hypothecary action is one which a creditor brings against property which has been hypothecated to him or her by the debtor, in order to have it seized and sold for the payment of the debt.[14] The term "local action" is used in contradistinction to "transitory action."[15] It is an action which must be brought in a particular place or county, one which requires the venue to be laid in the county where the cause of action arose.[16] A qui tam action is a civil action[17] brought by an informer under a statute which establishes a penalty for
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commission or omission of a specified act, to be recovered in a civil action, part of the penalty to be paid to any person who brings the action, and the remainder to the state or some institution.[18]
[FN1] Civil and criminal actions are discussed generally in 116. [FN2] Contract actions are discussed, generally, in 123; tort actions in 124. [FN3] Legal and equitable actions are discussed, generally, in 176 et seq. [FN4] In rem and in personam actions are discussed, generally, in 117. [FN5] HawaiiTroyer v. Adams, 102 Haw. 399, 77 P.3d 83 (2003). Mo.Bowles v. All Counties Inv. Corp., 46 S.W.3d 636 (Mo. Ct. App. S.D. 2001). [FN6] Tex.Bodine v. Webb, 992 S.W.2d 672 (Tex. App. Austin 1999). [FN7] Miss.Wilson v. Freeland, 773 So.2d 305 (Miss. 2000). Mo.Thomas v. City of Kansas City, 92 S.W.3d 92 (Mo. Ct. App. W.D. 2002), reh'g and/or transfer denied, (Nov. 26, 2002) and transfer denied, (Jan. 28, 2003). UtahBrown v. David K. Richards & Co., 978 P.2d 470 (Utah App. 1999). [FN8] HawaiiTroyer v. Adams, 102 Haw. 399, 77 P.3d 83 (2003). Facts, rights, and relief True nature of lawsuit is based on facts alleged in petition, rights asserted, and relief sought. .Tex.Prostok v. Browning, 112 S.W.3d 876 (Tex. App. Dallas 2003), review granted, (Sept. 10, 2004) [FN9] N.J.Depos v. Depos, 307 N.J. Super. 396, 704 A.2d 1049 (Ch. Div. 1997). [FN10] Ky.Lamar v. Office of Sheriff of Daviess County, 669 S.W.2d 27 (Ky. Ct. App. 1984). [FN11] Pa.Wood v. Harlan, 78 Pa. Super. 92, 1921 WL 2392 (1921). [FN12] U.S.Lord v. Veazie, 49 U.S. 251, 8 How. 251, 12 L. Ed. 1067 (1850). [FN13] Tex.National Stock Yards Nat. Bank v. Valentine, 39 S.W.2d 907 (Tex. Civ. App. Amarillo 1931). [FN14] U.S.Lovell v. Cragin, 136 U.S. 130, 10 S. Ct. 1024, 34 L. Ed. 372 (1890). [FN15] U.S.Miller & Lux v. Rickey, 127 F. 573 (C.C.D. Nev. 1904). Okla.National Bank of Commerce v. State ex rel. Garrison, 1962 OK 13, 368 P.2d 997 (Okla. 1962).
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[FN16] C.J.S., Venue 8. [FN17] N.J.New Jersey S.P.C.A. v. Russ, 83 N.J.L. 450, 83 A. 961 (N.J. Ct. Err. & App. 1912). [FN18] U.S.U. S. ex rel. Vance v. Westinghouse Elec. Corp., 363 F. Supp. 1038 (W.D. Pa. 1973). Mo.State ex rel. Rodes v. Warner, 197 Mo. 650, 94 S.W. 962 (1906). The availability of a qui tam action is discussed in C.J.S., Penalties 11. Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 6 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction A. General Considerations 2. Classes and Kinds of Actions Topic Summary References Correlation Table 7. Civil actions West's Key Number Digest West's Key Number Digest, Action 1 A civil action is one to enforce a private right or to redress a private wrong. A civil action has been defined as a lawful demand of a civil right in a court of justice,[1] an action to enforce a private or civil right or to redress a private wrong,[2] an action which has for its object the recovery of private or civil rights or compensation for their infraction,[3] and a lawsuit that has been commenced in a court of competent jurisdiction.[4] It has also been defined as an action in which an issue is presented for trial, formed by the averments of the complaint and the denials of the answer, and in which the trial takes place by the introduction of legal evidence to support the allegations of the pleadings.[5] As used in statutes, it has been defined as a proceeding in a court of justice by one party against another for the enforcement or protection of a private right or the redress of a private wrong;[6] as an adversary proceeding before a court of law;[7] as an action founded on private rights, arising either from contract or tort;[8] and as every action other than a criminal one.[9] A civil action may also be brought to recover a penalty or forfeiture.[ 10] Under statutes abolishing the distinction between actions at law and suits in equity, and providing for a single form of civil action,[11] "civil action" includes all ordinary civil proceedings.[12] The term is a substitute for, and includes, all judicial proceedings which previously were known either as actions at law or suits in equity.[13] It does not, however, include a proceeding which was never regarded either as an action at law or a suit in equity,[14] such as an extraordinary or supplementary remedy;[15] neither does it include a statutory special proceeding,[16] or a special proceeding in rem.[17]
[FN1] Wyo.Hill v. Value Recovery Group, L.P., 964 P.2d 1256 (Wyo. 1998). [FN2] Mo.Parker v. Lowery, 446 S.W.2d 593 (Mo. 1969).
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[FN3] U.S.Singleton v. U.S., 290 F. 130 (C.C.A. 4th Cir. 1923). [FN4] Colo.Ortivez v. Davis, 902 P.2d 905 (Colo. Ct. App. 1995). [FN5] Conn. Housing Authority of City of Hartford v. Boyd, 36 Conn. Supp. 47, 410 A.2d 494 (Super. Ct. 1979). Ind.Berry v. Berry, 147 Ind. 176, 46 N.E. 470 (1897). [FN6] Ark.Sosebee v. County Line School Dist., 320 Ark. 412, 897 S.W.2d 556, 100 Ed. Law Rep. 426 (1995). Conn.Housing Authority of City of Hartford v. Boyd, 36 Conn. Supp. 47, 410 A.2d 494 (Super. Ct. 1979). R.I.Thrift v. Thrift, 30 R.I. 357, 75 A. 484 (1910). [FN7] Md. Unnamed Physician v. Commission on Medical Discipline, 285 Md. 1, 400 A.2d 396 (1979). [FN8] Ga.W.U. Tel. Co. v. Taylor, 84 Ga. 408, 11 S.E. 396 (1890). [FN9] U.S.Ames v. State of Kansas, 111 U.S. 449, 4 S. Ct. 437, 28 L. Ed. 482 (1884). Okla.Maben v. Rosser, 1909 OK 211, 24 Okla. 588, 103 P. 674 (1909). [FN10] Ark.Sosebee v. County Line School Dist., 320 Ark. 412, 897 S.W.2d 556, 100 Ed. Law Rep. 426 (1995). [FN11] Discussed in 182. [FN12] Colo.City of Greeley v. Hamman, 12 Colo. 94, 20 P. 1 (1888). [FN13] OhioCorry v. Lamb, 43 Ohio St. 390, 2 N.E. 851 (1885). Okla.Hendrickson v. Brown, 1901 OK 33, 11 Okla. 41, 65 P. 935 (1901). [FN14] OhioBarger v. Cochran, 15 Ohio St. 460, 1864 WL 55 (1864). [FN15] OhioChinn v. Fayette Tp. Trustees, 32 Ohio St. 236, 1877 WL 113 (1877). Challenge to correctness of administrator's account Ind.Miller v. Bode, 80 Ind. App. 338, 139 N.E. 456 (Div. 2 1923). [FN16] OhioBarger v. Cochran, 15 Ohio St. 460, 1864 WL 55 (1864). [FN17] Cal.In re Olcese's Estate, 210 Cal. 262, 291 P. 193 (1930). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
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CJS ACTIONS 7 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction A. General Considerations 2. Classes and Kinds of Actions Topic Summary References Correlation Table 8. Criminal and penal actions West's Key Number Digest West's Key Number Digest, Action 1 A criminal action is instituted by the state for the punishment of crime. A criminal action is an action instituted and prosecuted by the state for the punishment of crime,[1] or a prosecution in a competent court of justice in the name of the government for the punishment of a crime.[2] A penal action is an action upon a penal statute, or an action for the recovery of a penalty given by statute.[3 ] CUMULATIVE SUPPLEMENT Cases: Former instructor's wrongful termination complaint sufficiently implicated exceptions from sovereign immunity protections for actions to compel State officials to perform their legal duties and for actions brought under the Declaratory Judgment Act, and, thus, instructor's claims against community college, its president, chancellor of Department of Postsecondary Education, and members of State Board of Education were not barred by doctrine of sovereign immunity. House v. Jefferson State Community College, 907 So. 2d 424, 200 Ed. Law Rep. 929 (Ala. 2005). [END OF SUPPLEMENT]
[FN1] Conn.State v. Costello, 61 Conn. 497, 23 A. 868 (1892). [FN2] U.S.Mason v. U.S., 1 F.2d 279 (C.C.A. 7th Cir. 1924); Singleton v. U.S., 290 F. 130 (C.C.A. 4th Cir. 1923).
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[FN3] U.S.State of Iowa v. Chicago, B. & Q.R. Co., 37 F. 497 (C.C.S.D. Iowa 1889). Miss.McNeely v. City of Natchez, 148 Miss. 268, 114 So. 484 (1927). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 8 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction A. General Considerations 2. Classes and Kinds of Actions Topic Summary References Correlation Table 9. Real, personal, and mixed actions West's Key Number Digest West's Key Number Digest, Action 1 A real action is one to recover real property, while a personal action is to recover personal property, enforce a contract, or recover damages. A real action is one brought for the specific recovery of lands, tenements, or hereditaments.[1] A personal action is an action brought for the recovery of personal property, for the enforcement of a contract or to recover damages for its breach, or for the recovery of damages for the commission of an injury to the person or property.[2] A personal action is, as to the cause of action, either in tort or in contract; as to the place where it is to be tried, either local or transitory; and as to its object, either in personam or in rem.[3] The term "personal action" is sometimes used to designate an action which is personal in the sense of not surviving the death of a party.[4] It is not used in the sense of distinguishing actions against natural persons from actions against artificial persons.[5] A mixed action is one which appertains in some degree to both a real and a personal action and is therefore not properly either of them.[6] An action for the specific recovery of real property and for damages for injury sustained with respect to such property is a mixed action.[7]
[FN1] Me.Linscott v. Fuller, 57 Me. 406, 1869 WL 2733 (1869). [FN2] U.S.Doe v. Waterloo Mining Co., 43 F. 219 (C.C.S.D. Cal. 1890). HawaiiAu v. Au, 63 Haw. 210, 63 Haw. 263, 626 P.2d 173 (1981). Mass.Osborne v. City of Fall River, 140 Mass. 508, 5 N.E. 483 (1886).
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Mich. Borden, Inc. v. State Dept. of Treasury, Corp. Franchise Fee Division, 391 Mich. 495, 218 N.W.2d 667 (1974). Okla.Mathews v. Sniggs, 1919 OK 196, 75 Okla. 108, 182 P. 703 (1919). [FN3] Me.Hall v. Decker, 48 Me. 255, 1860 WL 2710 (1860). [FN4] N.J.Hayden v. Vreeland, 37 N.J.L. 372, 1875 WL 6944 (N.J. Sup. Ct. 1875). [FN5] N.J.Kane v. Trustees of Fillmore Ave. Baptist Church of Plainfield, 72 N.J.L. 442, 60 A. 1099 (N.J. Sup. Ct. 1905). [FN6] Okla.Mathews v. Sniggs, 1919 OK 196, 75 Okla. 108, 182 P. 703 (1919). [FN7] U.S.Doe v. Waterloo Mining Co., 43 F. 219 (C.C.S.D. Cal. 1890). Me.Linscott v. Fuller, 57 Me. 406, 1869 WL 2733 (1869). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 9 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction A. General Considerations 2. Classes and Kinds of Actions Topic Summary References Correlation Table 10. Petitory and possessory actions West's Key Number Digest West's Key Number Digest, Action 1 A petitory action deals with title to property, while a possessory action seeks to restore an owner to possession of property. A petitory action is one in which the mere title to the property is litigated, and sought to be enforced, independently of any possession which has previously accompanied or sanctioned that title, as distinguished from an action in which only the right of possession of the property is in controversy.[1] A possessory action, on the other hand, is an action founded on possession which seeks to restore to the owner possession of property of which he or she has been unjustly deprived, when that possession has followed a legal title.[2]
[FN1] U.S.Stevens v. Gladding, 23 F. Cas. 14, No. 13399 (C.C.D. R.I. 1856). [FN2] U.S.Stevens v. Gladding, 23 F. Cas. 14, No. 13399 (C.C.D. R.I. 1856). La.Grant Timber & Mfg. Co. v. Gray, 131 La. 865, 60 So. 374 (1912). Minn.Atwater v. Spalding, 86 Minn. 101, 90 N.W. 370 (1902). The distinction between petitory and possessory actions is considered in 119. Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 10 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction A. General Considerations 3. Meaning of Related Terms a. In General Topic Summary References Correlation Table 11. Generally West's Key Number Digest West's Key Number Digest, Action 1 Terms closely related to "action" have been defined and explained. Terms defined or treated as synonymous with the term "action" include "case,"[1] "controversy,"[2] and "proceeding."[3] However, "action" is generally distinguishable from "complaint,"[4] "motion,"[5] and "right of action."[6] The gist of an action is the cause for which an action will lie,[7] the ground or foundation of a suit, without which it would not be maintainable,[8] the point on which an action rests,[9] or the essential ground or object of a suit, and without which there is not a cause of action.[10] The object of an action is the thing or result sought to be attained by the action,[11] the remedy demanded, the relief or recovery sought,[12] the recovery of damages, or of the land or personalty sued for, or the restraint or other relief demanded.[13] Except, perhaps, in cases where punitive damages are permitted, it is not punishment of the defendant, but redress for the plaintiff.[14] A demand is a claim which has matured into a legal obligation which may be asserted in court.[15] A liability is an obligation to pay, and arises only when all essential elements of an action are established.[ 16] A legal liability is one which courts recognize and enforce as between parties in litigation.[17]
[FN1] 17. [FN2] 16. [FN3] 22.
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[FN4] Or.Giant Powder Co. v. Oregon Western Ry. Co., 54 Or. 325, 101 P. 209 (1909). [FN5] Kan.Berry v. Dewey, 102 Kan. 392, 170 P. 1000 (1918). N.Y.In re Montgomery, 126 A.D. 72, 110 N.Y.S. 793 (1st Dep't 1908). [FN6] Ala.Wynn v. Tallapoosa County Bank, 168 Ala. 469, 53 So. 228 (1910). La.Albritton v. McDonald, 363 So. 2d 925 (La. Ct. App. 2d Cir. 1978), writ denied, 366 So. 2d 561 (La. 1979). [FN7] Ill.Kitson v. People, 132 Ill. 327, 23 N.E. 1024 (1890). [FN8] Ga.Frazier v. Georgia R.R. & Banking Co., 101 Ga. 70, 28 S.E. 684 (1897). [FN9] Ala.Hoffman v. Knight, 127 Ala. 149, 28 So. 593 (1900). [FN10] Ill.Geiger v. Merle, 360 Ill. 497, 196 N.E. 497 (1935). [FN11] U.S.Vinson v. Graham, 44 F.2d 772 (C.C.A. 10th Cir. 1930). [FN12] Kan.Scarborough v. Smith, 18 Kan. 399, 1877 WL 1049 (1877). [FN13] N.C.Lassiter v. Norfolk & C.R. Co., 136 N.C. 89, 48 S.E. 642 (1904). [FN14] N.Y.Donovan v. Kissena Park Corp., 181 A.D. 737, 168 N.Y.S. 1035 (2d Dep't 1918). [FN15] Fla.Brinker v. Ludlow, 379 So. 2d 999 (Fla. Dist. Ct. App. 3d Dist. 1980), decision approved, 403 So. 2d 969 (Fla. 1981). [FN16] Md.Peroti v. Williams, 258 Md. 663, 267 A.2d 114 (1970). [FN17] N.Y.Fink, Weinberger, Fredman & Charney, P.C. v. Lipow, 100 Misc. 2d 548, 419 N.Y.S.2d 841 (County Ct. 1979). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 11 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction A. General Considerations 3. Meaning of Related Terms a. In General Topic Summary References Correlation Table 12. Litigation West's Key Number Digest West's Key Number Digest, Action 1 Litigation is a court contest to enforce a right. Litigation is a contest in a court of justice, for the purpose of enforcing a right, a judicial contest[1] or controversy,[2] or a suit at law.[3] Its object is to have a competent tribunal arrive at a final judgment within a reasonable time,[4] and to preserve and enforce rights and secure compliance with the law of the state, either statutory or common.[5] Litigation is a comprehensive term, meaning any appropriate action or proceeding in the courts.[6] In the ordinary sense, however, it does not include a proceeding to have a person declared incompetent,[7] or a proceeding before a prison commission.[8]
[FN1] Ga.De Vaughn v. Booten, 146 Ga. 836, 92 S.E. 629 (1917). [FN2] Ga.De Vaughn v. Booten, 146 Ga. 836, 92 S.E. 629 (1917). IowaMittman v. Farmer, 162 Iowa 364, 142 N.W. 991 (1913). [FN3] Ga.De Vaughn v. Booten, 146 Ga. 836, 92 S.E. 629 (1917). [FN4] Wash.State ex rel. Starkey v. Alaska Airlines, Inc., 68 Wash. 2d 337, 413 P.2d 363 (1966). [FN5] U.S.Missouri, K. & T. Ry. Co. of Kansas v. Hickman, 183 U.S. 53, 22 S. Ct. 18, 46 L. Ed. 78 (1901). [FN6] U.S.In re Soltmann, 238 F. 241 (S.D. N.Y. 1916).
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[FN7] N.Y. Carpenter v. Hammond, 68 Misc. 438, 125 N.Y.S. 31 (Sup 1910), aff'd, 142 A.D. 936, 127 N.Y.S. 1115 (1st Dep't 1911). [FN8] Ga.Humber v. Dixon, 147 Ga. 480, 94 S.E. 565 (1917). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 12 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction A. General Considerations 3. Meaning of Related Terms a. In General Topic Summary References Correlation Table 13. Cause West's Key Number Digest West's Key Number Digest, Action 1 A "cause" generally is any question contested before a court of justice or any legal process or procedure to enforce rights or to prevent or redress wrongs. "Cause" has been defined as any question, civil or criminal, contested before a court of justice;[1] any legal process which a party institutes to obtain relief, or by which he or she seeks to enforce his or her right, or supposed right;[2] and a judicial procedure for the determination of a controversy between parties where rights are enforced or wrongs are prevented or redressed.[3] A cause is a principle, based upon juridical or material fact, which is the basis for a specific demand and is related to the party making the demand.[4] The term is applicable to every species of action,[5] not only to civil actions but to criminal cases as well.[6 ] It has been found to include, among other things, a suit in equity,[7] a probate proceeding,[8] a summary proceeding for the dispossession of a tenant,[9] and a writ of habeas corpus.[10] However, it has been considered not to include a proceeding which is administrative rather than judicial[11] or an election contest.[12] The term "cause" has been defined or treated as synonymous with the terms "action,"[13] "controversy,"[14] "issue,"[15] "judicial proceeding,"[16] "litigation,"[17] "proceeding,"[18] "prosecution,"[19] and "suit."[20]
[FN1] Neb.Gibson v. Sidney, 50 Neb. 12, 69 N.W. 314 (1896). [FN2] U.S.Ex parte Milligan, 71 U.S. 2, 18 L. Ed. 281 (1866). [FN3] Fla.State Road Dept. v. Crill, 99 Fla. 1012, 128 So. 412 (1930). Me. Cheney v. Richards, 130 Me. 288, 155 A. 642 (1931) (overruled in part on other grounds by, Stern v. Chandler, 153 Me. 62, 134 A.2d 550 (1957)).
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[FN4] La.Safeco Ins. Co. of America v. Palermo, 436 So. 2d 536 (La. 1983). [FN5] Okla.Ex parte Copeland, 1911 OK CR 117, 5 Okla. Crim. 551, 115 P. 627 (1911). [FN6] La.State v. Banta, 122 La. 235, 47 So. 538 (1908). [FN7] W.Va.Hevener v. Hannah, 59 W. Va. 476, 53 S.E. 635 (1906). [FN8] Ill.Ford v. Ford, 117 Ill. App. 502, 1905 WL 1659 (1st Dist. 1905). Mo.State ex rel. Morris v. Montgomery, 160 Mo. App. 724, 142 S.W. 474 (1912). Tex.Tolle v. Tolle, 101 Tex. 33, 104 S.W. 1049 (1907). [FN9] N.Y.Maher v. Edwards, 59 Misc. 488, 110 N.Y.S. 1083 (App. Term 1908). [FN10] U.S.Ex parte Milligan, 71 U.S. 2, 18 L. Ed. 281 (1866). [FN11] U.S.U.S. v. King, 147 U.S. 676, 13 S. Ct. 439, 37 L. Ed. 328 (1893). [FN12] Tex.Barnett v. Sutton, 31 S.W.2d 887 (Tex. Civ. App. El Paso 1930). [FN13] Wash.State v. Gordon, 8 Wash. 488, 36 P. 498 (1894). [FN14] Kan.Underhill v. Spencer, 25 Kan. 71, 1881 WL 775 (1881). [FN15] N.Y.People v. Teal, 196 N.Y. 372, 89 N.E. 1086 (1909). [FN16] Wash.State v. Gordon, 8 Wash. 488, 36 P. 498 (1894). [FN17] Neb.Gibson v. Sidney, 50 Neb. 12, 69 N.W. 314 (1896). [FN18] Wash.State v. Gordon, 8 Wash. 488, 36 P. 498 (1894). [FN19] N.J.State v. Hancock, 54 N.J.L. 393, 24 A. 726 (N.J. Sup. Ct. 1892). [FN20] Ind.Hendricks v. Frank, 86 Ind. 278, 1882 WL 6464 (1882). OhioIn re Oliver's Guardianship, 77 Ohio St. 474, 83 N.E. 795 (1908). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 13 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction A. General Considerations 3. Meaning of Related Terms a. In General Topic Summary References Correlation Table 14. Cause of action West's Key Number Digest West's Key Number Digest, Action 1 A cause of action is a means of redress of a legal wrong. The phrase "cause of action" does not have a single definition, and means different things depending on context.[1] "Action" and "cause of action" are sometimes used in the same sense,[2] but the two terms do not strictly have the same meaning, in that an action involves a primary right and a primary duty, a breach of the right and duty, a remedial right and a remedial duty, and the remedy or relief,[3] while a cause of action consists merely of the primary right, the primary duty, and the breach and resulting harm.[4] The two terms have also been distinguished in that the right to maintain an action depends upon the existence of a cause of action.[5] A cause of action only arises when a defendant commits a wrong or breach of duty[6] resulting in injury to the plaintiff.[7] A cause of action is generally defined as a group of facts giving rise to a right to judicial relief[8] or one or more bases for suing,[9] and refers to all theories on which relief could be claimed arising out of the same factual transaction.[10] It has also been said, however, that a cause of action does not consist of facts, but of the unlawful violation of a right as shown by the facts,[11] and that it is an attempt by a plaintiff to vindicate what he or she believes is a legal right or obligation owed.[12] The phrase "cause of action" is commonly used in pleading as applying only to the relief sought, even though separately pleaded claims have their origin in the same right or obligation.[13] However, although a constitutional cause of action is wholly separate and independent from a state cause of action, even where the same conduct gives rise to both,[14] a theory of recovery is not itself a cause of action.[15] Thus, an action is merely the form in which a cause of action is presented,[16] while a cause of action is the right to bring a suit[17] or pursue a remedy,[18] and that right is based upon the ground or grounds on which an action may be maintained.[ 19] It is a legal wrong for which an action may be, but has not been, brought in court.[20]
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A cause of action is closely related to a chose in action, which is a right to proceed in a court of law to procure the payment of a sum of money,[21] or a right to recover for personal injuries.[22] It is distinguished from a right of action, which is a specific right of a specific person to enforce a remedial right, while a cause of action is a set of facts which may give rise to a right of action, and must exist before a right of action can accrue.[23] "Cause" is sometimes used as a synonym for "cause of action,"[24] but it has also been said that the two terms are distinguishable.[25] Although "claim" is sometimes used to mean the same thing as "cause of action,"[26] other courts have distinguished the two terms, saying that a claim is a demand for money or property,[27] and that a claim with no arguable basis in law or fact does not constitute a cause of action.[28]
[FN1] Pa.Ieropoli v. AC&S Corp., 577 Pa. 138, 842 A.2d 919 (2004). [FN2] Cal.Brasher v. White, 53 Cal. App. 545, 200 P. 657 (3d Dist. 1921). [FN3] Ala.Scheuing v. State, 177 Ala. 162, 59 So. 160 (1912). Cal.Hindin v. Rust, 118 Cal.App.4th 1247, 13 Cal.Rptr.3d 668 (2d Dist. 2004). Ga. Alexander v. Dean, 29 Ga. App. 722, 116 S.E. 643 (1923), aff'd, 157 Ga. 280, 121 S.E. 238 (1924). Mich.Otto v. Village of Highland Park, 204 Mich. 74, 169 N.W. 904 (1918). N.H.MBC, Inc. v. Engel, 119 N.H. 8, 397 A.2d 636 (1979). UtahFelt City Townsite Co. v. Felt Inv. Co., 50 Utah 364, 167 P. 835 (1917). [FN4] U.S. City of Martinez v. Texaco Trading & Transp. Inc., 353 F.3d 758 (9th Cir. 2003) (California law); Republic Ins. Co. v. Culbertson, 717 F. Supp. 415 (E.D. Va. 1989). Cal.Hindin v. Rust, 118 Cal.App.4th 1247, 13 Cal.Rptr.3d 668 (2d Dist. 2004). Conn.Gurliacci v. Mayer, 218 Conn. 531, 590 A.2d 914 (1991). IowaIowa Coal Min. Co., Inc. v. Monroe County, 555 N.W.2d 418 (Iowa 1996). N.H.MBC, Inc. v. Engel, 119 N.H. 8, 397 A.2d 636 (1979). Tex.Duncan v. Calhoun County Navigation Dist., 28 S.W.3d 707 (Tex. App. Corpus Christi 2000). Protection of right A cause of action is judicial protection of one's recognized right or interest, when another, owing a corresponding duty not to invade or violate such right or interest, has caused a breach of that duty. Neb.Cole v. Isherwood, 264 Neb. 985, 653 N.W.2d 821 (2002).
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Infringement or breach "Cause of action" is generally defined as dispute or controversy between litigants arising out of infringement of a civil right or breach of a civil duty. Del.Application of Buresch, 672 A.2d 64 (Del. 1996). Elements Primary elements for asserting cause of action are: (1) defining wrongful act by defendant; and (2) declaring damages resulting from this act. U.S.Grenier v. Medical Engineering Corp., 99 F. Supp. 2d 759 (W.D. La. 2000), aff'd, 243 F.3d 200 (5th Cir. 2001) (Louisiana law). [FN5] Tex.Bell v. Moores, 832 S.W.2d 749 (Tex. App. Houston 14th Dist. 1992), writ denied, (Oct. 21, 1992). [FN6] Okla. City of Tahlequah v. Lake Region Elec., Co-op., Inc., 2002 OK 2, 47 P.3d 467 (Okla. 2002). [FN7] Tex. LaGloria Oil and Gas Co. v. Carboline Co., 84 S.W.3d 228 (Tex. App. Tyler 2001), review denied, (July 3, 2002). [FN8] U.S.Alexander v. Chicago Park Dist., 773 F.2d 850 (7th Cir. 1985); Schuller v. General Motors Corp., 932 F. Supp. 1113 (N.D. Ill. 1996). Ariz.Melancon v. USAA Cas. Ins. Co., 174 Ariz. 344, 849 P.2d 1374 (Ct. App. Div. 2 1992). Ill.Relander v. Phoenix Mut. Life Ins. Co., 262 Ill. App. 3d 525, 201 Ill. Dec. 512, 636 N.E.2d 944 (3d Dist. 1994). La. Laborde v. American Nat. Property & Cas. Companies, 780 So. 2d 501 (La. Ct. App. 3d Cir. 2001), writ denied, 791 So. 2d 634 (La. 2001). Neb.Saunders County v. City of Lincoln, 263 Neb. 170, 638 N.W.2d 824 (2002). N.J.Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 708 A.2d 401 (1998). N.M.Key v. Chrysler Motors Corp., 1996 -NMSC- 038, 121 N.M. 764, 918 P.2d 350 (1996). Pa.Saft v. Upper Dublin Tp., 161 Pa. Commw. 158, 636 A.2d 284 (1993). Every essential fact "Cause of action" consists of those facts entitling one to institute and maintain action at law or in equity, and encompasses every essential fact plaintiff must prove to obtain judgment. Tex.F.D.I.C. v. Bodin Concrete Co., 869 S.W.2d 372 (Tex. App. Dallas 1993), writ denied, (Mar. 30, 1994).
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Operative events Oklahoma jurisprudence follows transactional approach for definition of "cause of action" under which operative events that underlie party's claim set parameters. Okla.Resolution Trust Corp. v. Greer, 1995 OK 126, 911 P.2d 257 (Okla. 1995). [FN9] Minn.Hauschildt v. Beckingham, 686 N.W.2d 829 (Minn. 2004). Unlawful injury A "cause of action" is single group of facts which is claimed to have brought about unlawful injury to plaintiff and which entitles plaintiff to relief. Conn.Franc v. Bethel Holding Co., 73 Conn.App. 114, 807 A.2d 519 (2002). [FN10] N.H.North Country Environmental Services, Inc. v. Town of Bethlehem, 150 N.H. 606, 843 A.2d 949 (2004). [FN11] Pa.In re Estate of Luongo, 2003 PA Super 171, 823 A.2d 942 (2003), appeal denied, 577 Pa. 722, 847 A.2d 1287 (2003). [FN12] U.S.Combs v. International Ins. Co., 354 F.3d 568, 2004 FED App. 0002P (6th Cir. 2004). [FN13] Cal.McDowell v. Watson, 59 Cal. App. 4th 1155, 69 Cal. Rptr. 2d 692 (4th Dist. 1997). [FN14] Cal.Berman v. City of Daly City, 21 Cal. App. 4th 276, 26 Cal. Rptr. 2d 493 (1st Dist. 1993). [FN15] Neb.Gestring v. Mary Lanning Memorial Hosp. Ass'n, 259 Neb. 905, 613 N.W.2d 440 (2000) . Wrong done A cause of action is the wrong done, not the measure of compensation for it, or the character of relief sought. U.S.Wood v. City of Topeka, Kan., Topeka Housing Authority, 90 F. Supp. 2d 1173 (D. Kan. 2000), judgment amended on other grounds, 96 F. Supp. 2d 1194 (D. Kan. 2000) and judgment aff'd, 17 Fed. Appx. 765 (10th Cir. 2001). Different theories Although a single group of operative facts may give rise to the assertion of more than one kind of relief or more than one theory of recovery, assertions of different kinds or theories of relief arising out of a single group of operative facts constitute a single cause of action. Ill.Schrager v. Grossman, 321 Ill. App. 3d 750, 256 Ill. Dec. 456, 752 N.E.2d 1 (1st Dist. 2000). [FN16] U.S.Spring v. Webb, 227 F. 481 (D. Vt. 1915).
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[FN17] U.S.Spring v. Webb, 227 F. 481 (D. Vt. 1915). N.H.North Country Environmental Services, Inc. v. Town of Bethlehem, 150 N.H. 606, 843 A.2d 949 (2004). [FN18] N.M.Estate of Kerouac, 126 N.M. 24, 1998 -NMCA- 159, 966 P.2d 191 (Ct. App. 1998). [FN19] U.S.Spring v. Webb, 227 F. 481 (D. Vt. 1915). [FN20] U.S. Proctor v. Gissendaner, 579 F.2d 876 (5th Cir. 1978), opinion supplemented on other grounds, 587 F.2d 182 (5th Cir. 1979) (overruled on other grounds by, Affholder, Inc. v. Southern Rock, Inc., 746 F.2d 305, 40 Fed. R. Serv. 2d 461 (5th Cir. 1984)). [FN21] Tenn.SunTrust Bank, Nashville v. Johnson, 46 S.W.3d 216 (Tenn. Ct. App. 2000). [FN22] U.S.In re Webb, 187 B.R. 221, 29 U.C.C. Rep. Serv. 2d 358 (Bankr. E.D. Tenn. 1995). [FN23] U.S. Kohl's Dept. Stores, Inc. v. Target Stores, Inc., 290 F. Supp. 2d 674, 52 U.C.C. Rep. Serv. 2d 173 (E.D. Va. 2003). Different focus While right of action and cause of action are similar concepts, each has different focus; inquiry into whether right of action exists means asking whether plaintiff is the proper party to bring suit and obtain the remedy, while inquiry into whether cause of action exists means asking whether the law provides any remedy for the specific injury alleged. La. Guidry v. East Coast Hockey League, Inc., 844 So. 2d 100 (La. Ct. App. 3d Cir. 2003), writ denied, 860 So. 2d 543 (La. 2003) and writ denied, 860 So. 2d 543 (La. 2003) and writ denied, 860 So. 2d 543 (La. 2003). As to rights of action, generally, see 56 et seq. [FN24] Del.Application of Buresch, 672 A.2d 64 (Del. 1996). [FN25] La.Safeco Ins. Co. of America v. Palermo, 436 So. 2d 536 (La. 1983). N.H.Roberts v. General Motors Corp., 140 N.H. 723, 673 A.2d 779 (1996), as modified on denial of reh'g, (Apr. 18, 1996). [FN26] La.Succession of McLean, 607 So. 2d 918 (La. Ct. App. 2d Cir. 1992). Md.Leppo v. State Highway Admin., 330 Md. 416, 624 A.2d 539 (1993). N.C.In re Watson, 70 N.C. App. 120, 318 S.E.2d 544 (1984). [FN27] Conn.Lutynski v. B.B. and J. Trucking, Inc., 31 Conn. App. 806, 628 A.2d 1 (1993), judgment aff'd, 229 Conn. 525, 642 A.2d 7 (1994). [FN28] Tex. Pedraza v. Tibbs, 826 S.W.2d 695 (Tex. App. Houston 1st Dist. 1992), writ dismissed
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w.o.j., (June 3, 1992). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 14 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction A. General Considerations 3. Meaning of Related Terms a. In General Topic Summary References Correlation Table 15. Cause of actionElimination of cause of action West's Key Number Digest West's Key Number Digest, Action 1 A legislature may eliminate a cause of action, as long as it has not accrued. When a court finds a common-law cause of action to be anomalous, unworkable or contrary to public policy, it will abolish the action.[1] Likewise, the U.S. Constitution does not prevent a state legislature from eliminating its statutorily created causes of action.[2] After cause of action has accrued, however, it can neither be taken away nor diminished,[3] as at that point it becomes a vested right,[4] which may not be eliminated by subsequent legislation.[5] In some jurisdictions, a cause of action vests when the last event necessary to create the cause of action occurs,[6] or at the moment when the wrong done by the defendant produces injury to the plaintiff.[7] Other jurisdictions hold, however, that a cause of action that has not been reduced to a final judgment is not a vested right.[ 8]
[FN1] UtahJackson v. Brown, 904 P.2d 685 (Utah 1995). [FN2] U.S.Hoffman v. City of Warwick, 909 F.2d 608 (1st Cir. 1990). No immunity Although plaintiffs have a right to pursue recognized causes of action in court, they are not assured that a cause of action will remain immune from legislative or judicial limitation or elimination. Neb.Gourley ex rel. Gourley v. Nebraska Methodist Health System, Inc., 265 Neb. 918, 663 N.W.2d 43 (2003) (per curiam, with three justices concurring and two justices concurring in result).
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[FN3] Ohio Nationwide Ins. Co. v. Ohio Dept. of Transp., 61 Ohio Misc. 2d 761, 584 N.E.2d 1370 (Ct. Cl. 1990). [FN4] Fla.Gordon v. State, 585 So. 2d 1033 (Fla. Dist. Ct. App. 3d Dist. 1991), decision approved, 608 So. 2d 800, 16 A.L.R.5th 894 (Fla. 1992). [FN5] La.Bourgeois v. A.P. Green Indus., Inc., 783 So. 2d 1251 (La. 2001). Pa.Ieropoli v. AC&S Corp., 577 Pa. 138, 842 A.2d 919 (2004). [FN6] U.S. Combs v. International Ins. Co., 354 F.3d 568, 2004 FED App. 0002P (6th Cir. 2004) (Kentucky law). [FN7] Ohio Nationwide Ins. Co. v. Ohio Dept. of Transp., 61 Ohio Misc. 2d 761, 584 N.E.2d 1370 (Ct. Cl. 1990). [FN8] U.S. ABF Capital Management v. Askin Capital Management, L.P., 957 F.Supp. 1308 (S.D.N.Y. 1997). Tex.Columbraria Ltd. v. Pimienta, 110 F.Supp.2d 542 (S.D.Tex. 2000). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 15 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction A. General Considerations 3. Meaning of Related Terms a. In General Topic Summary References Correlation Table 16. Controversy West's Key Number Digest West's Key Number Digest, Action 1 "Controversy" has been defined as a dispute or a litigated question or lawsuit, and in a limited sense as an allegation of fact on one side which is denied by the other side. The term "controversy" is very broad and comprehensive, and for that reason is not easily susceptible of any precise general definition.[1] It has been defined as a dispute arising between two or more persons,[2] and as a disputed question.[3] It has been defined or regarded as synonymous with "action,"[4] "civil action or proceeding"[5] and "lawsuit."[6] In a limited sense, it may be defined as an allegation of fact on one side which is denied by the other side,[7 ] but the element of dispute is not essential to constitute a justiciable controversy, as such a controversy may exist even if all of the facts and the law are admitted by all the parties.[8] CUMULATIVE SUPPLEMENT Cases: Controversy is justiciable when there are interested parties asserting adverse claims upon a state of facts which must have accrued wherein a legal decision is sought or demanded. Ex parte Bridges, 2005 WL 2403743 (Ala. 2005). [END OF SUPPLEMENT]
[FN1] U.S.State of Rhode Island v. Com. of Massachusetts, 37 U.S. 657, 9 L. Ed. 1233 (1838). [FN2] N.Y.Matthews v. Noble, 25 Misc. 674, 55 N.Y.S. 190 (Sup 1898), judgment modified on other
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grounds, 39 A.D. 655, 59 N.Y.S. 1110 (4th Dep't 1899). [FN3] Mo.State ex rel. Hamilton v. Guinotte, 156 Mo. 513, 57 S.W. 281 (1900). [FN4] U.S.Hargrave v. Oki Nursery, Inc., 646 F.2d 716, 31 Fed. R. Serv. 2d 519 (2d Cir. 1980). [FN5] N.Y.Matthews v. Noble, 25 Misc. 674, 55 N.Y.S. 190 (Sup 1898), judgment modified on other grounds, 39 A.D. 655, 59 N.Y.S. 1110 (4th Dep't 1899). [FN6] N.Y.Matthews v. Noble, 25 Misc. 674, 55 N.Y.S. 190 (Sup 1898), judgment modified on other grounds, 39 A.D. 655, 59 N.Y.S. 1110 (4th Dep't 1899). Suit at law Mo.State ex rel. Hamilton v. Guinotte, 156 Mo. 513, 57 S.W. 281 (1900). Suit at law or in equity U.S.U.S. to Use of Edward Hines Lumber Co. v. Henderlong, 102 F. 2 (C.C.D. Ind. 1900). [FN7] Wis.J.I. Case Co. v. Industrial Commission of Wisconsin, 210 Wis. 574, 246 N.W. 591 (1933). [FN8] Wis.J.I. Case Co. v. Industrial Commission of Wisconsin, 210 Wis. 574, 246 N.W. 591 (1933). Unsatisfied claim U.S.In re Reisenberg, 208 U.S. 90, 28 S. Ct. 219, 52 L. Ed. 403 (1908). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 16 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction A. General Considerations 3. Meaning of Related Terms a. In General Topic Summary References Correlation Table 17. Case West's Key Number Digest West's Key Number Digest, Action 1 A case, in a legal sense, generally means a judicial procedure for the enforcement of a right or the prevention or redress of a wrong, but has also been used to refer to the facts which constitute a cause of action or ground of defense. In a legal sense, the word "case" is generally understood to mean a judicial proceeding for the determination of a controversy between parties where rights are enforced or wrongs are prevented or redressed,[1] and to embrace everything from the filing of the complaint to the entry of satisfaction of the judgment.[2] It has been defined as a state of facts which furnishes occasion for the exercise of the jurisdiction of a court of justice,[3] and as a proceeding, action, suit, or controversy at law or in equity.[4] The term is a generic one which embraces many different species of actions,[5] and includes criminal as well as civil proceedings.[6] A case is the facts constituting the cause of action or defense,[7] the state of facts which constitute the rights of the individual, or his or her cause of action, which the proceeding, action, or suit protects or enforces,[8] a state of facts involving a question for discussion, especially a cause or suit in court,[9] or a question contested before a court of justice.[10] The term "case" has been defined or treated as synonymous with the terms "action,"[11] "cause,"[12] and "lawsuit."[13] However, it has also been said to include proceedings which do not properly fall within the terms "action" and "suit,"[14] such as special proceedings.[15] The term "controversy" is less comprehensive than the term "case,"[16] in that "controversy" is restricted to civil proceedings,[17] while "case" includes both civil and criminal proceedings.[18]
[FN1] Ala.Opinion of the Clerk, 361 So. 2d 534 (Ala. 1978).
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HawaiiLum v. Sun, 70 Haw. 288, 769 P.2d 1091 (1989). [FN2] Nev.Comstock Mill & Mining Co. v. Allen, 21 Nev. 325, 31 P. 434 (1892). [FN3] Ala.Opinion of the Clerk, 394 So. 2d 954 (Ala. 1981). [FN4] Mich. Wilcoxon v. Wayne County Neighborhood Legal Services, 252 Mich. App. 549, 652 N.W.2d 851 (2002). [FN5] U.S.Carrol v. Green, 92 U.S. 509, 23 L. Ed. 738 (1875). [FN6] U.S.U.S. v. Cameron, 15 F. 794 (C.C.E.D. Mo. 1883). Me. Cheney v. Richards, 130 Me. 288, 155 A. 642 (1931) (overruled in part on other grounds by, Stern v. Chandler, 153 Me. 62, 134 A.2d 550 (1957)). N.Y. Matthews v. Noble, 25 Misc. 674, 55 N.Y.S. 190 (Sup 1898), judgment modified on other grounds, 39 A.D. 655, 59 N.Y.S. 1110 (4th Dep't 1899). [FN7] N.Y.Woodruff v. Dickie, 28 N.Y. Super. Ct. 619, 31 How. Pr. 164, 1866 WL 5207 (1866). N.D.Swedish-American Nat. Bank v. Dickinson Co., 6 N.D. 222, 69 N.W. 455 (1896). [FN8] Mo.State ex rel. Kochtitzky v. Riley, 203 Mo. 175, 101 S.W. 567 (1907). [FN9] U.S.U.S. v. Dolla, 177 F. 101 (C.C.A. 5th Cir. 1910). Conn.Smith v. City of Waterbury, 54 Conn. 174, 7 A. 17 (1886). Mo.State ex rel. Kochtitzky v. Riley, 203 Mo. 175, 101 S.W. 567 (1907). [FN10] HawaiiLum v. Sun, 70 Haw. 288, 769 P.2d 1091 (1989). [FN11] U.S.Nolan v. Boeing Co., 919 F.2d 1058 (5th Cir. 1990). Mich. Wilcoxon v. Wayne County Neighborhood Legal Services, 252 Mich. App. 549, 652 N.W.2d 851 (2002). Or.Abbott v. Baldwin, 178 Or. App. 289, 36 P.3d 516 (2001), review denied, 334 Or. 75, 45 P.3d 449 (2002) and cert. denied, 537 U.S. 901, 123 S. Ct. 217, 154 L. Ed. 2d 174 (2002). [FN12] Fla.State Road Dept. v. Crill, 99 Fla. 1012, 128 So. 412 (1930). Me. Cheney v. Richards, 130 Me. 288, 155 A. 642 (1931) (overruled in part on other grounds by, Stern v. Chandler, 153 Me. 62, 134 A.2d 550 (1957)). Wyo.Messenger v. Board of Com'rs of Converse County, 19 Wyo. 309, 117 P. 126 (1911). [FN13] HawaiiLum v. Sun, 70 Haw. 288, 769 P.2d 1091 (1989).
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[FN14] U.S.San Mateo County v. Southern Pac. R. Co., 13 F. 145 (C.C.D. Cal. 1882). [FN15] Cal.Carpenter v. Jones, 121 Cal. 362, 53 P. 842 (1898). [FN16] U.S.Chisholm v. Georgia, 2 U.S. 419, 2 Dall. 419, 1 L. Ed. 440 (1793). [FN17] 16. [FN18] N.Y.Matthews v. Noble, 25 Misc. 674, 55 N.Y.S. 190 (Sup 1898), judgment modified on other grounds, 39 A.D. 655, 59 N.Y.S. 1110 (4th Dep't 1899). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 17 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction A. General Considerations 3. Meaning of Related Terms a. In General Topic Summary References Correlation Table 18. CaseCivil case; civil cause West's Key Number Digest West's Key Number Digest, Action 1 A civil case is an action to obtain redress for a wrong to a private individual. The term "civil case" circumscribes a broad category of legal actions, each of which can consist of one or more claims.[1] A civil case is an action brought to recover some civil right, or to obtain redress for some wrong other than a crime or misdemeanor,[2] the legal means by which the rights and remedies of private individuals are enforced or protected,[3] or a suit at law to redress the violation of some contract, or to repair some injury to property or to the person or personal rights of individuals.[4] "Civil case" has been considered as synonymous with "civil cause,"[5] although, depending on the subject and the context in which it is used, it may mean something more, or less, than that term.[6] The term "civil cause" comprehends every conceivable cause of action, whether legal or equitable, except criminal ones.[7] According to context, the term "civil case" may be used in contradistinction to the term "special proceeding,"[8] or considered to include such a proceeding.[9] It has been said not to include a probate proceeding.[10]
[FN1] Mich. Wilcoxon v. Wayne County Neighborhood Legal Services, 252 Mich. App. 549, 652 N.W.2d 851 (2002). [FN2] Wyo.Messenger v. Board of Com'rs of Converse County, 19 Wyo. 309, 117 P. 126 (1911). [FN3] Mo.State ex rel. Kochtitzky v. Riley, 203 Mo. 175, 101 S.W. 567 (1907). [FN4] Wyo.Messenger v. Board of Com'rs of Converse County, 19 Wyo. 309, 117 P. 126 (1911). [FN5] Wyo.Messenger v. Board of Com'rs of Converse County, 19 Wyo. 309, 117 P. 126 (1911).
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[FN6] Wyo.Messenger v. Board of Com'rs of Converse County, 19 Wyo. 309, 117 P. 126 (1911). [FN7] Ind.Hockemeyer v. Thompson, 150 Ind. 176, 48 N.E. 1029 (1898). Miss.Grenada Lumber Co. v. State, 98 Miss. 536, 54 So. 8 (1911). [FN8] N.Y. THE PEOPLE ex rel. WILLIAM WILLIAMS, plaintiff in error, v. REYNOLDS BIGELOW, defendant in error, 11 How. Pr. 83, 1854 WL 6526 (N.Y. 1854). [FN9] Cal.Carpenter v. Jones, 121 Cal. 362, 53 P. 842 (1898). IowaHerkimer v. Keeler, 109 Iowa 680, 81 N.W. 178 (1899); College of Physicians & Surgeons of Keokuk v. Guilbert, 100 Iowa 213, 69 N.W. 453 (1896). [FN10] Or.Stevens v. Myers, 62 Or. 372, 121 P. 434 (1912), aff'd, 62 Or. 372, 126 P. 29 (1912). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 18 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction A. General Considerations 3. Meaning of Related Terms a. In General Topic Summary References Correlation Table 19. CaseCriminal case West's Key Number Digest West's Key Number Digest, Action 1 A criminal case is a proceeding instituted to punish an infraction of the criminal laws. A criminal case has been defined as an action, suit, or cause instituted to punish an infraction of the criminal laws.[1] It involves a wrong or injury done to the state or government, for the punishment of which the offender is prosecuted in the name of the people,[2] and has been said to refer only to a prosecution under state law, and not to one under a city ordinance.[3]
[FN1] Cal.Ex parte Clark, 24 Cal. App. 389, 141 P. 831 (1st Dist. 1914). IdahoDaugherty v. Nagel, 28 Idaho 302, 154 P. 375 (1915). Tex.Taylor v. Goodrich, 25 Tex. Civ. App. 109, 40 S.W. 515 (1897). [FN2] U.S.In re Leslie, 119 F. 406 (N.D. N.Y. 1903). [FN3] Wis.Koch v. State, 126 Wis. 470, 106 N.W. 531 (1906). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 19 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction A. General Considerations 3. Meaning of Related Terms a. In General Topic Summary References Correlation Table 20. Suit West's Key Number Digest West's Key Number Digest, Action 1 A suit is an action or proceeding in a court of justice for the enforcement of a right or claim, or the redress of an injury. The word "suit" is a generic[1] and comprehensive[2] term that has been variously defined[3] as an action;[ 4] any proceeding in a court of justice by which an individual pursues a remedy afforded by law for the recovery of a right or the redress of an injury;[5] an attempt to gain an end by legal process;[6] the lawful demand of a right in a court of justice;[7] a civil action commenced in a court of competent jurisdiction in accordance with and subject to the rules of civil procedure;[8] and a proceeding in a court of justice for the enforcement of a right.[9] The term is sometimes used in a broad, and sometimes in a more restricted, sense,[10] and, according to the context, the same proceeding may be a suit for some purposes and not for others.[11] A "civil suit" is defined as a suit for a private claim or injury.[12] The term refers to the legal means by which the rights and remedies of private individuals are enforced and protected, in contradistinction to criminal cases.[13] "Suit" indicates a proceeding in a court of justice, and does not include nonjudicial proceedings,[14] although it is not always essential that the proceeding should be originally instituted in a court, as a proceeding not instituted in court may become a suit by its removal into a court, as by an appeal.[15] The word denotes any civil legal proceeding of a civil kind brought by one person against another,[16] and is also sometimes used to include criminal proceedings.[17] It may include both legal and equitable actions,[18] and also special proceedings.[19] The term "suit" has been construed to include a statutory proceeding in the probate court for the discovery of assets of an estate,[20] and a writ of prohibition.[21] On the other hand, it has been said not to include an appeal to a county board with no judicial functions;[22] an assessment proceeding for a municipal improvement;[ 23] an election contest;[24] a petition to a county board for the allowance of a claim;[25] or a proceeding before
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railroad commissioners.[26]
[FN1] Me.Appleton v. Turnbull, 84 Me. 72, 24 A. 592 (1891). Mo.State ex rel. Kochtitzky v. Riley, 203 Mo. 175, 101 S.W. 567 (1907). S.C.Branyan v. Kay, 33 S.C. 283, 11 S.E. 970 (1890). [FN2] U.S.L. Bucki & Son Lumber Co. v. Atlantic Lumber Co., 128 F. 332 (C.C.A. 5th Cir. 1904). Mo.State ex rel. Kochtitzky v. Riley, 203 Mo. 175, 101 S.W. 567 (1907). N.Y.Tilden v. Aitkin, 37 A.D. 28, 55 N.Y.S. 735 (3d Dep't 1899). Tex.Franks v. Chapman, 61 Tex. 576, 1884 WL 8823 (1884). [FN3] Mo.Eckerle v. Wood, 95 Mo. App. 378, 69 S.W. 45 (1902). Neb.Cass County v. Sarpy County, 83 Neb. 435, 119 N.W. 685 (1909). [FN4] Mo.State ex rel. Kochtitzky v. Riley, 203 Mo. 175, 101 S.W. 567 (1907). "Suit" and "action" synonymous. Cal. Salawy v. Ocean Towers Housing Corp., 121 Cal.App.4th 664, 17 Cal.Rptr.3d 427 (2d Dist. 2004). HawaiiLeslie v. Estate of Tavares, 93 Haw. 1, 994 P.2d 1047 (2000). Tex.Matter of Marriage of Combs, 958 S.W.2d 848 (Tex. App. 1997), rehearing overruled (Nov 24, 1997). [FN5] U.S.Kohl v. U.S., 91 U.S. 367, 23 L. Ed. 449, 1875 WL 17549 (1875). HawaiiLabrador v. Liberty Mut. Group, 103 Haw. 206, 81 P.3d 386 (2003). [FN6] Mo.State ex rel. Kochtitzky v. Riley, 203 Mo. 175, 101 S.W. 567 (1907). [FN7] Or.Giant Powder Co. v. Oregon Western Ry. Co., 54 Or. 325, 101 P. 209 (1909). [FN8] Pa.Human Development of Erie, Inc. v. Zoning Hearing Bd. of Millcreek Tp., 143 Pa. Commw. 675, 600 A.2d 658 (1991). [FN9] Neb.Cass County v. Sarpy County, 83 Neb. 435, 119 N.W. 685 (1909). Wis.Kuhl v. Chicago & N.W.R. Co., 101 Wis. 42, 77 N.W. 155 (1898). Wyo.State v. District Court of Sixth Judicial Dist. in and for Converse County, 44 Wyo. 437, 13 P.2d 568 (1932).
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"Sue" "Sue" simply means to institute lawsuit against another party. Tex.City of Texarkana v. City of New Boston, 141 S.W.3d 778 (Tex. App. Texarkana 2004). [FN10] Cal.Taranow v. Brokstein, 135 Cal. App. 3d 662, 185 Cal. Rptr. 532 (1st Dist. 1982). [FN11] U.S.In re City of Chicago, 64 F. 897 (C.C.N.D. Ill. 1894). [FN12] Mo.State ex rel. Kochtitzky v. Riley, 203 Mo. 175, 101 S.W. 567 (1907). [FN13] Mo.State ex rel. Kochtitzky v. Riley, 203 Mo. 175, 101 S.W. 567 (1907). [FN14] U.S.In re City of Chicago, 64 F. 897 (C.C.N.D. Ill. 1894). [FN15] U.S. Mississippi & Rum River Boom Co. v. Patterson, 98 U.S. 403, 25 L. Ed. 206 (1878); Waha-Lewiston Land & Water Co. v. Lewiston-Sweetwater Irr. Co., 158 F. 137 (C.C.D. Idaho 1907). Neb.Cass County v. Sarpy County, 83 Neb. 435, 119 N.W. 685 (1909). [FN16] Me.Appleton v. Turnbull, 84 Me. 72, 24 A. 592 (1891). Mo.State ex rel. Kochtitzky v. Riley, 203 Mo. 175, 101 S.W. 567 (1907). OhioIn re Oliver's Guardianship, 77 Ohio St. 474, 83 N.E. 795 (1908). S.C.Branyan v. Kay, 33 S.C. 283, 11 S.E. 970 (1890). [FN17] U.S.U.S. v. Illinois Cent. R. Co., 156 F. 182 (W.D. Ky. 1907). Md.Snowden v. State, 69 Md. 203, 14 A. 528 (1888). Mass.Commonwealth v. Moore, 143 Mass. 136, 9 N.E. 25 (1886). [FN18] U.S.L. Bucki & Son Lumber Co. v. Atlantic Lumber Co., 128 F. 332 (C.C.A. 5th Cir. 1904). [FN19] N.Y.Tilden v. Aitkin, 37 A.D. 28, 55 N.Y.S. 735 (3d Dep't 1899). Wis.Wisconsin Cent. R. Co. v. Cornell University, 49 Wis. 162, 5 N.W. 331 (1880). [FN20] Mo.In re Clinton's Estate, 223 Mo. 371, 123 S.W. 1 (1909). [FN21] U.S.Weston v. City Council of Charleston, 27 U.S. 449, 7 L. Ed. 481 (1829). [FN22] U.S.Upshur County v. Rich, 135 U.S. 467, 10 S. Ct. 651, 34 L. Ed. 196 (1890). [FN23] U.S.In re City of Chicago, 64 F. 897 (C.C.N.D. Ill. 1894). [FN24] Tex.Williamson v. Lane, 52 Tex. 335, 1879 WL 7757 (1879).
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[FN25] U.S.Fuller v. Colfax County, 14 F. 177 (C.C.D. Neb. 1882). [FN26] Vt.City of Burlington v. Burlington Traction Co., 70 Vt. 491, 41 A. 514 (1898). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 20 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction A. General Considerations 3. Meaning of Related Terms a. In General Topic Summary References Correlation Table 21. Subject of action; subject matter West's Key Number Digest West's Key Number Digest, Action 1 The terms "subject of the action" and "subject matter of the action" are ordinarily regarded as synonymous, and have been defined as the facts constituting the cause of action, and as the property or thing, or the primary right, for which the action is brought. The terms "subject of the action" and "subject matter of the action," have been distinguished, in that the subject matter of an action is the abstract subject of judicial inquiry, whereas the subject of an action, in its strict sense, is the subject matter applied to a particular case.[1] Ordinarily, however, they are regarded as synonymous.[2] The subject or subject matter of an action has been variously defined as the facts constituting the cause of action;[3] as the origin and ground of a plaintiff's right to recover or obtain the relief asked;[4] and as the defendant's alleged wrongful act or omission.[5] It has also been defined as the property, thing, or matter to which litigation pertains;[6] the physical facts or property in relation to which a suit is prosecuted;[7] and the thing, the wrongful act for which damages are sought, the contract which is broken, the act which is sought to be restrained, or the property whose recovery is sought.[8] The subject matter of an action has been defined in terms of rights as the right which one party claims as against the other, and demands the judgment of the court upon;[9] as a primary right[10] which the plaintiff seeks to enforce or protect,[11] through whose breach a remedial right arises[12] and to enforce which the action is brought;[13] and as a plaintiff's primary right and its infringement or invasion by the defendant.[14] Any definition, to be both accurate and sufficiently general for all purposes must contain as its basic and fundamental element the plaintiff's primary right which has been invaded.[15] In some cases this may be the whole subject of the action,[16] but in actions involving specific real or personal property the subject of the action may properly be said to consist of both the plaintiff's primary right and the specific property itself,[17] or of either the property involved or the violated right.[18]
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Although the subject or subject matter of an action has been said to be synonymous with a cause of action,[ 19] the two terms have also been distinguished in that the subject or subject matter or an action is broader than the term "cause of action."[20]
[FN1] OhioBaltimore & O.R.R. v. Hollenberger, 76 Ohio St. 177, 81 N.E. 184 (1907). [FN2] IowaBox v. Chicago, R.I. & P.R. Co., 107 Iowa 660, 78 N.W. 694 (1899). N.Y.Merchants' Nat. Bank v. Hagemeyer, 4 A.D. 52, 38 N.Y.S. 626 (1st Dep't 1896). OhioBaltimore & O.R.R. v. Hollenberger, 76 Ohio St. 177, 81 N.E. 184 (1907). Okla.Parker v. Lynch, 1898 OK 76, 7 Okla. 631, 56 P. 1082 (1898). S.D.Bush v. Froelick, 8 S.D. 353, 66 N.W. 939 (1896). Wis.McArthur v. Moffett, 143 Wis. 564, 128 N.W. 445 (1910). [FN3] U.S.McAndrews v. Chicago, L.S. & E. Ry. Co., 162 F. 856 (C.C.A. 7th Cir. 1908). N.Y.Rothschild v. Whitman, 132 N.Y. 472, 30 N.E. 858 (1892). [FN4] Mont.Osmers v. Furey, 32 Mont. 581, 81 P. 345 (1905). Or.Burrage v. Bonanza Mining Co., 12 Or. 169, 6 P. 766 (1885). [FN5] Wis.Mulberger v. Koenig, 62 Wis. 558, 22 N.W. 745 (1885). [FN6] IowaRyan v. Amodeo, 216 Iowa 752, 249 N.W. 656 (1933). N.D.Patterson Land Co. v. Lynn, 44 N.D. 251, 175 N.W. 211 (1919). Wis.McArthur v. Moffett, 143 Wis. 564, 128 N.W. 445 (1910). Definition disapproved Note that this definition has been disapproved on the ground that it is not sufficiently general and would not include rights and wrongs not connected with any specific property. Wis.McArthur v. Moffett, 143 Wis. 564, 128 N.W. 445 (1910). [FN7] U.S.Ames Realty Co. v. Big Indian Min. Co., 146 F. 166 (C.C.D. Mont. 1906). S.D.Bush v. Froelick, 8 S.D. 353, 66 N.W. 939 (1896). Ark.Porter v. Hamill, 95 Ark. 97, 128 S.W. 570 (1910). Or.Le Clare v. Thibault, 41 Or. 601, 69 P. 552 (1902).
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S.C.Ophuls & Hill v. Carolina Ice & Fuel Co., 160 S.C. 441, 158 S.E. 824 (1931). [FN8] N.C.Lassiter v. Norfolk & C.R. Co., 136 N.C. 89, 48 S.E. 642 (1904). [FN9] IowaReed v. City of Muscatine, 104 Iowa 183, 73 N.W. 579 (1897). Mich.Jacobson v. Miller, 41 Mich. 90, 1 N.W. 1013 (1879). [FN10] Mo.McCormick Harvesting Mach. Co. v. Hill, 104 Mo. App. 544, 79 S.W. 745 (1904). N.Y.Steinmetz v. Cosmopolitan Range Co., 47 Misc. 611, 94 N.Y.S. 456 (App. Term 1905). S.C.Ophuls & Hill v. Carolina Ice & Fuel Co., 160 S.C. 441, 158 S.E. 824 (1931). [FN11] Mo.McCormick Harvesting Mach. Co. v. Hill, 104 Mo. App. 544, 79 S.W. 745 (1904). [FN12] S.C.Ophuls & Hill v. Carolina Ice & Fuel Co., 160 S.C. 441, 158 S.E. 824 (1931). [FN13] N.Y.Steinmetz v. Cosmopolitan Range Co., 47 Misc. 611, 94 N.Y.S. 456 (App. Term 1905). [FN14] Okla.Stone v. Case, 1912 OK 428, 34 Okla. 5, 124 P. 960 (1912). Wis.Brahm v. M.C. Gehl Co., 132 Wis. 674, 112 N.W. 1097 (1907). Definition disapproved Note that this definition has been disapproved as making "subject of the action" synonymous with "cause of action." Wis.McArthur v. Moffett, 143 Wis. 564, 128 N.W. 445 (1910). [FN15] Wis.McArthur v. Moffett, 143 Wis. 564, 128 N.W. 445 (1910). [FN16] Wis.McArthur v. Moffett, 143 Wis. 564, 128 N.W. 445 (1910). [FN17] Wis.McArthur v. Moffett, 143 Wis. 564, 128 N.W. 445 (1910). [FN18] N.Y.Barney v. Fuller, 15 N.Y.S. 694 (Gen. Term 1891), aff'd, 133 N.Y. 605, 30 N.E. 1007 (1892). Wash.First Nat. Bank v. Parker, 28 Wash. 234, 68 P. 756 (1902). [FN19] U.S.White v. Nemours Trading Corp., 290 F. 250 (D. Mass. 1923). N.C.Bazemore v. Bridgers, 105 N.C. 191, 10 S.E. 888 (1890). [FN20] Minn.State of Wisconsin v. Torinus, 28 Minn. 175, 9 N.W. 725 (1881). Neb.Westover v. Hoover, 94 Neb. 596, 143 N.W. 946 (1913). N.Y.Deagan v. Weeks, 67 A.D. 410, 73 N.Y.S. 641 (3d Dep't 1901).
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Okla.Harness v. Myers, 1930 OK 61, 143 Okla. 147, 288 P. 285 (1930). S.C.Ophuls & Hill v. Carolina Ice & Fuel Co., 160 S.C. 441, 158 S.E. 824 (1931). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 21 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction A. General Considerations 3. Meaning of Related Terms b. Proceeding Topic Summary References Correlation Table 22. Generally West's Key Number Digest West's Key Number Digest, Action 1 A proceeding, in a general sense, means the form and manner of conducting judicial business before a court or judicial officer; in a more particular sense, an application to a court of justice for any remedial object. The term "proceeding" or "proceedings," generally speaking, is very comprehensive,[1] and may have different meanings, according to the context and the subject to which it relates, such as by its combination with other words and phrases which vary its ordinary meaning.[2] In its general sense, except as qualified by the subject to which it is applied, "proceeding" means the form and manner of conducting judicial business or a judicial transaction,[3] a prescribed mode of action for carrying into effect a legal right,[4] an act necessary to be done in order to attain a given end, a prescribed mode of action for carrying into effect a legal right,[5] the form in which actions are to be brought and defended, or the manner of intervening in, conducting, and deciding suits, and of imposing and executing judgments.[6] The term "proceeding" is broader than the word "action."[7] As ordinarily used, it is broad enough to include all methods of invoking the action of courts[8] and any and all of the steps or measures adopted or taken, or required to be taken, in the prosecution or defense of an action,[9] and is generally applicable to any step taken to obtain the interposition or action of a court.[10] It includes actions and special proceedings before judicial tribunals as well as proceedings pending before quasi-judicial officers and boards, and describes the entire course of an action at law or suit in equity from the filing of the complaint until the entry of final judgment,[11] except, according to some courts, for the pleadings.[12] The term has been considered to apply to a hearing before a county board;[13] a letter purporting to authorize an attorney to confess judgment;[14] a motion;[15] an order indorsed upon an affidavit in a claim and delivery action;[16] an order of continuance, except where there is a statutory provision to the contrary;[17] the filing of a bill[18] or of a stenographer's transcript with bill of exceptions;[19] the issuance and service of process;[20] and the statutory examination of an adverse party before trial.[21]
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The term, however, has been stated not to apply to the mere doing of a ministerial act by a nonjudicial officer,[22] such as the taking of an acknowledgment by a notary;[23] or a court's act of passing on a petition to stay execution pending the determination of the question of supervening insanity after sentence.[24]
[FN1] D.C.Hyattsville Building Ass'n v. Bouic, 44 App. D.C. 408 (App. D.C. 1916). [FN2] U.S. Bowers v. New York & Albany Lighterage Co., 273 U.S. 346, 47 S. Ct. 389, 71 L. Ed. 676 (1927). Ariz.Arizona Corp. Com'n v. Heralds of Liberty, 17 Ariz. 462, 154 P. 202 (1916). Cal.Burns v. Superior Court of City and County of San Francisco, 140 Cal. 1, 73 P. 597 (1903). [FN3] Ariz.Arizona Corp. Com'n v. Heralds of Liberty, 17 Ariz. 462, 154 P. 202 (1916). Cal.Lister v. Superior Court, 98 Cal. App. 3d 64, 159 Cal. Rptr. 280 (3d Dist. 1979). Mode of carrying on suit "Proceeding" means regular and usual mode of carrying on a suit by due course of common law. Conn. Hyllen-Davey v. Plan and Zoning Com'n of Town of Glastonbury, 57 Conn. App. 589, 749 A.2d 682 (2000). [FN4] Ariz.Arizona Corp. Com'n v. Heralds of Liberty, 17 Ariz. 462, 154 P. 202 (1916). D.C.Hyattsville Building Ass'n v. Bouic, 44 App. D.C. 408 (App. D.C. 1916). Mo.City of St. Louis v. Cooper Carriage Woodwork Co., 216 S.W. 944 (Mo. 1919). Okla.Green v. Board of Com'rs of Lincoln County, 1927 OK 217, 126 Okla. 300, 259 P. 635 (1927). [FN5] N.Y. In re Schorer's Estate, 154 Misc. 198, 277 N.Y.S. 677 (Sur. Ct. 1935), aff'd, 248 A.D. 666, 289 N.Y.S. 911 (4th Dep't 1936), aff'd, 272 N.Y. 247, 5 N.E.2d 806 (1936). OhioW. S.Tyler Co. v. Rebic, 118 Ohio St. 522, 6 Ohio L. Abs. 327, 161 N.E. 790 (1928). [FN6] Conn.Hyllen-Davey v. Plan and Zoning Com'n of Town of Glastonbury, 57 Conn. App. 589, 749 A.2d 682 (2000). HawaiiWilder v. Colburn, 21 Haw. 701, 1913 WL 1677 (1913). N.J.Howell Lumber Co. v. City of New Brunswick, 75 A. 750 (N.J. Ch. 1910). Okla.Green v. Board of Com'rs of Lincoln County, 1927 OK 217, 126 Okla. 300, 259 P. 635 (1927). [FN7]
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Motion to vacate, reopen, and rescind Personal injury plaintiff's motion to vacate notice of dismissal filed after settlement agreement, reopen the civil action, and rescind the release and settlement agreements, was a "proceeding," rather than an "action." HawaiiLeslie v. Estate of Tavares, 93 Haw. 1, 994 P.2d 1047 (2000). [FN8] Conn.Hyllen-Davey v. Plan and Zoning Com'n of Town of Glastonbury, 57 Conn. App. 589, 749 A.2d 682 (2000). HawaiiLeslie v. Estate of Tavares, 93 Haw. 1, 994 P.2d 1047 (2000). [FN9] U.S.Wayman v. Southard, 23 U.S. 1, 6 L. Ed. 253 (1825). Cal.Lister v. Superior Court, 98 Cal. App. 3d 64, 159 Cal. Rptr. 280 (3d Dist. 1979). Legal proceeding The term "legal proceeding" includes all proceedings authorized or sanctioned by law brought in a court of justice or legal tribunal for requiring of a right or enforcement of a remedy. Tex.City of San Antonio v. Aguilar, 670 S.W.2d 681 (Tex. App. San Antonio 1984), dismissed, (May 23, 1984). [FN10] HawaiiLeslie v. Estate of Tavares, 93 Haw. 1, 994 P.2d 1047 (2000). Court of justice (1) Proceeding must take place in a court of justice. N.C. Ocean Hill Joint Venture v. North Carolina Dept. of Environment, Health and Natural Resources, 333 N.C. 318, 426 S.E.2d 274 (1993). (2) Term "proceedings," used in its technical legal sense, refers to something done or to be done in a court of justice or before a judicial officer. . Cal.Aldrich v. San Fernando Valley Lumber Co., 170 Cal. App. 3d 725, 216 Cal. Rptr. 300 (2d Dist. 1985) [FN11] Cal.Exxess Electronixx v. Heger Realty Corp., 64 Cal. App. 4th 698, 75 Cal. Rptr. 2d 376 (2d Dist. 1998). [FN12] Mont.Claussen v. Chapin, 69 Mont. 205, 221 P. 1073 (1923). Okla.Loeb v. Loeb, 1909 OK 181, 24 Okla. 384, 103 P. 570 (1909). [FN13] Neb.Maloney v. Douglass County, 2 Neb. (Unof.) 396, 89 N.W. 248 (1902). [FN14] Me.State v. Kerr, 117 Me. 254, 103 A. 585 (1918).
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[FN15] Mont.State v. Donlan, 32 Mont. 256, 80 P. 244 (1905). [FN16] Mont.State v. District Court of Second Judicial Dist. for Silver Bow County, 33 Mont. 359, 83 P. 641 (1906). [FN17] W.Va.Millar v. Whittington, 87 W. Va. 664, 105 S.E. 907 (1921). [FN18] W.Va.Millar v. Whittington, 87 W. Va. 664, 105 S.E. 907 (1921). [FN19] R.I.New York, N.H. & H.R. Co. v. Superior Court for Kent County, 39 R.I. 560, 99 A. 582 (1917). [FN20] Mass.International Paper Co. v. Com., 232 Mass. 7, 121 N.E. 510 (1919). [FN21] N.Y.Goldberg v. Candy Products Co., 127 Misc. 455, 215 N.Y.S. 772 (Mun. Ct. 1926). [FN22] Wash.State v. Gordon, 8 Wash. 488, 36 P. 498 (1894). [FN23] Mont.First Nat. Bank v. Roberts, 9 Mont. 323, 23 P. 718 (1890). [FN24] Wash. State v. Superior Court for Grays Harbor County, 139 Wash. 125, 245 P. 929, 49 A.L.R. 801 (1926). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 22 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction A. General Considerations 3. Meaning of Related Terms b. Proceeding Topic Summary References Correlation Table 23. Indicative of act West's Key Number Digest West's Key Number Digest, Action 1 The term "proceeding" always indicates the performance of an act at the court's authority or direction. "Proceeding" always indicates the performance of an act[1] done by the court's express or implied authority or direction,[2] such as the issuing of an execution[3] or the delivery by the clerk of the court of a transcript of the judgment to a party;[4] but the filing of a transcript by the party to whom it has been delivered is not a proceeding.[5] The term is ordinarily restricted to judicial matters,[6] and generally refers to something done or to be done in a court of justice.[7] However, it is not necessarily so restricted,[8] and, according to the context and subject, has been deemed to apply to an act of an executive officer of a court, done under color of its process,[9] or to the form and manner of the exercise of official power conferred by law.[10]
[FN1] U.S.Beers v. Haughton, 34 U.S. 329, 9 L. Ed. 145 (1835). Ind.Hopewell v. State, 22 Ind. App. 489, 54 N.E. 127 (1899). [FN2] Cal.Burns v. Superior Court of City and County of San Francisco, 140 Cal. 1, 73 P. 597 (1903) . Mass.Gonzales v. Gonzales, 240 Mass. 159, 133 N.E. 855 (1921). Okla.Green v. Board of Com'rs of Lincoln County, 1927 OK 217, 126 Okla. 300, 259 P. 635 (1927). [FN3] N.Y.Bulkeley v. Keteltas, 5 N.Y. Super. Ct. 740 (1851).
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[FN4] N.Y.Bulkeley v. Keteltas, 5 N.Y. Super. Ct. 740 (1851). [FN5] N.Y.Bulkeley v. Keteltas, 5 N.Y. Super. Ct. 740 (1851). [FN6] S.D.Uhe v. Chicago, M. & St. P. Ry. Co., 3 S.D. 563, 54 N.W. 601 (1893). [FN7] Ind.Hopewell v. State, 22 Ind. App. 489, 54 N.E. 127 (1899). Mont.First Nat. Bank v. Roberts, 9 Mont. 323, 23 P. 718 (1890). [FN8] Kan.State v. City of Topeka, 68 Kan. 177, 74 P. 647 (1903). [FN9] U.S. Bowers v. New York & Albany Lighterage Co., 273 U.S. 346, 47 S. Ct. 389, 71 L. Ed. 676 (1927). [FN10] U.S.Amis v. Smith, 41 U.S. 303, 10 L. Ed. 973 (1842). Tex.A.H. Belo & Co. v. Lacy, 111 S.W. 215 (Tex. Civ. App. 1908), writ refused. Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 23 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction A. General Considerations 3. Meaning of Related Terms b. Proceeding Topic Summary References Correlation Table 24. Related terms West's Key Number Digest West's Key Number Digest, Action 1 Similar or related terms have been compared to and distinguished from "proceeding." The term "proceeding" has been considered to be synonymous with the terms "cause,"[1] "case,"[2] and "prosecution,"[3] but has been said to be more comprehensive than the term "judgment."[4] It has both been said to be synonymous with "action,"[5] and to be broader and more comprehensive than that term.[6] The term "proceeding" may be, and sometimes is, used as a synonym for the term "suit;"[7] but it has also been said to be a more general and comprehensive term than "suit" where there is nothing in the context to restrict its meaning.[8]
[FN1] 13. [FN2] 17. [FN3] Mo.State ex rel. Butler v. Foster, 187 Mo. 590, 86 S.W. 245 (1905). [FN4] Ind.Yeager v. Davis, 112 Ind. 230, 13 N.E. 707 (1887). S.D.Uhe v. Chicago, M. & St. P. Ry. Co., 3 S.D. 563, 54 N.W. 601 (1893). [FN5] Cal.Exxess Electronixx v. Heger Realty Corp., 64 Cal. App. 4th 698, 75 Cal. Rptr. 2d 376 (2d Dist. 1998). Mass.Gonzales v. Gonzales, 240 Mass. 159, 133 N.E. 855 (1921).
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S.D.Mars v. Oro Fino Min. Co., 7 S.D. 605, 65 N.W. 19 (1895). [FN6] Ill.Hackett v. Chicago City Ry. Co., 235 Ill. 116, 85 N.E. 320 (1908). Mont.In re McFarland's Estate, 10 Mont. 445, 26 P. 185 (1891). S.D.Mars v. Oro Fino Min. Co., 7 S.D. 605, 65 N.W. 19 (1895). Wash.State v. Gordon, 8 Wash. 488, 36 P. 498 (1894). [FN7] Cal.Exxess Electronixx v. Heger Realty Corp., 64 Cal. App. 4th 698, 75 Cal. Rptr. 2d 376 (2d Dist. 1998). Mass.Gonzales v. Gonzales, 240 Mass. 159, 133 N.E. 855 (1921). Vt.Calderwood v. Calderwood's Estate, 38 Vt. 171, 1865 WL 2207 (1865). [FN8] U.S. Bowers v. New York & Albany Lighterage Co., 273 U.S. 346, 47 S. Ct. 389, 71 L. Ed. 676 (1927). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 24 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction A. General Considerations 3. Meaning of Related Terms b. Proceeding Topic Summary References Correlation Table 25. Particular types of proceedings West's Key Number Digest West's Key Number Digest, Action 1 Particular kinds of proceedings have been defined. An ancillary proceeding is one subordinate to or in aid of another primary action.[1] A criminal proceeding is one instituted and prosecuted by the state for the punishment of crime;[2] an action instituted and prosecuted by the state or sovereign power in its own name against a person who is accused of a crime, to punish him or her for the crime;[3] or any step taken in the progress of a criminal action.[4] An ex parte proceeding is a proceeding at the instance and for the benefit of one party only and without notice to, or contest by, any person adversely interested.[5] It necessarily presupposes a right of petitioner to which there is no adverse party,[6] and is to be distinguished from an action taken pursuant to notice given by a court order which is ignored.[7] "Ordinary proceeding" means the regular and usual mode of carrying on a suit by due course at common law.[8] Ordinary proceedings have been contrasted with summary proceedings in that ordinary proceedings require citation and service, and allow more time for the hearing of exceptions and other pleadings.[9] The term "special proceeding," as used in statutes, is a generic term for all civil remedies in courts of justice which are not ordinary actions,[10] and has been defined as a proceeding in court which was not, under the common-law and equity practice, either an action at law or a suit in equity.[11] Special proceedings are of statutory origin and do not proceed according to course of common law but give new rights and afford new remedies.[12]
[FN1] Mo.Mince v. Mince, 481 S.W.2d 610 (Mo. Ct. App. 1972). [FN2] Conn.State v. Costello, 61 Conn. 497, 23 A. 868 (1892).
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[FN3] U.S.In re Leslie, 119 F. 406 (N.D. N.Y. 1903). [FN4] Ind.Hopewell v. State, 22 Ind. App. 489, 54 N.E. 127 (1899). [FN5] AlaskaWhite v. State, 457 P.2d 650 (Alaska 1969). Ill.Gallagher v. Swiatek, 106 Ill. App. 3d 417, 62 Ill. Dec. 315, 435 N.E.2d 1287 (1st Dist. 1982). Kan.In re Bowlus' Will, 197 Kan. 351, 416 P.2d 711 (1966). Ky.In re City of Covington, 176 Ky. 140, 195 S.W. 439 (1917). Mo.State ex rel. Gardiner v. Dickmann, 175 Mo. App. 543, 157 S.W. 1012 (1913). OhioState v. Cox, 87 Ohio St. 313, 101 N.E. 135 (1913). [FN6] Ky.Janin v. Logan, 209 Ky. 811, 273 S.W. 531 (1925). [FN7] Pa.National Development Corp. v. Harrison Tp., 64 Pa. Commw. 54, 438 A.2d 1053 (1982). [FN8] U.S.Erwin v. U.S., 37 F. 470 (S.D. Ga. 1889). [FN9] La.Clay v. Clay, 389 So. 2d 31 (La. 1979). [FN10] Cal.Agricultural Labor Bd. v. Superior Court, 149 Cal. App. 3d 709, 196 Cal. Rptr. 920 (5th Dist. 1983). IdahoGwinn v. Melvin, 9 Idaho 202, 72 P. 961 (1903). Minn.Schuster v. Schuster, 84 Minn. 403, 87 N.W. 1014 (1901). [FN11] Cal.Le Louis v. Superior Court, 209 Cal. App. 3d 669, 257 Cal. Rptr. 458 (5th Dist. 1989). OhioVillage of Canfield v. Brobst, 71 Ohio St. 42, 72 N.E. 459 (1904). [FN12] Cal.Le Louis v. Superior Court, 209 Cal. App. 3d 669, 257 Cal. Rptr. 458 (5th Dist. 1989). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 25 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction A. General Considerations 3. Meaning of Related Terms b. Proceeding Topic Summary References Correlation Table 26. Particular types of proceedingsJudicial proceedings West's Key Number Digest West's Key Number Digest, Action 1 A judicial proceeding is a proceeding for the purpose of obtaining a remedy allowed by law. The term "judicial proceeding" has been defined as any proceeding for the purpose of obtaining such remedy as the law allows,[1] and as a proceeding in a legally constituted court.[2] A proceeding is a judicial proceeding if it is of a judicial nature and is exercised by a quasi-judicial body.[3] It is not essential that the proceeding be in all respects regular.[4] Whether a proceeding which results in a grant is a judicial one depends not on the thing granted, but on the nature of the proceeding.[5] "Judicial proceeding" has been said to be synonymous with "suit,"[6] but it has been distinguished from "official proceeding" in that a judicial proceeding refers to something done by the parties to a suit while an official proceeding may denote action taken by an officer.[7] The term "judicial proceeding" has been considered to apply to a meeting of creditors for the election of a trustee in bankruptcy,[8] a proceeding for the probate of a will,[9] and a proceeding to obtain a license to sell intoxicating liquors.[10] It has been deemed not to apply to a complaint which has not been presented to any court or magistrate or made the basis of an application for an order or process;[11] a legislative hearing;[12] a preliminary affidavit filed for the purpose of procuring a writ;[13] or a proceeding for taking testimony regarding the alleged wrongful acts of city officers for publicity and the information of a city department.[14]
[FN1] Ind.Treloar v. Harris, 66 Ind. App. 59, 117 N.E. 975 (Div. 1 1917). Okla.State v. McCafferty, 1909 OK 291, 25 Okla. 2, 105 P. 992 (1909). [FN2] Ga.Garrett v. State, 18 Ga. App. 360, 89 S.E. 380 (1916).
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Authority of court When a regularly constituted court of justice is clothed with authority to hear and determine a question of fact, or a mixed question of law and fact, upon evidence, written or oral, to be produced before such a court, and thereupon to render a decision affecting the material rights or interests of one or more persons or bodies corporate, such proceeding by the court must be regarded as judicial. Colo.Martin v. Simpkins, 20 Colo. 438, 38 P. 1092 (1895). Ind.Treloar v. Harris, 66 Ind. App. 59, 117 N.E. 975 (Div. 1 1917). [FN3] Cal.Imperial Water Co. No. 1 v. Board of Sup'rs of Imperial County, 162 Cal. 14, 120 P. 780 (1912). [FN4] N.Y.MacDonald v. National Art Co., 69 Misc. 325, 125 N.Y.S. 708 (App. Term 1910). [FN5] U.S.Tutun v. U.S., 270 U.S. 568, 46 S. Ct. 425, 70 L. Ed. 738 (1926). [FN6] Okla.State v. McCafferty, 1909 OK 291, 25 Okla. 2, 105 P. 992 (1909). [FN7] Tex. Houston Chronicle Pub. Co. v. McDavid, 173 S.W. 467 (Tex. Civ. App. Austin 1914), writ refused, (Feb. 2, 1916). [FN8] N.J.Rogers v. Thompson, 89 N.J.L. 639, 99 A. 389 (N.J. Ct. Err. & App. 1916). [FN9] N.J.In re Veazey's Will, 80 N.J. Eq. 466, 85 A. 176 (Ct. Err. & App. 1912). [FN10] Ind.Scanlon v. Deuel, 176 Ind. 208, 94 N.E. 561 (1911). [FN11] N.Y.Williams v. New York Herald Co., 165 A.D. 529, 150 N.Y.S. 838 (1st Dep't 1914). [FN12] N.H.State v. Maine Cent. R. R., 77 N.H. 425, 92 A. 837 (1914). [FN13] Del.Todd v. Every Evening Printing Co., 62 A. 1089 (Del. Super. Ct. 1906). [FN14] N.Y.Mitchel v. Cropsey, 177 A.D. 663, 164 N.Y.S. 336 (2d Dep't 1917). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 26 END OF DOCUMENT
CJS ACTIONS I B REF 1A C.J.S. Actions I B Refs.
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction B. Remedies Topic Summary Correlation Table Research References A.L.R. Library West's A.L.R. Digest, Action 1 , 16 , 33 to 35
A.L.R. Index: Damages; Election of Remedies Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS I B REF END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction B. Remedies 1. In General Topic Summary References Correlation Table 27. Meaning of term West's Key Number Digest West's Key Number Digest, Action 16 "Remedy," in a legal sense, is the judicial means or method for enforcing a right or redressing a wrong. The term "remedy," when used in a legal sense, signifies and is limited to the judicial means or method by which a cause of action may be enforced.[1] Thus, it is the means by which a cause of action is satisfied[2] or an obligation is effectuated;[3] the result of a legal action, or the object for which the action is prosecuted;[4] or the judicial means for enforcing a right or redressing a wrong,[5] or by which relief is obtained.[6] As ordinarily used, the term "remedy" applies only to those forms of redress which may be had through the courts.[7] However, remedies, considered as modes of redressing violations of legal rights, have been divided into two different classes, personal and legal,[8] and may also include nonjudicial remedies, those arising from the act of the parties.[9] A remedy is distinguished from rights or matters of substance in that it pertains to those modes of procedure and pleading which lead up to and end in the judgment,[10] including the application of the measure of damages to the relief sought[11] and the means provided after judgment for making it effective.[12]
[FN1] Ala.Ex parte Southern Bldg. Code Congress, 282 Ala. 523, 213 So. 2d 365 (1968). Ga.Hamlin v. Johns, 41 Ga. App. 91, 151 S.E. 815 (1930). [FN2] U.S. Panhard Oil Corporation v. Societe Anonyme Des Anciens Establissmento Panhard & Levassor, 39 F.2d 496 (C.C.P.A. 1930); Dennison v. Payne, 293 F. 333 (C.C.A. 2d Cir. 1923). Cause of action necessary Court cannot recognize remedy absent underlying cause of action.
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Nev.Badillo v. American Brands, Inc., 117 Nev. 34, 16 P.3d 435 (2001). [FN3] Tex.Tonn v. Inner Shoe Tire Co., 260 S.W. 1078 (Tex. Civ. App. Fort Worth 1924). Wis.Goetz v. State Farm Mut. Auto. Ins. Co., 31 Wis. 2d 267, 142 N.W.2d 804 (1966). [FN4] Okla.Baptist Medical Center v. Pruett, 1999 OK CIV APP 39, 978 P.2d 1005 (Div. 4 1998). [FN5] U.S.Knapp, Stout & Co. Company v. McCaffrey, 177 U.S. 638, 20 S. Ct. 824, 44 L. Ed. 921 (1900). Ala.Ex parte Southern Bldg. Code Congress, 282 Ala. 523, 213 So. 2d 365 (1968). N.D.Kee v. Redlin, 203 N.W.2d 423 (N.D. 1972). [FN6] UtahState v. Judd, 27 Utah 2d 79, 493 P.2d 604 (1972). [FN7] Minn.State ex rel. Atty. Gen. v. Young, 29 Minn. 474, 9 N.W. 737 (1881). [FN8] Colo.People ex rel. Stidger v. Horan, 34 Colo. 336, 86 P. 263 (1905). [FN9] Minn.State ex rel. Atty. Gen. v. Young, 29 Minn. 474, 9 N.W. 737 (1881). OhioState v. Barlow, 70 Ohio St. 363, 71 N.E. 726 (1904). [FN10] IowaRedfern v. Redfern, 212 Iowa 454, 236 N.W. 399 (1931). [FN11] Ga.Hamlin v. Johns, 41 Ga. App. 91, 151 S.E. 815 (1930). [FN12] Execution The issuance of execution and a sale under it are parts of the remedy. Miss.Johnson v. Fletcher, 54 Miss. 628, 1877 WL 4962 (1877). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 27 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction B. Remedies 1. In General Topic Summary References Correlation Table 28. Meaning of termDistinguished from other terms and concepts West's Key Number Digest West's Key Number Digest, Action 16 A remedy is to be distinguished from a cause of action, a right of action, and a remedial right. The terms "remedy" and "cause of action" are distinguishable[1] in that the cause of action precedes and gives rise to the remedy.[2] A remedy is the means by which a cause of action is satisfied.[3] Similarly, a right of action should be distinguished from remedies.[4] A right of action is a remedial right to enforce a cause of action.[5] The two are separate and distinct, even though the right of action precedes and gives rise to the remedy.[6] A "remedy" is distinguishable from a "remedial" or "remediable" right in that such a right is a legal conclusion from the facts, while a remedy is the appropriate legal form of relief by which the right may be enforced.[7]
[FN1] U.S.Hi Pockets, Inc. v. Music Conservatory of Westchester, Inc., 192 F. Supp. 2d 143 (S.D. N.Y. 2002). [FN2] U.S.Garcia v. Wilson, 731 F.2d 640 (10th Cir. 1984), on reh'g, 730 F.2d 1376 (10th Cir. 1984) and judgment aff'd, 471 U.S. 261, 105 S. Ct. 1938, 85 L. Ed. 2d 254 (1985). Ala.Ex parte Southern Bldg. Code Congress, 282 Ala. 523, 213 So. 2d 365 (1968). Alaska B. M. Behrends Bank v. Dobbins Packing Co., 7 Alaska 272, 1924 WL 156 (Terr. Alaska 1924). Ga.Hamlin v. Johns, 41 Ga. App. 91, 151 S.E. 815 (1930). Ill. Village of LaGrange Park v. Jarecki, 243 Ill. App. 290, 1927 WL 4013 (1st Dist. 1927), cert.
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denied. Okla.Howard v. Brown, 1935 OK 357, 172 Okla. 308, 44 P.2d 959 (1935). Tex.Tonn v. Inner Shoe Tire Co., 260 S.W. 1078 (Tex. Civ. App. Fort Worth 1924). Wis.Goetz v. State Farm Mut. Auto. Ins. Co., 31 Wis. 2d 267, 142 N.W.2d 804 (1966). Damages Request for damages does not constitute a cause of action; rather damages are a remedy for illegal wrong. U.S.Howell Petroleum Corp. v. Leben Oil Corp., 976 F.2d 614 (10th Cir. 1992). [FN3] Neb.World Radio Laboratories, Inc. v. Coopers & Lybrand, 2 Neb. App. 747, 514 N.W.2d 351 (1994). [FN4] UtahBrunyer v. Salt Lake County, 551 P.2d 521 (Utah 1976). [FN5] Va.Shiflet v. Eller, 228 Va. 115, 319 S.E.2d 750 (1984). [FN6] UtahBrunyer v. Salt Lake County, 551 P.2d 521 (Utah 1976). [FN7] S.C.Ebner v. Haverty Furniture Co., 138 S.C. 74, 136 S.E. 19 (1926). Distinction stated The remedial right is the consequence, the secondary right, which springs into being from the breach of the plaintiff's primary right by the defendant's wrong, while the remedy is the consummation or satisfaction of this remedial right. UtahCasady v. Casady, 31 Utah 394, 88 P. 32 (1906). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 28 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction B. Remedies 1. In General Topic Summary References Correlation Table 29. Types of remedies West's Key Number Digest West's Key Number Digest, Action 16 Remedies may be classified in various ways, including civil, cumulative, judicial, legal, and provisional. A civil remedy is the remedy given to a person injured by action, as opposed to a criminal prosecution.[1] A cumulative remedy is a remedy created by statute in addition to one which still remains in force.[2] Judicial remedies are remedies administered by the courts of justice, or by judicial officers empowered for that purpose by the constitution and laws of the state or nation,[3] and fall into four major categories: damage remedies, restitutionary remedies, coercive remedies, such as injunctions, and declaratory remedies.[4] Damages are substitutionary relief; that is, they give the plaintiff money by way of compensation, to make up for some loss.[5] Other remedies, such as specific performance and replevin, attempt to give the plaintiff the thing to which he or she is entitled, rather than a substitution.[6] A legal remedy has been defined as the means or method by which one may recover his or her rights or redress his or her wrongs.[7] "Legal remedy" is distinguishable from "personal remedy."[8] A provisional remedy is a collateral proceeding, permitted only in connection with a regular action, and as one of its incidents;[9] It is provided for a present need and adapted to meet a particular exigency.[10] A provisional remedy is distinguishable from a special proceeding,[11] and may include arrest and bail,[12] injunction,[ 13] or a statutory proceeding for discovery.[14]
[FN1] Mo.State ex rel. Kochtitzky v. Riley, 203 Mo. 175, 101 S.W. 567 (1907). [FN2] Ill.Chicago & N.W.R. Co. v. City of Chicago, 148 Ill. 141, 35 N.E. 881 (1893). Neb.State v. Turner, 194 Neb. 252, 231 N.W.2d 345 (1975).
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UtahState v. Barboglio, 63 Utah 432, 226 P. 904 (1924). As to cumulative or exclusive remedies, see 36 et seq. [FN3] Black's Law Dictionary (8th ed.). [FN4] N.D.Johnson v. Monsanto Co., 303 N.W.2d 86 (N.D. 1981). Wis.Johnson Controls, Inc. v. Employers Ins. of Wausau, 264 Wis. 2d 60, 2003 WI 108, 665 N.W.2d 257 (2003), cert. denied, 124 S. Ct. 2070, 158 L. Ed. 2d 642 (U.S. 2004). [FN5] Wis.School Dist. of Shorewood v. Wausau Ins. Companies, 170 Wis. 2d 347, 488 N.W.2d 82, 77 Ed. Law Rep. 457 (1992) (rejected on other grounds by, Johnson Controls, Inc. v. Employers Ins. of Wausau, 264 Wis. 2d 60, 2003 WI 108, 665 N.W.2d 257 (2003)). [FN6] Wis.School Dist. of Shorewood v. Wausau Ins. Companies, 170 Wis. 2d 347, 488 N.W.2d 82, 77 Ed. Law Rep. 457 (1992) (rejected on other grounds by, Johnson Controls, Inc. v. Employers Ins. of Wausau, 264 Wis. 2d 60, 2003 WI 108, 665 N.W.2d 257 (2003)). [FN7] S.D.Granger v. Luther, 42 S.D. 636, 176 N.W. 1019 (1920). [FN8] Colo.People ex rel. Stidger v. Horan, 34 Colo. 336, 86 P. 263 (1905). [FN9] Kan.Snavely v. Abbott Buggy Co., 36 Kan. 106, 12 P. 522 (1887). Wis.Ellinger v. Equitable Life Assur. Soc. of U.S., 125 Wis. 643, 104 N.W. 811 (1905). [FN10] Wis.State ex rel. Ashley v. Circuit Court of Milwaukee County, 219 Wis. 38, 261 N.W. 737 (1935). [FN11] Kan.Snavely v. Abbott Buggy Co., 36 Kan. 106, 12 P. 522 (1887). Wis.Witter v. Lyon, 34 Wis. 564, 1874 WL 3345 (1874). [FN12] Wis.State ex rel. Ashley v. Circuit Court of Milwaukee County, 219 Wis. 38, 261 N.W. 737 (1935). [FN13] Wis.State ex rel. Ashley v. Circuit Court of Milwaukee County, 219 Wis. 38, 261 N.W. 737 (1935). [FN14] Wis.Ellinger v. Equitable Life Assur. Soc. of U.S., 125 Wis. 643, 104 N.W. 811 (1905). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 29 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction B. Remedies 1. In General Topic Summary References Correlation Table 30. Statutory remedies in general West's Key Number Digest West's Key Number Digest, Action 33 to 35 The legislature may provide a remedy where none exists at common law, or prescribe a remedy to enforce a new right, or a new remedy to enforce an old right; and such a statute must be strictly complied with as to the extent and manner of procedure. It is within the power of the state legislature to provide a remedy in cases where none exists at common law,[1] or to create a new right and prescribe the remedy by which it is to be enforced,[2] or to provide new remedies for preexisting rights,[3] and to make a new remedy exclusive.[4] However, it is only in cases where a specific remedy is provided by statute that rights can be enforced otherwise than by civil action.[5] When determining the scope of available remedies for violation of a statute, courts rely on the plain language of the statute.[6] Most courts have held that the provisions of a statute prescribing a statutory remedy must be followed strictly.[7] Particularly where the statute creates a new cause of action, and provides a remedy for it, the remedy is exclusive,[8] and the provision is regarded as mandatory and must be complied with in all respects.[9] The statutory remedy can be invoked only to the extent and in the manner prescribed,[10] and where it is prescribed for a particular purpose it cannot be used for other purposes.[11] The proceedings must conform to the provisions of the statute,[12] and must not conflict with the organic law.[13] It has also been held, however, that substantial compliance with a statute prescribing a remedy is sufficient if such compliance is not inconsistent with the statute's legislative purpose.[14] Where the statute creating the remedy is silent as to the mode of procedure, the general rules of practice in civil actions are applicable.[15] CUMULATIVE SUPPLEMENT Cases:
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Where a statute provides a specific form of remedy in a specific case then this remedy must be followed. Anderson House, LLC v. Mayor and City Council of Rockville, 402 Md. 689, 939 A.2d 116 (2008). [END OF SUPPLEMENT]
[FN1] Ind.State v. Schoonover, 135 Ind. 526, 35 N.E. 119 (1893). Necessity of wrong and damage Legislature cannot by mere fiat provide a remedy where no wrong has been done and no damage has been sustained. IowaSchmitt v. Jenkins Truck Lines, Inc., 260 Iowa 556, 149 N.W.2d 789 (1967). [FN2] Ala.Larry v. Taylor, 227 Ala. 90, 149 So. 104 (1933). [FN3] R.I.Boucher v. McGovern, 639 A.2d 1369 (R.I. 1994). Tex.Miller v. Letzerich, 121 Tex. 248, 49 S.W.2d 404, 85 A.L.R. 451 (1932). [FN4] As to exclusive and cumulative remedies, see 36 et seq. [FN5] Ky.Janin v. Logan, 209 Ky. 811, 273 S.W. 531 (1925). Tex.McGregor v. Clawson, 506 S.W.2d 922 (Tex. Civ. App. Waco 1974). [FN6] U.S.In re Trans Union Corp. Privacy Litigation, 211 F.R.D. 328 (N.D. Ill. 2002), appeal dismissed, 346 F.3d 734 (7th Cir. 2003). [FN7] U.S.Abshire v. Chicago & E. I. R. Co., 352 F. Supp. 601 (N.D. Ill. 1972). Conn.Okee Industries, Inc. v. National Grange Mut. Ins. Co., 225 Conn. 367, 623 A.2d 483 (1993). Ill.Robinson v. Johnson, 346 Ill. App. 3d 895, 284 Ill. Dec. 1, 809 N.E.2d 123 (1st Dist. 2003), opinion supplemented on denial of reh'g, 346 Ill. App. 3d 895, 2004 WL 594098 (1st Dist. 2004) and appeal denied (Ill. Oct. 6, 2004). N.Y.City of Glens Falls v. Standard Oil Company of New York, 127 Misc. 104, 215 N.Y.S. 354 (Sup 1926). N.C.Seaboard Air Line Ry. Co. v. Brunswick County, 198 N.C. 549, 152 S.E. 627 (1930). Pa.Panea v. Isdaner, 2001 PA Super 108, 773 A.2d 782 (2001), decision aff'd, 571 Pa. 333, 812 A.2d 566 (2002) and appeal denied, 576 Pa. 725, 841 A.2d 532 (2003) and appeal denied, 576 Pa. 718, 841 A.2d 528 (2003). Tex. Texas Employment Com'n v. Norris, 636 S.W.2d 248 (Tex. App. Beaumont 1982), dismissed, (Dec. 8, 1982).
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Wis.State ex rel. Conn v. Board of Trustees of Wis. Retirement Fund, 44 Wis. 2d 479, 171 N.W.2d 418 (1969). [FN8] Pa. Panea v. Isdaner, 2001 PA Super 108, 773 A.2d 782 (2001), decision aff'd, 571 Pa. 333, 812 A.2d 566 (2002) and appeal denied, 576 Pa. 725, 841 A.2d 532 (2003) and appeal denied, 576 Pa. 718, 841 A.2d 528 (2003). [FN9] Me.Johnson v. C. Brigham Co., 126 Me. 108, 136 A. 456 (1927). Mo.State ex rel. Slibowski v. Kimberlin, 504 S.W.2d 237 (Mo. Ct. App. 1973). Neb.Clemens Mobile Homes, Inc. v. Guerdon Industries, Inc., 199 Neb. 555, 260 N.W.2d 310 (1977) . OhioMcCail v. Admr., Bureau of Workers' Compensation, 21 Ohio App. 3d 3, 486 N.E.2d 100 (9th Dist. Summit County 1984). Tex.In re Texas Windstorm Ins. Ass'n, 121 S.W.3d 821 (Tex. App. Beaumont 2003). Wash.Herron v. McClanahan, 28 Wash. App. 552, 625 P.2d 707 (Div. 2 1981). Particular remedy Where a statute expressly provides particular remedy or remedies, court must be chary of reading others into it. U.S.Dersch Energies, Inc. v. Shell Oil Co., 314 F.3d 846 (7th Cir. 2002); In re Yancey, 301 B.R. 861 (Bankr. W.D. Tenn. 2003). Specific method When a statute gives a right and creates a liability which did not exist at common law, and at the same time points out a specific method by which rights can be asserted and liability ascertained, that method must be strictly pursued. IowaSnyder v. Davenport, 323 N.W.2d 225 (Iowa 1982). [FN10] Fla.Gunn v. Robles, 100 Fla. 816, 130 So. 463 (1930). Third person benefit from fraud Equitable provision of statute regarding liability of person who makes a false representation in a real estate or stock transaction, which prevents third parties from keeping benefit of a fraud, cannot be applied to transactions outside scope of statute. Tex. Greenway Bank & Trust of Houston v. Smith, 679 S.W.2d 592 (Tex. App. Houston 1st Dist. 1984), writ refused n.r.e., (Apr. 3, 1985). [FN11] Ind.Prudential Cas. Co. v. State, 194 Ind. 542, 143 N.E. 631 (1924).
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Okla.Morris v. City of Oklahoma City, 1980 OK CIV APP 61, 625 P.2d 634 (Ct. App. Div. 2 1980). Pa. White v. Old York Road Country Club, 318 Pa. 346, 178 A. 3 (1935), on reargument on other grounds, 318 Pa. 569, 179 A. 434 (1935). [FN12] Colo.Haines v. Fearnley, 51 Colo. 317, 117 P. 162 (1911). Fla.Getzen v. Sumter County, 89 Fla. 45, 103 So. 104 (1925). Ind.Matter of Adoption of H.S., 483 N.E.2d 777 (Ind. Ct. App. 1st Dist. 1985). Tex.Texas Indem. Ins. Co. v. Smith, 73 S.W.2d 578 (Tex. Civ. App. Amarillo 1934). [FN13] Fla.Getzen v. Sumter County, 89 Fla. 45, 103 So. 104 (1925). [FN14] Ariz.Maricopa Turf, Inc. v. Sunmaster, Inc., 173 Ariz. 357, 842 P.2d 1370, 79 Ed. Law Rep. 670 (Ct. App. Div. 1 1992). [FN15] Ind.Haynes Automobile Co. v. City of Kokomo, 186 Ind. 9, 114 N.E. 758 (1917). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 30 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction B. Remedies 2. Availability of Remedy Topic Summary References Correlation Table 31. Generally West's Key Number Digest West's Key Number Digest, Action 1, 16 For every right or wrong there is a legal remedy, except in the case of the rights of an individual against a state, or of one nation against another. For every legal right, whether common-law or statutory,[1] or as perhaps more accurately stated, for every wrong,[2] there is a remedy, even if the plaintiff's pleading mistakenly identifies the cause of action.[3] In other words, wherever the law recognizes a right it gives a remedy to enforce it or to redress its violation.[4] This principle has been expressly recognized by statute[5] and constitutional provisions.[6] There are, however, some exceptions to the general rule. For example, there is no judicial remedy to enforce the rights of an individual as against a state without the state's consent;[7] or of one nation as against another nation.[8] Likewise, rights of sovereign power vested in the federal government are not the subject of litigation.[9] Exceptions from the rule should not be sanctioned unless there is strong necessity for them.[10]
[FN1] U.S.In re Marshall, 275 B.R. 5 (C.D. Cal. 2002) (Texas law). Ga.Pavesich v. New England Life Ins. Co., 122 Ga. 190, 50 S.E. 68 (1905). La.Officer v. American Eagle Fire Ins. Co., 139 So. 719 (La. Ct. App. 1st Cir. 1932), rev'd on other grounds, 175 La. 581, 143 So. 500 (1932). N.Y. Suffolk Housing Services v. Town of Brookhaven, 91 Misc. 2d 80, 397 N.Y.S.2d 302 (Sup 1977), aff'd as modified on other grounds, 63 A.D.2d 731, 405 N.Y.S.2d 302 (2d Dep't 1978). [FN2] U.S.Hackbart v. Cincinnati Bengals, Inc., 601 F.2d 516, 4 Fed. R. Evid. Serv. 1042 (10th Cir. 1979).
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Cal.Curlender v. Bio-Science Laboratories, 106 Cal. App. 3d 811, 165 Cal. Rptr. 477 (2d Dist. 1980) (disapproved of on other grounds by, Turpin v. Sortini, 31 Cal. 3d 220, 182 Cal. Rptr. 337, 643 P.2d 954 (1982)). Fla.Perkins v. Pare, 352 So. 2d 64 (Fla. Dist. Ct. App. 4th Dist. 1977). Me.Black v. Solmitz, 409 A.2d 634, 6 A.L.R.4th 1054 (Me. 1979). Minn.Anderson v. Stream, 295 N.W.2d 595 (Minn. 1980). Mont.Melton v. Oleson, 165 Mont. 424, 530 P.2d 466 (1974). N.Y.Lee v. Consolidated Edison Co. of New York, 95 Misc. 2d 120, 407 N.Y.S.2d 777 (N.Y. City Civ. Ct. 1978), judgment rev'd on other grounds, 98 Misc. 2d 304, 413 N.Y.S.2d 826 (App. Term 1978). OhioBrownfield, Bowen, Bally and Sturtz v. Board of Ed., 56 Ohio App. 2d 10, 10 Ohio Op. 3d 20, 381 N.E.2d 207 (4th Dist. Jackson County 1977). Essence of civil liberty Very essence of civil liberty consists in the right of every individual to claim the protection of the laws whenever he or she receives an injury. Pa.Stroback v. Camaioni, 449 Pa. Super. 395, 674 A.2d 257 (1996). [FN3] Neb.City of Wood River v. Geer-Melkus Const. Co., Inc., 233 Neb. 179, 444 N.W.2d 305, 9 U.C.C. Rep. Serv. 2d 957 (1989). [FN4] Mo.State ex rel. Taylor v. Clymer, 503 S.W.2d 53 (Mo. Ct. App. 1973). N.J.Corleto v. Shore Memorial Hospital, 138 N.J. Super. 302, 350 A.2d 534 (Law Div. 1975). OhioRogers v. Wakeman, 107 Ohio App. 3d 456, 669 N.E.2d 32 (6th Dist. Huron County 1995). Tex.Dakan v. Dakan, 125 Tex. 305, 83 S.W.2d 620 (1935). W.Va.Moore v. Johnson Service Co., 158 W. Va. 808, 219 S.E.2d 315 (1975). [FN5] Cal.Johnson v. Harcourt, Brace, Jovanovich, Inc., 43 Cal. App. 3d 880, 118 Cal. Rptr. 370 (2d Dist. 1974). [FN6] Wis.Deegan v. Jefferson County, 188 Wis. 2d 544, 525 N.W.2d 149 (Ct. App. 1994). [FN7] Minn.State ex rel. Atty. Gen. v. Young, 29 Minn. 474, 9 N.W. 737 (1881). State secrets Where any attempt on part of plaintiff to establish prima facie case of tortious interference with prospective contractual relations between plaintiff and United States would threaten overriding interest of the United States and preservation of its state secrets, any further attempt to pursue litigation would be
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precluded. U.S. Farnsworth Cannon, Inc. v. Grimes, 635 F.2d 268, 6 Fed. R. Evid. Serv. 343, 7 Fed. R. Evid. Serv. 580 (4th Cir. 1980). [FN8] Minn.State ex rel. Atty. Gen. v. Young, 29 Minn. 474, 9 N.W. 737 (1881). [FN9] U.S.State of New Jersey v. Sargent, 269 U.S. 328, 46 S. Ct. 122, 70 L. Ed. 289 (1926); U.S. v. Central Stockholders' Corp. of Vallejo, 52 F.2d 322 (C.C.A. 9th Cir. 1931). [FN10] Cal.Crisci v. Security Ins. Co. of New Haven, Conn., 66 Cal. 2d 425, 58 Cal. Rptr. 13, 426 P.2d 173 (1967). Class of claims Where there is widespread need for redress, judicial system should consider very carefully before it undertakes to reject, as matter of law, entire class of claims. R.I. D'Ambra v. U. S., 114 R.I. 643, 338 A.2d 524 (1975) (holding modified on other grounds by, Marchetti v. Parsons, 638 A.2d 1047 (R.I. 1994)). Flood of litigation Law has task of remedying wrongs meriting redress even at expense of incurring flood of litigation. Vt.Sheltra v. Smith, 136 Vt. 472, 392 A.2d 431 (1978). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 31 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction B. Remedies 2. Availability of Remedy Topic Summary References Correlation Table 32. Where cause of action exists West's Key Number Digest West's Key Number Digest, Action 1, 16 The rule that for every right or wrong there is a remedy applies only where the right or wrong gives rise to a cause of action; if the case can be sustained on some recognized principle the rule applies even where the case is one of first impression. The rule that for every right or wrong there is a remedy is restricted to those rights and wrongs which the law recognizes as legal, in the sense of giving rise to a cause of action, and does not apply to every species of loss or injury that an individual may sustain by the act of another.[1] The rule cannot be invoked for the purpose of procuring a remedy for a merely moral wrong which does not invade any legal right[2] or when an improper action is taken, but no traceable or implicit adverse consequences result,[3] or where the plaintiff has been damaged, but no legal wrong has been committed.[4] Where a cause of action existed at one time, but no longer does, as where the limitations period has expired[5] or the statute creating the cause of action has been repealed,[6] the remedy likewise no longer exists. Some courts have said that there is a legal remedy for the infringement of every vested legal right.[7] If a question is entirely new in principle, the courts cannot afford a remedy without legislative interposition.[8] If it is only new in instance, and the question is one of applying a recognized principle to new facts and circumstances, the courts may apply that principle and afford a remedy as readily as if a similar case had been previously decided.[9]
[FN1] N.Y.Hughson v. St. Francis Hosp. of Port Jervis, 92 A.D.2d 131, 459 N.Y.S.2d 814 (2d Dep't 1983). Expulsion from softball team
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No remedy existed for a student's expulsion from her high school softball team. U.S. Wooten v. Pleasant Hope R-VI School Dist., 270 F.3d 549, 158 Ed. Law Rep. 221 (8th Cir. 2001). [FN2] Tenn.Payne v. Western & Atlantic R. Co., 81 Tenn. 507, 1884 WL 469 (1884) (overruled in part on other grounds by, Hutton v. Watters, 132 Tenn. 527, 179 S.W. 134 (1915)). Legal obligation distinguished A "legal obligation" is one which, by definition, contains within it the recognized right of an obligee to enforce the duty owed to him or her; a "moral obligation" is a duty owing which cannot be enforced, one for which there is no legal remedy. OhioBrownfield, Bowen, Bally and Sturtz v. Board of Ed., 56 Ohio App. 2d 10, 10 Ohio Op. 3d 20, 381 N.E.2d 207 (4th Dist. Jackson County 1977). [FN3] U.S.Wallace Oil Co., Inc. v. Michaels, 839 F.Supp. 1041 (S.D.N.Y. 1993). [FN4] Violation of ordinance Landowner who had lost nearly $11,000 in profits from hunters who had purchased permits to hunt but were not allowed access to her property was entitled no damages, as hunting violated county ordinance. UtahGillmor v. Wright, 850 P.2d 431 (Utah 1993). [FN5] Ind.Shewmaker v. Etter, 644 N.E.2d 922 (Ind. Ct. App. 2d Dist. 1994), opinion adopted, 659 N.E.2d 1021 (Ind. 1995). Miss.Lowery v. Statewide Healthcare Service, Inc., 585 So. 2d 778 (Miss. 1991). [FN6] Cal.Beckman v. Thompson, 4 Cal. App. 4th 481, 6 Cal. Rptr. 2d 60 (2d Dist. 1992). [FN7] Ohio Rogers v. Wakeman, 107 Ohio App. 3d 456, 669 N.E.2d 32 (6th Dist. Huron County 1995). Constitutional protection For a common-law action to be within protection of state or United States Constitutions, it must be vested right or something more than mere expectancy based upon anticipated continuance of existing law. Tex.Zaragosa v. Chemetron Investments, Inc., 122 S.W.3d 341 (Tex. App. Fort Worth 2003). As to elimination of causes of action, see 15. [FN8] Ill.Favata v. Rosenberg, 106 Ill. App. 3d 572, 62 Ill. Dec. 467, 436 N.E.2d 49 (1st Dist. 1982). Ga.Pavesich v. New England Life Ins. Co., 122 Ga. 190, 50 S.E. 68 (1905).
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Ind.Western Union Telegraph Co. v. Ferguson, 157 Ind. 64, 60 N.E. 674 (1901). Issues of first impression are discussed in 70. [FN9] Ga.Pavesich v. New England Life Ins. Co., 122 Ga. 190, 50 S.E. 68 (1905). N.Y.Kujek v. Goldman, 150 N.Y. 176, 44 N.E. 773 (1896). No presumption Absence of precedents does not necessarily raise presumption that plaintiff lacks remedy. U.S.U.S. v. Pennzoil Co., 252 F. Supp. 962 (W.D. Pa. 1965). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 32 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction B. Remedies 2. Availability of Remedy Topic Summary References Correlation Table 33. Statutory and constitutional rights West's Key Number Digest West's Key Number Digest, Action 1, 16 A right which is created by a statutory or constitutional provision, without any particular remedy being prescribed for its enforcement, may be enforced by any appropriate common-law or statutory remedy. The rule that wherever the law recognizes a right it gives a remedy applies to rights conferred by statutory[1 ] and constitutional[2] provisions, as the existence of a statutory right implies the existence of all necessary and appropriate remedies.[3] Wherever a statute or constitution creates a new right or duty, and does not prescribe any particular remedy for its enforcement, the party entitled to the benefit of the statute or constitution may resort to any existing common-law or statutory remedy which will afford adequate and proper redress.[4]
[FN1] U.S.Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 90 S. Ct. 400, 24 L. Ed. 2d 386 (1969) ; Miener v. State of Mo., 673 F.2d 969, 3 Ed. Law Rep. 476 (8th Cir. 1982). Del.Department of Labor ex rel. Commons v. Green Giant Co., 394 A.2d 753 (Del. Super. Ct. 1978). N.Y.Rooney v. Brogan Const. Co., 107 A.D. 258, 95 N.Y.S. 1 (2d Dep't 1905). [FN2] Pa.County of Chester v. Brower, 117 Pa. 647, 12 A. 577 (1888). [FN3] U.S.Miener v. State of Mo., 673 F.2d 969, 3 Ed. Law Rep. 476 (8th Cir. 1982). [FN4] U.S.Fourth Nat. Bank v. Francklyn, 120 U.S. 747, 7 S. Ct. 757, 30 L. Ed. 825 (1887). Ariz.National Surety Co. v. Conway, 43 Ariz. 480, 33 P.2d 276 (1933). Cal.Palo Alto-Menlo Park Yellow Cab Co. v. Santa Clara County Transit Dist., 65 Cal. App. 3d 121, 135 Cal. Rptr. 192 (1st Dist. 1976).
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IowaOsgood v. Names, 191 Iowa 1227, 184 N.W. 331 (1921). Me.Nash v. Inhabitants of Sorrento, 118 Me. 224, 107 A. 32 (1919). Md.Widgeon v. Eastern Shore Hosp. Center, 300 Md. 520, 479 A.2d 921 (1984). Mo.Bishop v. Missouri State Division of Family Services, 592 S.W.2d 734 (Mo. 1979). N.J.Borden v. Wolf Silk Co., 108 N.J. Eq. 438, 155 A. 623 (Ch. 1931). Pa.U.S. Radiator Corp. v. Upper Mahanoy Tp. School Dist., 20 Pa. D. & C. 279, 1933 WL 3823 (C.P. 1933). Absence of administrative machinery When administrative remedial machinery does not exist to vindicate an affirmative right, there can be no objection to an independent cause of action in federal courts. U.S.Lloyd v. Regional Transp. Authority, 548 F.2d 1277, 44 A.L.R. Fed. 131 (7th Cir. 1977). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 33 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction B. Remedies 2. Availability of Remedy Topic Summary References Correlation Table 34. Adoption, elimination, and suspension of remedies West's Key Number Digest West's Key Number Digest, Action 1, 16 If an appropriate and adequate remedy to enforce a particular right or redress a particular wrong, which has arisen under a recognized principle, is not known to the law, the court may adopt such new remedy or mode of procedure as the case may require. In order to afford a remedy for every wrong, where a new case arises under a recognized principle, the court in which an action is brought may, in order to prevent a failure of justice, or to enforce a recognized principle of law, devise or adopt such new remedy or mode of procedure as the case may require.[1] Indeed, it is the court's duty to do so.[2] In some states, this rule has been prescribed by statute[3] or constitution.[4] Where a statute creates a right,[5] or provides for a general right to sue for the invasion of a right,[6] and the legislature is silent on the question of remedies, a court may use any available appropriate remedy[7] which would afford the plaintiff an adequate and appropriate means of redress,[8] as long as the sanction imposed is within the spirit and purpose of the applicable law,[9] unless the legislature has expressly indicated otherwise.[ 10] In fashioning a remedial scheme where a private right of action exists under a statute, a court will generally examine the relevant statute to ensure that it does not fashion parameters of the implied right in a manner at odds with the statutory structure and purpose,[11] and will consider the scope of a private right of action judicially implied from a statute[12] and the legislative purpose of the statute.[13] However, the maxim that for every wrong there is a remedy does not justify the disregard of established forms of action, and a new remedy or mode of procedure should not be resorted to when an appropriate and adequate remedy already known to the law is available.[14] A common-law remedy may be withdrawn by legislative action[15] when it is a reasonable exercise of police power in the interest of the general welfare.[16] A legislature may also alter or modify the remedy for a cause of action.[17]
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As a matter of public policy, the legislature may suspend the right to pursue a particular remedy during a particular emergency or period.[18]
[FN1] U.S. Brotherhood of Ry. and S. S. Clerks, Freight Handlers, Exp. and Station Emp. v. Allen, 373 U.S. 113, 83 S. Ct. 1158, 10 L. Ed. 2d 235 (1963); Garrett v. City of Hamtramck, 503 F.2d 1236 (6th Cir. 1974). Fla.Century Village, Inc. v. Wellington, E, F, K, L, H, J, M, and G, Condominium Ass'n, 361 So. 2d 128 (Fla. 1978). Pa.Delco Ice Mfg. Co. v. Frick Co., 318 Pa. 337, 178 A. 135 (1935). S.D. McMacken v. State, 320 N.W.2d 131 (S.D. 1982), on reh'g on other grounds, 325 N.W.2d 60 (S.D. 1982) and (overruled on other grounds by, Daugaard v. Baltic Co-op. Bldg. Supply Ass'n, 349 N.W.2d 419 (S.D. 1984)). Wis.D. H. v. State, 76 Wis. 2d 286, 251 N.W.2d 196 (1977). Difficulty of proof If substantive right of action is recognized, right should not be denied because of possible difficulties in proof. Okla.Evans v. Olson, 1976 OK 64, 550 P.2d 924 (Okla. 1976). [FN2] Conn.Foot v. Card, 58 Conn. 1, 18 A. 1027 (1889). Wis.Mercury Record Productions, Inc. v. Economic Consultants, Inc., 64 Wis. 2d 163, 218 N.W.2d 705 (1974). [FN3] Ga.Smith v. Floyd County, 85 Ga. 420, 11 S.E. 850 (1890) (disapproved of on other grounds by, Bowers v. Fulton County, 221 Ga. 731, 146 S.E.2d 884, 20 A.L.R.3d 1066 (1966)). [FN4] Ill.Yount v. Hesston Corp., 124 Ill. App. 3d 943, 80 Ill. Dec. 231, 464 N.E.2d 1214 (2d Dist. 1984). [FN5] Mo.Overfelt v. McCaskill, 81 S.W.3d 732 (Mo. Ct. App. W.D. 2002). [FN6] U.S.Snapp v. Unlimited Concepts, Inc., 208 F.3d 928, 178 A.L.R. Fed. 569 (11th Cir. 2000). [FN7] U.S.Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 112 S. Ct. 1028, 117 L. Ed. 2d 208, 72 Ed. Law Rep. 32 (1992); Snapp v. Unlimited Concepts, Inc., 208 F.3d 928, 178 A.L.R. Fed. 569 (11th Cir. 2000); Cohen v. Brown University, 101 F.3d 155, 114 Ed. Law Rep. 394, 45 Fed. R. Evid. Serv. 1369 (1st Cir. 1996). Necessary, fair, and workable
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Action for statutory violation allows consideration of equitable remedies that are a blend of what is necessary, what is fair, and what is workable. Vt.Carr v. Peerless Ins. Co., 168 Vt. 465, 724 A.2d 454 (1998). [FN8] Mo.Overfelt v. McCaskill, 81 S.W.3d 732 (Mo. Ct. App. W.D. 2002). [FN9] Md.Western Correctional Inst. v. Geiger, 130 Md. App. 562, 747 A.2d 697 (2000), judgment aff'd, 371 Md. 125, 807 A.2d 32 (2002). [FN10] U.S.Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 112 S. Ct. 1028, 117 L. Ed. 2d 208, 72 Ed. Law Rep. 32 (1992). [FN11] U.S.Gebser v. Lago Vista Independent School Dist., 524 U.S. 274, 118 S. Ct. 1989, 141 L. Ed. 2d 277, 125 Ed. Law Rep. 1055, 158 A.L.R. Fed. 751 (1998). [FN12] U.S.Gebser v. Lago Vista Independent School Dist., 524 U.S. 274, 118 S. Ct. 1989, 141 L. Ed. 2d 277, 125 Ed. Law Rep. 1055, 158 A.L.R. Fed. 751 (1998). [FN13] U.S.Gebser v. Lago Vista Independent School Dist., 524 U.S. 274, 118 S. Ct. 1989, 141 L. Ed. 2d 277, 125 Ed. Law Rep. 1055, 158 A.L.R. Fed. 751 (1998); Kramer v. Secretary of Defense, 39 F. Supp. 2d 54 (D.D.C. 1999). Mass.In re Liquidation of American Mut. Liability Ins. Co., 440 Mass. 796, 802 N.E.2d 555 (2004). [FN14] La.Amrheim v. Champion, 9 Orleans App. 246, 9 Teiss. 246, 1912 WL 1826 (La. Ct. App., Orleans 1912). Me.Crossman v. Bacon & Robinson Co., 119 Me. 105, 109 A. 487 (1920). Implication not required Judicial remedies are implied from the Constitution only when there is no direct means for redress already available. U.S. American Ass'n of Commodity Traders v. Department of Treasury, 598 F.2d 1233 (1st Cir. 1979). [FN15] Ark.White v. City of Newport, 326 Ark. 667, 933 S.W.2d 800 (1996). Mich. Phillips v. Mirac, Inc., 251 Mich. App. 586, 651 N.W.2d 437 (2002), appeal granted in part, 468 Mich. 943, 664 N.W.2d 223 (2003) and decision aff'd, 470 Mich. 415, 685 N.W.2d 174 (2004). [FN16] Tex.City of San Antonio v. Winkenhower, 875 S.W.2d 388 (Tex. App. San Antonio 1994), writ denied, (July 28, 1994). [FN17] Mich.Phillips v. Mirac, Inc., 251 Mich. App. 586, 651 N.W.2d 437 (2002), appeal granted in part, 468 Mich. 943, 664 N.W.2d 223 (2003) and decision aff'd, 470 Mich. 415, 685 N.W.2d 174 (2004) .
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Neb.Gourley ex rel. Gourley v. Nebraska Methodist Health System, Inc., 265 Neb. 918, 663 N.W.2d 43 (2003). [FN18] U.S.Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398, 54 S. Ct. 231, 78 L. Ed. 413, 88 A.L.R. 1481 (1934). N.Y.People ex rel. Durham Realty Corporation v. La Fetra, 230 N.Y. 429, 130 N.E. 601, 16 A.L.R. 152 (1921). Remedies of landlord N.Y.Longo v. Sparano, 119 Misc. 402, 196 N.Y.S. 344 (Sup 1922). As to the suspension of civil remedies until a criminal prosecution may be had for the same act, see 66. As to suspension of the writ of habeas corpus, see C.J.S., Habeas Corpus 4, 5. Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 34 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction B. Remedies 2. Availability of Remedy Topic Summary References Correlation Table 35. Nature and form of remedy West's Key Number Digest West's Key Number Digest, Action 16 The nature and form of the remedy appropriate to a particular case depends upon the nature or purpose of the suit or action as determined by the facts pleaded, the issues tendered, and the relief sought. The rule that there is a remedy for the enforcement of every right[1] does not refer to any one particular remedy,[2] but to any remedy appropriate to the nature of the particular case,[3] or the primary purpose of the suit or action,[4] as determined by the facts pleaded, the issues tendered, and the relief sought.[5] Courts may use any available remedy to make good a wrong done,[6] as long as the remedy is proportional to the wrong.[7] In some cases, there may be more than one appropriate remedy,[8] in which case the plaintiff is to choose the remedy and determine the form and character of the action.[9] Neither the defendant[10] nor the court[11] may dictate what remedy the plaintiff must seek. Generally, the remedy for damages caused by a breach of a statutory duty is in the nature of an action for negligence;[12] but the form of the action must be adapted to the particular facts, and must not be confounded with one based solely on negligence,[13] and the remedy may be in the nature of an action based on fraud or breach of warranty.[14] CUMULATIVE SUPPLEMENT Cases: The trial court is not bound by a plaintiff's characterization of an action, and the plaintiff's use of the terms "carelessly and negligently," without more, is conclusory and does not raise a cognizable claim of negligence. Stewart-Veal v. District of Columbia, 896 A.2d 232 (D.C. 2006). [END OF SUPPLEMENT]
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[FN1] Discussed in 31. [FN2] U.S.Bullard v. Bell, 4 F. Cas. 624, No. 2121 (C.C.D. N.H. 1817). [FN3] Wis.Goldman v. Bloom, 90 Wis. 2d 466, 280 N.W.2d 170 (1979). Excessive compensation A court should not grant redress which accords more compensation to injured party than is warranted by the interest giving rise to claim for relief. U.S.Morris v. Board of Ed. of Laurel School Dist., 401 F. Supp. 188 (D. Del. 1975). [FN4] Md.Carey v. Jackson, 165 Md. 472, 169 A. 922 (1934). [FN5] Cal. Alfaro v. Terhune, 98 Cal. App. 4th 492, 120 Cal. Rptr. 2d 197 (3d Dist. 2002), review denied, (Aug. 21, 2002) and cert. denied, 537 U.S. 1136, 123 S. Ct. 922, 154 L. Ed. 2d 828 (2003). Mo.Wahl v. Cunningham, 332 Mo. 21, 56 S.W.2d 1052 (1932). Okla.State ex rel. Williams v. Batson, 1934 OK 752, 170 Okla. 103, 39 P.2d 76 (1934). Tex.Rogers v. Day, 34 S.W.2d 310 (Tex. Civ. App. El Paso 1930). [FN6] U.S.Discovery House, Inc. v. Consolidated City of Indianapolis, 319 F.3d 277 (7th Cir. 2003), cert. denied, 540 U.S. 879, 124 S. Ct. 301, 157 L. Ed. 2d 144 (2003). Civil action All claims may be joined and all remedies are available in civil action. N.M.State ex rel. State Highway and Transp. Dept. of N.M. v. City of Sunland Park, 129 N.M. 151, 2000 -NMCA- 044, 3 P.3d 128 (Ct. App. 2000). Primary right Violation of one primary right may entitle injured party to many different forms of relief. Cal.McDowell v. Watson, 59 Cal. App. 4th 1155, 69 Cal. Rptr. 2d 692 (4th Dist. 1997). [FN7] U.S. Okaw Drainage Dist. of Champaign and Douglas County, Ill. V. National Distillers and Chemical Corp., 882 F.2d 1241 (7th Cir. 1989). [FN8] U.S.Bullard v. Bell, 4 F. Cas. 624, No. 2121 (C.C.D. N.H. 1817). [FN9] La.Liles v. Texas Co., 155 La. 396, 99 So. 343 (1924). Debt Normally a debtor cannot insist that his or her creditor use a particular method of collecting a debt
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where several methods of collection are available to the creditor. Ga.Nesmith v. J & G Shoes, Inc., 244 Ga. 244, 260 S.E.2d 3 (1979). As to election of remedies, generally, see C.J.S., Election of Remedies or Rights or Theories of Recovery 1 to 7. [FN10] U.S.Coulter v. Newmont Gold Co., 799 F. Supp. 1071 (D. Nev. 1992). [FN11] W.Va.Mann v. Golub, 182 W. Va. 523, 389 S.E.2d 734 (1989). [FN12] N.Y.Abounader v. Strohmeyer & Arpe Co., 217 A.D. 43, 215 N.Y.S. 702 (4th Dep't 1926), aff'd, 243 N.Y. 458, 154 N.E. 309 (1926). Money damages Where statutory right is violated, resulting in injury to party within class protected by the statute, most appropriate remedy is money damages. N.H.State v. Brosseau, 124 N.H. 184, 470 A.2d 869 (1983). [FN13] N.Y.Abounader v. Strohmeyer & Arpe Co., 217 A.D. 43, 215 N.Y.S. 702 (4th Dep't 1926), aff'd, 243 N.Y. 458, 154 N.E. 309 (1926). [FN14] N.Y.Abounader v. Strohmeyer & Arpe Co., 217 A.D. 43, 215 N.Y.S. 702 (4th Dep't 1926), aff'd, 243 N.Y. 458, 154 N.E. 309 (1926). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 35 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction B. Remedies 3. Cumulative and Exclusive Remedies Topic Summary References Correlation Table 36. Generally West's Key Number Digest West's Key Number Digest, Action 35 Whether a statutory remedy is exclusive or merely cumulative is ordinarily dependent on the intention of the legislature, as shown by the statute prescribing the remedy. Except where a general statutory provision requires that a remedy prescribed by statute shall be pursued,[1] the question as to whether a statutory remedy is exclusive or merely cumulative depends primarily upon the intention of the legislature, as determined by a construction of the statute prescribing the remedy.[2] Where a statute creates a new right or liability that did not exist at common law or under prior statutes, and also provides a specific remedy for the enforcement of that right or liability, as a general rule, the statutory remedy is exclusive,[3] particularly when the statute so provides.[4] In such a case, the prescribed statutory remedy operates as a negation of, and impliedly excludes, any other remedy,[5] such as a common-law remedy.[6] This rule, however, is merely a presumption,[7] and does not apply where a contrary intention clearly appears from the terms of the statute,[8] as where recourse to another remedy is provided for by statute.[9] Likewise, a statutory remedy which is unconstitutional is not exclusive and will not preclude a resort to other remedies.[10] If a statute creates a new right but does not provide a remedy, the plaintiff may resort to any appropriate common-law remedy.[11] The rule that the statutory remedy is presumed to be exclusive does not apply as against the United States, and if a remedy is intended to be exclusive as against it, the language of the statute must be clear and specific to that effect.[12] CUMULATIVE SUPPLEMENT Cases: Both courts and administrative agencies may provide remedies for injuries actionable under the common
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law. Igal v. Brightstar Information Technology Group, Inc., 250 S.W.3d 78 (Tex. 2008). The general rule is that where the cause of action and remedy for its enforcement are derived not from the common law but from the statute, the statutory provisions are mandatory and exclusive, and must be complied with in all respects or the action is not maintainable. Igal v. Brightstar Information Technology Group, Inc., 250 S.W.3d 78 (Tex. 2008). Typically, a statutory remedy is cumulative of the common law remedy, unless the statute denies the right to the common law remedy. Igal v. Brightstar Information Technology Group, Inc., 250 S.W.3d 78 (Tex. 2008). [END OF SUPPLEMENT]
[FN1] U.S.Elledge v. City of Hannibal, 573 F. Supp. 1040 (E.D. Mo. 1983); In re Murray, 27 B.R. 445 (Bankr. M.D. Tenn. 1983). Pa.Lewisburg Bridge Co. v. Union County, 232 Pa. 255, 81 A. 324 (1911). Specification advisable Legislature should specify in statute itself whether its provisions are exclusive. N.Y. Burns Jackson Miller Summit & Spitzer v. Lindner, 59 N.Y.2d 314, 464 N.Y.S.2d 712, 451 N.E.2d 459 (1983). [FN2] U.S.Campbell v. Vose, 515 F.2d 256 (10th Cir. 1975). Cal.C.J. Kubach Co. v. City of Long Beach, 8 Cal. App. 2d 567, 48 P.2d 181 (2d Dist. 1935). Fla.Thornber v. City of Ft. Walton Beach, 568 So. 2d 914 (Fla. 1990). IdahoBlaine County Canal Co. v. Hansen, 49 Idaho 649, 292 P. 240 (1930). Ill.Wintersteen v. National Cooperage & Woodenware Co., 361 Ill. 95, 197 N.E. 578 (1935). Nev.Seaborn v. First Judicial Dist. Court, 55 Nev. 206, 29 P.2d 500 (1934). Wyo.Van Buskirk v. Red Buttes Land & Live Stock Co., 24 Wyo. 183, 156 P. 1122 (1916). [FN3] U.S.Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 87 S. Ct. 1404, 18 L. Ed. 2d 475 (1967); Johnson v. University of Chicago Hospitals, 982 F.2d 230 (7th Cir. 1992), as amended, (Mar. 19, 1993). Ala.Hallock v. Smith, 207 Ala. 567, 93 So. 588 (1922). Ariz.Hull v. DaimlerChrysler Corp., 99 P.3d 1026 (Ariz. Ct. App. Div. 2 2004). Colo.Double Oak Const., L.L.C. v. Cornerstone Development Intern., L.L.C., 97 P.3d 140 (Colo. Ct. App. 2003), cert. denied, 2004 WL 1813933 (Colo. 2004). Conn.Anthony Julian R.R. Const. Co., Inc. v. Mary Ellen Drive Associates, 50 Conn. App. 289, 717
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A.2d 294 (1998). D.C.Smith v. Police and Firemen's Retirement and Relief Bd., 460 A.2d 997 (D.C. 1983). IowaSnyder v. Davenport, 323 N.W.2d 225 (Iowa 1982). Ky. Phoenix Healthcare of Kentucky, L.L.C. v. Kentucky Farm Bureau Mut. Ins. Co., 120 S.W.3d 726 (Ky. Ct. App. 2003). Mass.Fascione v. CNA Ins. Companies, 435 Mass. 88, 754 N.E.2d 662 (2001). Mich.Pro-Staffers, Inc. v. Premier Mfg. Support Services, Inc., 252 Mich. App. 318, 651 N.W.2d 811 (2002). Mo.Wear v. Walker, 800 S.W.2d 99 (Mo. Ct. App. S.D. 1990). Neb.Abdullah v. Nebraska Dept. of Correctional Services, 245 Neb. 545, 513 N.W.2d 877 (1994). N.M.Gutierrez v. Sundancer Indian Jewelry, Inc., 117 N.M. 41, 868 P.2d 1266 (Ct. App. 1993). N.Y.Barstow Road Owners, Inc. v. Billing, 179 Misc. 2d 958, 687 N.Y.S.2d 845 (Dist. Ct. 1998). Ohio Equity Diamond Brokers, Inc. v. Transnational Ins. Co., 151 Ohio App. 3d 747, 2003 -Ohio1024, 785 N.E.2d 816 (1st Dist. Hamilton County 2003), appeal not allowed, 99 Ohio St. 3d 1455, 2003 -Ohio- 3396, 790 N.E.2d 1219 (2003). Okla.Rogers v. Meiser, 2003 OK 6, 68 P.3d 967 (Okla. 2003). Pa.Panea v. Isdaner, 2001 PA Super 108, 773 A.2d 782 (2001), decision aff'd, 571 Pa. 333, 812 A.2d 566 (2002) and appeal denied, 576 Pa. 725, 841 A.2d 532 (2003) and appeal denied, 576 Pa. 718, 841 A.2d 528 (2003). S.C.Campbell v. Bi-Lo, Inc., 301 S.C. 448, 392 S.E.2d 477 (Ct. App. 1990). Tenn.Guy v. Mutual of Omaha Ins. Co., 79 S.W.3d 528 (Tenn. 2002). Tex.Serna v. H.E. Butt Grocery Co., 21 S.W.3d 330 (Tex. App. San Antonio 1999). Wash.Herron v. McClanahan, 28 Wash. App. 552, 625 P.2d 707 (Div. 2 1981). W.Va.Bullman v. D & R Lumber Co., 195 W. Va. 129, 464 S.E.2d 771 (1995). Wis. Wisconsin Dept. of Employment Relations v. Wisconsin State Bldg. Trades Negotiating Committee, 266 Wis. 2d 512, 2003 WI App 178, 669 N.W.2d 499 (Ct. App. 2003), review denied, 268 Wis. 2d 134, 2004 WI 1, 673 N.W.2d 692 (2003). Indispensable element test "Indispensable element test," under which exclusive statutory cause of action preempts common-law claim based on same facts when statutory scheme supplies indispensable element of tort claim, is cor-
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rect analytical model for determining whether statutory cause of action forecloses common-law remedy. UtahRetherford v. AT & T Communications of Mountain States, Inc., 844 P.2d 949 (Utah 1992). [FN4] Neb.McIntosh v. Standard Oil Co., 121 Neb. 92, 236 N.W. 152 (1931). [FN5] Ala.Hallock v. Smith, 207 Ala. 567, 93 So. 588 (1922). Colo. Board of County Com'rs of Eagle County v. HAD Enterprises, Inc., 35 Colo. App. 162, 533 P.2d 45 (1974). [FN6] U.S.Shriver v. Woodbine Sav. Bank of Woodbine, Iowa, 285 U.S. 467, 52 S. Ct. 430, 76 L. Ed. 884 (1932). Cal.Strauss v. A. L. Randall Co., 144 Cal. App. 3d 514, 194 Cal. Rptr. 520 (2d Dist. 1983). Mich.Pro-Staffers, Inc. v. Premier Mfg. Support Services, Inc., 252 Mich. App. 318, 651 N.W.2d 811 (2002). Pa. White v. Old York Road Country Club, 318 Pa. 346, 178 A. 3 (1935), on reargument on other grounds, 318 Pa. 569, 179 A. 434 (1935). Tex.Butler Weldments Corp. v. Liberty Mut. Ins. Co., 3 S.W.3d 654 (Tex. App. Austin 1999). [FN7] U.S.U.S. v. Stevenson, 215 U.S. 190, 30 S. Ct. 35, 54 L. Ed. 153 (1909). Me.King Resources Co. v. Environmental Imp. Commission, 270 A.2d 863 (Me. 1970). Pa.Mack v. Wright, 180 Pa. 472, 36 A. 913 (1897). [FN8] U.S. Wheeling-Pittsburgh Steel Corp. v. Mitsui & Co., Inc., 221 F.3d 924, 2000 FED App. 0248P (6th Cir. 2000). Ind.Million v. Metropolitan Casualty Ins. Co., 95 Ind. App. 628, 172 N.E. 569 (1930). IowaOsgood v. Names, 191 Iowa 1227, 184 N.W. 331 (1921). Mich.Pompey v. General Motors Corp., 385 Mich. 537, 189 N.W.2d 243 (1971). N.Y.Norton v. Southern Ry. Co., 138 Misc. 784, 246 N.Y.S. 676 (Mun. Ct. 1930). W.Va.Bullman v. D & R Lumber Co., 195 W. Va. 129, 464 S.E.2d 771 (1995). Wis. Wisconsin Dept. of Employment Relations v. Wisconsin State Bldg. Trades Negotiating Committee, 266 Wis. 2d 512, 2003 WI App 178, 669 N.W.2d 499 (Ct. App. 2003), review denied, 268 Wis. 2d 134, 2004 WI 1, 673 N.W.2d 692 (2003). [FN9] U.S.Progressive Miners of America Local Union No. 109 v. Peabody Coal Co., 7 F. Supp. 340 (E.D. Ill. 1934), aff'd, 75 F.2d 460 (C.C.A. 7th Cir. 1935).
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Pa.Lashe v. Northern York County School Dist., 52 Pa. Commw. 541, 417 A.2d 260 (1980). Government and private remedies Where statute provides for both government and private suits, they may proceed simultaneously or in disregard of each other, since different policy considerations govern each of the actions. U.S.U. S. v. City of Philadelphia, 499 F. Supp. 1196 (E.D. Pa. 1980). [FN10] Ill. Cleveland, C., C. & St. L. Ry. Co. v. Polecat Drainage Dist., 213 Ill. 83, 72 N.E. 684 (1904). [FN11] Cal. Faria v. San Jacinto Unified School Dist., 50 Cal. App. 4th 1939, 59 Cal. Rptr. 2d 72, 114 Ed. Law Rep. 569 (4th Dist. 1996). Mo.Wear v. Walker, 800 S.W.2d 99 (Mo. Ct. App. S.D. 1990). Nev.Builders Ass'n of Northern Nevada v. City of Reno, 105 Nev. 368, 776 P.2d 1234 (1989). [FN12] U.S.U.S. v. Chamberlin, 219 U.S. 250, 31 S. Ct. 155, 55 L. Ed. 204 (1911); Brown v. U.S., 715 F.2d 463 (9th Cir. 1983). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 36 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction B. Remedies 3. Cumulative and Exclusive Remedies Topic Summary References Correlation Table 37. New remedy for preexisting right West's Key Number Digest West's Key Number Digest, Action 35 Where a statute merely prescribes a new remedy for a preexisting right or liability, such new remedy is merely cumulative, unless the statute shows an intention to abrogate or supersede the old remedy. A court interpreting a statute must presume that the legislature did not intend to displace common-law remedies unless it is expressly stated to the contrary.[1] Thus, where a statute prescribing a remedy does not create a new right or liability, but merely provides a new remedy for an independent and pre-existing right or liability, the general rule is that the new remedy is not exclusive but merely cumulative of other existing remedies, and does not take away a preexisting remedy, unless it eliminates the old remedy expressly or by implication.[2] In such a case, the party having the right may resort to either the preexisting remedy or the new remedy,[3] except that he or she cannot resort to duplicative remedies.[4] The general rule applies whether the preexisting right or liability is one previously enforceable at common law,[5] or by virtue of some other statute[6] or constitutional provision,[7] whether it was previously enforceable at law or in equity.[8] However, the new remedy will be regarded as exclusive, and not merely cumulative, where the statute providing the remedy shows an intention to abrogate or supersede the old remedy, either expressly or by necessary implication,[9] as where the statutory and common-law remedies conflict,[10] or when the statutory remedy fully comprehends and envelopes the remedies provided by common law.[11] For instance, the Uniform Commercial Code ("UCC") has been held to displace common-law remedies even though it does not create new causes of action,[12] where it provides a comprehensive remedy,[13] although it has also been said that the UCC does not displace common-law causes of action unless a particular UCC provision expressly so provides.[14] In some states, any clear and adequate statutory remedy is exclusive,[15] and resort cannot be had to common-law remedies.[16]
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[FN1] Del.State v. Rogers, 820 A.2d 1171 (Del. Super. Ct. 2003). Ill.Advanced Imaging Center of Northern Illinois Ltd. Partnership v. Cassidy, 335 Ill. App. 3d 746, 269 Ill. Dec. 867, 781 N.E.2d 664 (2d Dist. 2002), appeal allowed, 203 Ill. 2d 543, 273 Ill. Dec. 136, 788 N.E.2d 727 (2003). [FN2] U.S.Federal Marine Terminals, Inc. v. Burnside Shipping Co., 394 U.S. 404, 89 S. Ct. 1144, 22 L. Ed. 2d 371 (1969); Freund v. Nycomed Amersham, 347 F.3d 752 (9th Cir. 2003) (California law). Ariz.Tucson Gas & Elec. Co. v. Schantz, 5 Ariz. App. 511, 428 P.2d 686 (1967). Cal.Cabesuela v. Browning-Ferris Industries of California, Inc., 68 Cal. App. 4th 101, 80 Cal. Rptr. 2d 60 (6th Dist. 1998). Colo.Double Oak Const., L.L.C. v. Cornerstone Development Intern., L.L.C., 97 P.3d 140 (Colo. Ct. App. 2003), cert. denied, 2004 WL 1813933 (Colo. 2004). Del.State v. Rogers, 820 A.2d 1171 (Del. Super. Ct. 2003). HawaiiWatson v. Brown, 67 Haw. 252, 686 P.2d 12 (1984). Ill. Eads v. Heritage Enterprises, Inc., 325 Ill. App. 3d 129, 258 Ill. Dec. 722, 757 N.E.2d 107 (4th Dist. 2001), appeal allowed, 198 Ill. 2d 589, 262 Ill. Dec. 619, 766 N.E.2d 239 (2002) and judgment aff'd, 204 Ill. 2d 92, 272 Ill. Dec. 585, 787 N.E.2d 771 (2003). IowaWalthart v. Board of Directors of Edgewood-Colesburg Community School Dist., 667 N.W.2d 873, 179 Ed. Law Rep. 882 (Iowa 2003). Me.Myshrall v. Key Bank Nat. Ass'n, 2002 ME 118, 802 A.2d 419 (Me. 2002). Mich.Pro-Staffers, Inc. v. Premier Mfg. Support Services, Inc., 252 Mich. App. 318, 651 N.W.2d 811 (2002). Mo.State ex rel. Brown v. III Investments, Inc., 80 S.W.3d 855 (Mo. Ct. App. W.D. 2002). N.J.Terrace Condominium Ass'n v. Midlantic Nat. Bank, 268 N.J. Super. 488, 633 A.2d 1060 (Law Div. 1993). N.M.Davis & Associates, Inc. v. Midcon, Inc., 127 N.M. 134, 1999 -NMCA- 047, 978 P.2d 341 (Ct. App. 1999). Tenn.Guy v. Mutual of Omaha Ins. Co., 79 S.W.3d 528 (Tenn. 2002). Tex.Duggan v. Marshall, 7 S.W.3d 888 (Tex. App. Houston 1st Dist. 1999). Va.Chaffinch v. Chesapeake & Potomac Telephone Co. of Virginia, Inc., 227 Va. 68, 313 S.E.2d 376 (1984). [FN3] U.S.Freund v. Nycomed Amersham, 347 F.3d 752 (9th Cir. 2003) (California law).
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Cal.Rojo v. Kliger, 52 Cal. 3d 65, 276 Cal. Rptr. 130, 801 P.2d 373 (1990). Ill. Eads v. Heritage Enterprises, Inc., 325 Ill. App. 3d 129, 258 Ill. Dec. 722, 757 N.E.2d 107 (4th Dist. 2001), appeal allowed, 198 Ill. 2d 589, 262 Ill. Dec. 619, 766 N.E.2d 239 (2002) and judgment aff'd, 204 Ill. 2d 92, 272 Ill. Dec. 585, 787 N.E.2d 771 (2003). Mo.Hawkins v. Burlington Northern, Inc., 514 S.W.2d 593 (Mo. 1974). Okla.Brook v. James A. Cullimore & Co., 1967 OK 251, 436 P.2d 32 (Okla. 1967). Tex. Padre Island Inv. Corp. v. Sorbera, 677 S.W.2d 90 (Tex. App. San Antonio 1984), dismissed, (Oct. 24, 1984). [FN4] Ill.Ninth Liberty Loan Corp. v. Hardy, 53 Ill. App. 3d 601, 11 Ill. Dec. 363, 368 N.E.2d 971 (5th Dist. 1977) (rejected on other grounds by, Haskins v. American Buyers Club, Inc., 77 F.R.D. 715 (S.D. Ill. 1978)). Neb.State v. Turner, 194 Neb. 252, 231 N.W.2d 345 (1975). Tex.Satterwhite v. Safeco Land Title of Tarrant, 853 S.W.2d 202 (Tex. App. Fort Worth 1993), writ denied, (Sept. 10, 1993). Election of remedies Election of remedies doctrine is designed to prevent double recovery for a single injury, not to prevent recourse to alternative remedies. Iowa Whalen v. Connelly, 621 N.W.2d 681 (Iowa 2000), as amended on denial of reh'g, (Jan. 31, 2001). [FN5] U.S.Mahoney v. Crocker Nat. Bank, 571 F. Supp. 287 (N.D. Cal. 1983); U.S. v. Eilberg, 507 F. Supp. 267 (E.D. Pa. 1980). D.C.Stewart v. Thomas, 538 F. Supp. 891 (D.D.C. 1982). Mo.Hawkins v. Burlington Northern, Inc., 514 S.W.2d 593 (Mo. 1974). Va.Chaffinch v. Chesapeake & Potomac Telephone Co. of Virginia, Inc., 227 Va. 68, 313 S.E.2d 376 (1984). [FN6] U.S. Leist v. Simplot, 638 F.2d 283 (2d Cir. 1980), judgment aff'd, 456 U.S. 353, 102 S. Ct. 1825, 72 L. Ed. 2d 182 (1982); Gierbolini Rosa v. Banco Popular de Puerto Rico, 930 F. Supp. 712 (D.P.R. 1996), aff'd, 121 F.3d 695 (1st Cir. 1997). Mo.Stiffelman v. Abrams, 655 S.W.2d 522 (Mo. 1983). [FN7] U.S. Pasquotank Action Council, Inc. v. City of Virginia Beach, 909 F. Supp. 376 (E.D. Va. 1995) (Virginia law).
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Mo.Hawkins v. Burlington Northern, Inc., 514 S.W.2d 593 (Mo. 1974). [FN8] Mo.Hawkins v. Burlington Northern, Inc., 514 S.W.2d 593 (Mo. 1974). [FN9] U.S. Barany v. Buller, 670 F.2d 726 (7th Cir. 1982); B. F. McKernin & Co., Inc. v. U. S., Lines, Inc., 416 F. Supp. 1068 (S.D. N.Y. 1976). AlaskaKelly v. Miller, 575 P.2d 1221, 23 U.C.C. Rep. Serv. 632 (Alaska 1978). Ga. First Georgia Bank v. Webster, 168 Ga. App. 307, 308 S.E.2d 579, 37 U.C.C. Rep. Serv. 1643 (1983). HawaiiWatson v. Brown, 67 Haw. 252, 686 P.2d 12 (1984). Mass.Whitehouse v. Town of Sherborn, 11 Mass. App. Ct. 668, 419 N.E.2d 293 (1981). Minn. Duxbury v. Spex Feeds, Inc., 681 N.W.2d 380, 54 U.C.C. Rep. Serv. 2d 58 (Minn. Ct. App. 2004), review denied, (Aug. 25, 2004). Tex.Smith v. Smith, 720 S.W.2d 586 (Tex. App. Houston 1st Dist. 1986). [FN10] Mo.Wince v. McGarrah, 972 S.W.2d 641 (Mo. Ct. App. S.D. 1998). Effect of savings clause General savings clauses cannot be read to permit common-law actions that can contradict and subvert statutory scheme. Wis.Boyle v. Chrysler Corp., 177 Wis. 2d 207, 501 N.W.2d 865 (Ct. App. 1993). [FN11] Mo.McGhee v. Dixon, 973 S.W.2d 847 (Mo. 1998). [FN12] Minn. Halla v. Norwest Bank Minnesota, N.A., 601 N.W.2d 449, 39 U.C.C. Rep. Serv. 2d 1104 (Minn. Ct. App. 1999). Test Whether a statutory provision of the Uniform Commercial Code (UCC) has displaced a common-law cause of action will depend to a great degree on (1) the levels of identity between, and specificity of, both the common-law cause of action being asserted and the statutory provision, and (2) the extent to which the statutory language evidences that the provision's scope of operation affirmatively excludes a necessary basis of the common-law cause of action. Ala.American Liberty Ins. Co. v. AmSouth Bank, 825 So.2d 786 (Ala. 2002). [FN13] Ga.First Georgia Bank v. Webster, 168 Ga. App. 307, 308 S.E.2d 579, 37 U.C.C. Rep. Serv. 1643 (1983). [FN14] N.Y. Bank of Hawaii Intern. Corp. v. Marco Trading Corp., 261 A.D.2d 333, 692 N.Y.S.2d 21, 38 U.C.C. Rep. Serv. 2d 851 (1st Dep't 1999).
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[FN15] By statute Pa.Harcourt v. General Acc. Ins. Co., 419 Pa. Super. 155, 615 A.2d 71 (1992). [FN16] Ind.Carnahan v. State, 558 N.E.2d 845 (Ind. Ct. App. 1st Dist. 1990). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 37 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction B. Remedies 3. Cumulative and Exclusive Remedies Topic Summary References Correlation Table 38. Adequacy and extent of remedies West's Key Number Digest West's Key Number Digest, Action 35 Under most authority, the rule that a new statutory remedy for an old right is not exclusive is particularly applicable where the new remedy is inadequate. The rule that a new remedy for a preexisting right will be regarded as cumulative and not exclusive[1] is particularly applicable where the new remedy is not an adequate one.[2] In applying the rule that where a statute creates a new right and prescribes a remedy, the remedy is exclusive,[3] some authorities have similarly stressed that the remedy must adequate,[4] and it has been said that if the statutory remedy is not expressly declared to be exclusive, no implication arises that it is intended to be exclusive, where it is inadequate for the purpose.[5] On the other hand, some older cases have considered that such a remedy is exclusive even if it is inadequate,[6] and even though resort to the statutory remedy is impossible,[7] and that in such cases the courts have no power to cure the defect by extending or enlarging the statutory remedy or by applying a different remedy.[8] A statutory remedy is inadequate if it does not adequately allow adjudication of an issue raised or if it allows irreparable harm to occur during pursuit of that remedy.[9] The rule that statutory remedies for new rights are exclusive[10] ordinarily will not be permitted to restrict the right or to preclude a resort to other remedies in cases or under circumstances other than those for which the remedy is given.[11]
[FN1] Discussed in 37. [FN2] Cal. Jenne v. Wheeler, 44 Cal. App. 3d Supp. 11, 118 Cal. Rptr. 471 (App. Dep't Super. Ct. 1974). Mo.Hickman v. Kansas City, 120 Mo. 110, 25 S.W. 225 (1894).
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Mont.Tucker v. Missoula Light & Water Co., 77 Mont. 91, 250 P. 11 (1926). Nev.Cann v. George B. Williams Land & Livestock Co., 56 Nev. 242, 48 P.2d 887 (1935). [FN3] Discussed in 36. [FN4] Cal. Turnbull & Turnbull v. ARA Transportation, Inc., 219 Cal. App. 3d 811, 268 Cal. Rptr. 856, 59 Ed. Law Rep. 1127 (3d Dist. 1990), reh'g denied and opinion modified, (May 16, 1990). Ind.Brown v. Kemp, 71 Ind. App. 281, 124 N.E. 777 (Div. 2 1919). Mich. International Broth. of Elec. Workers, Local Union No. 58 v. McNulty, 214 Mich. App. 437, 543 N.W.2d 25 (1995). Mo.Normandy School Dist. v. City of Pasadena Hills, 70 S.W.3d 488 (Mo. App. 2002). Neb.McIntosh v. Standard Oil Co., 121 Neb. 92, 236 N.W. 152 (1931). N.Y.People v. Norwegian Underwriters, 139 Misc. 70, 247 N.Y.S. 707 (Sup 1931). Or.Farrimond v. Louisiana-Pacific Corp., 103 Or.App. 563, 798 P.2d 697 (1990). Pa.Com., Dept. of Environmental Resources v. Williams, 57 Pa. Commw. 8, 425 A.2d 871 (1981). Administrative remedy Where available administrative remedy is inadequate, Supreme Court of Appeals recognizes exception to general rule that where new right is created by statute, remedy can be only that which statute prescribes. W.Va.Wiggins v. Eastern Associated Coal Corp., 178 W. Va. 63, 357 S.E.2d 745 (1987). [FN5] Ky.Grimes v. Central Life Ins. Co., 172 Ky. 18, 188 S.W. 901 (1916). Mich.Pro-Staffers, Inc. v. Premier Mfg. Support Services, Inc., 252 Mich. App. 318, 651 N.W.2d 811 (2002). [FN6] Minn.City of Faribault v. Misener, 20 Minn. 396, 20 Gil. 347, 1874 WL 3719 (1874). Wyo.Van Buskirk v. Red Buttes Land & Live Stock Co., 24 Wyo. 183, 156 P. 1122 (1916). [FN7] Ala.Janney v. Buell, 55 Ala. 408, 1876 WL 1168 (1876). [FN8] U.S.Globe Newspaper Co. v. Walker, 210 U.S. 356, 28 S. Ct. 726, 52 L. Ed. 1096 (1908). [FN9] Pa.Annenberg v. Com., 686 A.2d 1380 (Pa. Commw. Ct. 1996). [FN10] Discussed in 36. [FN11] U.S. Orchard v. Covelli, 590 F. Supp. 1548 (W.D. Pa. 1984), judgment aff'd, 802 F.2d 448
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(3d Cir. 1986) and judgment aff'd, 802 F.2d 448 (3d Cir. 1986); Beverlin v. I.R.S., 574 F. Supp. 553 (W.D. Mo. 1983). AlaskaKelly v. Miller, 575 P.2d 1221, 23 U.C.C. Rep. Serv. 632 (Alaska 1978). Ill. Fox v. Industrial Cas. Ins. Co., 98 Ill. App. 3d 543, 54 Ill. Dec. 89, 424 N.E.2d 839 (1st Dist. 1981). N.H.Fletcher v. State Capital Bank, 37 N.H. 369, 1858 WL 3231 (1858). Additional injury While a legislative remedy can supplant or limit common-law remedies for a particular injury which legislation addresses, conduct that causes that injury may simultaneously cause a second injury that is outside ambit of statutory protection, and there may be redress for the second injury even though statute provides an exclusive remedy for the first. Or.Carsner v. Freightliner Corp., 69 Or. App. 666, 688 P.2d 398 (1984). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 38 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction B. Remedies 3. Cumulative and Exclusive Remedies Topic Summary References Correlation Table 39. Administrative and other nonjudicial remedies West's Key Number Digest West's Key Number Digest, Action 35 The general rules as to exclusive or cumulative remedies ordinarily apply to administrative remedies provided by statute. The rules governing whether a statutory remedy is exclusive or cumulative[1] have been applied in determining whether a statutory remedy is exclusive or merely cumulative without any reference to the nonjudicial character of the remedy, and it has been considered that if an administrative remedy supplied by statute is for the enforcement of an old right, in the absence of a contrary intention as construed from the provisions of the statute, it will be regarded as merely cumulative.[2] In some states, however, any clear and adequate administrative remedy provided by statute is exclusive.[3] It has also been stated that if the nonjudicial statutory remedy is for the enforcement of a new right created by the same statute, it will generally be regarded as exclusive.[4]
[FN1] Discussed in 36, 37. [FN2] Cal.Hentzel v. Singer Co., 138 Cal. App. 3d 290, 188 Cal. Rptr. 159, 35 A.L.R.4th 1015 (1st Dist. 1982). Md.Prince George's County v. Blumberg, 288 Md. 275, 418 A.2d 1155 (1980). [FN3] Conn. Cannata v. Department of Environmental Protection, 215 Conn. 616, 577 A.2d 1017 (1990). Md.Moats v. City of Hagerstown, 324 Md. 519, 597 A.2d 972 (1991). [FN4] Cal.Hentzel v. Singer Co., 138 Cal. App. 3d 290, 188 Cal. Rptr. 159, 35 A.L.R.4th 1015 (1st
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Dist. 1982). Ind. Decatur County Rural Elec. Membership Corp. v. Public Service Co., 150 Ind. App. 193, 275 N.E.2d 857 (Div. 1 1971). Pa.Perry Const., Inc. v. Palmyra Borough Authority, 37 Pa. Commw. 126, 389 A.2d 255 (1978). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 39 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction B. Remedies 3. Cumulative and Exclusive Remedies Topic Summary References Correlation Table 40. Statutory penalties West's Key Number Digest West's Key Number Digest, Action 35 If an act subject to a penalty imposed by statute is actionable independently of the statute, the penalty is a cumulative remedy. As a general rule, if an act which is made the subject of a statutory penalty is, independently of the statute, an actionable wrong, the statutory remedy for the penalty is merely cumulative and does not preclude an action for damages,[1] but if the statute creates a new right or duty not existing at common law, and prescribes a penalty for its violation, an action for the penalty is the exclusive remedy of the injured party,[2] unless the statute provides otherwise.[3]
[FN1] U.S.Continental Management, Inc. v. U. S., 208 Ct. Cl. 501, 527 F.2d 613 (1975). U.S.Common Cause v. Democratic Nat. Committee, 333 F. Supp. 803 (D.D.C. 1971). [FN2] N.J.Evers v. Davis, 86 N.J.L. 196, 90 A. 677 (N.J. Ct. Err. & App. 1914). Wash.Yakima Lodge No. 53, K. P. v. Schneider, 173 Wash. 639, 24 P.2d 103 (1933). [FN3] N.J.Evers v. Davis, 86 N.J.L. 196, 90 A. 677 (N.J. Ct. Err. & App. 1914). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 40 END OF DOCUMENT
CJS ACTIONS I C REF 1A C.J.S. Actions I C Refs.
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction C. What Law Governs Topic Summary Correlation Table Research References A.L.R. Library West's A.L.R. Digest, Action 17
A.L.R. Index: Civil Procedure Rules; Contracts; Public Policy Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS I C REF END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction C. What Law Governs 1. In General Topic Summary References Correlation Table 41. Generally; substantive or procedural issues West's Key Number Digest West's Key Number Digest, Action 17 Where an action has some connection with a foreign jurisdiction, the law of the forum determines whether an issue in the action is substantive or procedural in nature. A choice of law question is presented when a dispute implicates the interests of two or more states, and the application of each state's law would be consistent with the Full Faith and Credit and Due Process clauses of the United States Constitution.[1] Thus, when the rights and liabilities of parties to an action result from an occurrence involving a significant relationship in another state, the court in which the action is pending must determine whether its own law or the law of another state is to be applied.[2] The first step in resolving a conflicts of law issue is to determine whether the issue in question is procedural or substantive.[3] Where an action has some connection with a foreign jurisdiction, the law of the forum determines whether an issue in the action is substantive or procedural in nature.[4] Law is substantive if it creates, defines, and regulates the rights and duties of the parties and may give rise to a cause for action, whereas procedural law pertains to and prescribes the practice and procedure or the legal machinery by which the substantive law is determined or made effective.[5] Procedure deals with the mode by which a legal right is enforced, as distinguished from the substantive law which gives or declares the right.[6] A rule is considered procedural unless the primary purpose of the rule is to affect decision of the issue rather than to regulate the conduct of the trial.[7] If a rule affects only the remedy available and not the substantive rights of the parties, it is considered procedural.[8] Matters which are procedural under ordinary circumstances may under other circumstances become a matter of substantive right,[9] and other matters, such as the attorney-client privilege as a rule of evidence, contain elements of both substance and procedure.[10]
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[FN1] U.S.In re Simon II Litigation, 211 F.R.D. 86 (E.D. N.Y. 2002). A.L.R. Library Conflict Of Laws In Determination Of Coverage Under Automobile Liability Insurance Policy, 110 A.L.R. 5th 465. [FN2] Conn.Gibson v. Fullin, 172 Conn. 407, 374 A.2d 1061 (1977). [FN3] U.S.In re New Power Co., 313 B.R. 496 (Bankr. N.D. Ga. 2004). Minn.Danielson v. National Supply Co., 670 N.W.2d 1 (Minn. Ct. App. 2003), review denied, (Dec. 16, 2003). Mo. Farmers Exchange Bank v. Metro Contracting Services, Inc., 107 S.W.3d 381 (Mo. Ct. App. W.D. 2003), reh'g and/or transfer denied, (May 27, 2003) and transfer denied, (July 1, 2003). [FN4] U.S. Rheineck v. Hutchinson Technology, 171 F. Supp. 2d 915 (D. Minn. 2000), judgment aff'd, 261 F.3d 751 (8th Cir. 2001) (Minnesota law). Cal.Roberts v. Home Ins. Indem. Co., 48 Cal. App. 3d 313, 121 Cal. Rptr. 862 (1st Dist. 1975). Del.Folk v. York-Shipley, Inc., 233 A.2d 451 (Del. Super. Ct. 1967), judgment aff'd, 239 A.2d 236 (Del. 1968). Ind.Maroon v. State, Dept. of Mental Health, 411 N.E.2d 404 (Ind. Ct. App. 1st Dist. 1980). Me.Sohn v. Bernstein, 279 A.2d 529 (Me. 1971). Minn.Schumacher v. Schumacher, 676 N.W.2d 685 (Minn. Ct. App. 2004). Mo.Miller v. Haynes, 454 S.W.2d 293 (Mo. Ct. App. 1970). N.Y.State ex rel. Ortiz v. Johnson, 122 Misc. 2d 816, 471 N.Y.S.2d 786 (Sup 1984). Tex.Vega v. State, 84 S.W.3d 613 (Tex. Crim. App. 2002), reh'g on petition for discretionary review denied, (Oct. 9, 2002). Va.Willard v. Aetna Cas. & Sur. Co., 213 Va. 481, 193 S.E.2d 776, 83 A.L.R.3d 302 (1973). [FN5] UtahJulian v. State, 52 P.3d 1168 (Utah 2002). Rights and duties Issues of one's rights and duties are substantive issues, as opposed to procedural issues, which relate to enforcement of those rights and duties. Mo. Farmers Exchange Bank v. Metro Contracting Services, Inc., 107 S.W.3d 381 (Mo. Ct. App. W.D. 2003), reh'g and/or transfer denied, (May 27, 2003) and transfer denied, (July 1, 2003).
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Rights, privileges, and immunities "Substantive right" is defined as a right to equal enjoyment of fundamental rights, privileges, and immunities. Pa.Larrison v. Larrison, 750 A.2d 895 (Pa. Super. Ct. 2000). Tex.Vega v. State, 84 S.W.3d 613 (Tex. Crim. App. 2002), reh'g on petition for discretionary review denied, (Oct. 9, 2002). [FN6] Cal. Bohme v. Southern Pac. Co., 8 Cal. App. 3d 291, 87 Cal. Rptr. 286 (2d Dist. 1970) (disapproved of on other grounds by, Lund v. San Joaquin Valley R.R., 31 Cal. 4th 1, 1 Cal. Rptr. 3d 412, 71 P.3d 770 (2003)). Manner of exercise Laws which merely prescribe the manner in which individual rights and responsibilities may be exercised and enforced in a court are procedural. Ind.Indiana CPA Society, Inc. v. GoMembers, Inc., 777 N.E.2d 747 (Ind. Ct. App. 2002). [FN7] U.S. Midwest Grain Products of Illinois, Inc. v. Productization, Inc., 228 F.3d 784 (7th Cir. 2000) (Illinois law). [FN8] U.S. Midwest Grain Products of Illinois, Inc. v. Productization, Inc., 228 F.3d 784 (7th Cir. 2000) (Illinois law). [FN9] U.S. Central Vermont R. Co. v. White, 238 U.S. 507, 35 S. Ct. 865, 59 L. Ed. 1433 (1915); Complaint of Geophysical Service, Inc., 590 F. Supp. 1346 (S.D. Tex. 1984). Conn.New England Fruit & Produce Co. v. Hines, 97 Conn. 225, 116 A. 243 (1922). [FN10] N.Y.Brandman v. Cross & Brown Co. of Florida, Inc., 125 Misc. 2d 185, 479 N.Y.S.2d 435 (Sup 1984). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 41 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction C. What Law Governs 1. In General Topic Summary References Correlation Table 42. As to procedural rights West's Key Number Digest West's Key Number Digest, Action 17 Matters of practice and procedure are governed by the law of the forum state. The procedural rights of the parties, as distinguished from their substantive rights, are governed by the law of the forum, that is, the law of the state where the remedy is sought or the action is instituted,[1] even if the litigants are residents of another state,[2] even if the parties' substantive rights are regulated by the law of another jurisdiction,[3] and even if the remedy afforded may differ materially from the remedy established in the state within which the cause of action arose.[4] This rule applies whether the action sounds in tort or in contract.[5] The law of the forum applies with respect to evidence,[6] parties,[7] and pleading.[8] Issues of venue and the validity of a forum selection clause are also procedural, and thus the law of the forum applies rather than the law selected by the parties.[9] The question of what constitutes splitting cause of action and its permissibility is a question of procedure, rather than substantive law, and is governed by the law of the forum.[10] The law of the forum also governs as to the joinder of causes of action,[11] the nature and form of the process,[12] and whether a question is one of law or fact.[13] The law of the forum governs as to the question of succession to a right of action, except in case of a purely statutory action wherein the right to sue is prescribed as an essential of the cause of action.[14]
[FN1] U.S.Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 104 S. Ct. 1473, 79 L. Ed. 2d 790 (1984); Carter v. U.S., 333 F.3d 791 (7th Cir. 2003), cert. denied, 124 S. Ct. 1078, 157 L. Ed. 2d 899 (U.S. 2004) (Maryland law). Ala.Darrow v. Beneficial Finance Co., 370 So. 2d 1001 (Ala. Civ. App. 1979), writ denied, 370 So. 2d 1005 (Ala. 1979) and (overruled on other grounds by, Ex parte Fletcher, 429 So. 2d 1041 (Ala.
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1982)). U.S.Argent v. Argent, 396 F.2d 695 (D.C. Cir. 1968). Fla.Kerr Const., Inc. v. Peters Contracting, Inc., 767 So. 2d 610 (Fla. Dist. Ct. App. 5th Dist. 2000). Ga.Harper v. Harper, 267 Ga. App. 553, 600 S.E.2d 659 (2004). IowaBrooks v. Engel, 207 N.W.2d 110 (Iowa 1973). La.Patterson v. Patterson, 436 So. 2d 603 (La. Ct. App. 4th Cir. 1983). Minn.Davis v. Furlong, 328 N.W.2d 150 (Minn. 1983). Mo. Farmers Exchange Bank v. Metro Contracting Services, Inc., 107 S.W.3d 381 (Mo. Ct. App. W.D. 2003), reh'g and/or transfer denied, (May 27, 2003) and transfer denied, (July 1, 2003). N.J.Heavner v. Uniroyal, Inc., 63 N.J. 130, 305 A.2d 412, 12 U.C.C. Rep. Serv. 776 (1973). N.M.Satterwhite v. Stolz, 79 N.M. 320, 442 P.2d 810 (Ct. App. 1968). N.C.Freeman v. Pacific Life Ins. Co., 156 N.C. App. 583, 577 S.E.2d 184 (2003). OhioLee v. Wright Tool & Forge Co., 48 Ohio App. 2d 148, 2 Ohio Op. 3d 115, 356 N.E.2d 303, 20 U.C.C. Rep. Serv. 645 (9th Dist. Summit County 1975). Okla.Veiser v. Armstrong, 1984 OK 61, 688 P.2d 796 (Okla. 1984). R.I.Woodward v. Stewart, 104 R.I. 290, 243 A.2d 917 (1968). Va.Willard v. Aetna Cas. & Sur. Co., 213 Va. 481, 193 S.E.2d 776, 83 A.L.R.3d 302 (1973). [FN2] Ga.Peterson v. Wade, 222 Ga. 805, 152 S.E.2d 745 (1966). N.Y.In re Riddell, 78 Misc. 2d 150, 355 N.Y.S.2d 36 (Sup 1973). [FN3] U.S.Maryland Cas. Co. v. Williams, 377 F.2d 389, 35 A.L.R.3d 275 (5th Cir. 1967). N.D.American Hardware Mut. Ins. Co. v. Dairyland Ins. Co., 304 N.W.2d 687 (N.D. 1981). Okla.Stephens v. Household Finance Corp., 1977 OK 137, 566 P.2d 1163 (Okla. 1977). R.I.Israel v. National Bd. of Young Men's Christian Ass'n, 117 R.I. 614, 369 A.2d 646 (1977). [FN4] N.H.Connecticut Valley Lumber Co. v. Maine Cent. R. R., 78 N.H. 553, 103 A. 263 (1918). [FN5] U.S. Mahalsky v. Salem Tool Co., 461 F.2d 581, 65 Ohio Op. 2d 391, 10 U.C.C. Rep. Serv. 1150 (6th Cir. 1972); Continental Oil Co. v. General American Transp. Corp., 409 F. Supp. 288, 18 U.C.C. Rep. Serv. 976 (S.D. Tex. 1976). Me.Sohn v. Bernstein, 279 A.2d 529 (Me. 1971).
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[FN6] U.S.Melville v. American Home Assur. Co., 584 F.2d 1306, 3 Fed. R. Evid. Serv. 756 (3d Cir. 1978); Harwell v. Westchester Fire Ins. Co., 508 F.2d 1245 (8th Cir. 1974); Maryland Cas. Co. v. Williams, 377 F.2d 389, 35 A.L.R.3d 275 (5th Cir. 1967). Md.Vernon v. Aubinoe, 259 Md. 159, 269 A.2d 620 (1970). N.C.Chewning v. Chewning, 20 N.C. App. 283, 201 S.E.2d 353 (1973). N.Y. Brandman v. Cross & Brown Co. of Florida, Inc., 125 Misc. 2d 185, 479 N.Y.S.2d 435 (Sup 1984). Tex.Paine v. Moore, 464 S.W.2d 477 (Tex. Civ. App. Tyler 1971). [FN7] Fla.Hertz Corp. v. Piccolo, 453 So. 2d 12 (Fla. 1984). N.M.Satterwhite v. Stolz, 79 N.M. 320, 442 P.2d 810 (Ct. App. 1968). N.Y.In re Agioritis' Estate, 80 Misc. 2d 108, 362 N.Y.S.2d 338 (Sur. Ct. 1974). [FN8] U.S.Gatenby v. Altoona Aviation Corp., 259 F. Supp. 573 (W.D. Pa. 1966). Ill. Velle Transcendental Research Ass'n, Inc. v. Esquire, Inc., 41 Ill. App. 3d 799, 354 N.E.2d 622 (1st Dist. 1976). [FN9] Fla.Kerr Const., Inc. v. Peters Contracting, Inc., 767 So. 2d 610 (Fla. Dist. Ct. App. 5th Dist. 2000). As to the effect of a choice-of-law clause, see 49. [FN10] Ark.Sentry Ins. Co. v. Stuart, 246 Ark. 680, 439 S.W.2d 797 (1969). As to splitting causes of action, see 224 et seq. [FN11] U.S.Anglo-American Land Mortgage & Agency Co v. Wood, 143 F. 683 (C.C.E.D. Pa. 1906) . Mich.Tuttle v. Everhot Heater Co., 264 Mich. 60, 249 N.W. 467 (1933). [FN12] Ala.Sivley v. Memphis Drum Service, Inc., 365 So. 2d 99 (Ala. Civ. App. 1978). Cal.Severn v. Adidas Sportschuhfabriken, 33 Cal. App. 3d 754, 109 Cal. Rptr. 328 (1st Dist. 1973). IowaRedfern v. Redfern, 212 Iowa 454, 236 N.W. 399 (1931). [FN13] IowaRedfern v. Redfern, 212 Iowa 454, 236 N.W. 399 (1931). [FN14] Mo. Menard v. Goltra, 328 Mo. 368, 40 S.W.2d 1053 (1931) (overruled in part on other grounds by, McClanahan v. St. Louis Public Service Co., 363 Mo. 500, 251 S.W.2d 704 (1952)) and (overruled in part on other grounds by, Redick v. M. B. Thomas Auto Sales, 364 Mo. 1174, 273 S.W.2d 228 (1954)) and (overruled in part on other grounds by, O'Leary v. Illinois Terminal R. Co., 299
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S.W.2d 873 (Mo. 1957)). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 42 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction C. What Law Governs 1. In General Topic Summary References Correlation Table 43. As to procedural rightsExceptions West's Key Number Digest West's Key Number Digest, Action 17 The procedural law of the forum state does not necessarily apply where the parties have agreed otherwise or where the remedy is at issue. The general rule does not apply where the parties have stipulated to the contrary.[1] In the absence of intervening domestic interests, some courts have held that the law of the place of the wrong will control as to the remedy, where the remedy prescribed by that law is practically available and is so inseparable from the cause of action that it must be enforced to preserve the integrity and character of the cause,[ 2] as where the remedy has been created by statute, as a part of the substantive right, as in the case of a statute giving a right of action and fixing the time within which it may be enforced.[3] This exception is particularly applicable where the local remedy will result in destroying or altering the foreign cause of action.[4] Local rules of practice and procedure are applicable in an action based on a federal statute triable in a state court.[5]
[FN1] Utah McGinn v. Utah Power & Light Co., 529 P.2d 423 (Utah 1974) (overruled on other grounds by, Dixon v. Stewart, 658 P.2d 591 (Utah 1982)). [FN2] U.S.Halstead v. U.S., 535 F. Supp. 782, 34 U.C.C. Rep. Serv. 472 (D. Conn. 1982), aff'd, 707 F.2d 671 (2d Cir. 1983); Holdford v. Leonard, 355 F. Supp. 261 (W.D. Va. 1973). N.H.Precourt v. Driscoll, 85 N.H. 280, 157 A. 525, 78 A.L.R. 874 (1931). [FN3] U.S.Illinois Power & Light Corp. v. Hurley, 49 F.2d 681 (C.C.A. 8th Cir. 1931). [FN4] N.H.Precourt v. Driscoll, 85 N.H. 280, 157 A. 525, 78 A.L.R. 874 (1931).
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[FN5] U.S.Chesapeake & O. Ry. Co. v. Kelly, 241 U.S. 485, 36 S. Ct. 630, 60 L. Ed. 1117 (1916). Cal.Bach v. County of Butte, 147 Cal. App. 3d 554, 195 Cal. Rptr. 268 (3d Dist. 1983). IowaSchimerowski v. Iowa Beef Packers, Inc., 196 N.W.2d 551 (Iowa 1972). Determination on appeal Process of determining on appeal whether error was committed during trial and whether such error is prejudicial and ground for reversal is matter of practice and procedure with respect to which state law governs in state court action under federal statute. Cal.Bohme v. Southern Pac. Co., 8 Cal. App. 3d 291, 87 Cal. Rptr. 286 (2d Dist. 1970) (disapproved of on other grounds by, Lund v. San Joaquin Valley R.R., 31 Cal. 4th 1, 1 Cal. Rptr. 3d 412, 71 P.3d 770 (2003)). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 43 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction C. What Law Governs 2. As to Substantive Rights a. In General Topic Summary References Correlation Table 44. Generally West's Key Number Digest West's Key Number Digest, Action 17 When the rights and liabilities of parties to an action result from an occurrence involving a significant relationship in another state, the court in which the action is pending must determine whether its own law or the law of another state shall be applied. To comport with the United States Constitution, the state whose law is chosen to govern in a particular case must have a significant contact or aggregation of contacts creating state interests, such that the choice to apply its law is neither arbitrary nor fundamentally unfair.[1] A court will choose the applicable substantive rule according to the conflict of laws doctrines of the forum state,[2] which may be imposed by statute.[3] If a statute mandates the use of certain law, the court must apply that law without regard to the "significant contacts" approach in resolving the conflict-of-law problem.[4] For instance, under the "doctrine of renvoi", which is inapplicable in the absence of statutory mandate,[5] when a conflict of laws requires the courts of one state to refer to the law of another state to decide a controversy before it, the court should refer to the entire law of other state, including its conflict of laws rules. If the other state's conflicts rules would refer to the law of the state in which the court sits, then the law of the forum should be applied.[6] Where an action on a federal statute is brought in a state court, federal law controls all rights conferred by federal law,[7] and a federal right cannot be defeated by a state rule of procedure or practice.[8] Choice of law rules apply equally to claims brought under common law and statutory law.[9]
[FN1] U.S.Allstate Ins. Co. v. Hague, 449 U.S. 302, 101 S. Ct. 633, 66 L. Ed. 2d 521 (1981); In re Tri-State Crematory Litigation, 215 F.R.D. 660 (N.D. Ga. 2003) (Georgia law).
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Cal.Wilson v. Louisiana-Pacific Resources, Inc., 138 Cal. App. 3d 216, 187 Cal. Rptr. 852 (1st Dist. 1982). HawaiiPeters v. Peters, 63 Haw. 653, 634 P.2d 586 (1981). Ill.Ingersoll v. Klein, 46 Ill. 2d 42, 262 N.E.2d 593 (1970). Kan.Atchison, Topeka & Santa Fe Ry. Co. v. Stonewall Ins. Co., 275 Kan. 698, 71 P.3d 1097 (2003). Okla.Ysbrand v. DaimlerChrysler Corp., 81 P.3d 618 (Okla. 2003). [FN2] U.S. Weiss v. La Suisse, Societe D'Assurances Sur La Vie, 293 F. Supp. 2d 397 (S.D. N.Y. 2003) (New York law); In re New Power Co., 313 B.R. 496 (Bankr. N.D. Ga. 2004). Cal. St. Louis-San Francisco Ry. Co. v. Superior Court for Los Angeles County, 276 Cal. App. 2d 762, 81 Cal. Rptr. 705 (2d Dist. 1969). Conn.Gibson v. Fullin, 172 Conn. 407, 374 A.2d 1061 (1977). Del.Hopkins v. Chesapeake Utilities Corp., 290 A.2d 4 (Del. Super. Ct. 1972). Ill.People v. Allen, 336 Ill. App. 3d 457, 271 Ill. Dec. 175, 784 N.E.2d 393 (2d Dist. 2003), appeal denied, 204 Ill. 2d 663, 275 Ill. Dec. 77, 792 N.E.2d 308 (2003). Minn. Schwartz v. Consolidated Freightways Corp. of Delaware, 300 Minn. 487, 221 N.W.2d 665 (1974). Mo. Farmers Exchange Bank v. Metro Contracting Services, Inc., 107 S.W.3d 381 (Mo. Ct. App. W.D. 2003), reh'g and/or transfer denied, (May 27, 2003) and transfer denied, (July 1, 2003). N.J.Lonza, Inc. v. The Hartford Acc. and Indem. Co., 359 N.J. Super. 333, 820 A.2d 53 (App. Div. 2003). UtahWaddoups v. Amalgamated Sugar Co., 2002 UT 69, 54 P.3d 1054 (Utah 2002). Wis.Air Products & Chemicals, Inc. v. Fairbanks Morse, Inc., 58 Wis. 2d 193, 206 N.W.2d 414, 12 U.C.C. Rep. Serv. 794, 78 A.L.R.3d 619 (1973). [FN3] La.Wilson v. Gulf Ins. Co., 431 So. 2d 1095 (La. Ct. App. 3d Cir. 1983). [FN4] Mo.Huff v. LaSieur, 571 S.W.2d 654 (Mo. Ct. App. 1978). As to the "significant contacts" test, see 51 to 53. [FN5] Del.Folk v. York-Shipley, Inc., 239 A.2d 236 (Del. 1968). Ind.Maroon v. State, Dept. of Mental Health, 411 N.E.2d 404 (Ind. Ct. App. 1st Dist. 1980). N.J.Breslin v. Liberty Mut. Ins. Co., 134 N.J. Super. 357, 341 A.2d 342 (App. Div. 1975), judgment aff'd, 69 N.J. 435, 354 A.2d 635 (1976).
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[FN6] Del.Folk v. York-Shipley, Inc., 239 A.2d 236 (Del. 1968). Ind.Maroon v. State, Dept. of Mental Health, 411 N.E.2d 404 (Ind. Ct. App. 1st Dist. 1980). [FN7] Cal.Carlson v. Pacific Far East Lines, 29 Cal. App. 3d 883, 105 Cal. Rptr. 885 (1st Dist. 1973) . [FN8] Cal. Butchers Union v. Farmers Markets, 67 Cal. App. 3d 905, 136 Cal. Rptr. 894 (1st Dist. 1977). [FN9] U.S.In re Simon II Litigation, 211 F.R.D. 86 (E.D. N.Y. 2002). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 44 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction C. What Law Governs 2. As to Substantive Rights a. In General Topic Summary References Correlation Table 45. Actual conflict West's Key Number Digest West's Key Number Digest, Action 17 If there is no actual conflict between the law of multiple states whose law arguably applies to an issue, the court need not make a choice-of-law determination. A court must make a conflicts-of-laws decision only when the case is connected with more than one state and the laws of the states in question differ on one or more points in issue.[1] Thus, a court making a choiceof-law decision must first determine whether there is an actual conflict between the laws of the states involved.[ 2] A conflict of law exists if choosing the law of one state over the law of another state would have a significant possible effect on the outcome,[3] where the governmental interests of both jurisdictions would be impaired if their law were not applied,[4] or where the applicable law from each jurisdiction provides different substantive rules.[5] If the laws do not conflict, there is no need to resolve the choice of law question,[6] and the law of the forum applies.[7] Similarly, a court need not resolve a choice-of-law question if a false conflict exists; that is, where only one state has a true interest in the dispute.[8] A false conflict exists if only one jurisdiction's governmental interests would be impaired by the application of the other jurisdiction's law,[9] when the laws of the different states are the same,[10] when the laws are different but would produce the same outcome under the facts of the case,[11] or when the policies of one state would be furthered by application of its laws while the policy of the other state would not be advanced by application of its laws.[12] The court must judge whether the contacts of one state to the facts of the case are so obviously limited and minimal that application of that state's law would constitute officious intermeddling.[13] When there is a false conflict between the law of two jurisdictions, the court applies the law of the only interested jurisdiction,[14] the law of the state whose interests would be harmed if its law were not applied,[15] or the law common to all of the affected jurisdictions.[16] When neither jurisdiction whose law is alleged to apply
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has an interest in the application of its law, the court will apply the law of the place where the injury occurred.[ 17] CUMULATIVE SUPPLEMENT Cases: Choice of law analysis arises only when there is a true conflict between the laws of two states, each having an interest in the litigation. South Carolina Ins. Co. v. Keymon, 974 So. 2d 226 (Miss. 2008). [END OF SUPPLEMENT]
[FN1] Kan.Atchison, Topeka & Santa Fe Ry. Co. v. Stonewall Ins. Co., 275 Kan. 698, 71 P.3d 1097 (2003). Tex. Greenberg Traurig of New York, P.C. v. Moody, 2004 WL 2188088 (Tex. App. Houston 14th Dist. 2004). [FN2] U.S.Reicher v. Berkshire Life Ins. Co. of America, 360 F.3d 1 (1st Cir. 2004) (Massachusetts law); Maryland Cas. Co. v. Continental Cas. Co., 332 F.3d 145 (2d Cir. 2003); Lebegern v. Forman, 339 F. Supp. 2d 613 (D.N.J. 2004) (New Jersey law); Meng v. Schwartz, 305 F. Supp. 2d 49 (D.D.C. 2004) (D.C. law). Cal. J.P. Morgan & Co., Inc. v. Superior Court, 113 Cal.App.4th 195, 6 Cal.Rptr.3d 214 (4th Dist. 2003). La.Palm v. Stewart, 2003-0594, 858 So.2d 790 (La. App. 2003). Minn.In re Trusteeship of Trust Created Under Trust Agreement Dated Dec. 31, 1974, 674 N.W.2d 222 (Minn. Ct. App. 2004), review denied, (Apr. 20, 2004) and cert. denied, 125 S. Ct. 345 (U.S. 2004) and cert. denied, 125 S. Ct. 312 (U.S. 2004). Neb.Malena v. Marriott Intern., Inc., 264 Neb. 759, 651 N.W.2d 850 (2002). N.J.Kramer v. Ciba-Geigy Corp., 371 N.J. Super. 580, 854 A.2d 948 (App. Div. 2004). N.Y.SNS Bank, N.V. v. Citibank, N.A., 7 A.D.3d 352, 777 N.Y.S.2d 62 (App. Div. 1st Dep't 2004). Pa.TIG Specialty Ins. Co. v. Koken, 855 A.2d 900 (Pa. Commw. Ct. 2004). Tex.Vanderbilt Mortg. & Finance, Inc. v. Posey, 146 S.W.3d 302 (Tex. App. Texarkana 2004). Wash.Korslund v. DynCorp Tri-Cities Services, Inc., 121 Wash. App. 295, 88 P.3d 966 (Div. 3 2004) . Wyo.Act I, LLC v. Davis, 2002 WY 183, 60 P.3d 145 (Wyo. 2002). [FN3] U.S.Hidden Brook Air, Inc. v. Thabet Aviation Intern. Inc., 241 F. Supp. 2d 246 (S.D. N.Y.
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2002). Ill.Sterling Finance Management, L.P. v. UBS PaineWebber, Inc., 336 Ill. App. 3d 442, 270 Ill. Dec. 336, 782 N.E.2d 895 (1st Dist. 2002). Minn.Schumacher v. Schumacher, 676 N.W.2d 685 (Minn. Ct. App. 2004). [FN4] U.S.Amco Ukrservice v. American Meter Co., 312 F. Supp. 2d 681 (E.D. Pa. 2004), motion to certify appeal denied, 2004 WL 816923 (E.D. Pa. 2004) (Pennsylvania law). [FN5] U.S. International Business Machines Corp. v. Liberty Mut. Ins. Co., 363 F.3d 137 (2d Cir. 2004). [FN6] U.S. International Business Machines Corp. v. Liberty Mut. Ins. Co., 363 F.3d 137 (2d Cir. 2004). Ill.Sterling Finance Management, L.P. v. UBS PaineWebber, Inc., 336 Ill. App. 3d 442, 270 Ill. Dec. 336, 782 N.E.2d 895 (1st Dist. 2002). Mass.Kaufman v. Richmond, 442 Mass. 1010, 811 N.E.2d 987 (2004). N.Y.Tronlone v. Lac d'Amiante Du Quebec, Ltee, 297 A.D.2d 528, 747 N.Y.S.2d 79 (1st Dep't 2002) , appeal granted, reargument denied, 300 A.D.2d 1155, 752 N.Y.S.2d 852 (1st Dep't 2002) and order aff'd, 99 N.Y.2d 647, 760 N.Y.S.2d 96, 790 N.E.2d 269 (2003). Tex.Vanderbilt Mortg. & Finance, Inc. v. Posey, 146 S.W.3d 302 (Tex. App. Texarkana 2004). Wyo.Act I, LLC v. Davis, 2002 WY 183, 60 P.3d 145 (Wyo. 2002). [FN7] U.S. Homedics, Inc. v. Valley Forge Insurance Company, a Pennsylvania Corporation, 315 F.3d 1135 (9th Cir. 2003) (California law); Mecanique C.N.C., Inc. v. Durr Environmental, Inc., 304 F. Supp. 2d 971, 52 U.C.C. Rep. Serv. 2d 832 (S.D. Ohio 2004) (Ohio law); Lowry's Reports, Inc. v. Legg Mason, Inc., 271 F. Supp. 2d 737 (D. Md. 2003). N.Y.SNS Bank, N.V. v. Citibank, N.A., 7 A.D.3d 352, 777 N.Y.S.2d 62 (App. Div. 1st Dep't 2004). Pa.TIG Specialty Ins. Co. v. Koken, 855 A.2d 900 (Pa. Commw. Ct. 2004). Wyo.Act I, LLC v. Davis, 2002 WY 183, 60 P.3d 145 (Wyo. 2002). [FN8] Tex.Vanderbilt Mortg. & Finance, Inc. v. Posey, 146 S.W.3d 302 (Tex. App. Texarkana 2004). [FN9] U.S.Amco Ukrservice v. American Meter Co., 312 F. Supp. 2d 681 (E.D. Pa. 2004), motion to certify appeal denied, 2004 WL 816923 (E.D. Pa. 2004) (Pennsylvania law). [FN10] U.S.Brown v. Dorsey & Whitney, LLP., 267 F. Supp. 2d 61 (D.D.C. 2003). Kan.Brenner v. Oppenheimer & Co. Inc., 273 Kan. 525, 44 P.3d 364 (2002). [FN11] U.S.Brown v. Dorsey & Whitney, LLP., 267 F. Supp. 2d 61 (D.D.C. 2003).
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[FN12] U.S.Brown v. Dorsey & Whitney, LLP., 267 F. Supp. 2d 61 (D.D.C. 2003). D.C.In re Estate of Delaney, 819 A.2d 968 (D.C. 2003), cert. denied, 124 S. Ct. 1075, 157 L. Ed. 2d 896 (U.S. 2004). [FN13] Wis. Beloit Liquidating Trust v. Grade, 270 Wis. 2d 356, 2004 WI 39, 677 N.W.2d 298 (2004). [FN14] U.S.Amco Ukrservice v. American Meter Co., 312 F. Supp. 2d 681 (E.D. Pa. 2004), motion to certify appeal denied, 2004 WL 816923 (E.D. Pa. 2004) (Pennsylvania law); Van Winkle v. Allstate Ins. Co., 290 F. Supp. 2d 1158 (C.D. Cal. 2003). D.C.In re Estate of Delaney, 819 A.2d 968 (D.C. 2003), cert. denied, 124 S. Ct. 1075, 157 L. Ed. 2d 896 (U.S. 2004). [FN15] Pa.Harsh v. Petroll, 840 A.2d 404 (Pa. Commw. Ct. 2003), appeal granted in part, 2004 WL 2563918 (Pa. 2004). [FN16] U.S.In re U.S. Office Products Co. Securities Litigat., 251 F. Supp. 2d 58 (D.D.C. 2003). [FN17] U.S. Budget Rent-A-Car System, Inc. v. Chappell, 304 F. Supp. 2d 639 (E.D. Pa. 2004) (Pennsylvania law). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 45 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction C. What Law Governs 2. As to Substantive Rights a. In General Topic Summary References Correlation Table 46. Law of forum West's Key Number Digest West's Key Number Digest, Action 17 There is some preference for the law of the forum in making a choice of law determination. Under the choice of law rules of some jurisdictions, the law of the forum applies unless it is expressly shown that a different law governs.[1] In case of doubt, the law of the forum is preferred,[2] but this is a weak presumption to be used only as a starting point,[3] and will not be applied if it becomes clear that nonforum contacts are of greater significance[4] or some other reason is shown to apply foreign law.[5] The law of the forum will also govern where the court is in doubt what the law is in other relevant jurisdictions with respect to the issue in question, as where the foreign jurisdiction has no statutory or decisional law on the subject,[6] where the court has obtained no information or insufficient information about the foreign law,[7] or where the law of other interested jurisdictions is repugnant to the policy of the forum.[8] Some states limit the application of other jurisdictions' law to statutes of the other jurisdiction and decisions construing those statutes.[9]
[FN1] U.S.Philippine American Life Ins. v. Raytheon Aircraft Co., 252 F. Supp. 2d 1138, 50 U.C.C. Rep. Serv. 2d 399 (D. Kan. 2003) (Kansas law). [FN2] U.S. Roesgen v. American Home Products Corp., 719 F.2d 319 (9th Cir. 1983); Philippine American Life Ins. v. Raytheon Aircraft Co., 252 F. Supp. 2d 1138, 50 U.C.C. Rep. Serv. 2d 399 (D. Kan. 2003) (Kansas law); Jacobsen v. Oliver, 201 F. Supp. 2d 93 (D.D.C. 2002) (D.C. law). Kan.Brenner v. Oppenheimer & Co. Inc., 273 Kan. 525, 44 P.3d 364 (2002). Mich.Frydrych v. Wentland, 252 Mich. App. 360, 652 N.W.2d 483 (2002).
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Miss.Mitchell v. Craft, 211 So. 2d 509 (Miss. 1968). Nev.Northwest Pipe Co. v. Eighth Judicial Dist. Court ex rel. County of Clark, 118 Nev. 133, 42 P.3d 244 (2002) (per Shearing, J., with two Justices concurring and two Justices concurring in part.) OhioModarelli v. Midland Mut. Ins. Co., 10 Ohio App. 2d 115, 39 Ohio Op. 2d 197, 226 N.E.2d 137 (7th Dist. Trumbull County 1967). Wis. State Farm Mut. Auto. Ins. Co. v. Gillette, 251 Wis. 2d 561, 2002 WI 31, 641 N.W.2d 662 (2002). [FN3] Wis.Zelinger v. State Sand & Gravel Co., 38 Wis. 2d 98, 156 N.W.2d 466, 29 A.L.R.3d 590 (1968). [FN4] U.S.In re Aircrash In Bali, Indonesia on April 22, 1974, 684 F.2d 1301, 11 Fed. R. Evid. Serv. 875 (9th Cir. 1982). D.C.Logan v. Providence Hosp., Inc., 778 A.2d 275 (D.C. 2001). Miss.Mitchell v. Craft, 211 So. 2d 509 (Miss. 1968). Neb.Tab Const. Co. v. Eighth Judicial Dist. Court, 83 Nev. 364, 432 P.2d 90 (1967). Or.Erwin v. Thomas, 264 Or. 454, 506 P.2d 494 (1973). Wis. State Farm Mut. Auto. Ins. Co. v. Gillette, 251 Wis. 2d 561, 2002 WI 31, 641 N.W.2d 662 (2002). [FN5] U.S.Harris Corp. v. Comair, Inc., 712 F.2d 1069 (6th Cir. 1983). Cal.Kasel v. Remington Arms Co., 24 Cal. App. 3d 711, 101 Cal. Rptr. 314 (2d Dist. 1972). Kan. Shutts v. Phillips Petroleum Co., 235 Kan. 195, 679 P.2d 1159 (1984), judgment aff'd in part, rev'd in part on other grounds, 472 U.S. 797, 105 S. Ct. 2965, 86 L. Ed. 2d 628, 2 Fed. R. Serv. 3d 797 (1985). Ky.Foster v. Leggett, 484 S.W.2d 827 (Ky. 1972). Ohio Avenell v. Westinghouse Elec. Corp., 41 Ohio App. 2d 150, 70 Ohio Op. 2d 316, 324 N.E.2d 583, 16 U.C.C. Rep. Serv. 671 (8th Dist. Cuyahoga County 1974). Wis.Hunker v. Royal Indem. Co., 57 Wis. 2d 588, 204 N.W.2d 897 (1973). [FN6] N.C.Leonard v. Johns-Manville Sales Corp., 309 N.C. 91, 305 S.E.2d 528 (1983). [FN7] U.S.Commercial Ins. Co. of Newark, N. J. v. Pacific-Peru Const. Corp., 558 F.2d 948, 24 Fed. R. Serv. 2d 454 (9th Cir. 1977). As to the burden and method of establishing foreign law, see 50.
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[FN8] U.S.Carter v. U.S., 333 F.3d 791 (7th Cir. 2003), cert. denied, 124 S. Ct. 1078, 157 L. Ed. 2d 899 (U.S. 2004) (Maryland law); Dresser Industries, Inc. v. Sandvick, 732 F.2d 783 (10th Cir. 1984); Vass v. Volvo Trucks North America, Inc., 315 F. Supp. 2d 815 (S.D. W. Va. 2004) (West Virginia law); Philippine American Life Ins. v. Raytheon Aircraft Co., 252 F. Supp. 2d 1138, 50 U.C.C. Rep. Serv. 2d 399 (D. Kan. 2003) (Kansas law); Northland Cas. Co. v. HBE Corp., 160 F. Supp. 2d 1348 (M.D. Fla. 2001) (Florida law). Ind. Mason v. Mason, 775 N.E.2d 706 (Ind. Ct. App. 2002), transfer denied, 792 N.E.2d 34 (Ind. 2003). Kan.Raskin v. Allison, 30 Kan. App. 2d 1240, 57 P.3d 30 (2002), review denied, (Feb. 5, 2003). Minn.Jacobson v. Universal Underwriters Ins. Group, 645 N.W.2d 741 (Minn. Ct. App. 2002). N.D.Hansen v. Scott, 2004 ND 179, 687 N.W.2d 247 (2004). R.I.Mendez v. Brites, 849 A.2d 329 (R.I. 2004). [FN9] U.S.In re Tri-State Crematory Litigation, 215 F.R.D. 660 (N.D. Ga. 2003) (Georgia law). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 46 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction C. What Law Governs 2. As to Substantive Rights a. In General Topic Summary References Correlation Table 47. Law of place of injury West's Key Number Digest West's Key Number Digest, Action 17 Some jurisdictions resolve conflict of law issues by applying the law of the place where the injury occurred or the wrong was done. In some jurisdictions, the local law of the state where the injury occurred in a tort action,[1] or the law of the place of the wrong,[2] determines the rights and liabilities of the parties, unless with respect to a particular issue, some other state has a more significant relationship to the parties and the occurrence[3] or unless constitutional considerations forbid it.[4]
[FN1] U.S.In re Air Crash Disaster Near Chicago, Illinois on May 25, 1979, 644 F.2d 594 (7th Cir. 1981). Fla.Jenkins v. Rockwood, 820 So.2d 426 (Fla. App. 2002). Ill.Spirek v. State Farm Mut. Auto. Ins. Co., 65 Ill. App. 3d 440, 21 Ill. Dec. 817, 382 N.E.2d 111 (1st Dist. 1978). N.J.Beckwith v. Bethlehem Steel Corp., 185 N.J. Super. 50, 447 A.2d 207 (Law Div. 1982). N.Y.Cousins v. Instrument Flyers, Inc., 44 N.Y.2d 698, 405 N.Y.S.2d 441, 376 N.E.2d 914 (1978). N.C.Stetser v. Tap Pharmaceutical Products, Inc., 598 S.E.2d 570 (N.C. Ct. App. 2004). Two-step analysis Court first determines if the place of the injury is significant and if it is, the law of that state applies; if
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court finds that place of injury is insignificant it moves to step two, which requires court to consider other factors such as place where the conduct causing injury occurred, residence or place of business of parties, and place where relationship is centered. U.S.In re Propulsid Products Liability Litigation, 208 F.R.D. 133 (E.D. La. 2002) (applying Indiana law). A.L.R. Library Conflict Of Laws In Determination Of Coverage Under Automobile Liability Insurance Policy, 110 A.L.R. 5th 465. [FN2] U.S.Vass v. Volvo Trucks North America, Inc., 315 F. Supp. 2d 815 (S.D. W. Va. 2004) (West Virginia law). N.M.Sam v. Estate of Sam, 135 N.M. 101, 2004 -NMCA- 018, 84 P.3d 1066 (Ct. App. 2003), cert. granted, 135 N.M. 170, 2004-NMCERT-002, 86 P.3d 48 (2004). Final event necessary to create cause of action Law of state in which final event necessary to create cause of action sued on occurs determines parties' rights and responsibilities, inasmuch as each state has sovereignty over that which occurs within its territory. Ky.Combs v. International Ins. Co., 354 F.3d 568, 2004 FED App. 0002P (6th Cir. 2004). Conduct-regulating statutes When conduct-regulating statutes are involved, the proper choice of law is that of the state where the offending acts or omissions took place. N.Y.Florio v. Fisher Development, Inc., 309 A.D.2d 694, 765 N.Y.S.2d 879 (1st Dep't 2003). [FN3] Fla.Jenkins v. Rockwood, 820 So.2d 426 (Fla. App. 2002). [FN4] U.S.Vass v. Volvo Trucks North America, Inc., 315 F. Supp. 2d 815 (S.D. W. Va. 2004) (West Virginia law). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 47 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction C. What Law Governs 2. As to Substantive Rights a. In General Topic Summary References Correlation Table 48. Law of place where property is located West's Key Number Digest West's Key Number Digest, Action 17 Actions involving property rights are generally governed by the law of the state in which the property is located. In actions involving rights with respect to real property, the governing law is ordinarily that of the state in which the property is located.[1] However, some authorities apply the law of the place which had the most significant contacts with the parties and the transaction alleged to have created an interest in the property.[2] The question of a lien on personal property is governed by the law of the state in which the property is located.[3]
[FN1] Ark.Bank of Oak Grove v. Wilmot State Bank, 279 Ark. 107, 648 S.W.2d 802 (1983). HawaiiMatter of Grayco Land Escrow, Ltd., 57 Haw. 436, 559 P.2d 264 (1977). Ill. Ehlers, for Use and Benefit of Chief Industries, Inc. v. Frey, 109 Ill. App. 3d 1004, 65 Ill. Dec. 516, 441 N.E.2d 651 (3d Dist. 1982). Mass.Rudow v. Fogel, 12 Mass. App. Ct. 430, 426 N.E.2d 155 (1981). Tex.McCarver v. Trumble, 660 S.W.2d 595 (Tex. App. Corpus Christi 1983). [FN2] Mass.Rudow v. Fogel, 12 Mass. App. Ct. 430, 426 N.E.2d 155 (1981). Miss.Tideway Oil Programs, Inc. v. Serio, 431 So. 2d 454, 58 A.L.R.4th 819 (Miss. 1983).
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[FN3] Fund Though attorney's contingent fee agreement was executed in other state, question of existence of lien in fund recovered by attorney was to be determined by law of forum state, which was the site of fund. Cal.Gelfand, Greer, Popko & Miller v. Shivener, 30 Cal. App. 3d 364, 105 Cal. Rptr. 445 (4th Dist. 1973). At creation of lien Validity and effect of lien or privilege on chattel are determined by law of state where chattel was located at time lien was created. La.Figuero v. Figuero, 303 So. 2d 801 (La. Ct. App. 3d Cir. 1974). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 48 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction C. What Law Governs 2. As to Substantive Rights a. In General Topic Summary References Correlation Table 49. Effect of choice of law clause West's Key Number Digest West's Key Number Digest, Action 17 If the parties have stipulated that one jurisdiction's law will apply, the law will be applied unless there is a compelling reason not to. The law of the forum will govern substantive issues where the parties have contractually selected the law of the forum to govern a particular issue,[1] or where they have acquiesced in its application to an issue in the action.[2] Where the parties have agreed to the application of the law of a particular jurisdiction other than the forum state, that jurisdiction has a significant contact or interest with respect to that issue, and the law agreed to is not repugnant to the law of the forum, or to the law of the jurisdiction whose law would govern in the absence of agreement, and there is no other compelling reason to prevent it, then the law agreed will be applied,[3] but a choice of law by the parties which would alter fundamental state policy of the forum is not permissible.[4] Where the parties' briefs assume that the law of a particular jurisdiction controls, that implied consent is sufficient to establish choice of law.[5]
[FN1] U.S.Mutual of Omaha Ins. Co. v. Russell, 402 F.2d 339, 29 A.L.R.3d 753 (10th Cir. 1968). Conn.Wagner v. Kevan, 27 Conn. Supp. 508, 245 A.2d 881 (Super. Ct. 1968). A.L.R. Library Validity And Effect Of Stipulation In Contract To Effect That It Shall Be Governed By Law Of Particular State Which Is Neither Place Where Contract Is Made Nor Place Where It Is To Be Performed, 16
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A.L.R. 4th 967. [FN2] U.S.Walter E. Heller & Co. v. Video Innovations, Inc., 730 F.2d 50 (2d Cir. 1984). Minn.Ewers v. Thunderbird Aviation, Inc., 289 N.W.2d 94 (Minn. 1979). N.Y.Watts v. Swiss Bank Corp., 27 N.Y.2d 270, 317 N.Y.S.2d 315, 265 N.E.2d 739 (1970). [FN3] U.S.Sullivan v. Savin Business Machines Corp., 560 F. Supp. 938 (N.D. Ind. 1983); American Re-Insurance Co. v. Insurance Commission of State of Cal., 527 F. Supp. 444 (C.D. Cal. 1981); Rokowsky v. Gordon, 501 F. Supp. 1114 (D. Mass. 1980). Cal. Frame v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 20 Cal. App. 3d 668, 97 Cal. Rptr. 811 (1st Dist. 1971). Fla.Bloom v. Bloom, 414 So. 2d 1153 (Fla. Dist. Ct. App. 3d Dist. 1982). N.J.Turner v. Aldens, Inc., 179 N.J. Super. 596, 433 A.2d 439 (App. Div. 1981). N.C.Behr v. Behr, 46 N.C. App. 694, 266 S.E.2d 393 (1980). Or.Morrow Crane Co., Inc. v. Biltmore Const. Co., 68 Or. App. 292, 680 P.2d 1014 (1984). [FN4] U.S.Central States, Southeast and Southwest Areas Pension Fund v. Aalco Exp. Co., Inc., 592 F. Supp. 664 (E.D. Mo. 1984). [FN5] U.S.Conte v. U.S. Alliance Federal Credit Union, 303 F. Supp. 2d 220 (D. Conn. 2004). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 49 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction C. What Law Governs 2. As to Substantive Rights a. In General Topic Summary References Correlation Table 50. Procedural matters West's Key Number Digest West's Key Number Digest, Action 17 The party seeking the application of foreign law must show that application of that law is appropriate. The party seeking to have the law of a foreign jurisdiction apply has the burden of showing a conflict between local law and the law of the foreign jurisdiction,[1] and of bringing the foreign law to the attention of the court[2] and showing that it should be applied.[3] Unless the party timely invokes the law of a foreign state, the law of the forum will apply.[4] A party may be required by statute[5] or rule[6] to provide advance notice of his or her intent to rely on foreign law. The purpose of this requirement is to give the court and parties adequate preparation time to deal with the foreign law issue,[7] and to avoid unfair surprise to either the opposing party or the court.[8] Notice of the party's intent to rely on foreign law may be given through his or her pleadings or otherwise.[9] If a party fails to give notice and prove the foreign law that he or she seeks to apply at trial, the foreign law may not be applied.[ 10] A party relying on foreign law may ask the court to take judicial notice of foreign statutory law and may introduce into evidence statutes or cases to prove the foreign law.[11] Citation to foreign opinions in a party's brief is not adequate proof of foreign law because it is not the introduction of evidence.[12] The court is not required to conduct its own research into the content of foreign law if the party urging its application declines to do so,[ 13] and may rely upon submissions from the parties when considering foreign law.[14] However, a court may consider any relevant material or source, including testimony, whether or not it is submitted by a party or admissible under the rules of evidence,[15] and may conduct independent research to interpret the foreign law.[16] A court may seek the aid of expert witnesses, consider extracts from foreign legal material, and consider material that would be inadmissible at trial.[17] It is the province of the court to decide what foreign law is, and a trial court judge is given wide latitude in
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determining what evidence to take on the subject, and in what form,[18] and in determining whether a party has adequately proved the substance of the foreign law.[19] CUMULATIVE SUPPLEMENT Cases: When parties do not raise the issue of the applicability of foreign law, a court is under no obligation to apply foreign law and may instead apply the law of the forum. Oparaugo v. Watts, 884 A.2d 63 (D.C. 2005). A court may apply foreign law even when a party fails to request the court to do so. Oparaugo v. Watts, 884 A.2d 63 (D.C. 2005). [END OF SUPPLEMENT]
[FN1] U.S.Mecanique C.N.C., Inc. v. Durr Environmental, Inc., 304 F. Supp. 2d 971, 52 U.C.C. Rep. Serv. 2d 832 (S.D. Ohio 2004) (Ohio law). [FN2] N.C.Leonard v. Johns-Manville Sales Corp., 309 N.C. 91, 305 S.E.2d 528 (1983). Ga.Souchak v. Close, 132 Ga. App. 248, 207 S.E.2d 708 (1974). Me.Banker's Life Ins. Co. of Nebraska v. Eaton, 430 A.2d 833 (Me. 1981). [FN3] IowaPennsylvania Life Insurance Co. v. Simoni, 641 N.W.2d 807 (Iowa 2002). Kan.Dragon v. Vanguard Industries, Inc., 277 Kan. 776, 89 P.3d 908 (2004). [FN4] U.S.Jeanes v. Allied Life Ins. Co., 300 F.3d 938 (8th Cir. 2002) (Iowa law); In re Ayres Aviation Holdings, Inc., 285 B.R. 333 (Bankr. M.D. Ga. 2002). Cal. Danzig v. Jack Grynberg & Associates, 161 Cal. App. 3d 1128, 208 Cal. Rptr. 336 (1st Dist. 1984). D.C.Joeckel v. Disabled American Veterans, 793 A.2d 1279 (D.C. 2002). Failure to specify law Defendant's failure to identify which foreign country's law applied in action to recover for loss of cargo in shipping accident until four years after claims against it were filed barred application of foreign law, even though defendant gave timely notice that it believed United States law did not apply, where plaintiffs would suffer prejudice from late notice. U.S.In re Complaint of Rationis Enterprises, Inc. of Panama, 2003 WL 203210 (S.D. N.Y. 2003). [FN5] Ga.Six Flags Over Georgia v. Kull, 276 Ga. 210, 576 S.E.2d 880 (2003). [FN6] U.S. Club Car, Inc. v. Club Car (Quebec) Import, Inc., 362 F.3d 775, 63 Fed. R. Evid. Serv. 1299, 58 Fed. R. Serv. 3d 64 (11th Cir. 2004), cert. denied, 2004 WL 2185030 (U.S. 2004).
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[FN7] Ga.Six Flags Over Georgia v. Kull, 276 Ga. 210, 576 S.E.2d 880 (2003). [FN8] U.S.Hidden Brook Air, Inc. v. Thabet Aviation Intern. Inc., 241 F. Supp. 2d 246 (S.D. N.Y. 2002). [FN9] U.S. Club Car, Inc. v. Club Car (Quebec) Import, Inc., 362 F.3d 775, 63 Fed. R. Evid. Serv. 1299, 58 Fed. R. Serv. 3d 64 (11th Cir. 2004), cert. denied, 2004 WL 2185030 (U.S. 2004). Notice in response to summary judgment motion sufficient U.S.Torah Soft Ltd. v. Drosnin, 224 F. Supp. 2d 704 (S.D. N.Y. 2002). [FN10] Tex.Exxon Corp. v. Breezevale Ltd., 82 S.W.3d 429 (Tex. App. Dallas 2002), review denied, (2 pets.)(June 12, 2003). [FN11] IowaPennsylvania Life Insurance Co. v. Simoni, 641 N.W.2d 807 (Iowa 2002). Duty of counsel Where another jurisdiction's law is applicable, it is duty of counsel to supply court with clear understanding of that foreign law. Conn.Pagliaro v. Jones, 75 Conn.App. 625, 817 A.2d 756 (2003). [FN12] IowaPennsylvania Life Insurance Co. v. Simoni, 641 N.W.2d 807 (Iowa 2002). [FN13] U.S.Mutual Service Ins. Co. v. Frit Industries, Inc., 358 F.3d 1312, 57 Fed. R. Serv. 3d 1166 (11th Cir. 2004). Assumption of accord with law of forum Party's failure to plead and prove applicable foreign law permits court to proceed on assumption that foreign law accords with law of forum on subject. U.S.Smith v. Soros, 2003 WL 22097990 (S.D. N.Y. 2003), aff'd, 111 Fed. Appx. 73 (2d Cir. 2004) (New York law). [FN14] U.S. National Group for Communications and Computers, Ltd. v. Lucent Technologies Intern., Inc., 331 F. Supp. 2d 290 (D.N.J. 2004). [FN15] U.S.In re Ayres Aviation Holdings, Inc., 285 B.R. 333 (Bankr. M.D. Ga. 2002). [FN16] U.S. National Group for Communications and Computers, Ltd. v. Lucent Technologies Intern., Inc., 331 F. Supp. 2d 290 (D.N.J. 2004); Sealord Marine Co., Ltd. v. American Bureau of Shippins, 220 F. Supp. 2d 260 (S.D. N.Y. 2002). [FN17] U.S. National Group for Communications and Computers, Ltd. v. Lucent Technologies Intern., Inc., 331 F. Supp. 2d 290 (D.N.J. 2004). [FN18] U.S.Weiss v. La Suisse, 313 F. Supp. 2d 241 (S.D. N.Y. 2004).
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By rule Mass.Berman v. Alexander, 57 Mass. App. Ct. 181, 782 N.E.2d 14 (2003). [FN19] U.S.In re Avantel, S.A., 343 F.3d 311, 61 Fed. R. Evid. Serv. 1542 (5th Cir. 2003). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 50 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction C. What Law Governs 2. As to Substantive Rights b. Significant Contacts Topic Summary References Correlation Table 51. Generally West's Key Number Digest West's Key Number Digest, Action 17 Under the interest analysis approach to choice-of-law questions, the law of the jurisdiction which, because of its relationship or contact with the occurrence or the parties, has the greatest concern with the specific issues raised in the litigation, applies. Under the interest analysis approach to choice-of-law questions, except when a contract with a valid choice of law clause applies,[1] the applicable law is that of the jurisdiction which, because of its relationship or contact with the occurrence or the parties, has the greatest concern with the specific issues raised in the litigation,[2] the greatest interest in the application of its law,[3] the greatest interest in resolving the issue,[4] the state whose interests would be more impaired if its law were not applied,[5] or the state with the most significant relationship to or contacts with the litigation.[6] The significant interest test also applies where the choice is between the law of a state of the United States and the law of another country.[7] In most jurisdictions, each issue which has foreign aspects is considered separately.[8] Also known as the doctrine of depecage,[9] this approach calls for the application of the rules of one legal system to certain issues arising from a given transaction or occurrence, and those of another system to other issues, according to which jurisdiction has the paramount interest.[10] A court will examine and evaluate the contacts relevant to each particular issue to determine which law should be applied.[11] Some states, however, do not follow this approach,[ 12] at least not under all circumstances.[13] CUMULATIVE SUPPLEMENT Cases: In the absence of any explicit indication that a jurisdiction's "business friendly" statute or rule of law is in-
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tended to apply only to businesses incorporated or headquartered in that jurisdiction, or that have some other designated relationship with the state, as a practical and realistic matter the state's interest in having that law applied to the activities of out-of-state companies within the jurisdiction is equal to its interest in the application of the law to comparable activities engaged in by local businesses situated within the jurisdiction, as would support the application of that state's law in California courts under the governmental interest approach to choice of law. McCann v. Foster Wheeler LLC, 48 Cal. 4th 68, 105 Cal. Rptr. 3d 378, 225 P.3d 516 (2010). [END OF SUPPLEMENT]
[FN1] Tex.Scottsdale Ins. Co. v. National Emergency Services, Inc., 2004 WL 1688540 (Tex. App. Houston 1st Dist. 2004), petition for review filed, (Nov. 12, 2004). As to choice of law clauses, see 49. [FN2] U.S. Reeves v. American Broadcasting Companies, Inc., 719 F.2d 602 (2d Cir. 1983); In re Aircrash In Bali, Indonesia on April 22, 1974, 684 F.2d 1301, 11 Fed. R. Evid. Serv. 875 (9th Cir. 1982); Torrico v. International Business Machines Corp., 319 F.Supp.2d 390 (S.D.N.Y. 2004) (New York law). Cal. Offshore Rental Co. v. Continental Oil Co., 22 Cal. 3d 157, 148 Cal. Rptr. 867, 583 P.2d 721 (1978) (holding modified on other grounds by, I. J. Weinrot & Son, Inc. v. Jackson, 40 Cal. 3d 327, 220 Cal. Rptr. 103, 708 P.2d 682 (1985)). D.C.In re Estate of Delaney, 819 A.2d 968 (D.C. 2003), cert. denied, 124 S. Ct. 1075, 157 L. Ed. 2d 896 (U.S. 2004). HawaiiPeters v. Peters, 63 Haw. 653, 634 P.2d 586 (1981). La.Shaw v. Ferguson, 437 So. 2d 319 (La. Ct. App. 2d Cir. 1983). N.J.Erny v. Estate of Merola, 171 N.J. 86, 792 A.2d 1208 (2002). N.Y.Bray v. Cox, 39 A.D.2d 299, 333 N.Y.S.2d 783 (4th Dep't 1972). N.D.Nodak Mut. Ins. Co. v. Wamsley, 2004 ND 174, 687 N.W.2d 226 (2004). Pa.Levin by Levin v. Desert Palace Inc., 318 Pa. Super. 606, 465 A.2d 1019 (1983). [FN3] U.S.Dole Food Co., Inc. v. Watts, 303 F.3d 1104 (9th Cir. 2002) (California law). N.Y.Stenovich v. Wachtell, Lipton, Rosen & Katz, 195 Misc. 2d 99, 756 N.Y.S.2d 367 (Sup 2003). Pa.Harsh v. Petroll, 840 A.2d 404 (Pa. Commw. Ct. 2003), appeal granted in part, 2004 WL 2563918 (Pa. 2004). [FN4] U.S. Business Loan Center, Inc. v. Nischal, 331 F. Supp. 2d 301 (D.N.J. 2004) (New Jersey law).
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[FN5] Cal.J.P. Morgan & Co., Inc. v. Superior Court, 113 Cal.App.4th 195, 6 Cal.Rptr.3d 214 (4th Dist. 2003). [FN6] U.S.Fuqua Homes, Inc. v. Beattie, 2004 WL 2495842 (8th Cir. 2004) (Missouri law); Elliot v. Turner Const. Co., 381 F.3d 995, 65 Fed. R. Evid. Serv. 212 (10th Cir. 2004) (Colorado law); Cochran v. Quest Software, Inc., 328 F.3d 1 (1st Cir. 2003) (Massachusetts law); R.D. Offutt Co. v. Lexington Ins. Co., 2004 WL 2414407 (D.N.D. 2004) (North Dakota law); Budget Rent-A-Car System, Inc. v. Chappell, 304 F. Supp. 2d 639 (E.D. Pa. 2004) (Pennsylvania law); Lesavoy v. Lane, 304 F. Supp. 2d 520 (S.D. N.Y. 2004) (New York law); Nicor Intern. Corp. v. El Paso Corp., 292 F.Supp.2d 1357 (S.D.Fla. 2003) (Florida law); Lyons v. Midwest Glazing, 265 F. Supp. 2d 1061 (N.D. Iowa 2003) (Iowa law); In re Miller, 292 B.R. 409 (B.A.P. 9th Cir. 2003) (federal law). Ariz.Winsor v. Glasswerks PHX, L.L.C., 204 Ariz. 303, 63 P.3d 1040 (Ct. App. Div. 1 2003), review denied, (June 30, 2003). Colo.Wood Bros. Homes, Inc. v. Walker Adjustment Bureau, 198 Colo. 444, 601 P.2d 1369 (1979). Del.Edelist v. MBNA America Bank, 790 A.2d 1249 (Del. Super. Ct. 2001). Fla.Proprietors Ins. Co. v. Valsecchi, 435 So. 2d 290 (Fla. Dist. Ct. App. 3d Dist. 1983). Miss.Spragins v. Louise Plantation, Inc., 391 So. 2d 97 (Miss. 1980). N.J.Lonza, Inc. v. The Hartford Acc. and Indem. Co., 359 N.J. Super. 333, 820 A.2d 53 (App. Div. 2003). Or.Myers v. Cessna Aircraft Corp., 275 Or. 501, 553 P.2d 355 (1976). R.I.Taylor v. Mass. Flora Realty, Inc., 840 A.2d 1126 (R.I. 2004). S.D.Burhenn v. Dennis Supply Co., 2004 SD 91, 685 N.W.2d 778 (2004). Tex. Greenberg Traurig of New York, P.C. v. Moody, 2004 WL 2188088 (Tex. App. Houston 14th Dist. 2004). Wash.Korslund v. DynCorp Tri-Cities Services, Inc., 121 Wash. App. 295, 88 P.3d 966 (Div. 3 2004) . Place of injury or accident According to "most significant relationship" theory, law of jurisdiction where injury or accident occurred will apply unless another jurisdiction has more significant relationship to litigation. Tenn. In re Bridgestone/Firestone, 138 S.W.3d 202 (Tenn. Ct. App. 2003), appeal denied, (June 1, 2004). [FN7] U.S.Vasquez v. Bridgestone/Firestone, Inc., 325 F.3d 665 (5th Cir. 2003). Cal.Hurtado v. Superior Court, 11 Cal. 3d 574, 114 Cal. Rptr. 106, 522 P.2d 666 (1974).
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Pa.Sinha v. Sinha, 2003 PA Super 375, 834 A.2d 600 (2003). [FN8] U.S.Slaughter v. Philadelphia Nat. Bank, 417 F.2d 21 (3d Cir. 1969); Jaffe v. Pallotta TeamsWorks, 374 F.3d 1223 (D.C. Cir. 2004) (D.C. law); Bergin v. Dartmouth Pharmaceutical Inc., 326 F. Supp. 2d 179 (D. Mass. 2004); Beatty v. Isle of Capri Casino, Inc., 234 F. Supp. 2d 651 (E.D. Tex. 2002) (Texas law); Bucci v. Kaiser Permanente Foundation Health Plan of Mid-Atlantic States, Inc., 278 F. Supp. 2d 34 (D.D.C. 2003). Mo.Goede v. Aerojet General Corp., 143 S.W.3d 14 (Mo. Ct. App. E.D. 2004), reh'g and/or transfer denied, (Aug. 10, 2004) and transfer denied, (Sept. 28, 2004). N.J.Kramer v. Ciba-Geigy Corp., 371 N.J. Super. 580, 854 A.2d 948 (App. Div. 2004). [FN9] U.S.Hutner v. Greene, 734 F.2d 896 (2d Cir. 1984); Competitive Technologies v. Fujitsu Ltd., 286 F. Supp. 2d 1118, 183 Ed. Law Rep. 93 (N.D. Cal. 2003), appeal dismissed, 374 F.3d 1098, 189 Ed. Law Rep. 534 (Fed. Cir. 2004); Value Partners S.A. v. Bain & Co., Inc., 245 F. Supp. 2d 269 (D. Mass. 2003). Mo.Goede v. Aerojet General Corp., 143 S.W.3d 14 (Mo. Ct. App. E.D. 2004), reh'g and/or transfer denied, (Aug. 10, 2004) and transfer denied, (Sept. 28, 2004). [FN10] U.S.Hutner v. Greene, 734 F.2d 896 (2d Cir. 1984); Value Partners S.A. v. Bain & Co., Inc., 245 F. Supp. 2d 269 (D. Mass. 2003). [FN11] U.S.Competitive Technologies v. Fujitsu Ltd., 286 F. Supp. 2d 1118, 183 Ed. Law Rep. 93 (N.D. Cal. 2003), appeal dismissed, 374 F.3d 1098, 189 Ed. Law Rep. 534 (Fed. Cir. 2004); Oakley v. National Western Life Ins. Co., 294 F. Supp. 504 (S.D. N.Y. 1968). Miss.Fells v. Bowman, 274 So. 2d 109 (Miss. 1973). N.D.Nodak Mut. Ins. Co. v. Wamsley, 2004 ND 174, 687 N.W.2d 226 (2004). Wash.Potlatch No. 1 Federal Credit Union v. Kennedy, 76 Wash. 2d 806, 459 P.2d 32 (1969). [FN12] Ind.Simon v. U.S., 805 N.E.2d 798 (Ind. 2004). [FN13] Issues inextricably intertwined Principle of depecage does not apply when the issues before court are inextricably intertwined. U.S.Stupak v. Hoffman-La Roche, Inc., 287 F. Supp. 2d 968 (E.D. Wis. 2003) (Wisconsin law). Drastic principle Depecage is an unusual and drastic principle that should be applied with the greatest trepidation. U.S.Crucible Materials Corp. v. Aetna Cas. & Sur. Co., 228 F. Supp. 2d 182 (N.D. N.Y. 2001).
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Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 51 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction C. What Law Governs 2. As to Substantive Rights b. Significant Contacts Topic Summary References Correlation Table 52. Contacts to be considered West's Key Number Digest West's Key Number Digest, Action 17 Courts consider various contacts between the litigation and the states whose law may be applied in determining which state's law to apply. In applying the significant contacts test to determine which law is applicable,[1] a court must first identify the governmental policies as evidenced by the laws of each jurisdiction[2] and all of the relevant contacts between the transaction and the jurisdiction which might logically influence the decision of which law to apply.[ 3] The contacts to be considered include the place where the injury occurred,[4] the place where the conduct causing the injury occurred,[5] the parties' domicile, residence, nationality,[6] place of incorporation, and place of business,[7] the place where the parties' relationship is centered,[8] and the accessibility of a foreign forum.[9 ] The qualitative, not the quantitative, nature of each state's interest must ultimately determine which state's laws should apply.[10] Contacts are evaluated according to their relative importance with respect to the particular issue.[11]
[FN1] Discussed in 51 to 53. [FN2] U.S. Business Loan Center, Inc. v. Nischal, 331 F. Supp. 2d 301 (D.N.J. 2004) (New Jersey law). D.C.In re Estate of Delaney, 819 A.2d 968 (D.C. 2003), cert. denied, 124 S. Ct. 1075, 157 L. Ed. 2d 896 (U.S. 2004). Me.Flaherty v. Allstate Ins. Co., 2003 ME 72, 822 A.2d 1159 (Me. 2003).
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N.J.Deemer v. Silk City Textile Machinery Co., 193 N.J. Super. 643, 475 A.2d 648 (App. Div. 1984). Tex. Ford Motor Co. v. Ocanas, 138 S.W.3d 447 (Tex. App. Corpus Christi 2004), as amended on denial of reh'g, (July 15, 2004). [FN3] U.S.Henry v. Richardson-Merrell, Inc., 508 F.2d 28 (3d Cir. 1975). Cal.Robert McMullan & Son, Inc. v. United States Fid. & Guar. Co., 103 Cal. App. 3d 198, 162 Cal. Rptr. 720 (4th Dist. 1980). Me.Flaherty v. Allstate Ins. Co., 2003 ME 72, 822 A.2d 1159 (Me. 2003). N.J.Beckwith v. Bethlehem Steel Corp., 185 N.J. Super. 50, 447 A.2d 207 (Law Div. 1982). N.Y.Able Cycle Engines, Inc. v. Allstate Ins. Co., 84 A.D.2d 140, 445 N.Y.S.2d 469 (2d Dep't 1981). Tex. Ford Motor Co. v. Ocanas, 138 S.W.3d 447 (Tex. App. Corpus Christi 2004), as amended on denial of reh'g, (July 15, 2004). Wis.Heath v. Zellmer, 35 Wis. 2d 578, 151 N.W.2d 664 (1967). N.D.Nodak Mut. Ins. Co. v. Wamsley, 2004 ND 174, 687 N.W.2d 226 (2004). [FN4] U.S.O'Rourke v. Eastern Air Lines, Inc., 730 F.2d 842, 15 Fed. R. Evid. Serv. 222, 38 Fed. R. Serv. 2d 1507 (2d Cir. 1984) (abrogated on other grounds by, Salve Regina College v. Russell, 499 U.S. 225, 111 S. Ct. 1217, 113 L. Ed. 2d 190, 65 Ed. Law Rep. 1030 (1991)); Turcotte v. Ford Motor Co., 494 F.2d 173 (1st Cir. 1974); Texas Taco Cabana, L.P. v. Taco Cabana of New Mexico, 304 F. Supp. 2d 903 (W.D. Tex. 2003) (Texas law); Bryson v. Gere, 268 F. Supp. 2d 46 (D.D.C. 2003) (D.C. law). Fla.Vital v. Deland Aviation, Inc., 449 So. 2d 265 (Fla. 1984). Ill.Clark v. TAP Pharmaceutical Products, Inc., 343 Ill. App. 3d 538, 278 Ill. Dec. 276, 798 N.E.2d 123 (5th Dist. 2003), appeal pending, (Jan. 1, 2004). [FN5] U.S.Hawkspere Shipping Co., Ltd. v. Intamex, S.A., 330 F.3d 225 (4th Cir. 2003); O'Rourke v. Eastern Air Lines, Inc., 730 F.2d 842, 15 Fed. R. Evid. Serv. 222, 38 Fed. R. Serv. 2d 1507 (2d Cir. 1984) (abrogated on other grounds by, Salve Regina College v. Russell, 499 U.S. 225, 111 S. Ct. 1217, 113 L. Ed. 2d 190, 65 Ed. Law Rep. 1030 (1991)); Turcotte v. Ford Motor Co., 494 F.2d 173 (1st Cir. 1974); Texas Taco Cabana, L.P. v. Taco Cabana of New Mexico, 304 F. Supp. 2d 903 (W.D. Tex. 2003) (Texas law); Bryson v. Gere, 268 F. Supp. 2d 46 (D.D.C. 2003) (D.C. law). Ill.Clark v. TAP Pharmaceutical Products, Inc., 343 Ill. App. 3d 538, 278 Ill. Dec. 276, 798 N.E.2d 123 (5th Dist. 2003), appeal pending, (Jan. 1, 2004). [FN6] U.S.Hawkspere Shipping Co., Ltd. v. Intamex, S.A., 330 F.3d 225 (4th Cir. 2003); O'Rourke v. Eastern Air Lines, Inc., 730 F.2d 842, 15 Fed. R. Evid. Serv. 222, 38 Fed. R. Serv. 2d 1507 (2d Cir. 1984) (abrogated on other grounds by, Salve Regina College v. Russell, 499 U.S. 225, 111 S. Ct. 1217, 113 L. Ed. 2d 190, 65 Ed. Law Rep. 1030 (1991)); Turcotte v. Ford Motor Co., 494 F.2d 173 (1st Cir. 1974); Texas Taco Cabana, L.P. v. Taco Cabana of New Mexico, 304 F. Supp. 2d 903 (W.D. Tex.
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2003) (Texas law); Bryson v. Gere, 268 F. Supp. 2d 46 (D.D.C. 2003) (D.C. law). IdahoMiller v. Stauffer Chemical Co., 99 Idaho 299, 581 P.2d 345 (1978). Ill.Clark v. TAP Pharmaceutical Products, Inc., 343 Ill. App. 3d 538, 278 Ill. Dec. 276, 798 N.E.2d 123 (5th Dist. 2003), appeal pending, (Jan. 1, 2004). Wis.Heath v. Zellmer, 35 Wis. 2d 578, 151 N.W.2d 664 (1967). [FN7] U.S.O'Rourke v. Eastern Air Lines, Inc., 730 F.2d 842, 15 Fed. R. Evid. Serv. 222, 38 Fed. R. Serv. 2d 1507 (2d Cir. 1984) (abrogated on other grounds by, Salve Regina College v. Russell, 499 U.S. 225, 111 S. Ct. 1217, 113 L. Ed. 2d 190, 65 Ed. Law Rep. 1030 (1991)); Turcotte v. Ford Motor Co., 494 F.2d 173 (1st Cir. 1974); Texas Taco Cabana, L.P. v. Taco Cabana of New Mexico, 304 F. Supp. 2d 903 (W.D. Tex. 2003) (Texas law); Bryson v. Gere, 268 F. Supp. 2d 46 (D.D.C. 2003) (D.C. law). Ill.Clark v. TAP Pharmaceutical Products, Inc., 343 Ill. App. 3d 538, 278 Ill. Dec. 276, 798 N.E.2d 123 (5th Dist. 2003), appeal pending, (Jan. 1, 2004). [FN8] U.S.O'Rourke v. Eastern Air Lines, Inc., 730 F.2d 842, 15 Fed. R. Evid. Serv. 222, 38 Fed. R. Serv. 2d 1507 (2d Cir. 1984) (abrogated on other grounds by, Salve Regina College v. Russell, 499 U.S. 225, 111 S. Ct. 1217, 113 L. Ed. 2d 190, 65 Ed. Law Rep. 1030 (1991)); Turcotte v. Ford Motor Co., 494 F.2d 173 (1st Cir. 1974); Texas Taco Cabana, L.P. v. Taco Cabana of New Mexico, 304 F. Supp. 2d 903 (W.D. Tex. 2003) (Texas law); Bryson v. Gere, 268 F. Supp. 2d 46 (D.D.C. 2003) (D.C. law). Ill.Clark v. TAP Pharmaceutical Products, Inc., 343 Ill. App. 3d 538, 278 Ill. Dec. 276, 798 N.E.2d 123 (5th Dist. 2003), appeal pending, (Jan. 1, 2004). [FN9] U.S.Hawkspere Shipping Co., Ltd. v. Intamex, S.A., 330 F.3d 225 (4th Cir. 2003). [FN10] U.S.Lebegern v. Forman, 339 F. Supp. 2d 613 (D.N.J. 2004) (New Jersey law). Mo.Goede v. Aerojet General Corp., 143 S.W.3d 14 (Mo. Ct. App. E.D. 2004), reh'g and/or transfer denied, (Aug. 10, 2004) and transfer denied, (Sept. 28, 2004). Tex.Scottsdale Ins. Co. v. National Emergency Services, Inc., 2004 WL 1688540 (Tex. App. Houston 1st Dist. 2004), petition for review filed, (Nov. 12, 2004). [FN11] U.S. Texas Taco Cabana, L.P. v. Taco Cabana of New Mexico, 304 F. Supp. 2d 903 (W.D. Tex. 2003) (Texas law). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 52 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. I. Introduction C. What Law Governs 2. As to Substantive Rights b. Significant Contacts Topic Summary References Correlation Table 53. Effect of contacts on policy West's Key Number Digest West's Key Number Digest, Action 17 Choice of law is determined according to the effect of each state's contact with the litigation on the state's policy. After the court determines what contacts the forum and foreign jurisdictions have with the subject matter of the action, it must examine how the states' policies are affected by the contacts[1] and whether those contacts give rise to real reasons for applying the state's law to the issues in the case[2] by determining which state has the more important interest in resolving the specific issue in dispute.[3] The court should consider the predictability of results,[4] maintenance of interstate and international order,[5] simplification of the judicial task,[6] advancement of the forum's governmental interests,[7] application of the better rule of law,[8] and the justified expectations of the parties.[9] Courts may also consider the judicial policy of discouraging forum shopping by litigants.[10]
[FN1] U.S. Business Loan Center, Inc. v. Nischal, 331 F. Supp. 2d 301 (D.N.J. 2004) (New Jersey law). Tex.Scottsdale Ins. Co. v. National Emergency Services, Inc., 2004 WL 1688540 (Tex. App. Houston 1st Dist. 2004), petition for review filed, (Nov. 12, 2004). [FN2] U.S.R.D. Offutt Co. v. Lexington Ins. Co., 2004 WL 2414407 (D.N.D. 2004). [FN3] U.S.Lebegern v. Forman, 339 F. Supp. 2d 613 (D.N.J. 2004) (New Jersey law). Mo.Goede v. Aerojet General Corp., 143 S.W.3d 14 (Mo. Ct. App. E.D. 2004), reh'g and/or transfer denied, (Aug. 10, 2004) and transfer denied, (Sept. 28, 2004).
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N.D.Nodak Mut. Ins. Co. v. Wamsley, 2004 ND 174, 687 N.W.2d 226 (2004). Tex. Greenberg Traurig of New York, P.C. v. Moody, 2004 WL 2188088 (Tex. App. Houston 14th Dist. 2004). [FN4] U.S. Vasquez v. Bridgestone/Firestone, Inc., 325 F.3d 665 (5th Cir. 2003) (Texas law); R.D. Offutt Co. v. Lexington Ins. Co., 2004 WL 2414407 (D.N.D. 2004) (North Dakota law); Business Loan Center, Inc. v. Nischal, 331 F. Supp. 2d 301 (D.N.J. 2004) (New Jersey law). Mass.Hodas v. Morin, 442 Mass. 544, 814 N.E.2d 320 (2004). Minn.Schumacher v. Schumacher, 676 N.W.2d 685 (Minn. Ct. App. 2004). Wis.Beloit Liquidating Trust v. Grade, 270 Wis. 2d 356, 2004 WI 39, 677 N.W.2d 298 (2004). Before transaction or event "Predictability of result" factor addresses whether choice of law was predictable before time of transaction or event giving rise to cause of action. Minn.Schumacher v. Schumacher, 676 N.W.2d 685 (Minn. Ct. App. 2004). [FN5] U.S. Vasquez v. Bridgestone/Firestone, Inc., 325 F.3d 665 (5th Cir. 2003) (Texas law); R.D. Offutt Co. v. Lexington Ins. Co., 2004 WL 2414407 (D.N.D. 2004) (North Dakota law). Mass.Hodas v. Morin, 442 Mass. 544, 814 N.E.2d 320 (2004). Minn.Schumacher v. Schumacher, 676 N.W.2d 685 (Minn. Ct. App. 2004). Wis.Beloit Liquidating Trust v. Grade, 270 Wis. 2d 356, 2004 WI 39, 677 N.W.2d 298 (2004). Disrespect or impediment "Maintenance of interstate order" factor addresses whether applying forum state's law would manifest disrespect for foreign state or impede the interstate movement of people and goods. Minn.Schumacher v. Schumacher, 676 N.W.2d 685 (Minn. Ct. App. 2004). [FN6] U.S. Vasquez v. Bridgestone/Firestone, Inc., 325 F.3d 665 (5th Cir. 2003) (Texas law); R.D. Offutt Co. v. Lexington Ins. Co., 2004 WL 2414407 (D.N.D. 2004) (North Dakota law). Mass.Hodas v. Morin, 442 Mass. 544, 814 N.E.2d 320 (2004). Minn.Schumacher v. Schumacher, 676 N.W.2d 685 (Minn. Ct. App. 2004). Wis.Beloit Liquidating Trust v. Grade, 270 Wis. 2d 356, 2004 WI 39, 677 N.W.2d 298 (2004). Where law straightforward "Simplification of judicial task" factor is not particularly relevant where the competing laws are
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straightforward and the law of either state could be applied without difficulty. Minn.Schumacher v. Schumacher, 676 N.W.2d 685 (Minn. Ct. App. 2004). [FN7] U.S. Vasquez v. Bridgestone/Firestone, Inc., 325 F.3d 665 (5th Cir. 2003) (Texas law); R.D. Offutt Co. v. Lexington Ins. Co., 2004 WL 2414407 (D.N.D. 2004) (North Dakota law). Minn.Schumacher v. Schumacher, 676 N.W.2d 685 (Minn. Ct. App. 2004). Wis.Beloit Liquidating Trust v. Grade, 270 Wis. 2d 356, 2004 WI 39, 677 N.W.2d 298 (2004). Significant interest of forum state "Advancement of forum's governmental interest" factor goes to which law would most effectively advance a significant interest of the forum state; factor is designed to ensure that forum's courts do not have to apply rules of law that are inconsistent with that state's concept of fairness and equity. Minn.Schumacher v. Schumacher, 676 N.W.2d 685 (Minn. Ct. App. 2004). [FN8] U.S.R.D. Offutt Co. v. Lexington Ins. Co., 2004 WL 2414407 (D.N.D. 2004) (North Dakota law). Minn.Schumacher v. Schumacher, 676 N.W.2d 685 (Minn. Ct. App. 2004). Wis.Beloit Liquidating Trust v. Grade, 270 Wis. 2d 356, 2004 WI 39, 677 N.W.2d 298 (2004). Socio-economic sense "Better rule of law" is rule that makes good socio-economic sense for time when court speaks; this factor is addressed only when other four factors of choice of law analysis are not dispositive as to which state's law should be applied. Minn.Schumacher v. Schumacher, 676 N.W.2d 685 (Minn. Ct. App. 2004). [FN9] U.S. Business Loan Center, Inc. v. Nischal, 331 F. Supp. 2d 301 (D.N.J. 2004) (New Jersey law). Mass.Hodas v. Morin, 442 Mass. 544, 814 N.E.2d 320 (2004). [FN10] U.S. Freeman v. Kohl & Vick Mach. Works, Inc., 673 F.2d 196 (7th Cir. 1982); White v. Smith, 398 F. Supp. 130 (D.N.J. 1975). Minn.Schumacher v. Schumacher, 676 N.W.2d 685 (Minn. Ct. App. 2004). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 53 END OF DOCUMENT
CJS ACTIONS II REF 1A C.J.S. Actions II Refs.
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. II. Cause or Right of Action Topic Summary Correlation Table Research References A.L.R. Library West's A.L.R. Digest, Action 1 to 9
A.L.R. Index: Civil Procedure Rules; Criminal Law; Defenses; Equity; Joinder of Actions; Moot and Abstract Matters; Parties; Severance of Action; Splitting Cause of Action; Statutes; Stay of Action or Proceeding; Torts Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS II REF END OF DOCUMENT
CJS ACTIONS II A REF 1A C.J.S. Actions II A Refs.
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. II. Cause or Right of Action A. General Considerations Topic Summary Correlation Table Research References A.L.R. Library West's A.L.R. Digest, Action 1 to 9
A.L.R. Index: Civil Procedure Rules; Criminal Law; Defenses; Equity; Joinder of Actions; Parties; Severance of Action; Splitting Cause of Action; Statutes; Stay of Action or Proceeding; Tort Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS II A REF END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. II. Cause or Right of Action A. General Considerations 1. In General Topic Summary References Correlation Table 54. Generally; definitions West's Key Number Digest West's Key Number Digest, Action 1 A "cause of action" consists of two elements, being operative facts and the right or power to seek and obtain redress for the infringement of a legal right which those facts show. The term "cause of action" is used in different senses, depending upon the subject to which it is applied or the object which it is to subserve.[1] A "cause of action" consists of two elements: operative facts and the right or power to seek and obtain redress for infringement of a legal right which those facts show.[2] A "cause of action" may be defined, in a more narrow, factual sense, as being or consisting of the facts giving rise to the action,[3] or the fact or combination of facts which give rise to or entitle a party to sustain an action.[4] The term thus describes a single group of facts giving the plaintiff a right to seek redress for a wrongful act or omission of the defendant.[5] Stated another way, a cause of action is a group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief.[6] A "claim" is a cause of action or demand as of right.[7] In the context of civil litigation, a claim is a substantive concept defining the moment at which a litigant may seek judicial recourse, and is linked to the existence of legally operative facts.[8] An "action," in its usual and legal sense, means a lawsuit brought in a court; it is a legal and formal demand of one's right from another person or party made and insisted on in a court of justice.[9] An action is a lawful demand of one's right in a court of justice and a "civil action" is a like demand by a person of a civil right.[10] A civil action is an ordinary proceeding in a court of justice by one party against another for enforcement or protection of a private right or redress or prevention of a private wrong, and such an action may also be brought for recovery of penalty or forfeiture.[11] The term "proceeding" is broader than the word "action," and it is broad enough to include all methods of invoking the action of courts, being generally applicable to any step taken to obtain the interposition or action of a court.[12] The term "suit" refers to any proceeding by one person or persons against another or others in a
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court of law in which the plaintiff pursues the remedy which the law affords him or her for the redress of an injury or the enforcement of a right, whether at law or in equity.[13] Pleadings and proof determinative. The pleadings and proof will control the determination of the cause of action, if any, which has been asserted and proven, regardless of the particular name given the action in the pleadings.[14] The essential character of a cause of action, as shown by the allegations of the complaint, and not the pleader's denomination, determines the nature of the action.[15]
[FN1] Cal.Lippert v. Bailey, 241 Cal. App. 2d 376, 50 Cal. Rptr. 478 (4th Dist. 1966). N.Y.Tortorice v. Tortorice, 55 Misc. 2d 649, 286 N.Y.S.2d 198 (Sup 1968). Okla.Retherford v. Halliburton Co., 1977 OK 178, 572 P.2d 966 (Okla. 1977). Theory of recovery distinguished A theory of recovery is not itself a cause of action. Neb.St. Paul Fire & Marine Ins. Co. v. Touche Ross & Co., 244 Neb. 408, 507 N.W.2d 275 (1993). Presence of civil wrong as indentifying characteristic The presence of a civil wrong is a critical identifying characteristic of a "cause of action," since "causes of action" are brought to remedy civil wrongs which are threatened or committed. Okla.City of Tahlequah v. Lake Region Elec., Co-op., Inc., 2002 OK 2, 47 P.3d 467 (Okla. 2002). [FN2] U.S.Fraticelli v. St. Paul Fire & Marine Ins. Co., 375 F.2d 186 (1st Cir. 1967). Right to enforce obligation A "cause of action" is the right to relief in court, and it is the right to enforce an obligation. Cal.Abatti v. Eldridge, 103 Cal. App. 3d 484, 163 Cal. Rptr. 82 (4th Dist. 1980). Material facts forming basis of right claimed A "cause of action" consists of the material facts which form the basis of the right claimed by the party bringing the action. La.Louviere v. Shell Oil Co., 440 So. 2d 93 (La. 1983). As to "cause of action" and "right of action" compared, see 55. [FN3] Ill.Thompson v. Howard, 32 Ill. App. 3d 991, 337 N.E.2d 94 (3d Dist. 1975). N.H.MBC, Inc. v. Engel, 119 N.H. 8, 397 A.2d 636 (1979).
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N.Y.Tortorice v. Tortorice, 55 Misc. 2d 649, 286 N.Y.S.2d 198 (Sup 1968). As synonymous with "claim" A "cause of action," often referred to as a claim, is a group of operative facts giving rise to one or more bases for suing, or those facts supporting the legal theory of a lawsuit. Minn. Martin ex rel. Hoff v. City of Rochester, 642 N.W.2d 1 (Minn. 2002), cert. denied, 539 U.S. 957, 123 S. Ct. 2668, 156 L. Ed. 2d 655 (2003). [FN4] U.S.Argus Inc. v. Eastman Kodak Co., 552 F. Supp. 589 (S.D. N.Y. 1982). Public policy regarding confidential matters Public policy forbids maintenance of any action, the trial of which would inevitably lead to disclosure of matters which the law itself regards as confidential, and with respect to which it will not allow the confidence to be violated. Ill.Erickson v. Aetna Life & Cas. Co., 127 Ill. App. 3d 753, 83 Ill. Dec. 72, 469 N.E.2d 679 (2d Dist. 1984). [FN5] Ill.Torcasso v. Standard Outdoor Sales, Inc., 157 Ill. 2d 484, 193 Ill. Dec. 192, 626 N.E.2d 225 (1993). Similar definition A "cause of action" is a fact or facts which establish or give rise to a right of action, the existence of which affords a party the right to judicial relief. Neb.Hoiengs v. County of Adams, 245 Neb. 877, 516 N.W.2d 223 (1994). N.J.Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 708 A.2d 401 (1998). [FN6] Conn.Wagner v. Clark Equipment Co., Inc., 259 Conn. 114, 788 A.2d 83 (2002). Capacity to sue distinguished A "cause of action" is distinguished from "capacity to sue," in that the latter is the right to come into court, and the former is the right to relief in court. IowaTroester v. Sisters of Mercy Health Corp., 328 N.W.2d 308 (Iowa 1982). [FN7] D.C.Zhou v. Jennifer Mall Restaurant, Inc., 699 A.2d 348 (D.C. 1997). [FN8] Md.Leppo v. State Highway Admin., 330 Md. 416, 624 A.2d 539 (1993). [FN9] IowaWeinhold v. Wolff, 555 N.W.2d 454 (Iowa 1996). Lawsuit, not cause of action or legal claim
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An "action" is a lawsuit, not a cause of action or a legal claim. N.H.Roberts v. General Motors Corp., 140 N.H. 723, 673 A.2d 779 (1996), as modified on denial of reh'g, (Apr. 18, 1996). [FN10] Wyo.Hill v. Value Recovery Group, L.P., 964 P.2d 1256 (Wyo. 1998). [FN11] Ark.Sosebee v. County Line School Dist., 320 Ark. 412, 897 S.W.2d 556, 100 Ed. Law Rep. 426 (1995). As to private rights of action for violations of penal statutes, see 67. [FN12] HawaiiLeslie v. Estate of Tavares, 93 Haw. 1, 994 P.2d 1047 (2000). Must take place in court of justice A "proceeding," like an "action," must take place in a court of justice. N.C. Ocean Hill Joint Venture v. North Carolina Dept. of Environment, Health and Natural Resources, 333 N.C. 318, 426 S.E.2d 274 (1993). [FN13] HawaiiLabrador v. Liberty Mut. Group, 103 Haw. 206, 81 P.3d 386 (2003). [FN14] Tenn.Paduch v. City of Johnson City, 896 S.W.2d 767 (Tenn. 1995). [FN15] Neb.Warner v. Reagan Buick, Inc., 240 Neb. 668, 483 N.W.2d 764, 17 U.C.C. Rep. Serv. 2d 746 (1992). Substance of complaint To determine the nature of a claim, the courts will look to the substance of the complaint, rather than its precise terminology. Vt.Stevenson v. Capital Fire Mut. Aid System, Inc., 163 Vt. 623, 661 A.2d 86 (1995). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 54 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. II. Cause or Right of Action A. General Considerations 1. In General Topic Summary References Correlation Table 55. Right of action and cause of action compared and distinguished West's Key Number Digest West's Key Number Digest, Action 1 While the terms "right of action" and "cause of action" often are used interchangeably, but those terms may be distinguished in that the right of action springs from the cause of action, but does not accrue until all of the facts which constitute the cause of action have occurred. The terms "right of action" and "cause of action" frequently have been used interchangeably,[1] and a right of action is an integral part of a cause of action.[2] On the other hand, the terms right of action and cause of action may be distinguished,[3] in that the right of action springs from the cause of action, but does not accrue until all of the facts which constitute the cause of action have occurred.[4] A "cause of action" may be defined, in a narrow sense, as being or consisting of the facts giving rise to the action,[5] and there may be several rights of action arising out of a cause of action.[6] More broadly defined, a "cause of action" consists of two elements: operative facts and the right or power to seek and obtain redress for infringement of a legal right which those facts show.[7] Thus, a right of action at law arises from the existence of a primary right in the plaintiff and a wrongful invasion of that right by the defendant, and the facts which establish the existence of that right and the violation thereof constitute the cause of action.[8] A right of action, or right to maintain an action, arises only where a cause of action exists for which the plaintiff has a civil remedy by action.[9] That is, since a cause of action ordinarily is considered as involving the combination of a right on the part of the plaintiff and a violation of that right by the defendant, a right of action arises only where there has been an invasion of rights or the infliction of an injury[10] or the violation of some legal duty which the defendant owed to the plaintiff.[11]
[FN1] Pa.Brungard v. Hartman, 46 Pa. Commw. 10, 405 A.2d 1089 (1979). [FN2] U.S.Fraticelli v. St. Paul Fire & Marine Ins. Co., 375 F.2d 186 (1st Cir. 1967).
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[FN3] U.S.Jones v. Pledger, 363 F.2d 986 (D.C. Cir. 1966). Conn.President and Fellows of Harvard College v. Town of Ledyard, 32 Conn. Supp. 139, 343 A.2d 649 (C.P. 1975). Wash.Thorgaard Plumbing & Heating Co. v. King County, 71 Wash. 2d 126, 426 P.2d 828 (1967). [FN4] Conn.Ryder v. Hertz Corp., 29 Conn. Supp. 9, 269 A.2d 32 (Super. Ct. 1970). [FN5] 54. [FN6] Neb.Mindt v. Shavers, 214 Neb. 786, 337 N.W.2d 97 (1983). [FN7] 54. [FN8] Conn.Wagner v. Clark Equipment Co., Inc., 259 Conn. 114, 788 A.2d 83 (2002). [FN9] Ill.Village of Northbrook v. Cook County, 88 Ill. App. 3d 745, 43 Ill. Dec. 792, 410 N.E.2d 925 (1st Dist. 1980). [FN10] Ga.Bryant v. Randall, 244 Ga. 676, 261 S.E.2d 602 (1979). Mich.Hayrynen v. White Pine Copper Co., 9 Mich. App. 452, 157 N.W.2d 502 (1968). UtahStromquist v. Cokayne, 646 P.2d 746 (Utah 1982). [FN11] Fla.Heard v. Mathis, 344 So. 2d 651 (Fla. Dist. Ct. App. 1st Dist. 1977). Ga.Bryant v. Randall, 244 Ga. 676, 261 S.E.2d 602 (1979). IowaGiltner v. Stark, 252 N.W.2d 743 (Iowa 1977). Mich.Hayrynen v. White Pine Copper Co., 9 Mich. App. 452, 157 N.W.2d 502 (1968). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 55 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. II. Cause or Right of Action A. General Considerations 1. In General Topic Summary References Correlation Table 56. Statutory rights of action, generally West's Key Number Digest West's Key Number Digest, Action 3 A right of action, unknown to the common law, generally can be asserted only by statutory authority. As a general rule, a right of action that was unknown at common law can be asserted only where authority therefor is found in a statute creating a duty, a violation of which will give rise to a cause or right of action not existing at common law.[1] The statutory intent is determinative in deciding whether a statute creates not just a private right but also a private remedy,[2] and a statute does not give rise to a civil cause of action unless the language of the statute is explicit or it can be determined by clear implication.[3] The legislature of a state may define what constitutes an actionable wrong.[4] When a legislature creates specific rights and obligations apart from those embodied in the state constitution, that body may determine who may enforce them and in what manner.[5] Moreover, in creating a statutory right or duty, the legislature may attach thereto any valid condition, restriction, or limitation, such as the condition that an action thereon may be brought only in the courts of the state.[6] The Congress of the United States has the power to create private rights of action to enforce federal law.[7] Congress routinely creates new rights of action by amending existing statutes and altering statutory definitions, or by adding new definitions of terms previously undefined.[8] In determining whether a private right of action exists under a federal statute, the central inquiry is whether Congress intended to create, either expressly or by implication, a private cause of action.[9] For a particular statutory provision to give rise to a federal right, Congress must have intended that the provision benefit the plaintiff, the right assertedly protected by statute must not be so vague and amorphous that its enforcement would strain judicial competence, and the statute must unambiguously impose a binding obligation on the states.[10] Where the text and structure of a statute provide no indication that Congress intends to create new individual rights, there is no basis for a private suit, whether under a particular statute or under an implied right of action.[11] Availability of remedies. In deciding whether to imply a private right of action for a violation of a federal statute, the judicial task is
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to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy.[12] Nonetheless, the question of what remedies are available under a statute that provides a private right of action is analytically distinct from the issue of whether such right exists in the first place; thus, although the courts examine the text and history of a statute to determine whether Congress intended to create a right of action, they will presume availability of all appropriate remedies, unless Congress has expressly indicated otherwise.[13] When Congress enacts a statute under which a person may sue and recover damages from a private defendant for the defendant's violation of some statutory norm, there is no general presumption that the plaintiff may also sue aiders and abettors.[14] Creation of right of action by courts. Without statutory intent, a cause of action does not exist on the basis of a statute, and the courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute.[15] Principles of judicial restraint preclude courts from creating a new statutory cause of action that does not exist at common law where the legislature has not, either by a statute's express terms or by implication, provided for liability.[16] However, when a legislative or constitutional provision protects a class of persons by proscribing or requiring certain conduct but does not provide a civil remedy for the violation, the court may accord to an injured member of the class a right of action, if it determines that the remedy is appropriate in furtherance of the purpose of the legislation and needed to assure the effectiveness of the provision, using a suitable existing tort action or a new cause of action analogous to an existing tort action.[17] When operating in the realm of judicially implied private rights of action, courts have a measure of latitude to shape a sensible remedial scheme that best comports with the statute.[18] CUMULATIVE SUPPLEMENT Cases: The No Child Left Behind Act (NCLB) did not provide a private right of action. Horne v. Flores, 129 S. Ct. 2579, 174 L. Ed. 2d 406, 245 Ed. Law Rep. 572, 73 Fed. R. Serv. 3d 1562 (2009). Without statutory intent, a cause of action does not exist and courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute. Horne v. Flores, 129 S. Ct. 2579, 174 L. Ed. 2d 406, 245 Ed. Law Rep. 572, 73 Fed. R. Serv. 3d 1562 (2009). No private right of action existed under Federal Change in Bank Control Act (CBCA). Lingle v. PSB Bancorp., Inc., 123 Fed. Appx. 496 (3d Cir. 2005). Fact that the Health Maintenance Organization Act does not expressly authorize a private cause of action to enforce its provisions does not preclude the right to bring a common law claim based upon the same allegations. Foundation Health v. Westside EKG Associates, 944 So. 2d 188 (Fla. 2006). An allegation that a health maintenance organization (HMO) violated the "prompt pay provisions" of the HMO Act is not sufficient by itself to establish a private cause of action. Foundation Health v. Westside EKG Associates, 944 So. 2d 188 (Fla. 2006). A statutory right of action and a common law negligence action are two distinct bases of civil liability. Draper v. Westerfield, 181 S.W.3d 283 (Tenn. 2005). [END OF SUPPLEMENT]
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[FN1] U.S.U.S. v. Pennzoil Co., 252 F. Supp. 962 (W.D. Pa. 1965). Or.Gray v. Hammond Lumber Co., 113 Or. 570, 232 P. 637 (1925). As to the effect of the violation of a statutory or constitutional right, generally, see 57. [FN2] U.S.Alexander v. Sandoval, 532 U.S. 275, 121 S. Ct. 1511, 149 L. Ed. 2d 517 (2001). [FN3] Minn.Alliance for Metropolitan Stability v. Metropolitan Council, 671 N.W.2d 905 (Minn. Ct. App. 2003). Implied cause of action A legislative intent to create a private cause of action for enforcement of a statute is the determinative factor, and in some cases a necessary element, in a finding that a private cause of action may be implied from the statute. Mass.Loffredo v. Center for Addictive Behaviors, 426 Mass. 541, 689 N.E.2d 799 (1998). As to the effect of a violation of a statutory or constitutional right, see 57. As to implied causes of action to enforce statutory rights, generally, see 63. [FN4] Okla. Loyal Order of Moose, Lodge 1785 v. Cavaness, 1977 OK 70, 563 P.2d 143, 93 A.L.R.3d 1234 (Okla. 1977). Statutory violation as element of cause of action A defendant's violation of a statute that leads to a plaintiff's injury may figure as an element in an otherwise available cause of action, but does not necessarily provide the plaintiff with a cause of action not previously available. Mass.Loffredo v. Center for Addictive Behaviors, 426 Mass. 541, 689 N.E.2d 799 (1998). [FN5] U.S.Warren County v. State of N. C., 528 F. Supp. 276 (E.D. N.C. 1981). [FN6] Ala.Larry v. Taylor, 227 Ala. 90, 149 So. 104 (1933). Compliance essential Cal.Sierra Inv. Corp. v. Sacramento County, 252 Cal. App. 2d 339, 60 Cal. Rptr. 519 (5th Dist. 1967) . Miss.Miller v. Miller, 323 So. 2d 533 (Miss. 1975). Mo.State ex rel. Slibowski v. Kimberlin, 504 S.W.2d 237 (Mo. Ct. App. 1973). [FN7] U.S.Alexander v. Sandoval, 532 U.S. 275, 121 S. Ct. 1511, 149 L. Ed. 2d 517 (2001).
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[FN8] U.S.Jones v. R.R. Donnelley & Sons Co., 124 S. Ct. 1836 (U.S. 2004). [FN9] Cal.American Airlines, Inc. v. County of San Mateo, 12 Cal. 4th 1110, 51 Cal. Rptr. 2d 251, 912 P.2d 1198 (1996). [FN10] U.S.Blessing v. Freestone, 520 U.S. 329, 117 S. Ct. 1353, 137 L. Ed. 2d 569 (1997). Under Fair Credit Reporting Act The Fair Credit Reporting Act (FCRA) provided a private right of action against state officials for allegedly reporting inaccurate information concerning the plaintiff's liability for child support payments. U.S.Campbell v. Baldwin, 90 F. Supp. 2d 754 (E.D. Tex. 2000) (applying Consumer Credit Protection Act 623(b), as amended, 15 U.S.C.A. 1681s-2(b)). [FN11] U.S.Gonzaga University v. Doe, 536 U.S. 273, 122 S. Ct. 2268, 153 L. Ed. 2d 309, 165 Ed. Law Rep. 458 (2002) (referring to 42 U.S.C.A. 1983). [FN12] U.S.Walls v. Wells Fargo Bank, N.A., 276 F.3d 502 (9th Cir. 2002). [FN13] U.S.Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 112 S. Ct. 1028, 117 L. Ed. 2d 208, 72 Ed. Law Rep. 32 (1992). [FN14] U.S. Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 114 S. Ct. 1439, 128 L. Ed. 2d 119 (1994). [FN15] U.S.Alexander v. Sandoval, 532 U.S. 275, 121 S. Ct. 1511, 149 L. Ed. 2d 517 (2001). Minn.Alliance for Metropolitan Stability v. Metropolitan Council, 671 N.W.2d 905 (Minn. Ct. App. 2003).by statute. No cause of action created by statute (1) A survival act does not create a statutory cause of action, but instead allows a representative of the decedent to maintain those statutory or common-law actions that had already accrued to the decedent prior to the decedent's death. Ill. Myers v. Heritage Enterprises, Inc., 332 Ill. App. 3d 514, 266 Ill. Dec. 32, 773 N.E.2d 767 (4th Dist. 2002), appeal denied, 202 Ill. 2d 613, 272 Ill. Dec. 343, 787 N.E.2d 158 (2002). (2) A state's special education laws, which did not explicitly address a cause of action for recovery of attorney's fees incurred during special education proceedings, did not create a cause of action for such attorney's fees. Me.Goodwin v. School Administrative Dist. No. 35, 1998 ME 263, 721 A.2d 642, 131 Ed. Law Rep. 781 (Me. 1998). [FN16] Minn. Alliance for Metropolitan Stability v. Metropolitan Council, 671 N.W.2d 905 (Minn. Ct. App. 2003).
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Decision better left to legislative judgment The decision to create a private right of action is one better left to legislative judgment in the great majority of cases. U.S.Sosa v. Alvarez-Machain, 124 S. Ct. 2739, 159 L. Ed. 2d 718 (U.S. 2004). [FN17] 57. [FN18] U.S.Garcia v. S.U.N.Y. Health Sciences Center of Brooklyn, 280 F.3d 98, 161 Ed. Law Rep. 759 (2d Cir. 2001). As to implied causes of action to enforce statutory rights, generally, see 63. Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 56 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. II. Cause or Right of Action A. General Considerations 1. In General Topic Summary References Correlation Table 57. Effect of violation of statutory or constitutional right West's Key Number Digest West's Key Number Digest, Action 3 Subject to the conditions or limitations prescribed by the statute, the violation of a duty imposed by statute gives rise to a cause or right of action in favor of a person the statute was designed to benefit. It is a general rule that, where a statute imposes a duty for the benefit or protection of particular individuals or classes of individuals, a violation of such duty gives a right of action to any person for whose benefit or protection the statute was enacted, for any damages he or she has sustained thereby, as against the person guilty of the violation.[1] However, one claiming a private right of action within a statutory scheme ordinarily must show clear and convincing evidence of a legislative intent to impose civil liability for a violation of the statute.[2] The legislative intent to grant or withhold a private cause of action for a violation of a statute, or the failure to perform a statutory duty, is determined primarily from the form or language of the statute, the nature of the evil sought to be remedied, and the purpose the statute was intended to accomplish.[3] Even where a statute is phrased in such explicit rights-creating terms, a plaintiff suing under an implied right of action still must show that the statute manifests an intent to create not just a private right, but also a private remedy.[4] Principles of judicial restraint preclude courts from creating a new statutory cause of action that does not exist at common law where the legislature has not, either by a statute's express terms or by implication, provided for liability.[5] On the other hand, where legislation proscribes or requires certain conduct but fails to expressly grant a private right of action for violation, when such a right is asserted a court may recognize the right and provide a remedy if it appears that such a cause of action was intended by the legislature.[6] Thus, when a legislative or constitutional provision protects a class of persons by proscribing or requiring certain conduct but does not provide a civil remedy for the violation, the court may accord to an injured member of the class a right of action, if it determines that the remedy is appropriate in furtherance of the purpose of the legislation and needed to assure the effectiveness of the provision, using a suitable existing tort action or a new cause of action analogous to an existing tort action.[7] Creating a civil tort remedy for violation of a statute is proper, however, only if the statute protects a class of persons by proscribing or requiring certain conduct and the remedy is appropriate in furtherance of the purpose of the legislation and needed to assure the effectiveness of the provision.[8]
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Statutes intended to protect public. As a general rule, a private party may not enforce rights under a statute designed to protect the public in general and containing a comprehensive enforcement mechanism,[9] and a private cause of action will not be inferred from a statute which generally provides for public welfare.[10] Statutes which are not intended to protect against injury, but rather are designed to confer benefit upon the general public, do not give rise to cause of action by an individual to recover damages for their breach.[11] However, the mere fact that a statute was enacted for the benefit of the general public does not preclude implication of a private right of action for its violation.[12 ] Thus, where the legislature had as its purpose in enacting a statute protection of a substantial segment of the public, it is proper to inquire in such circumstances whether the statute is a remedial one and whether certain private remedies are provided for within the statutory framework in order to determine whether a private right of action was intended.[13] CUMULATIVE SUPPLEMENT Cases: The fact that a federal statute has been violated and some person harmed does not automatically give rise to a private cause of action in favor of that person. Sturm v. Peoples Trust & Savings Bank, 713 N.W.2d 1 (Iowa 2006). [END OF SUPPLEMENT]
[FN1] U.S.Bergman v. U.S., 567 F. Supp. 460 (D. Colo. 1983), judgment aff'd, 751 F.2d 314 (10th Cir. 1984); Doe v. U.S., 520 F. Supp. 1200 (S.D. N.Y. 1981). Cal.Michael R. v. Jeffrey B., 158 Cal. App. 3d 1059, 205 Cal. Rptr. 312 (2d Dist. 1984). Strict compliance with statutory procedure essential Where a cause of action has been created by statute, strict compliance with the prescribed procedure is essential. Conn.Rana v. Ritacco, 236 Conn. 330, 672 A.2d 946 (1996). As to the necessity that the plaintiff have suffered an injury or damage, see 59. [FN2] Ala.Liberty Nat. Life Ins. Co. v. University of Alabama Health Services Foundation, P.C., 881 So. 2d 1013 (Ala. 2003). [FN3] Kan.Pullen v. West, 278 Kan. 183, 92 P.3d 584 (2004). [FN4] U.S.Gonzaga University v. Doe, 536 U.S. 273, 122 S. Ct. 2268, 153 L. Ed. 2d 309, 165 Ed. Law Rep. 458 (2002). [FN5] 56. [FN6] Del.Lock v. Schreppler, 426 A.2d 856 (Del. Super. Ct. 1981).
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Fla.Colonial Penn Communities, Inc. v. Crosley, 443 So. 2d 1030 (Fla. Dist. Ct. App. 5th Dist. 1983) . Ill.Stewart v. Amoco Oil Co., 72 Ill. App. 3d 330, 27 Ill. Dec. 915, 389 N.E.2d 1323 (1st Dist. 1979). Mass.Lindsey v. Massios, 372 Mass. 79, 360 N.E.2d 631 (1977). Wis.Candee v. Egan, 84 Wis. 2d 348, 267 N.W.2d 890 (1978). Duty of court Absent exclusive legislative direction, it is for the courts to determine, in light of statutory provisions, particularly those relating to sanctions and enforcement, and their legislative history, and of existing common law and statutory remedies, whether the legislature intended private litigants to have a cause of action for violation of these provisions. N.Y. Burns Jackson Miller Summit & Spitzer v. Lindner, 59 N.Y.2d 314, 464 N.Y.S.2d 712, 451 N.E.2d 459 (1983). As to implied causes of action to enforce statutory rights, see 63. [FN7] Conn.Binette v. Sabo, 244 Conn. 23, 710 A.2d 688 (1998). Relevant factors (1) There are three factors which determine whether a private remedy is implicit in a statute which does not expressly authorize such a remedy: whether the plaintiff is within the class for whose benefit the statute was enacted; whether the legislature has explicitly or implicitly intended to create a private remedy; and whether an implied private remedy would be consistent with the purposes of the legislative scheme. Colo.Holter v. Moore and Co., 681 P.2d 962 (Colo. Ct. App. 1983). N.Y. Burns Jackson Miller Summit & Spitzer v. Lindner, 59 N.Y.2d 314, 464 N.Y.S.2d 712, 451 N.E.2d 459 (1983). (2) When the legislative intent is not otherwise clear, the factors relevant in determining whether private remedy is implicit in a statute are: whether the plaintiff is one of the class for whose special benefit the statute was enacted; whether there is any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one; whether it is consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff; and whether implication of a private cause of action will intrude into an area over which the federal government has exclusive jurisdiction or which has been delegated exclusively to a state administrative agency. IowaSeeman v. Liberty Mut. Ins. Co., 322 N.W.2d 35 (Iowa 1982). [FN8] Vt.Dalmer v. State, 174 Vt. 157, 811 A.2d 1214 (2002), cert. denied, 537 U.S. 1110, 123 S. Ct. 891, 154 L. Ed. 2d 782 (2003) (citing Restatement (Second) of Torts 874A).
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[FN9] Ind.LTV Steel Co. v. Griffin, 730 N.E.2d 1251 (Ind. 2000). [FN10] Wis.Kranzush v. Badger State Mut. Cas. Co., 103 Wis. 2d 56, 307 N.W.2d 256 (1981). No private right of action shown (1) An automobile lessee had no private right of action against the lessor and insurer for allegedly selling insurance without a license, where nothing in the statute regulating licensing of sellers of insurance suggested a legislative intent to create a private right of action. Ala.American Auto. Ins. Co. v. McDonald, 812 So. 2d 309 (Ala. 2001). (2) Statutes governing the release of public records did not explicitly or implicitly show a legislative intent to create a private cause of action for the state government's mistaken or negligent dissemination of confidential information, and such a cause of action would be inconsistent with the statute's purpose of opening the doors of government to public scrutiny, in that allowing such an action would hinder disclosure of the government's decisionmaking activities. IowaMarcus v. Young, 538 N.W.2d 285, 103 Ed. Law Rep. 1213 (Iowa 1995). [FN11] N.Y.Donohue v. Copiague Union Free School District., 64 A.D.2d 29, 407 N.Y.S.2d 874 (2d Dep't 1978), judgment aff'd, 47 N.Y.2d 440, 418 N.Y.S.2d 375, 391 N.E.2d 1352, 1 A.L.R.4th 1133 (1979). [FN12] N.Y.Burns Jackson Miller Summit & Spitzer v. Lindner, 88 A.D.2d 50, 452 N.Y.S.2d 80 (2d Dep't 1982), order aff'd, 59 N.Y.2d 314, 464 N.Y.S.2d 712, 451 N.E.2d 459 (1983). [FN13] Ill.Rhodes v. Mill Race Inn, Inc., 126 Ill. App. 3d 1024, 81 Ill. Dec. 793, 467 N.E.2d 915 (2d Dist. 1984). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 57 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. II. Cause or Right of Action A. General Considerations 1. In General Topic Summary References Correlation Table 58. Effect of motive or intent of defendant West's Key Number Digest West's Key Number Digest, Action 2 As a general rule, a violation of a legal right is actionable even though it is not accompanied by an improper or malicious motive, and an act that is lawful in itself does not become actionable by the fact that it is done with an improper or malicious motive. As a general rule, whether a particular act or omission constitutes an actionable wrong depends upon the nature and quality of the act or omission, and not upon the motive with which it was done.[1] In accordance with this rule, an act which constitutes a violation of a legal right is actionable notwithstanding the fact that it is done without any improper or malicious motive.[2] On the other hand, as a general rule, an act which involves the exercise of a legal right is not actionable, even though the act is done, or the right is exercised or asserted, with an improper or malicious motive.[3] Whatever a person has a legal right to do, he or she may do with impunity, regardless of motive, and if in exercising his or her legal right in a legal way damage results to another, no cause of action arises against him or her because of a bad motive in exercising the right.[4] Nevertheless, there are certain classes of actions in which motive plays an important part, and is often a determinative in appraising conduct,[5] such as actions for libel and slander,[6] and actions for malicious prosecution.[7] Furthermore, a legal act may become actionable where illegal means are used to accomplish it.[8]
[FN1] Tex.Turcotte v. Trevino, 544 S.W.2d 463 (Tex. Civ. App. Corpus Christi 1976), writ granted, (July 13, 1977) and judgment rev'd on other grounds, 564 S.W.2d 682 (Tex. 1978). Absence of good motive The absence of a commendable motive on the part of a party exercising his or her rights is not a legal substitute or equivalent for the thing amiss which is one of necessary elements of a wrong.
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N.J.Louis Kamm, Inc., v. Flink, 113 N.J.L. 582, 175 A. 62, 99 A.L.R. 1 (N.J. Ct. Err. & App. 1934). [FN2] Wis.Gebhardt v. Holmes, 149 Wis. 428, 135 N.W. 860 (1911). [FN3] Ala.Sloss-Sheffield Steel & Iron Co. v. Greek, 211 Ala. 95, 99 So. 791 (1924). N.J.Edelman v. Dunn, 107 N.J.L. 353, 153 A. 524 (N.J. Ct. Err. & App. 1931). Assertion of claim by filing lawsuit Assertion of a claim by the filing of a lawsuit is not actionable, in the absence of slandering of title or the wrongful obtaining of injunctive or extraordinary relief. Tex.Gregory v. Rice, 678 S.W.2d 603 (Tex. App. Houston 14th Dist. 1984), writ refused n.r.e., (Nov. 28, 1984). Contractual right The exercise of a right conferred by a valid contract, in a manner provided thereby, affords no ground of action for damages regardless of the party's motives. Ind.Jones v. Lathrop-Moyer Co., 99 Ind. App. 127, 190 N.E. 883 (1934). [FN4] Ala.BellSouth Mobility, Inc. v. Cellulink, Inc., 814 So. 2d 203 (Ala. 2001). [FN5] U.S.Passaic Print Works v. Ely & Walker Dry-Goods Co., 105 F. 163 (C.C.A. 8th Cir. 1900). N.J.Louis Kamm, Inc., v. Flink, 113 N.J.L. 582, 175 A. 62, 99 A.L.R. 1 (N.J. Ct. Err. & App. 1934). [FN6] C.J.S., Libel and Slander 44. [FN7] C.J.S., Malicious Prosecution 38. As to the motive for bringing an action as a defense, see 92. [FN8] Me.Perkins v. Pendleton, 90 Me. 166, 38 A. 96 (1897). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 58 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. II. Cause or Right of Action A. General Considerations 1. In General Topic Summary References Correlation Table 59. Necessity of injury and damage West's Key Number Digest West's Key Number Digest, Action 1 A cause of action arises only where there has been injury to a legal right, in the sense that there has been a wrong or breach of a legal duty in violation of such right. As a general rule, a person can sustain a cause of action only where he or she has sustained some injury to his or her legal personal or property rights, the injury and the cause of action being contemporaneous.[1] An "injury," as used in the strict legal sense as the basis of a cause of action, is a wrong or breach of a legal duty, in violation of a legal right.[2] Absent resultant damage, there can be no cause of action premised upon the violation of a statute.[3] Likewise, a negligent act that does not cause damage will not support the imposition of liability.[4] A party who invokes the power of judicial review must not only show that the action complained of is illegal, but that he or she has sustained, or is immediately in danger of sustaining, some direct injury as a result thereof, and not merely that he or she suffers in some indefinite way in common with people generally.[5] On the other hand, the lack of an injury to personal or property rights does not prevent the bringing of an action which involves only the establishment of public rights.[6] There can be no recovery where the injury complained of is purely speculative and theoretical.[7]
[FN1] U.S.Adams v. Bethlehem Steel Corp., 736 F.2d 992, 39 Fed. R. Serv. 2d 323 (4th Cir. 1984). Neb.Kohler v. Ford Motor Co., 187 Neb. 428, 191 N.W.2d 601 (1971). S.C.Davis v. Southern Life Ins. Co., 249 S.C. 194, 153 S.E.2d 399 (1967). Present or future injury
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A plaintiff can have no cause of action unless it either has suffered, or will suffer, injury as a result of acts by the defendant. N.Y.Swiss Forest Homeowners Ass'n, Inc. v. Ole Olsen, Limited, 38 A.D.2d 619, 326 N.Y.S.2d 366 (3d Dep't 1971). Causation The fact that persons are injured, for whatever reasons, does not give rise to any assurance that compensation for those injuries will be recovered, since "causation" is always an essential element to attribute fault for one's injuries to another; in any cause of action, whether grounded in tort, contract, or a hybrid of the two, there can be no recovery of damages by an aggrieved party against another unless injuries or damages have been caused by that other's actions. Tex.Riojas v. Lone Star Gas Co., A Div. of Ensearch Corp., 637 S.W.2d 956 (Tex. App. Fort Worth 1982), writ refused n.r.e. As to the necessity of a causal relationship between an illegal or immoral act and the injury or damage complained of, see 69. [FN2] Tex.Housing Authority of City of Harlingen v. State ex rel. Velasquez, 539 S.W.2d 911 (Tex. Civ. App. Corpus Christi 1976), writ refused n.r.e. [FN3] Ky.Motorists Mut. Ins. Co. v. Glass, 996 S.W.2d 437 (Ky. 1997), as modified, (Feb. 18, 1999). Mere invasion of interest insufficient A mere invasion of an interest is insufficient to support a cause of action, and an invasion that brings about some degree of loss or detriment and is capable of repair is the type of consequence envisioned under a statutory provision pertaining to liability for acts causing damages. La.Bourgeois v. A.P. Green Industries, Inc., 716 So. 2d 355 (La. 1998). [FN4] Okla.Cockings v. Austin, 1995 OK 46, 898 P.2d 136 (Okla. 1995). [FN5] R.I.Ianero v. Town of Johnston, 477 A.2d 619 (R.I. 1984). [FN6] Ind.Zoercher v. Agler, 202 Ind. 214, 172 N.E. 186, 70 A.L.R. 1232 (1930). [FN7] U.S.Wolff v. Selective Service Local Bd. No. 16, 372 F.2d 817 (2d Cir. 1967). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 59 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. II. Cause or Right of Action A. General Considerations 1. In General Topic Summary References Correlation Table 60. Necessity of injury and damageDamage without legal injury West's Key Number Digest West's Key Number Digest, Action 1 No cause of action arises where there has been merely a wrong that does not violate a legal right, even though the plaintiff may have suffered some damage. An "injury," as used in the strict legal sense as the basis of a cause of action, is a wrong or breach of a legal duty, in violation of a legal right.[1] Thus, no cause of action arises where there has been merely a wrong that does not violate a legal right.[2] Where a person sustains actual damage in the form of harm or loss to his or her person or property, without sustaining any legal injury, that is, an act or omission which the law does not deem an injury, the damage is regarded as damnum absque injuria, or damage without injury.[3] As a result, no cause of action arises in favor of the person sustaining the damage against the person by whose act it was caused.[4] The foregoing general rule applies in case of damage sustained, in common with the general public, from an act obstructing a public and common right, even though the damage sustained by the person complaining is greater than that sustained by others.[5] However, the rule does not apply where the injury sustained is peculiar to the complainant, and different from that sustained by other members of the public.[6] Exercise of legal rights. The doing of a lawful act or the exercise of a legal right in a lawful and proper manner, although it may result in damage to another, does not give rise to a cause of action; since no legal right of another is invaded, the resulting damage, if any, is damnum absque injuria.[7] A cause of action, however, may arise for damage resulting from the doing of a lawful act or the exercise of a legal right in a negligent or improper manner.[8] Acts authorized by statute. As a general rule, damage resulting from the doing of an act authorized by a valid statute, in a lawful and proper manner, is damnum absque injuria and an action cannot be maintained therefor.[9] However, recovery may be had for damages caused by acts done in a negligent or improper manner.[10]
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[FN1] 59. [FN2] U.S.Keller v. Clark Equipment Co., 474 F. Supp. 966 (D.N.D. 1979). Publication privileged by statute Any publication made in a city planning commission or city council proceedings is within the protection of a statute providing that a privileged publication is one made in any legislative or judicial proceeding, or in any other official proceeding authorized by law, even though the proceedings are not strictly judicial, and the privilege extends to persons who are not parties but who are witnesses or interested members of the public desiring to oppose the granting of a variance. Cal.Pettitt v. Levy, 28 Cal. App. 3d 484, 104 Cal. Rptr. 650 (5th Dist. 1972). [FN3] U.S. Premier Malt Products Co v. Kasser, 23 F.2d 98 (E.D. Pa. 1927), aff'd, 26 F.2d 1021 (C.C.A. 3d Cir. 1928). W.Va.West Virginia Transp. Co. v. Standard Oil Co., 50 W. Va. 611, 40 S.E. 591 (1901). Remedy not provided for every perceived harm The law does not provide a remedy for every perceived harm. U.S. Wooten v. Pleasant Hope R-VI School Dist., 270 F.3d 549, 158 Ed. Law Rep. 221 (8th Cir. 2001). [FN4] U.S.290 Madison Corp. v. Capone, 485 F. Supp. 1348 (D.N.J. 1980). Kan.Schmeck v. City of Shawnee, 231 Kan. 588, 647 P.2d 1263 (1982). N.M.Peralta v. Martinez, 90 N.M. 391, 564 P.2d 194 (Ct. App. 1977). Okla.State ex rel. Southwestern Bell Tel. Co. v. Brown, 1974 OK 19, 519 P.2d 491 (Okla. 1974). Relief to deserving plaintiff not guaranteed State law does not guarantee relief to every deserving plaintiff. Mo.Zafft v. Eli Lilly & Co., 676 S.W.2d 241 (Mo. 1984). [FN5] Ill.C. Hacker Co. v. City of Joliet, 196 Ill. App. 415, 1915 WL 2606 (2d Dist. 1915). La.Baloney v. Carter, 387 So. 2d 54 (La. Ct. App. 4th Cir. 1980). Wis.Hobbins v. Hannan, 186 Wis. 284, 202 N.W. 800 (1925). [FN6] La.Baloney v. Carter, 387 So. 2d 54 (La. Ct. App. 4th Cir. 1980). [FN7] Pa.Palmer v. Delaware, L. & W. R. Co., 277 Pa. 1, 120 A. 668 (1923).
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Influencing government Efforts to influence the government are not actionable. U.S.City of Newark v. Delmarva Power & Light Co., 497 F. Supp. 323 (D. Del. 1980). Act upon court order There can be no claim of damages, compensatory or punitive, against parties who have acted upon orders of court, unless the parties conspired to perpetrate a fraud upon the court to obtain the order. Tenn.Hawley v. Lavelle, 602 S.W.2d 499 (Tenn. Ct. App. 1980). Cancellation of contract An automobile distributor's cancellation of a contract entered into with a dealer for an indeterminate period gives to the dealer's receiver no cause of action for damages, notwithstanding a claim that the cancellation was for the purpose of eliminating the dealer as a competitor. Ind.Jones v. Lathrop-Moyer Co., 99 Ind. App. 127, 190 N.E. 883 (1934). As to the effect of the motive or intent of the defendant, see 58. [FN8] Pa.Jackman v. Rosenbaum Co., 263 Pa. 158, 106 A. 238 (1919), aff'd, 260 U.S. 22, 43 S. Ct. 9, 67 L. Ed. 107 (1922). Abuse of rights The civil law doctrine of abuse of rights may be applied to prevent the holder of a right or power from exercising it, where the sole purpose or predominate motive for exercising the right is to cause harm to another, there is no serious and legitimate interest worthy of judicial protection, and the right has been used in violation of moral rules, good faith or elementary fairness, or where the holder of the right exercised it for a purpose other than that for which the right was granted. La.Illinois Cent. Gulf R. Co. v. International Harvester Co., 368 So. 2d 1009 (La. 1979). Contriving specious instrument Color of law is only a semblance of a legal right, and where a person asserting a right under color of law himself or herself created or contrived the specious instrument under which color of law is asserted, he or she does not act in good faith and a claim under color of law is meaningless. Ill. Miller v. Bank of Pecatonica, 83 Ill. App. 3d 424, 38 Ill. Dec. 658, 403 N.E.2d 1262 (2d Dist. 1980). [FN9] U.S.The Maling, 110 F. 227 (D. Del. 1901), decree modified on other grounds, 116 F. 107 (D. Del. 1902). [FN10] U.S. The Maling, 110 F. 227 (D. Del. 1901), decree modified on other grounds, 116 F. 107
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(D. Del. 1902). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 60 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. II. Cause or Right of Action A. General Considerations 1. In General Topic Summary References Correlation Table 61. Necessity of injury and damageLegal injury without damage West's Key Number Digest West's Key Number Digest, Action 1 Just as there may be damage without legal injury, so there may be legal injury without damage. As a general rule, to constitute a valid cause of action there must be both an injury and damage.[1] Just as there may be damage without legal injury,[2] so there may be legal injury without damage.[3] Likewise, just as damage without injury does not constitute a cause of action, so also an action cannot be maintained for an injury without damage.[4]
[FN1] Ill.Kane v. Nomad Mobile Homes, Inc., 84 Ill. App. 2d 17, 228 N.E.2d 207 (1st Dist. 1967). N.Y.Lewis v. Lewis, 59 Misc. 2d 525, 299 N.Y.S.2d 755 (N.Y. City Civ. Ct. 1969). N.C.Atlantic Coast Line R. Co. v. State Highway Commission, 268 N.C. 92, 150 S.E.2d 70 (1966). [FN2] 60. [FN3] U.S. Premier Malt Products Co v. Kasser, 23 F.2d 98 (E.D. Pa. 1927), aff'd, 26 F.2d 1021 (C.C.A. 3d Cir. 1928). [FN4] U.S.Pioneer Nat. Title Ins. Co. v. Andrews, 652 F.2d 439, 32 Fed. R. Serv. 2d 329 (5th Cir. 1981). IowaIowa Power & Light Co. v. Abild Const. Co., 259 Iowa 314, 144 N.W.2d 303 (1966). La.Perkins v. Brown, 236 So. 2d 579 (La. Ct. App. 1st Cir. 1970), writ refused, 256 La. 859, 239 So. 2d 360 (1970).
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Nev.Boulder City v. Miles, 85 Nev. 46, 449 P.2d 1003 (1969). N.M.Peralta v. Martinez, 90 N.M. 391, 564 P.2d 194 (Ct. App. 1977). No monetary damages Since the plaintiff motorcycle owner admitted in his deposition that he had sustained no monetary damages whatsoever from the complained of conduct of the insurer of the motorcycle, the owner could not maintain an action against the insurer. N.C.Phillips v. Universal Underwriters Ins. Co., 43 N.C. App. 56, 257 S.E.2d 671 (1979). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 61 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. II. Cause or Right of Action A. General Considerations 2. Implied Causes of Action Topic Summary References Correlation Table 62. To enforce constitutional right West's Key Number Digest West's Key Number Digest, Action 2, 3 A person who has been injured by a violation of a constitutional provision may have a cause of action implied from the United States Constitution, where neither the Constitution nor a statute specifically provides for such a cause of action. The violation of a guaranty in the United States Constitution does not automatically give rise to a constitutionally based cause of action.[1] However, a victim of a violation of the United States Constitution committed by a federal officer may have a right of action against the officer, even though no statute confers such a right.[2] For example, a person who is subjected to cruel and unusual punishment, in violation of the Eighth Amendment of the United States Constitution, may have a right of action.[3] Likewise, a plaintiff whose house is searched and who is arrested and questioned without a warrant and without probable cause in violation of the Fourth Amendment has a right to seek redress.[4] Such a cause of action may be defeated, however, where the defendant demonstrates special factors counseling hesitation.[5] A cause of action of this kind may also be defeated in a case where it appears that Congress has provided an alternative remedy which is explicitly declared to be a substitute for recovery directly under the Constitution, and which is viewed as equally effective.[6] The existence of an effective and substantial federal remedy for the plaintiff,[7] whether by judicial[8] or administrative[9] proceedings, obviates the need to imply a constitutional remedy on his or her behalf. A person injured by a violation of the Federal Constitution by a state, or a subdivision, officer, or agency of a state may have a federal constitutionally based cause of action,[10] as where the prohibition of impairment of contract by a state or subdivision thereof has been violated,[11] but no cause of action need be implied directly from the Federal Constitution, where a federal statute provides adequate relief.[12] Moreover, where private wrongdoing can be adequately redressed by state law, there is much less compulsion for the judiciary to create an additional constitutional cause of action.[13] Requirement of state action under Fourteenth Amendment.
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There is no cause of action for a violation of a right guaranteed by the Fourteenth Amendment to the Federal Constitution by a private person unless there is state action involved.[14] Under state constitutions. The denial of constitutional rights demands some vindication in law, and where no established remedy exists or established remedies would be meaningless, the courts will not hesitate to exercise authority to create an appropriate remedy.[15] On the other hand, the absence of statutory relief for a violation of a state constitution does not, by itself, give rise to an implied damage remedy.[16] Furthermore, a judicial decision to recognize a particular remedy for a constitutional violation, such as a Bivens-type remedy for violations of rights protected under the search and seizure and arrest sections of a state constitution, does not mean that a constitutional cause of action exists for every violation of the state constitution.[17] Whether to recognize a cause of action for alleged violations of other constitutional provisions is determined on a case-by-case basis, with a multifactor analysis of the nature of the constitutional provision at issue, the nature of the purported unconstitutional conduct, the nature of the harm, separation of powers considerations, and other factors articulated in Bivens and its progeny.[18] The courts of a state possess authority to create a damages action under the state constitution.[19] A civil damage remedy generally cannot be implied for violation of a state constitutional provision, however, unless the provision is "self-executing," meaning that it takes effect immediately without the necessity for supplementary or enabling legislation.[20]
[FN1] U.S.Doe v. U.S. Civil Service Commission, 483 F. Supp. 539 (S.D. N.Y. 1980). Bill of Rights The first ten amendments to the Constitution do not by themselves expand individual causes of action against other individuals which were unknown to the common law. U.S.Sciolino v. Marine Midland Bank-Western, 463 F. Supp. 128 (W.D. N.Y. 1979). Under Thirteenth Amendment (1) The provisions of the Thirteenth Amendment do not allow for an independent, private cause of action and, thus, do not allow a surrogate mother to bring an action against an attorney and physicians for alleged malpractice and negligence in connection with surrogate parenting arrangements. U.S.Doe v. Keane, 658 F. Supp. 216 (W.D. Mich. 1987). (2) An independent cause of action will lie directly under the Thirteenth Amendment when the plaintiff attacks slavery itself or other forms of compulsory labor akin to slavery. Ind.Bayh v. Sonnenburg, 573 N.E.2d 398 (Ind. 1991). As to acts or omissions constituting a cause of action, generally, see 65. [FN2] U.S.Carlson v. Green, 446 U.S. 14, 100 S. Ct. 1468, 64 L. Ed. 2d 15 (1980); Bivens v. Six Un-
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known Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). [FN3] U.S.Carlson v. Green, 446 U.S. 14, 100 S. Ct. 1468, 64 L. Ed. 2d 15 (1980). [FN4] U.S.Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). [FN5] U.S.Davis v. Passman, 442 U.S. 228, 99 S. Ct. 2264, 60 L. Ed. 2d 846 (1979); Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971); Citizens Sav. v. Califano, 480 F. Supp. 843 (D.D.C. 1979). Administrative scheme The existence of a congressionally established administrative scheme to handle claims of violations of federal rights may counsel against the implication of a constitutional cause of action. U.S.Doe v. U.S. Civil Service Commission, 483 F. Supp. 539 (S.D. N.Y. 1980). Nonadjudicative determination An employment discrimination claimant, who charged that the Equal Employment Opportunity Commission (EEOC) conducted an incomplete investigation and made a premature finding of no reasonable cause, had no implied right of action against the agency under the due process clause of the Fifth Amendment on the basis of alleged unfair procedures, as EEOC decisions are investigative and nonadjudicative determinations. U.S.Pearlswig v. Randolph, 497 F. Supp. 569 (D. Mass. 1980). [FN6] U.S.Davis v. Passman, 442 U.S. 228, 99 S. Ct. 2264, 60 L. Ed. 2d 846 (1979); Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971); Oglala Sioux Tribe of Pine Ridge Indian Reservation v. U.S., 650 F.2d 140 (8th Cir. 1981). [FN7] U.S.Hurst v. U.S. Postal Service, 491 F. Supp. 870 (W.D. Mo. 1980); Doe v. U.S. Civil Service Commission, 483 F. Supp. 539 (S.D. N.Y. 1980). [FN8] U.S. Shewmaker v. Minchew, 504 F. Supp. 156 (D.D.C. 1980), decision aff'd, 666 F.2d 616 (D.C. Cir. 1981). [FN9] U.S.Bishop v. Tice, 622 F.2d 349 (8th Cir. 1980); Shewmaker v. Minchew, 504 F. Supp. 156 (D.D.C. 1980), decision aff'd, 666 F.2d 616 (D.C. Cir. 1981). [FN10] U.S.Barlow v. Marion County Hospital Dist., 495 F. Supp. 682 (M.D. Fla. 1980); Daughtry v. Arlington County, Va., 490 F. Supp. 307 (D.D.C. 1980). [FN11] U.S.E & E Hauling, Inc. v. Forest Preserve Dist. of Du Page County, Ill., 613 F.2d 675 (7th Cir. 1980). [FN12] U.S.Three Rivers Cablevision, Inc. v. City of Pittsburgh, 502 F. Supp. 1118 (W.D. Pa. 1980);
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Riccobono v. Whitpain Tp., 497 F. Supp. 1364 (E.D. Pa. 1980); Highfield Water Co. v. Public Service Commission, 488 F. Supp. 1176 (D. Md. 1980). [FN13] U.S.Turner v. Unification Church, 473 F. Supp. 367 (D.R.I. 1978), judgment aff'd, 602 F.2d 458 (1st Cir. 1979). [FN14] Wash.Maas v. Corporation of Gonzaga University, 27 Wash. App. 397, 618 P.2d 106 (Div. 3 1980). No cause of action shown Cal.Brown v. Petrolane, Inc., 102 Cal. App. 3d 720, 162 Cal. Rptr. 551 (2d Dist. 1980). [FN15] N.H.Marquay v. Eno, 139 N.H. 708, 662 A.2d 272, 102 Ed. Law Rep. 609 (1995). [FN16] Colo.Board of County Com'rs of Douglas County v. Sundheim, 926 P.2d 545 (Colo. 1996). Free speech and assembly provisions There is no implied private right of action for damages arising under the free speech and free assembly sections of the Texas Constitution. Tex.City of Beaumont v. Bouillion, 896 S.W.2d 143 (Tex. 1995). As to implied causes of action to enforce statutory rights, see 63. A.L.R. Library Implied cause of action for damages for violation of provisions of state constitutions, 75 A.L.R. 5th 619 . [FN17] Conn.Binette v. Sabo, 244 Conn. 23, 710 A.2d 688 (1998). Private cause of action not supported A state constitutional article providing that every citizen may freely speak, write, and publish his or her sentiments on any subject could not support a private cause of action. Me.Andrews v. Department of Environmental Protection, 1998 ME 198, 716 A.2d 212 (Me. 1998). [FN18] Conn.Binette v. Sabo, 244 Conn. 23, 710 A.2d 688 (1998). [FN19] Conn.Binette v. Sabo, 244 Conn. 23, 710 A.2d 688 (1998). [FN20] N.Y.Brown v. State, 89 N.Y.2d 172, 652 N.Y.S.2d 223, 674 N.E.2d 1129, 75 A.L.R.5th 769 (1996). Provision not self-executing A provision of a state constitution, under which any public officer or employee who breaches the public
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trust for private gain and any person or entity inducing such breach is liable to the state for all financial benefits obtained by such actions, is not self-executing and does not afford individual citizens a private right of action. Fla.St. John Medical Plans, Inc. v. Gutman, 721 So. 2d 717 (Fla. 1998). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 62 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. II. Cause or Right of Action A. General Considerations 2. Implied Causes of Action Topic Summary References Correlation Table 63. To enforce statutory right West's Key Number Digest West's Key Number Digest, Action 3 A private right of action based on a statute which makes no express provision for such a right of action may be implied if a court finds an intent of the state legislature or Congress that there should be such a right of action. A statute's silence as to whether a cause of action is conferred by the statute, or should be recognized as a result of the statute is not dispositive.[1] When a statute or rule does not expressly provide a cause of action, a court ordinarily will look to see if a cause of action may be implied.[2] A private cause of action may be implied from a statute when the statute establishes an individual right, imposes a corresponding duty on the government, and fails to provide an express statutory remedy.[3] Even though a federal statute does not expressly authorize a private right of action or cause of action, such a right may be implied.[4] An implied private right of action is a recognized means of effectuating the overall goals of a statute,[5] particularly where the party asserting the action is one of the class for whose special benefit the statute was enacted.[6] However, the mere fact that a violation of a federal statute has caused an injury does not mean that the person injured has a private cause of action.[7] Like the question of whether a statute expressly creates a cause of action,[8] where a private right of action is asserted under a statute which does not explicitly grant that right, whether such a right should be allowed as implied depends on the intent of Congress.[9] The basis for inferring a private right of action from a statute not expressly providing one is a finding by the court that Congress intended to create such a remedy.[10] Absent a finding that a particular statute or rule at issue was promulgated with the intention of creating the right of action asserted, a court may not imply such a right.[11] Whether a particular statute impliedly creates a private right of action must be determined by statutory construction,[12] based on the language and focus of the statute, its legislative history, and its purpose.[13] Even where a statute is phrased in explicit rights-creating terms, a plaintiff suing under an implied right of action still must show that the statute manifests an intent to create not just a private right but also a private remedy.[14] The
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intent to create a private remedy may appear implicitly in the language or structure of a statute, or in the circumstances of its enactment.[15] However, in order for a statute to give rise to a federal right, the right assertedly protected by the statute must not be so vague and amorphous that its enforcement would strain judicial competence, and the statute must unambiguously impose a binding obligation on the states.[16] Regulations. Regulations adopted by an administrative agency pursuant to a statute are insufficient alone to support implication of a private cause of action,[17] but they may be considered to the extent that they support a congressional intent based on the language or history of the statute.[18]
[FN1] Ariz.Napier v. Bertram, 191 Ariz. 238, 954 P.2d 1389 (1998). Creation by implication not favored Creation of a private right of action by implication is not favored and the general trend is away from judicial inferences that violation of a statute is personally actionable. Mo.Bradley v. Ray, 904 S.W.2d 302 (Mo. Ct. App. W.D. 1995). [FN2] IowaBailiff v. Adams County Conference Bd., 650 N.W.2d 621 (Iowa 2002). [FN3] U.S.Johnson v. United Parcel Services, Inc., 722 F. Supp. 1282 (D. Md. 1989), judgment aff'd, 927 F.2d 596 (4th Cir. 1991) (applying Maryland law). [FN4] U.S. Davis v. Modine Mfg. Co., 526 F. Supp. 943 (D. Kan. 1981); Chesapeake Bay Foundation, Inc. v. Virginia State Water Control Bd., 495 F. Supp. 1229 (E.D. Va. 1980); Alken v. Lerner, 485 F. Supp. 871 (D.N.J. 1980). Equitable remedies Although courts are more willing to imply the existence of equitable remedies than damages, equity will not permit application of a remedy that goes further than is necessary to right the alleged wrong, or protect the asserted right. U.S.Liberty Nat. Ins. Holding Co. v. Charter Co., 734 F.2d 545 (11th Cir. 1984). [FN5] U.S.In re Stacy, 21 B.R. 49 (Bankr. W.D. Va. 1982). [FN6] U.S. Cayuga Indian Nation of New York, by Patterson v. Cuomo, 565 F. Supp. 1297 (N.D. N.Y. 1983). [FN7] U.S.Touche Ross & Co. v. Redington, 442 U.S. 560, 99 S. Ct. 2479, 61 L. Ed. 2d 82 (1979); Pullman v. Chorney, 712 F.2d 447 (10th Cir. 1983); Citizens Committee to Save Land Grant Railroads v. Burlington Northern, Inc., 708 F.2d 1430 (9th Cir. 1983). Ill.Central Nat. Bank in Chicago v. Fleetwood Realty Corp., 110 Ill. App. 3d 169, 65 Ill. Dec. 730, 441 N.E.2d 1244 (1st Dist. 1982).
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Reason for rule What conduct a statute forbids is analytically separate from whether Congress enacted a statute for the special benefit of a particular class, so as to give rise to a private right of action, and introducing the question of a violation into the private right of action analysis poses a danger that a court will presume that a violation alone implies a private right of action. U.S.Diefenthal v. C. A. B., 681 F.2d 1039 (5th Cir. 1982). Necessity of duty There must be a duty, the violation of which has caused an injury, before an implied right of action may be found to exist for violation of a federal regulatory statute. U.S.Pavolini v. Bard-Air Corp., 645 F.2d 144 (2d Cir. 1981); Abrahamson v. Fleschner, 568 F.2d 862 (2d Cir. 1977). [FN8] U.S.Transamerica Mortg. Advisors, Inc. (TAMA) v. Lewis, 444 U.S. 11, 100 S. Ct. 242, 62 L. Ed. 2d 146 (1979). As to statutory rights of action, generally, see 56. [FN9] U.S.Daily Income Fund, Inc. v. Fox, 464 U.S. 523, 104 S. Ct. 831, 78 L. Ed. 2d 645 (1984); Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 101 S. Ct. 2061, 68 L. Ed. 2d 500 (1981). Strong presumption against implied right of action In determining whether an implied private right of action exists under a statute, the courts look to congressional intent, keeping in mind that there is a strong presumption against such inferences. U.S.Maldonado v. Dominguez, 137 F.3d 1, 40 Fed. R. Serv. 3d 134 (1st Cir. 1998). Congressional and judicial power (1) Congress is free to provide a damage remedy for some violations of federal law, but not for others. U.S.Shepard v. N.L.R.B., 459 U.S. 344, 103 S. Ct. 665, 74 L. Ed. 2d 523 (1983); Warren County v. State of N. C., 528 F. Supp. 276 (E.D. N.C. 1981). (2) The role of the federal courts is functionally limited by the United States Constitution and a cause of action is to be created only by Congress. U.S.Walsh v. International Precious Metals Corp., 510 F. Supp. 867 (D. Utah 1981). [FN10] U.S.Belluso v. Turner Communications Corp., 633 F.2d 393 (5th Cir. 1980). [FN11] U.S.Klock v. Lehman Bros. Kuhn Loeb Inc., 584 F. Supp. 210 (S.D. N.Y. 1984). [FN12] U.S. Northwest Airlines, Inc. v. Transport Workers Union of America, AFL-CIO, 451 U.S.
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77, 101 S. Ct. 1571, 67 L. Ed. 2d 750 (1981); Osborn v. American Ass'n of Retired Persons, 660 F.2d 740 (9th Cir. 1981); Demoe v. Dean Witter & Co., 476 F. Supp. 275 (D. Alaska 1979). N.D.R. B. J. Apartments, Inc. v. Gate City Sav. & Loan Ass'n, 315 N.W.2d 284 (N.D. 1982). [FN13] U.S.Daily Income Fund, Inc. v. Fox, 464 U.S. 523, 104 S. Ct. 831, 78 L. Ed. 2d 645 (1984); Universities Research Ass'n, Inc. v. Coutu, 450 U.S. 754, 101 S. Ct. 1451, 67 L. Ed. 2d 662 (1981); City of Philadelphia v. Com. of Pennsylvania, 508 F. Supp. 211 (E.D. Pa. 1981). Focus on law at time of enactment In determining whether a private cause of action is implicit in a federal statutory scheme, when the statute by its terms is silent on that issue, the initial focus must be on the state of the law at the time that the legislation was enacted; when Congress enacts new legislation, the question is whether Congress intended to create a private remedy as a supplement to express enforcement provisions of the statute, and when Congress acts in a statutory context in which an implied private remedy has already been recognized by the courts, the question is whether Congress intended to preserve the existing remedy. U.S.Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 102 S. Ct. 1825, 72 L. Ed. 2d 182 (1982). [FN14] U.S.Gonzaga University v. Doe, 536 U.S. 273, 122 S. Ct. 2268, 153 L. Ed. 2d 309, 165 Ed. Law Rep. 458 (2002). [FN15] U.S.Transamerica Mortg. Advisors, Inc. (TAMA) v. Lewis, 444 U.S. 11, 100 S. Ct. 242, 62 L. Ed. 2d 146 (1979). Effect of routine and consistent recognition by courts Congressional intent to imply a private right of action may be inferred in a situation where there has been routine and consistent recognition by the federal courts that such a cause of action exists. U.S.Scientex Corp. v. Kay, 689 F.2d 879 (9th Cir. 1982). [FN16] U.S.Blessing v. Freestone, 520 U.S. 329, 117 S. Ct. 1353, 137 L. Ed. 2d 569 (1997). [FN17] U.S.Rousseau v. City of Philadelphia, 589 F. Supp. 961 (E.D. Pa. 1984); Burroughs v. Hills, 564 F. Supp. 1007 (N.D. Ill. 1983), judgment aff'd, 741 F.2d 1525 (7th Cir. 1984); Carson v. Alvord, 487 F. Supp. 1049 (N.D. Ga. 1980). [FN18] U.S. Burroughs v. Hills, 564 F. Supp. 1007 (N.D. Ill. 1983), judgment aff'd, 741 F.2d 1525 (7th Cir. 1984); Yanez v. Jones, 361 F. Supp. 701, 17 Fed. R. Serv. 2d 1351 (D. Utah 1973). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 63 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. II. Cause or Right of Action A. General Considerations 2. Implied Causes of Action Topic Summary References Correlation Table 64. To enforce statutory rightFactors considered West's Key Number Digest West's Key Number Digest, Action 3 Various factors may be considered by the courts in determining whether a statute impliedly creates a private right of action, but judicially adopted criteria for determining when a private right of action can be inferred from a statute are subservient to the ultimate question of the legislative body that enacted the statute. In determining whether a federal statute creates a private right of action, the courts consider factors such as whether the plaintiff is one of the class for whose especial benefit the statute was enacted, whether there is any indication of legislative intent, explicit or implicit, either to create such remedy or to deny one, whether a private right of action is consistent with the underlying purposes of the legislative scheme, and whether the cause of action is one traditionally relegated to state law, in an area basically the concern of the states, so that it would be inappropriate to infer a cause of action based solely on federal law.[1] In general, a court may infer a private right of action where a statute protects a class of persons without providing a civil remedy, if the implied remedy furthers the legislative purpose and is necessary to ensure the statute's effectiveness.[2] However, such judicially adopted criteria for determining when a private right of action can be inferred from a federal statute are subservient to the ultimate question of whether Congress intended to create a private right of action by the plaintiff.[3] When Congress has established a detailed enforcement scheme, which expressly provides a private right of action for violations of specific provisions, there is a strong indication that Congress did not intend to provide private litigants with a means of redressing violations of other sections.[4] While the fact that other provisions of a complex statutory scheme create express remedies does not in itself prove that Congress did not imply a private remedy in another section, where explicit remedies in the same statute address much of the same conduct and benefit the same parties as the potential implied private cause of action, the circumstances militate against that inference.[5] Whether the plaintiff is of a class especially benefited by the statute is a matter for statutory construction,[6] determined by the language of the statute,[7] and its legislative history.[8] Where a statute is phrased in general terms, without specifically identifying the benefited class, a lack of intent to create a private right of action is in-
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dicated.[9] Statutes that focus on the person regulated rather than the individuals protected create no implication of an intent to confer rights on a particular class of persons.[10] Although all of the above factors, including whether the plaintiff is a member of the class for whose benefit the statute was enacted, are considered in deciding whether to imply a private right of action for violation of a federal statute, the critical inquiry is whether Congress intended to create a private right of action.[11] Where consideration of whether the plaintiff is a member of the class for whose special benefit the statute was enacted, and whether there is any indication of legislative intent, reveals no indication of congressional intent to create a private cause of action, the remaining factors cannot alone support implication of a cause of action, and therefore need not be considered.[12] Under state law. In determining whether a private cause of action is implied, the state courts likewise will consider factors such as whether the persons asserting such a right belong to a special class of persons for whose benefit the statute was enacted, whether the legislature indicated an intent to create or deny a private remedy, and whether inferring a private remedy would be consistent with the underlying purpose of the legislation.[13] Factors to be considered in determining whether a statute implies a private cause of action in tort include the nature of the legislative provision, the adequacy of existing remedies, the extent to which a tort action will interfere with existing remedies, the importance of the purpose of the provision, how drastically the new tort will change the law, and the burden the new tort will place on the court system.[14] A private cause of action should never be found to be implied by statute if it would significantly interfere with existing remedies.[15] A private right of action will be implied under a particular state statute only where the plaintiff is one of the class for whose particular benefit the statute was enacted, recognition of a private right of action would promote the legislative scheme, and creation of such a right would be consistent with the legislative scheme.[16] CUMULATIVE SUPPLEMENT Cases: Telecommunication Act sections establishing procedures for private parties to pursue claims in federal court did not provide competitive local exchange carrier (CLEC) with private right of action to seek declaration that it was entitled to compensation from commercial mobile radio service (CMRS) providers for terminating traffic that originated from their facilities; CLEC was required to establish right to specific compensation under Act or regulation. Communications Act of 1934, 206, 207, 47 U.S.C.A. 206, 207. North County Communications Corp. v. California Catalog & Technology, 594 F.3d 1149 (9th Cir. 2010). [END OF SUPPLEMENT]
[FN1] U.S.Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 101 S. Ct. 2061, 68 L. Ed. 2d 500 (1981); Walls v. Wells Fargo Bank, N.A., 276 F.3d 502 (9th Cir. 2002); Little Traverse Bay Bands of Odawa Indians v. Great Spring Waters of America, Inc., 203 F. Supp. 2d 853 (W.D. Mich. 2002); Niss v. National Ass'n of Securities Dealers, Inc., 989 F. Supp. 1302 (S.D. Cal. 1997). Cal. American Airlines, Inc. v. County of San Mateo, 12 Cal. 4th 1110, 51 Cal. Rptr. 2d 251, 912
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P.2d 1198 (1996). [FN2] U.S.Chabner v. United of Omaha Life Ins. Co., 994 F. Supp. 1185 (N.D. Cal. 1998), aff'd, 225 F.3d 1042 (9th Cir. 2000) (citing Restatement (Second) of Torts 874A). [FN3] U.S. Home Health Services, Inc. v. Currie, 531 F. Supp. 476 (D.S.C. 1982), judgment aff'd, 706 F.2d 497, 11 Ed. Law Rep. 72 (4th Cir. 1983). [FN4] U.S. Diefenthal v. C. A. B., 681 F.2d 1039 (5th Cir. 1982); Till v. Unifirst Federal Sav. and Loan Ass'n, 653 F.2d 152 (5th Cir. 1981). [FN5] U.S.Maldonado v. Dominguez, 137 F.3d 1, 40 Fed. R. Serv. 3d 134 (1st Cir. 1998). [FN6] U.S.Nodleman v. Aero Mexico, 528 F. Supp. 475 (C.D. Cal. 1981). [FN7] U.S.Limongelli v. Postmaster General of U.S., 707 F.2d 368 (9th Cir. 1983). [FN8] U.S.Rauch v. United Instruments, Inc., 548 F.2d 452 (3d Cir. 1976). [FN9] U.S. Diefenthal v. C. A. B., 681 F.2d 1039 (5th Cir. 1982); Michigan Paralyzed Veterans of America v. Coleman, 545 F. Supp. 245 (E.D. Mich. 1982); Grassley v. Legal Services Corp., 535 F. Supp. 818 (S.D. Iowa 1982). [FN10] U.S.Alexander v. Sandoval, 532 U.S. 275, 121 S. Ct. 1511, 149 L. Ed. 2d 517 (2001). [FN11] U.S.Walls v. Wells Fargo Bank, N.A., 276 F.3d 502 (9th Cir. 2002). [FN12] U.S.California v. Sierra Club, 451 U.S. 287, 101 S. Ct. 1775, 68 L. Ed. 2d 101 (1981); Hondo Nat. Bank v. Gill Sav. Ass'n, 696 F.2d 1095 (5th Cir. 1983); Allison v. Liberty Sav., 695 F.2d 1086 (7th Cir. 1982). [FN13] Minn. Alliance for Metropolitan Stability v. Metropolitan Council, 671 N.W.2d 905 (Minn. Ct. App. 2003). [FN14] Alaska Alaska Marine Pilots v. Hendsch, 950 P.2d 98 (Alaska 1997) (citing Restatement (Second) of Torts 874A, comment). [FN15] AlaskaAlaska Marine Pilots v. Hendsch, 950 P.2d 98 (Alaska 1997). [FN16] N.Y.Madden v. Creative Services, Inc., 84 N.Y.2d 738, 622 N.Y.S.2d 478, 646 N.E.2d 780 (1995). Right to pursue action shown An inmate would be allowed to file a claim involving purported violations of a statute prohibiting unauthorized access to the inmate's medical records and disclosure of the inmate's affliction with Acquired Immune Deficiency Syndrome (AIDS) virus, since the inmate qualified as one of the class for whose benefit the statute was enacted, and recognition of his right to pursue the action would promote the legislative purpose of confidentiality.
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N.Y.V. v. State, 150 Misc. 2d 156, 566 N.Y.S.2d 987 (Ct. Cl. 1991). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 64 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. II. Cause or Right of Action A. General Considerations 3. Acts or Omissions Constituting Cause of Action Topic Summary References Correlation Table 65. Generally West's Key Number Digest West's Key Number Digest, Action 2 An act or omission constitutes a cause of action only where it violates a legal right or duty, resulting in damage to the plaintiff. A cause of action at law arises from the existence of a primary right in the plaintiff, and an invasion of that right by some wrongful act on the part of the defendant.[1] It therefore is necessary, in order to give rise to a cause of action, that there be a violation of some positive legal right or the breach of a legal duty resulting in damage to the plaintiff.[2] Where damage results, a cause of action arises either from the doing of an illegal or wrongful act,[3] or from the doing of a lawful act in a negligent or improper manner.[4] On the other hand, if the exercise of legal right in a legal way results in damage to another, no cause of action arises because of a bad motive in exercising the right.[5] An activity is actionable if it constitutes a breach of a duty imposed by statute or by common law.[6] Absent resultant damage, however, there can be no cause of action premised upon the violation of a statute.[7] Likewise, under the common law, a court is without power to right a wrong where civil, property, or personal rights are not affected.[8] What constitutes a cause of action is basically a question of public policy.[9] The question of when legal liability attaches to one's acts is a policy question, and legal liability is always to be determined on the facts of each case upon mixed considerations of logic, common sense, justice, policy, and precedent.[10] Common-law causes of action. Traditional common-law causes of action are generally recognized unless liability is limited or abrogated by legislative enactments.[11] However, when the courts find a common-law cause of action to be anomalous, unworkable, or contrary to public policy, such an action may be abolished.[12]
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Violation of moral duty or obligation. A cause of action does not arise from the violation of a merely moral duty or obligation, even though it consists of improper conduct causing a loss to another.[13]
[FN1] 54. [FN2] U.S.Jacks v. Torrington Co., 256 F. Supp. 282 (D.S.C. 1966); Taylor v. Insurance Co. of North America, 9 F. Supp. 574 (S.D. N.Y. 1934); Miles v. U. S., 61 Cust. Ct. 245, 290 F. Supp. 395 (Cust. Ct. 3 Div. 1968). Conn.Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 400 A.2d 726 (1978). Or. Oksenholt v. Lederle Laboratories, a Div. of American Cyanamid Corp., 294 Or. 213, 656 P.2d 293 (1982). Pa.Kosjer v. Com., Dept. of Public Welfare, 76 Pa. Commw. 614, 464 A.2d 687 (1983). Judicial recognition of cause of action The courts may recognize a cause of action where they conclude that a defendant owes a duty of care to the plaintiff. Okla.Boren v. Thompson & Associates, 2000 OK 3, 999 P.2d 438 (Okla. 2000). As to the necessity that the plaintiff have suffered an injury or damage, see 59. [FN3] Ill.Wright v. Chicago & N.W. Ry. Co., 7 Ill. App. 438, 1880 WL 10432 (1st Dist. 1880). [FN4] 60. [FN5] 58. [FN6] Pa.Maritrans GP Inc. v. Pepper, Hamilton & Scheetz, 529 Pa. 241, 602 A.2d 1277 (1992). [FN7] 59. [FN8] N.Y. Transactive Corp. v. New York State Dept. of Social Services, 92 N.Y.2d 579, 684 N.Y.S.2d 156, 706 N.E.2d 1180 (1998). [FN9] Wis.Sopha v. Owens-Corning Fiberglas Corp., 230 Wis. 2d 212, 601 N.W.2d 627 (1999). No remedy for every perceived harm U.S. Wooten v. Pleasant Hope R-VI School Dist., 270 F.3d 549, 158 Ed. Law Rep. 221 (8th Cir. 2001). [FN10] Wash.Halverson v. Skagit County, 139 Wash. 2d 1, 983 P.2d 643 (1999), as amended, (Sept. 10, 1999).
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[FN11] Fla.Kitchen v. K-Mart Corp., 697 So. 2d 1200 (Fla. 1997). [FN12] Ky.Gilbert v. Barkes, 987 S.W.2d 772 (Ky. 1999). [FN13] U.S.Robinson v. American Broadcasting Companies, 328 F. Supp. 421 (E.D. Ky. 1970), order aff'd, 441 F.2d 1396 (6th Cir. 1971). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 65 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. II. Cause or Right of Action A. General Considerations 3. Acts or Omissions Constituting Cause of Action Topic Summary References Correlation Table 66. Criminal acts West's Key Number Digest West's Key Number Digest, Action 5 An act constituting a civil wrong may be the basis of a civil action by the person injured although the same act constitutes a criminal offense. A person may offend against the state, and also be liable for civil damages or other relief growing out of the same offense, as every criminal act which injures the person or property of another is also a civil tort redressable by the courts.[1] As a general rule, therefore, even though an act constitutes a criminal offense, if it also constitutes a civil wrong, an action for damages may be maintained against the wrongdoer by the person injured for any special injury suffered by him or her in an individual capacity, and not merely as a member of the community.[2] In the analysis of whether a private right of action may be maintained under a criminal statute, these questions are material: were the plaintiffs members of the class for whose benefit the statute was enacted; is an implication of a private right consistent with the underlying purpose of the statute; is the plaintiff's injury one the statute was designed to prevent; and is an implication of a civil private right of action necessary to provide an adequate remedy for violations of the statute.[3] The fact that a statute provides only a criminal penalty for its violation does not end the inquiry into whether a civil action is barred.[4] Where a penal statute does not expressly confer a private right of action on individuals pursuing civil relief, recovery under such a statute may be had if a private right of action may fairly be implied.[5] On the other hand, the fact that the legislature enacts a criminal statute does not necessarily mean that the courts may recognize a civil cause of action predicated upon that statute.[6] A criminal statute does not automatically give rise to a civil cause of action, unless the statute expressly or by clear implication so provides.[7] Thus, a civil right of action generally will not be implied in the absence of a clear implication that the legislature intended the statute to create one.[8] Courts may infer private, civil claims from federal criminal statutes only if the putative plaintiff is a member of the class for whose benefit the statute was specially enacted, the language or legislative history of the statute indicates, explicitly or implicitly, a legislative intent to create, not deny such a private claim, the inference of
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a private claim is consistent with the underlying legislative purposes, and the purported private claim is not traditionally relegated to the sphere of state law, and therefore inappropriate to derive from federal law.[9] Similarly, courts may infer private, civil claims from state criminal statutes if the plaintiff is one of the class for whose special benefit the statute was enacted, the private cause of action is consistent with the underlying purposes of the legislation,[10] there is an indication of legislative intent, explicit or implicit, to create, not deny a private cause of action,[11] the plaintiff's injury is one the statute was designed to prevent,[12] and the implication of a civil private right of action is necessary to provide an adequate remedy for violation of the statute.[13] However, the primary consideration in deciding whether a private cause of action should be implied under a criminal statute is legislative intent.[14] When a criminal statute contains a comprehensive statutory enforcement scheme, the recognition of a private civil right of action is incompatible with the mechanisms chosen by the legislature.[15]
[FN1] U.S. U.S. v. Professional Air Traffic Controllers Organization (PATCO), 653 F.2d 1134 (7th Cir. 1981). Mo.Tanner v. Gash, 583 S.W.2d 269 (Mo. Ct. App. W.D. 1979). Statute allowing civil action without criminal prosecution A statute allowing a plaintiff to commence a civil action to recover for an injury amounting to a felony, without prosecution of the offender, does not create a civil cause of action for any injury that amounts to a felony; rather, the statute eliminates an obstacle for a plaintiff with a valid cause of action. Ala.Preskitt v. Lyons, 865 So. 2d 424 (Ala. 2003). [FN2] U.S.Westchester General Hospital, Inc. v. Department of Health, Ed. & Welfare, 464 F. Supp. 236 (M.D. Fla. 1979). Cal.Montalvo v. Zamora, 7 Cal. App. 3d 69, 86 Cal. Rptr. 401 (5th Dist. 1970). Mo.Tanner v. Gash, 583 S.W.2d 269 (Mo. Ct. App. W.D. 1979). Concomitant civil remedy for criminal violation As a general rule, for every criminal violation that injures the person or property of another, there is a concomitant civil remedy. Ala.Lollar v. Poe, 622 So. 2d 902 (Ala. 1993). Reason for rule A criminal statute imposes a duty for the protection of the public which, when it is breached and proximately causes specific private injury, does not preclude a civil action for damages even though the violation imposes a public penalty. Mo.Tanner v. Gash, 583 S.W.2d 269 (Mo. Ct. App. W.D. 1979).
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[FN3] Ill.Rhodes v. Mill Race Inn, Inc., 126 Ill. App. 3d 1024, 81 Ill. Dec. 793, 467 N.E.2d 915 (2d Dist. 1984). [FN4] Ill.Rhodes v. Mill Race Inn, Inc., 126 Ill. App. 3d 1024, 81 Ill. Dec. 793, 467 N.E.2d 915 (2d Dist. 1984). [FN5] N.Y. Hammer v. American Kennel Club, 1 N.Y.3d 294, 771 N.Y.S.2d 493, 803 N.E.2d 766 (2003). Statute abrogating civil liability A cause of action implied from a criminal statute generally cannot be harmonized with a later statute expressly abrogating civil liability. AlaskaChokwak v. Worley, 912 P.2d 1248 (Alaska 1996). As to implied causes of action to enforce statutory rights, see 63. [FN6] Tex.Reeder v. Daniel, 61 S.W.3d 359 (Tex. 2001). Parental kidnapping Statutes concerning criminal violations do not provide a civil action on the part of one parent for the kidnapping of a child by the other parent. Fla.Mantooth v. Richards, 557 So. 2d 646 (Fla. Dist. Ct. App. 4th Dist. 1990). [FN7] Minn.Larson v. Dunn, 460 N.W.2d 39 (Minn. 1990). Proof of same facts to establish independent civil action No civil right of action for a violation of a criminal statute exists unless the criminal statute by its terms so provides, or unless proof of the same facts that establish a violation of the criminal statute also constitute proof of an otherwise existing civil action for damages independent of the criminal statute. Va.Vansant and Gusler, Inc. v. Washington, 245 Va. 356, 429 S.E.2d 31 (1993). [FN8] U.S.Cort v. Ash, 422 U.S. 66, 95 S. Ct. 2080, 45 L. Ed. 2d 26 (1975). IowaHall v. Montgomery Ward & Co., 252 N.W.2d 421 (Iowa 1977). Mo.Parker v. Lowery, 446 S.W.2d 593 (Mo. 1969). [FN9] U.S. Cort v. Ash, 422 U.S. 66, 95 S. Ct. 2080, 45 L. Ed. 2d 26 (1975); Cheyenne-Arapaho Tribes of Oklahoma v. Beard, 554 F. Supp. 1 (W.D. Okla. 1980). As to factors relevant in determining whether a private remedy for violation of a statute is created by implication, see 64. [FN10] Ill.Rhodes v. Mill Race Inn, Inc., 126 Ill. App. 3d 1024, 81 Ill. Dec. 793, 467 N.E.2d 915 (2d
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Dist. 1984). N.Y.Lane v. Marine Midland Bank, N.A., 112 Misc. 2d 200, 446 N.Y.S.2d 873 (Sup 1982). Tenn.Buckner v. Carlton, 623 S.W.2d 102, 1 Ed. Law Rep. 442 (Tenn. Ct. App. 1981). Three factors considered The determination of whether a private right of action may be fairly implied from a penal statute entails consideration of three factors: (1) whether the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) whether recognition of a private right of action would promote the legislative purpose; and (3) whether creation of such a right would be consistent with the legislative scheme. N.Y.Hammer v. American Kennel Club, 1 N.Y.3d 294, 771 N.Y.S.2d 493, 803 N.E.2d 766 (2003). [FN11] N.Y.Lane v. Marine Midland Bank, N.A., 112 Misc. 2d 200, 446 N.Y.S.2d 873 (Sup 1982). Tenn.Buckner v. Carlton, 623 S.W.2d 102, 1 Ed. Law Rep. 442 (Tenn. Ct. App. 1981). [FN12] Ill.Rhodes v. Mill Race Inn, Inc., 126 Ill. App. 3d 1024, 81 Ill. Dec. 793, 467 N.E.2d 915 (2d Dist. 1984). [FN13] Ill.Rhodes v. Mill Race Inn, Inc., 126 Ill. App. 3d 1024, 81 Ill. Dec. 793, 467 N.E.2d 915 (2d Dist. 1984). [FN14] S.C.Adkins v. South Carolina Dept. of Corrections, 360 S.C. 413, 602 S.E.2d 51 (2004). [FN15] N.Y.Hammer v. American Kennel Club, 1 N.Y.3d 294, 771 N.Y.S.2d 493, 803 N.E.2d 766 (2003). Violation of bribery statute No private cause of action existed against a liability insurer for violation of a bribery and corrupt influence statute, or for a violation of a statute prohibiting obstruction of justice, where nothing indicated that an additional civil remedy was necessary to assure the effectiveness of the statutes. IdahoYoakum v. Hartford Fire Ins. Co., 129 Idaho 171, 923 P.2d 416 (1996). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 66 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. II. Cause or Right of Action A. General Considerations 3. Acts or Omissions Constituting Cause of Action Topic Summary References Correlation Table 67. Acts in violation of penal statutes West's Key Number Digest West's Key Number Digest, Action 3, 5 Except where a penal statute is intended merely for the protection of the public, a private right of action arises for injury sustained by a breach of such statute by any person the statute was designed to protect. Where an act is enjoined or forbidden by a penal statute, a person who sustains a special injury by a breach of the duty so imposed generally may maintain an action for such injury, even though the defendant may be subjected to a fine or penalty.[1] However, the resolution of the question ultimately depends upon the intention of the legislature, as construed from the provisions of the particular statute.[2] If it appears that the duty imposed is merely for the benefit of the public, and the fine or penalty a means of enforcing the duty and punishing a breach thereof, the fine or penalty is exclusive and a private action cannot be maintained for injury sustained by reason of the breach.[3] However, the mere absence of a specific provision for civil recovery in the legislation is not alone a ground for denying such a remedy.[4] If it appears that the duty imposed is also for the benefit of particular individuals or classes of individuals, a private right of action arises for injury sustained by reason of the breach by any person the statute was designed to protect,[5] provided the injury sustained by such a person is a special injury different from that inflicted on the general public.[6]
[FN1] U.S.Diehl & Sons, Inc. v. International Harvester Co., 445 F. Supp. 282 (E.D. N.Y. 1978). N.Y.Johnson v. Clay Partition Co., Inc., 93 Misc. 2d 414, 402 N.Y.S.2d 912 (Sup 1977). [FN2] Mich.Wilkerson v. Seder, 81 Mich. App. 726, 265 N.W.2d 807 (1978). N.Y. Stoganovic v. Dinolfo, 92 A.D.2d 729, 461 N.Y.S.2d 121 (4th Dep't 1983), order aff'd, 61 N.Y.2d 812, 473 N.Y.S.2d 972, 462 N.E.2d 149 (1984).
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[FN3] U.S. Ryan v. Ohio Edison Co., 611 F.2d 1170 (6th Cir. 1979); Moen v. Las Vegas Intern. Hotel, Inc., 402 F. Supp. 157 (D. Nev. 1975), aff'd, 554 F.2d 1069 (9th Cir. 1977); Common Cause v. Democratic Nat. Committee, 333 F. Supp. 803 (D.D.C. 1971). No private right of action created (1) Regulatory and penal statutes governing the construction industry did not create a private cause of action against an individual qualifying agent for a corporation acting as a general contractor, absent evidence in the language or legislative history of a legislative intent to create such a private cause of action. Fla.Murthy v. N. Sinha Corp., 644 So. 2d 983 (Fla. 1994). (2) A "restitution" penalty which could be imposed against a pharmacist by a disciplinary committee could not be applied to a civil cause of action for damages, so as to support a cause of action by an illicit drug user against the pharmacy under the statutory purpose doctrine. Mich.Orzel by Orzel v. Scott Drug Co., 449 Mich. 550, 537 N.W.2d 208 (1995). [FN4] U.S.Cross v. Board of Sup'rs of San Mateo County, 326 F. Supp. 634 (N.D. Cal. 1968), judgment aff'd, 442 F.2d 362 (9th Cir. 1971). [FN5] U.S. Spock v. U.S., 464 F. Supp. 510 (S.D. N.Y. 1978); Common Cause v. Democratic Nat. Committee, 333 F. Supp. 803 (D.D.C. 1971). Ill.Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 23 Ill. Dec. 559, 384 N.E.2d 353 (1978). Mich.Wilkerson v. Seder, 81 Mich. App. 726, 265 N.W.2d 807 (1978). [FN6] La.Tuyes v. Chambers, 144 La. 723, 81 So. 265 (1919). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 67 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. II. Cause or Right of Action A. General Considerations 3. Acts or Omissions Constituting Cause of Action Topic Summary References Correlation Table 68. Illegal or immoral transactions West's Key Number Digest West's Key Number Digest, Action 4 A person cannot maintain a cause of action if he or she must rely, in whole or in part, on an illegal or immoral act or transaction to which he or she is a party in order to establish it. A person generally cannot maintain an action if he or she must rely, in whole or in part, on an illegal or immoral act or transaction to which he or she is a party, in order to establish a cause of action.[1] Moreover, a person cannot maintain a claim for damages based on his or her own wrong or caused by his or her own neglect.[2] A person ordinarily may not base a cause of action, in whole or in part, on his or her violation of criminal or penal laws.[3] When a plaintiff has engaged in activities that prohibited, as opposed to merely regulated, by law, the courts will not entertain the suit if the plaintiff's conduct constituted a serious violation of the law and the injuries for which he or she seeks recovery were a direct result of that violation, not because plaintiff contributed to his or her injury.[4] As matter of public policy, where the plaintiff has engaged in unlawful conduct, the courts will not entertain the suit if the plaintiff's conduct constitutes a serious violation of the law and the injuries for which the plaintiff seeks recovery are a direct result of a violation involving hazardous activities which were not justified under the circumstances.[5] This general rule is based on, and controlled by, among others, the general legal principle that a party to an illegal or immoral act or transaction cannot base a cause of action on such act or transaction, and a court will not lend its aid or grant relief to one who founds his or her cause of action on such an act or transaction.[6] Instead, the law will leave the parties to an illegal act or transaction where it found them.[7]
[FN1] Cal.Goldstein v. Enoch, 248 Cal. App. 2d 891, 57 Cal. Rptr. 19 (2d Dist. 1967). IowaAnderson v. Miller, 559 N.W.2d 29 (Iowa 1997).
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N.Y.LaCroix v. Deyo, 108 Misc. 2d 382, 437 N.Y.S.2d 517 (Fam. Ct. 1981). Participation in crime involving moral turpitude An action is barred which seeks damages based on injuries that were a direct result of the injured party's knowing and intentional participation in a crime involving moral turpitude. Ala.Oden v. Pepsi Cola Bottling Co. of Decatur, Inc., 621 So. 2d 953 (Ala. 1993). Fraud (1) One who engages in a fraudulent scheme forfeits all right to prosecution of a lawsuit. Fla.Horjales v. Loeb, 291 So. 2d 92 (Fla. Dist. Ct. App. 3d Dist. 1974). (2) The courts will not aid a fraud-feasor who invokes the court's jurisdiction to profit from his or her own fraud by recovering damages. Ill.Mettes v. Quinn, 89 Ill. App. 3d 77, 44 Ill. Dec. 427, 411 N.E.2d 549 (3d Dist. 1980). [FN2] Ill.Tovar v. Paxton Community Memorial Hospital, 29 Ill. App. 3d 218, 330 N.E.2d 247 (4th Dist. 1975). IowaAnderson v. Miller, 559 N.W.2d 29 (Iowa 1997). "Unlawful acts rule" The "unlawful acts rule" states that no action may be predicated upon an admittedly unlawful act of the party asserting it. Tex.Duncan Land & Exploration, Inc. v. Littlepage, 984 S.W.2d 318 (Tex. App. Fort Worth 1998). "Wrongful conduct rule" Under the "wrongful conduct rule," when a plaintiff's action is based in whole or part on his or her own illegal conduct the plaintiff's claim is generally barred; when the plaintiff's action is based on his or her own illegal conduct, and the defendant has participated equally in the illegal activity, the doctrine of in pari delicto generally applies as well to bar the plaintiff's claim. Mich.Orzel by Orzel v. Scott Drug Co., 449 Mich. 550, 537 N.W.2d 208 (1995). Violation of child labor law A court should not assist parties whose own illegal acts have contributed in the cause of damages; thus, parents' illegal conduct in allowing their minor son to be employed in violation of a child labor law barred their recovery against the employer in a wrongful death suit as beneficiaries of the son's estate. Ill.Reed v. Witvoet, 311 Ill. App. 3d 735, 243 Ill. Dec. 954, 724 N.E.2d 553 (3d Dist. 2000). [FN3] Ariz.Farragut Baggage & Transfer Co. v. Shadron Realty Inc., 18 Ariz. App. 197, 501 P.2d 38
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(Div. 2 1972). IowaAnderson v. Miller, 559 N.W.2d 29 (Iowa 1997). "Illegality defense" The "illegality defense" provides that a party who consents to and participates in an illegal act cannot recover damages from other participants for the consequences of that act. Va.Johnson v. Campbell, 258 Va. 453, 521 S.E.2d 764 (1999). Passenger's active participation in joyriding A passenger's active participation in the criminal activity of joyriding was a such a serious violation of the law that public policy precluded the passenger from maintaining an action against the driver of the stolen vehicle for injuries sustained in an accident. N.Y.Manning by Manning v. Brown, 91 N.Y.2d 116, 667 N.Y.S.2d 336, 689 N.E.2d 1382 (1997). [FN4] Wyo.Feltner v. Casey Family Program, 902 P.2d 206 (Wyo. 1995). Violation of safety statute Where a plaintiff's illegal act only amounts to a violation of a safety statute, such as traffic and speed laws or requirements for a safe workplace, the plaintiff's act, while illegal, does not rise to the level of serious misconduct sufficient to bar a cause of action by application of the wrongful-conduct rule. Mich.Orzel by Orzel v. Scott Drug Co., 449 Mich. 550, 537 N.W.2d 208 (1995). [FN5] N.Y. Manning by Manning v. Brown, 91 N.Y.2d 116, 667 N.Y.S.2d 336, 689 N.E.2d 1382 (1997). Participation in serious criminal acts State public policy generally denies judicial relief to those injured in the course of committing a serious criminal act. Wyo.Feltner v. Casey Family Program, 902 P.2d 206 (Wyo. 1995). [FN6] U.S.Wager v. Pro, 575 F.2d 882 (D.C. Cir. 1976). Ill. Tovar v. Paxton Community Memorial Hospital, 29 Ill. App. 3d 218, 330 N.E.2d 247 (4th Dist. 1975). Mo.Sandbothe v. Williams, 552 S.W.2d 251 (Mo. Ct. App. 1977). Wash. H.O. Meyer Drilling Co. v. Alton V. Phillips Co., 2 Wash. App. 600, 468 P.2d 1008 (Div. 1 1970), decision aff'd, 79 Wash. 2d 431, 486 P.2d 1071 (1971). Corruption
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Public policy closes the doors of the courts to those who sued to collect the rewards of corruption. N.Y.Braunstein v. Jason Tarantella, Inc., 87 A.D.2d 203, 450 N.Y.S.2d 862 (2d Dep't 1982). [FN7] N.M.Schnoor v. Griffin, 79 N.M. 86, 439 P.2d 922 (1968). Wash. H.O. Meyer Drilling Co. v. Alton V. Phillips Co., 2 Wash. App. 600, 468 P.2d 1008 (Div. 1 1970), decision aff'd, 79 Wash. 2d 431, 486 P.2d 1071 (1971). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 68 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. II. Cause or Right of Action A. General Considerations 3. Acts or Omissions Constituting Cause of Action Topic Summary References Correlation Table 69. Illegal or immoral transactionsLimitations and exceptions West's Key Number Digest West's Key Number Digest, Action 4 The general rule that a person may not maintain an action based on his or her own wrong or neglect, or a violation of criminal laws, applies only where the illegality or immorality has a causative, and not merely an incidental, connection with the transaction out of which the alleged cause of action arose. The maintenance of an action ordinarily may be refused or precluded, under the general rule that no action may be maintained based upon illegal or immoral conduct, only where the illegality or immorality with which the plaintiff is chargeable has a causative connection with the particular transaction out of which the alleged cause of action asserted arose.[1] That is, for a wrongful conduct rule to apply, a sufficient causal nexus must exist between the plaintiff's illegal conduct and the asserted damages.[2] The fact that a person has been guilty of a wrong in one particular does not make him or her an outlaw or forfeit his or her right to legal protection and relief in regard to others.[3] Thus, before an "illegality" defense can be successful, a causal relationship must be established between participation in the illegal act and the injuries or damage claimed.[4] Likewise, in order to deny relief to a party because of inequitable conduct, the conduct at issue generally must directly affect the claim being brought.[5] An action may be maintained where the illegal or immoral act or transaction to which the plaintiff is a party is merely incidentally or collaterally connected with the cause of action,[6] and where the plaintiff can establish his or her cause of action without showing or having to rely upon such an act or transaction.[7] Doctrine of in pari delicto. The doctrine of in pari delicto provides that, as between parties who are equally in the wrong, the law will not lend itself to afford relief to one as against the other, but will leave them as it finds them.[8] The doctrine thus bars recovery by a plaintiff who is equally as guilty as the defendant in the breach of the law.[9] However, the in pari delicto doctrine serves as a bar against a defendant's liability only where the plaintiff has been guilty of illegal or fraudulent conduct and was equally or more culpable than the defendant, or acted with the same or greater knowledge as to the illegality or wrongfulness of the transaction.[10] Moreover, when the legislature en-
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acts a statute forbidding certain conduct for the purpose of protecting one class of persons from the activities of another, a member of the protected class may be entitled to maintain an action notwithstanding the fact that he or she has shared in the illegal transaction, and the plaintiff is not considered as being in pari delicto.[11] It does not necessarily follow that when two parties commit an illegal act or engage in the same illegal transaction that they are in pari delicto, for there may be different degrees in their culpability.[12] For example, if one party is but an instrument in the hands of other, then the party under the control of the other cannot be said to be in pari delicto.[13]
[FN1] U.S.Loughran v. Loughran, 292 U.S. 216, 54 S. Ct. 684, 78 L. Ed. 1219 (1934). As to the general rule prohibiting maintenance of actions based upon illegal or immoral transactions, see 68. [FN2] Mich.Orzel by Orzel v. Scott Drug Co., 449 Mich. 550, 537 N.W.2d 208 (1995). Recovery by innocent third party not precluded Parents' illegal conduct in allowing their minor son to be employed in violation of a child labor law did not defeat recovery of damages by the son's innocent surviving brother in a wrongful death suit against the employer brought by the son's estate. Ill.Reed v. Witvoet, 311 Ill. App. 3d 735, 243 Ill. Dec. 954, 724 N.E.2d 553 (3d Dist. 2000). As to the necessity that injury or damage complained of has been caused by the defendant's wrongful act, see 59. [FN3] U.S.Jacoby-Bender, Inc. v. Jacques Kreisler Mfg. Corp., 287 F. Supp. 134 (S.D. N.Y. 1968). [FN4] Va.Johnson v. Campbell, 258 Va. 453, 521 S.E.2d 764 (1999). [FN5] Mass.Amerada Hess Corp. v. Garabedian, 416 Mass. 149, 617 N.E.2d 630 (1993). [FN6] U.S.Loughran v. Loughran, 292 U.S. 216, 54 S. Ct. 684, 78 L. Ed. 1219 (1934). [FN7] Neb.Dunbier v. Mengedoht, 119 Neb. 706, 230 N.W. 669 (1930). Tex.Associated Milk Producers v. Nelson, 624 S.W.2d 920 (Tex. Civ. App. Houston 14th Dist. 1981) , writ refused n.r.e., (Mar. 17, 1982). [FN8] U.S.Wager v. Pro, 575 F.2d 882 (D.C. Cir. 1976). Ill.Martin v. Martin, 57 Ill. App. 3d 486, 15 Ill. Dec. 256, 373 N.E.2d 602 (1st Dist. 1978). Minn. State by Head v. AAMCO Automatic Transmissions, Inc., 293 Minn. 342, 199 N.W.2d 444 (1972). Legal counterpart to "unclean hands" doctrine
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The doctrine of "in pari delicto" is the legal counterpart to the equitable doctrine of unclean hands. IowaGeneral Car & Truck Leasing System, Inc. v. Lane & Waterman, 557 N.W.2d 274 (Iowa 1996). Purpose of doctrine The purpose of the in pari delicto doctrine is to deter future misconduct by denying relief to one whose losses were substantially caused by his or her own fraud or illegal conduct, and public policy considerations are not affected by the theory upon which the wrongdoer seeks recovery. IowaGeneral Car & Truck Leasing System, Inc. v. Lane & Waterman, 557 N.W.2d 274 (Iowa 1996). [FN9] Ala.Ex parte W.D.J., 785 So. 2d 390 (Ala. 2000). Avoidance of income tax obligations An illegal agreement to pay interest on a promissory note in a manner designed to enable the lender to avoid compliance with state and federal income tax regulations was unenforceable, and thus the lender could not collect interest on the promissory note, even though the parties were in pari delicto, and thus some benefit would accrue to the borrower. Cal.Homami v. Iranzadi, 211 Cal. App. 3d 1104, 260 Cal. Rptr. 6 (6th Dist. 1989), opinion modified on other grounds, (June 27, 1989). [FN10] Vt.State v. Therrien, 175 Vt. 342, 830 A.2d 28 (2003). [FN11] N.H. Kowalski v. Cedars of Portsmouth Condominium Ass'n, 146 N.H. 130, 769 A.2d 344 (2001). [FN12] U.S.Stewart v. Wright, 147 F. 321 (C.C.A. 8th Cir. 1906). [FN13] U.S.Wager v. Pro, 575 F.2d 882 (D.C. Cir. 1976). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 69 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. II. Cause or Right of Action A. General Considerations 4. Other Actions and Considerations Topic Summary References Correlation Table 70. Actions of first impression West's Key Number Digest West's Key Number Digest, Action 1 An action or defense, although one of first impression, may be maintained if, under any recognized principle of law, the facts involved constitute a violation of a legal right. The mere absence of a precedent does not mean that there is no remedy for the alleged cause of action, even though the case may be novel or of first impression and involves the application of an established principle to a new situation, and an action may be maintained if under any recognized or established principle of law there is a violation of a legal right.[1] A court should not withhold appropriate relief, by applying rigid construction to causes of action or claims asserted by the plaintiff, if a right entitled to protection is shown.[2] On the other hand, the court should examine it with care and proceed with caution, before allowing a new cause of action and should be slow to establish a new legal principle not in harmony with the generally accepted views thereon.[3]
[FN1] U.S. Heine v. New York Life Ins. Co., 50 F.2d 382 (C.C.A. 9th Cir. 1931); U.S. v. Pennzoil Co., 252 F. Supp. 962 (W.D. Pa. 1965). Mass.George v. Jordan Marsh Co., 359 Mass. 244, 268 N.E.2d 915, 46 A.L.R.3d 762 (1971). N.Y.Williams v. State, 18 N.Y.2d 481, 276 N.Y.S.2d 885, 223 N.E.2d 343 (1966). Predicted effects unpersuasive The fact that the creation of a new cause of action will increase litigation is unpersuasive in determining whether or not that cause of action ought to be created, unless the litigation largely will be spurious, and the possibility that a new cause of action will be abused by some plaintiffs cannot obscure the need to provide an appropriate remedy. HawaiiFergerstrom v. Hawaiian Ocean View Estates, 50 Haw. 374, 441 P.2d 141 (1968).
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[FN2] N.Y. Chesler v. Avon Book Division, Hearst Publications, Inc., 76 Misc. 2d 1048, 352 N.Y.S.2d 552 (Sup 1973). [FN3] U.S.Warshauer v. Lloyd Sabaudo S.A., 71 F.2d 146 (C.C.A. 2d Cir. 1934). Mo.Reinhold v. Fee Fee Trunk Sewer, Inc., 664 S.W.2d 599 (Mo. Ct. App. E.D. 1984). Heavy burden Where the plaintiff is proceeding on a cause of action not presently recognized in the state, he or she bears the heavy burden of demonstrating that this new cause of action should be adopted. N.Y.Chin v. American Tel. & Tel. Co., 96 Misc. 2d 1070, 410 N.Y.S.2d 737 (Sup 1978). Violation of public policy A cause of action will not be cognizable in the courts when it is violative of strong public policy. N.Y. Demov, Morris, Levin & Shein v. Glantz, 53 N.Y.2d 553, 444 N.Y.S.2d 55, 428 N.E.2d 387 (1981). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 70 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. II. Cause or Right of Action A. General Considerations 4. Other Actions and Considerations Topic Summary References Correlation Table 71. Fictitious or collusive actions West's Key Number Digest West's Key Number Digest, Action 8 A fictitious or collusive action will not be entertained by the courts, since no actual and justiciable controversy is presented, but an amicable or friendly action, in which there is an actual controversy involving adverse interests, will not be regarded as fictitious or collusive. A "fictitious action" or "fictitious suit" may be defined as an action or suit brought on pretense of a controversy when no such controversy in truth exists.[1] A "fictitious suit" also may be defined as a mere colorable dispute to obtain the opinion of the court upon a question of law which a party desires to know for his or her own interest or purposes, when there is no real or substantial controversy between those who appear as adverse parties to the suits.[2] A "collusive action" or "collusive suit" is one brought by seemingly adverse parties under secret agreement and cooperation, with a view to have some legal question decided which is not involved in a real controversy between them.[3] In accordance with the principle that the function of a judicial tribunal is to hear and determine real controversies, and the principle that court proceedings contemplate an adversary situation,[4] the object of every action should be to settle a real controversy existing between the parties and involving adverse interests, and therefore an action or suit cannot be maintained if it appears that it has not such an object, but is fictitious or collusive.[5] An action cannot be maintained, as being fictitious or collusive, where its real object is to procure an advisory opinion of the court, without an actual contest.[6] A court's power extends only to the cases and controversies brought before it.[7] An action not founded upon an actual controversy between the parties to it, and brought for the purpose of securing a determination of a point of law, is collusive and will not be entertained.[8] Nor can an action be maintained to procure a judgment which will affect or settle the rights or liabilities of third persons who are not parties to the action.[9] An action will be precluded, as being fictitious or collusive, where its real purpose is for one party to control both sides of the lawsuit so as to bring about a predetermined, desired result,[10] or to misuse the powers of
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the court to delay action in another court.[11] Likewise, an action cannot be maintained where the action is brought by one who has no interest therein, at the instance of an outsider to aid him or her in effecting a wrong against the defendant,[12] or where one party becomes the owner of the whole opposing interests and is the sole party in interest.[13] An action also generally is not maintainable, as being fictitious or collusive, where the selection of counsel and the payment of his or her fees are performed by the opposing party.[14] Although the adjudication of the merits of an action before the court ordinarily is the limit of its duty, there may exist circumstances in which the court should determine the intention with which the litigation is brought in order to avoid hearing a collusive action or one which does not present a justiciable controversy.[15] Amicable action involving actual controversy. Even though an action is an amicable one, if there is an actual controversy involving adverse interests between the parties,[16] as evidenced by fierce litigation,[17] the action will not be regarded as fictitious or collusive, despite the fact that the right involved is asserted or denied for the purpose of making a test case.[18] An action brought under such circumstances is not fictitious or collusive merely because the parties entertain the same opinion as to the validity of a statute which the action is brought to test,[19] or because both the plaintiff and the defendant desire that the suit be decided in a given way, particularly where the question to be decided is of public importance.[20] Collusion will not be inferred from the mere fact that the defendant entered an appearance and consent to trial without process being served on him or her.[21]
[FN1] Tenn.Petway v. Hoover, 12 Tenn. App. 618, 1931 WL 1512 (1931). [FN2] Md.Reyes v. Prince George's County, 281 Md. 279, 380 A.2d 12 (1977). [FN3] Tex.Texas & P. Ry. Co. v. Gay, 86 Tex. 571, 26 S.W. 599 (1894), aff'd, 167 U.S. 745, 17 S. Ct. 1000, 42 L. Ed. 1209 (1897). [FN4] Wyo.State v. Board of County Com'rs of Johnson County, 642 P.2d 456 (Wyo. 1982). As to the general prohibition against judicial review of abstract or hypothetical questions, see 74. [FN5] Cal.Golden Gate Bridge and Highway Dist. v. Felt, 214 Cal. 308, 5 P.2d 585 (1931). [FN6] Cal.Golden Gate Bridge and Highway Dist. v. Felt, 214 Cal. 308, 5 P.2d 585 (1931). Md.Reyes v. Prince George's County, 281 Md. 279, 380 A.2d 12 (1977). As to the necessity of an actual and justiciable controversy in declaratory judgment actions, see C.J.S., Declaratory Judgments 22 to 29. [FN7] 74. [FN8] HawaiiState v. Hoang, 93 Haw. 333, 3 P.3d 499 (2000). [FN9] Cal.Golden Gate Bridge and Highway Dist. v. Felt, 214 Cal. 308, 5 P.2d 585 (1931).
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Mass.Horneman v. Brown, 286 Mass. 65, 190 N.E. 735 (1934). [FN10] U.S.First Nat. Bank in Mena v. Nowlin, 374 F. Supp. 1037 (E.D. Ark. 1974), judgment aff'd, 509 F.2d 872 (8th Cir. 1975). [FN11] U.S.Bell & Howell Co. v. Bliss, 262 F. 131 (C.C.A. 7th Cir. 1919). [FN12] Kan.Burdett v. Surdez, 94 Kan. 494, 146 P. 1025 (1915). [FN13] Ill.Ex parte McKenzie, 162 Ill. 48, 44 N.E. 413 (1896). [FN14] Md.Reyes v. Prince George's County, 281 Md. 279, 380 A.2d 12 (1977). [FN15] U.S.Joseph Bancroft & Sons Co. v. Shelley Knitting Mills, Inc., 374 F.2d 28 (3d Cir. 1967). [FN16] U.S.Garland Co. v. Filmer, 1 F. Supp. 8 (N.D. Cal. 1932). Md.Reyes v. Prince George's County, 281 Md. 279, 380 A.2d 12 (1977). [FN17] Ala.City of Birmingham v. Bouldin, 280 Ala. 76, 190 So. 2d 271 (1966). [FN18] Kan.State v. Dolley, 82 Kan. 533, 108 P. 846 (1910). [FN19] U.S.Cotting v. Godard, 183 U.S. 79, 22 S. Ct. 30, 46 L. Ed. 92 (1901). Ind.Parker v. State ex rel. Powell, 132 Ind. 419, 31 N.E. 1114 (1892). [FN20] Ala.City of Birmingham v. Bouldin, 280 Ala. 76, 190 So. 2d 271 (1966). As to the necessity of conflicting interests to the existence of an actual controversy, see 74. [FN21] Ark.State v. Pollard, 171 Ark. 607, 286 S.W. 811 (1926). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 71 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. II. Cause or Right of Action A. General Considerations 4. Other Actions and Considerations Topic Summary References Correlation Table 72. Actions involving trivial matters or amounts West's Key Number Digest West's Key Number Digest, Action 1, 2 The principle that the law does not care for trifles ordinarily applies only where only trivial matters or amounts are involved in an action. The principle that the law does not care for trifles, as expressed in the legal maxim, de minimis non curat lex, may be applied in actions at law.[1] That principle may pertain, for example, where no damage is implied by law from the wrong, and only trifling or immaterial damage results therefrom.[2] On the other hand, where there is a direct invasion of a legal right, the plaintiff is not to be deprived of his or her right of action because the damages sought or recoverable are small.[3] The law does not provide a remedy for every perceived harm,[4] and a court may refuse to award even nominal damages where the wrong complained of, as distinguished from the damages sustained, is trivial.[5] If an ostensibly trivial matter involves a principle which may lead to consequential results, however, the law ordinarily will accord the same attention to such a matter that it will give to more considerable matters.[6] The principle of the maxim that the law does not deal with trivialities does not apply where the action involves a constitutional right.[7] CUMULATIVE SUPPLEMENT Cases: A motion to compel arbitration is analogous to a motion for a summary judgment. Edward D. Jones & Co., LP v. Ventura, 907 So. 2d 1035 (Ala. 2005). [END OF SUPPLEMENT]
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[FN1] N.Y. Hewlett-Woodmere Public Library v. Rothman, 108 Misc. 2d 715, 438 N.Y.S.2d 730 (Dist. Ct. 1981). No easily ascertainable standards There are no easily ascertainable standards for determining when a plaintiff's injury is de minimus. U.S.Cape v. Tennessee Secondary School Athletic Ass'n, 424 F. Supp. 732 (E.D. Tenn. 1976), judgment rev'd on other grounds, 563 F.2d 793 (6th Cir. 1977). [FN2] UtahWhite v. Rio Grande Western Ry. Co., 25 Utah 346, 71 P. 593 (1903). As to vexatious or frivolous actions, see 73. [FN3] La.Holmes v. Warren, 12 La. App. 399, 126 So. 259 (Orleans 1930). [FN4] U.S. Wooten v. Pleasant Hope R-VI School Dist., 270 F.3d 549, 158 Ed. Law Rep. 221 (8th Cir. 2001). [FN5] C.J.S., Damages 15. [FN6] Wash. State v. Superior Court of Washington for Mason County, 136 Wash. 87, 238 P. 985 (1925). [FN7] N.Y.Grunzfelder v. Interborough Rapid Transit Co., 164 A.D. 928, 149 N.Y.S. 437 (1st Dep't 1914). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 72 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. II. Cause or Right of Action A. General Considerations 4. Other Actions and Considerations Topic Summary References Correlation Table 73. Unnecessary, vexatious, or frivolous actions West's Key Number Digest West's Key Number Digest, Action 8, 9 An action which is merely vexatious and frivolous, or which is unnecessary and cannot produce any practical results, ordinarily cannot be maintained. While the courts generally are open to litigation of complaints regardless of how baseless or ill-founded they eventually prove to be,[1] pursuant to a court's inherent power[2] and duty[3] to protect itself and litigants against vexatious and harassing litigation, a party will not be permitted to maintain an action which is vexatious.[4] Likewise, the courts will not countenance frivolous[5] or malicious litigation, and the state's interest in not allowing such actions is constitutionally paramount to a plaintiff's desire to pursue such litigation.[6] In addition, a party will be precluded from maintaining an action which is unnecessary and cannot be productive of any practical results,[7] as where by reason of circumstances occurring prior to its determination the question involved has ceased to be a practical one, leaving only a moot question.[8] The test for determining if an action is frivolous or without merit is whether the plaintiff can make a rational argument on the law or facts in support of his or her claim.[9] Refusal to settle a lawsuit is legally irrelevant to show that a claim or defense is frivolous and should not be continued.[10] Where a plaintiff has demonstrated a propensity for filing numerous frivolous and vexatious lawsuits, the plaintiff may be required to seek leave from the court before filing a civil action.[11] On the other hand, a court may simply refuse to entertain further complaints by such a plaintiff.[12] In determining the propriety of a particular method used to restrict or condition the activities of a vexatious litigator, the principles of reasonableness, rationality, and access to courts apply interdependently to frame a single constitutional inquiry, which is whether the challenged procedure is properly tailored to prevent further abuse of court processes without unduly burdening the submission of legitimate claims.[13] A vexatious litigator statute, which imposes limitations on the conduct of persons who have habitually, persistently, and without reasonable grounds engaged in vexatious litigation conduct, is constitutional in its entirety, where the statute bears a substantial relationship to the compelling public interest in curbing illegitimate activities of vexatious litigators,
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and is not unreasonable or arbitrary.[14]
[FN1] U.S. Stevens v. Frick, 259 F. Supp. 654 (S.D. N.Y. 1966), order aff'd, 372 F.2d 378 (2d Cir. 1967). [FN2] Ill.Trustees of Schools of Tp. 42 North v. Schroeder, 8 Ill. App. 3d 122, 289 N.E.2d 247 (1st Dist. 1972). [FN3] Ill.Mederacke v. Becker, 129 Ill. App. 2d 434, 263 N.E.2d 257 (4th Dist. 1970). [FN4] Tex.Carter v. Money Tree Co., 504 S.W.2d 783 (Tex. Civ. App. Houston 14th Dist. 1974). Suit for purposes of oppression or harassment N.Y.Bankers Trust Co. v. Braten Apparel Corp., 68 A.D.2d 810, 413 N.Y.S.2d 934 (1st Dep't 1979). Public policy against vexatious litigation Where the apparent purpose of a plaintiff's second action was to prevent the defendants from gaining under a statute, even though that would not result in gain to the plaintiff, the plaintiff was engaged in proscribed vexatious litigation and was precluded by the public policy against vexatious litigation from bringing the second action. N.Y.Old Dutch Lands, Inc. v. City of New York, 55 Misc. 2d 384, 286 N.Y.S.2d 86 (Sup 1967). Breach of venue clause It is not vexatious for a party to raise a violation of federal and state antitrust laws in a forum other than the one designated in a venue selection clause of a contract between the parties. U.S.Hospah Coal Co. v. Chaco Energy Co., 673 F.2d 1161 (10th Cir. 1982). [FN5] U.S. Gordon v. Secretary of State of N. J., 460 F. Supp. 1026 (D.N.J. 1978); Stambler v. Dillon, 288 F. Supp. 646 (S.D. N.Y. 1968). Neb.State ex rel. Tyler v. Douglas County Dist. Court, 254 Neb. 852, 580 N.W.2d 95 (1998). Tenn.Norton Creek Community Ass'n v. Rodman Corp., 560 S.W.2d 914 (Tenn. Ct. App. 1977). What constitutes frivolous litigation A claim constitutes frivolous litigation if, judging the claimant's conduct as a whole, the claim was brought in bad faith for the purpose of delay and harassment. N.J.Application of La Tourette, 156 N.J. 444, 720 A.2d 339 (1998). Protection of indigents
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It is the duty of the court to be alert to protection of indigents in their lawful rights, but this does not mean that the court must open its forum to obviously frivolous and dubious claims under whatever guise they may be presented. U.S.Spears v. U. S., 266 F. Supp. 22 (S.D. W. Va. 1967). [FN6] Neb.State ex rel. Tyler v. Douglas County Dist. Court, 254 Neb. 852, 580 N.W.2d 95 (1998). No violation of separation of powers doctrine A vexatious litigator statute, which imposes limitations on conduct of persons who have habitually, persistently, and without reasonable grounds engaged in vexatious litigation conduct, does not violate the doctrine of separation of powers. OhioMayer v. Bristow, 91 Ohio St. 3d 3, 2000 -Ohio- 109, 740 N.E.2d 656 (2000). [FN7] Pa.Rodgers v. Black, 15 Pa. Super. 498, 1901 WL 3532 (1901). S.C.Petition of Fant, 147 S.C. 167, 145 S.E. 34 (1928). [FN8] Ill.Kelly v. Massachusetts Mut. Life Ins. Co., 46 Ill. App. 460, 1892 WL 2302 (1st Dist. 1892). Va.State v. Lambert, 52 W. Va. 248, 43 S.E. 176 (1903). As to abstract and moot questions, generally, see 74. [FN9] U.S.Davis v. Oklahoma Dept. of Corrections, 516 F. Supp. 5 (W.D. Okla. 1980). Evidence There is no requirement that a trial court must take evidence to determine whether a matter is frivolous, and it may do so on the record alone. Fla.O'Brien v. Brickell Townhouse, Inc., 457 So. 2d 1123 (Fla. Dist. Ct. App. 3d Dist. 1984). [FN10] Wis.State v. State Farm Fire & Cas. Co., 100 Wis. 2d 582, 302 N.W.2d 827 (1981). [FN11] U.S.Brown v. Gibson, 571 F. Supp. 1075 (W.D. Mo. 1983). Certification on leave to court U.S.Demos v. Kincheloe, 563 F. Supp. 30 (E.D. Wash. 1982). [FN12] U.S.Howard v. King, 707 F.2d 215 (5th Cir. 1983). Power to restrain N.Y. Hotel Martha Washington Management Co. v. Swinick, 67 Misc. 2d 390, 324 N.Y.S.2d 687 (N.Y. City Civ. Ct. 1971), order modified on other grounds, 71 Misc. 2d 982, 337 N.Y.S.2d 976 (App. Term 1972).
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Class actions. A state cannot reduce frivolous litigation by excluding from court an entire class of litigants because some members of the class may assert improper claims. U.S.Delorme v. Pierce Freightlines Co., 353 F. Supp. 258 (D. Or. 1973). [FN13] OhioMayer v. Bristow, 91 Ohio St. 3d 3, 2000 -Ohio- 109, 740 N.E.2d 656 (2000). [FN14] OhioMayer v. Bristow, 91 Ohio St. 3d 3, 2000 -Ohio- 109, 740 N.E.2d 656 (2000). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 73 END OF DOCUMENT
CJS ACTIONS II B REF 1A C.J.S. Actions II B Refs.
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. II. Cause or Right of Action B. Abstract and Moot Questions Topic Summary Correlation Table Research References A.L.R. Library West's A.L.R. Digest, Action 6
A.L.R. Index: Civil Procedure Rules; Equity; Joinder of Actions; Moot and Abstract Matters; Parties; Severance of Action; Splitting Cause of Action; Statutes; Stay of Action or Proceeding Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS II B REF END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. II. Cause or Right of Action B. Abstract and Moot Questions 1. In General Topic Summary References Correlation Table 74. Generally West's Key Number Digest West's Key Number Digest, Action 6 A judicial tribunal ordinarily may consider and determine only an existing controversy, and not a moot question or abstract proposition. A court's power extends only to the cases and controversies brought before it.[1] Since judicial authority generally may be exercised only if an actual controversy exists,[2] to invoke the jurisdiction of a court it is primarily essential that there be involved a real and existing controversy, calling for a present adjudication involving present rights.[3] It also is essential that some relief be sought which may be granted.[4] Otherwise stated, the function or duty of a judicial tribunal is to determine real controversies relative to the legal rights of persons or property, which are actually involved in the particular case properly brought before it,[5] and to adjudicate these rights in such manner that the determination will be operative, final, and conclusive, by a judgment that can be carried into effect.[6] If a case has become moot, or if the judgment would not accomplish an end recognized as sufficient in law, there is no necessity for judgment, and the court will dismiss the case without considering the merits of the asserted cause of action.[7] Accordingly, the courts ordinarily are not empowered to decide abstract, hypothetical, or moot controversies,[8] or to render advisory opinions with respect to such controversies.[9] Courts do not sit for the purpose of determining speculation and abstract questions of law, or for the purpose of laying down rules for future conduct.[10] The power of the courts cannot be enlarged by a stipulation[11] or a waiver[12] of the parties to the action. Justiciability. In order to avoid deciding abstract questions, courts require that cases submitted for adjudication be justiciable.[13] A "justiciable controversy" is a controversy in which a claim of right is asserted against one who has an interest in contesting it.[14] Justiciability cannot be conferred by stipulation or consent of the parties.[15] Justiciability requires a real and substantial controversy, admitting of specific relief through a judgment of
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conclusive character.[16] CUMULATIVE SUPPLEMENT Cases: Concepts of justiciability are divided into different categories, such as advisory opinions, feigned and collusive cases, standing, ripeness, mootness, political questions, and administrative questions. Morr-Fitz, Inc. v. Blagojevich, 231 Ill. 2d 474, 327 Ill. Dec. 45, 901 N.E.2d 373 (2008). Questions of standing and ripeness raise delicate issues regarding the exercise of judicial power; on the one hand, state courts do not want to intervene too soon in legal matters by deciding abstract issues without a fully developed factual record made by parties with a strong motivation to illuminate the issues, while on the other hand, state courts do not want to intervene too late, either, after legal rights have been irreparably harmed or where the potential benefits of a timely and authoritative judicial determination have been lost. Berent v. City of Iowa City, 738 N.W.2d 193 (Iowa 2007). An exception to the mootness doctrine exists where matters of public importance are presented and the problem is likely to recur. In re T.S., 705 N.W.2d 498 (Iowa 2005). Supreme Court's duty is to decide actual controversies between parties, and to refrain from giving opinions on abstract propositions, and to avoid the imposition by judgment of premature declarations or advice upon potential controversies. State v. Kalish, 120 Ohio St. 3d 23, 2008-Ohio-4912, 896 N.E.2d 124 (2008). The Supreme Court does not issue advisory opinions or answer hypothetical questions. Scott v. Peterson, 2005 OK 84, 126 P.3d 1232 (Okla. 2005). To constitute a justiciable controversy, there must exist a real and substantial controversy involving genuine conflict of tangible interests and not merely a theoretical dispute. Kessling v. Friendswood Independent School Dist., 302 S.W.3d 373 (Tex. App. Houston 14th Dist. 2009), petition for review filed, (Dec. 21, 2009). Whether a justiciable controversy exists, and thus whether claims have become moot on the one hand and whether they have ripened on the other, is a threshold question that implicates subject matter jurisdiction. Kessling v. Friendswood Independent School Dist., 302 S.W.3d 373 (Tex. App. Houston 14th Dist. 2009), petition for review filed, (Dec. 21, 2009). Under the mootness doctrine, a controversy must involve a dispute of something more than a hypothetical or abstract character. Texas Com'n on Enviro. v. San Marcos River, 267 S.W.3d 356 (Tex. App. Corpus Christi 2008), reh'g overruled, (Oct. 30, 2008) and petition for review filed, (Dec. 16, 2008). [END OF SUPPLEMENT]
[FN1] Ala.City of Daphne v. City of Spanish Fort, 853 So. 2d 933 (Ala. 2003). Limitation of judicial power of federal courts Limitation of the judicial power of the federal courts under Article III of the United States Constitution to cases and controversies, and the resulting refusal of the United States Supreme Court to issue advisory opinions or to resolve disputes that are not justiciable, helps to ensure the independence of the judicial branch by precluding debilitating entanglements between the judiciary and the two political branches, and prevents the judiciary from encroaching into areas reserved for the other branches by extending judicial power to matters beyond those disputes traditionally thought to be capable of resolution
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through the judicial process. U.S.Mistretta v. U.S., 488 U.S. 361, 109 S. Ct. 647, 102 L. Ed. 2d 714 (1989). As to the necessity of a case or controversy to the jurisdiction of the federal courts, see C.J.S., Federal Courts 2; 90, 91. [FN2] Colo.In re Tomlinson, 851 P.2d 170 (Colo. 1993). Lack of subject-matter jurisdiction The courts lack subject-matter jurisdiction in the absence of a justiciable controversy. Ill.People v. Capitol News, Inc., 137 Ill. 2d 162, 148 Ill. Dec. 1, 560 N.E.2d 303, 13 A.L.R.5th 1029 (1990). Case or controversy requirement satisfied The case or controversy requirement of exercising jurisdiction was satisfied in a pinball arcade owner's challenge to the validity of a municipal ordinance prohibiting youths under 17 from playing video games when their parents are not present, in view of the fact that the owner of the arcade was obliged either to heed the statutory prohibition, thereby incurring a direct economic injury, or disobey the statutory command and suffer legal sanctions. Mich.People v. Walker, 135 Mich. App. 267, 354 N.W.2d 312 (1984). [FN3] Cal.People v. Cimarusti, 81 Cal. App. 3d 314, 146 Cal. Rptr. 421 (4th Dist. 1978). Minn. Izaak Walton League of America Endowment, Inc. v. State, Dept. of Natural Resources, 312 Minn. 587, 252 N.W.2d 852 (1977). N.M.Kennecott Copper Corp. v. Town of Hurley, 84 N.M. 743, 507 P.2d 1074 (1973). N.Y.Hearst Corp. v. Clyne, 50 N.Y.2d 707, 431 N.Y.S.2d 400, 409 N.E.2d 876 (1980). OhioState ex rel. Watkins v. Teater, 11 Ohio App. 3d 103, 463 N.E.2d 407 (9th Dist. Wayne County 1983). Tex.McKenzie v. McKenzie, 667 S.W.2d 568 (Tex. App. Dallas 1984). Wis.Klaus v. Vander Heyden, 106 Wis. 2d 353, 316 N.W.2d 664 (1982). Public policy basis for mootness and standing requirements The mootness doctrine is founded on the same policy interests as the doctrine of standing, namely, to assure the vigorous presentation of arguments concerning the matter at issue. Conn.Town of Wallingford v. Department of Public Health, 262 Conn. 758, 817 A.2d 644 (2003). [FN4] Mich.School Dist. of City of East Grand Rapids, Kent County v. Kent County Tax Allocation
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Bd., 415 Mich. 381, 330 N.W.2d 7, 9 Ed. Law Rep. 663 (1982). Mo.State ex rel. Cervantes v. Bloom, 485 S.W.2d 446 (Mo. Ct. App. 1972). [FN5] Ill.Kittay v. Allstate Ins. Co., 78 Ill. App. 3d 335, 33 Ill. Dec. 867, 397 N.E.2d 200 (1st Dist. 1979). N.J.Clark v. Degnan, 163 N.J. Super. 344, 394 A.2d 914 (Law Div. 1978), judgment aff'd and modified, 83 N.J. 393, 416 A.2d 816 (1980). [FN6] Ark. Frisby v. Strong School Dist., 282 Ark. 81, 666 S.W.2d 391, 16 Ed. Law Rep. 1416 (1984). [FN7] Ala.Hornsby v. Sessions, 703 So. 2d 932 (Ala. 1997). When mootness occurs Unless an exception exists, a case becomes moot when any judgment rendered would have no practical legal effect upon a then-existing legal controversy. Ark.McCollum v. McCollum, 328 Ark. 607, 946 S.W.2d 181 (1997). As to what constitutes mootness, see 76. As to the exception to the mootness doctrine which pertains to controversies capable of repetition, yet evading review, see 82. [FN8] U.S.Socialist Labor Party v. Gilligan, 406 U.S. 583, 92 S. Ct. 1716, 32 L. Ed. 2d 317 (1972); Thorpe v. Housing Authority of City of Durham, 393 U.S. 268, 89 S. Ct. 518, 21 L. Ed. 2d 474 (1969). Conn. Waterbury Hospital v. Connecticut Health Care Associates, 186 Conn. 247, 440 A.2d 310 (1982). Ill.Hill v. Butler, 107 Ill. App. 3d 721, 63 Ill. Dec. 385, 437 N.E.2d 1307 (4th Dist. 1982). IowaToomer v. Iowa Dept. of Job Service, 340 N.W.2d 594 (Iowa 1983). Kan.City of Roeland Park v. Cross, 229 Kan. 269, 623 P.2d 1332 (1981). La. Stannard Broadcasting Co., Inc. v. Vernon Parish School Bd., 422 So. 2d 591, 8 Ed. Law Rep. 211 (La. Ct. App. 3d Cir. 1982). Me.Globe Air, Inc. v. Thurston, 438 A.2d 884 (Me. 1981). N.C.First Nat. Bank of Catawba County v. Edens, 55 N.C. App. 697, 286 S.E.2d 818 (1982). OhioState ex rel. Gantt v. Coleman, 6 Ohio St. 3d 5, 450 N.E.2d 1163 (1983). Pa.Com. v. One 1978 Lincoln Mark V, 52 Pa. Commw. 353, 415 A.2d 1000 (1980).
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UtahStromquist v. Cokayne, 646 P.2d 746 (Utah 1982). Wash.State v. Turner, 98 Wash. 2d 731, 658 P.2d 658, 9 Ed. Law Rep. 396 (1983). W.Va.State ex rel. Durkin v. Neely, 166 W. Va. 553, 276 S.E.2d 311 (1981). Wis.Wisconsin Ass'n of Mfrs. and Commerce, Inc. v. Public Service Commission of Wisconsin, 100 Wis. 2d 300, 301 N.W.2d 247 (1981). [FN9] U.S.Connolly v. Pension Benefit Guaranty Corp., 673 F.2d 1110 (9th Cir. 1982); U.S. v. Cleveland Trust Co., 392 F. Supp. 699 (N.D. Ohio 1974). N.D.City of Minot v. Central Ave. News, Inc., 325 N.W.2d 243 (N.D. 1982). UtahMerhish v. H. A. Folsom & Associates, 646 P.2d 731 (Utah 1982). [FN10] Ark.Harris v. City of Little Rock, 344 Ark. 95, 40 S.W.3d 214 (2001). "Moot" and "abstract" questions distinguished A "moot question" is one that existed but because of the happening of certain events has ceased to exist and no longer presents an actual controversy over the interest or rights of a party; an "abstract question" is one in existence, but for which no effectual relief can be granted. Ill.Johnson v. Quern, 90 Ill. App. 3d 151, 45 Ill. Dec. 500, 412 N.E.2d 1082 (4th Dist. 1980). [FN11] U.S.U.S. v. Hamburg-Amerikanische Packet-Fahrt-Actien Gesellschaft, 239 U.S. 466, 36 S. Ct. 212, 60 L. Ed. 387 (1916); Panama R. Co. v. Johnson, 289 F. 964 (C.C.A. 2d Cir. 1923), aff'd, 264 U.S. 375, 44 S. Ct. 391, 68 L. Ed. 748 (1924). [FN12] U.S.Gilchrist v. Califano, 473 F. Supp. 1102 (S.D. N.Y. 1979). [FN13] Cal.Cornblum v. Board of Supervisors, 110 Cal. App. 3d 976, 168 Cal. Rptr. 294 (4th Dist. 1980). Conn.Kleinman v. Marshall, 192 Conn. 479, 472 A.2d 772 (1984). Ill.In re Estate of Bishop, 127 Ill. App. 3d 165, 82 Ill. Dec. 244, 468 N.E.2d 506 (4th Dist. 1984). Ind.Aeronautics Com'n of Indiana v. State ex rel. Emmis Broadcasting Corp., 440 N.E.2d 700 (Ind. Ct. App. 2d Dist. 1982). IowaIowa Bankers Ass'n v. Iowa Credit Union Dept., 335 N.W.2d 439 (Iowa 1983). Okla.Application of State ex rel. Dept. of Transp., 1982 OK 36, 646 P.2d 605 (Okla. 1982). Pa. Lewis v. Thornburgh, 75 Pa. Commw. 207, 462 A.2d 310 (1983), order aff'd, 504 Pa. 206, 470 A.2d 952 (1983). S.C.Charleston County School Dist. v. Thomas, 277 S.C. 145, 283 S.E.2d 441 (1981).
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Nebulous, far-reaching concept Justiciability is a nebulous, far-reaching concept that incorporates, among other things, political questions and mootness. N.Y.Klostermann v. Cuomo, 61 N.Y.2d 525, 475 N.Y.S.2d 247, 463 N.E.2d 588 (1984). [FN14] Ala.Ex parte James, 713 So. 2d 869, 128 Ed. Law Rep. 415 (Ala. 1997), vacated in part on other grounds, 819 So. 2d 568, 167 Ed. Law Rep. 535 (Ala. 2001) and appeal dismissed, 836 So. 2d 813, 174 Ed. Law Rep. 487 (Ala. 2002). Criteria of justiciability Pa.Zemprelli v. Thornburg, 47 Pa. Commw. 43, 407 A.2d 102 (1979). Two elements Justiciability requires two elements: a real and substantial controversy and a plaintiff with standing to raise the issues presented. Me.School Committee of Town of York v. Town of York, 626 A.2d 935, 83 Ed. Law Rep. 1075 (Me. 1993). Future rights The fact that the parties' rights will not mature until occurrence of a future event does not negate the existence of a justiciable controversy if a present resolution of the issue will have immediately significant legal and financial consequences. Tex.Wolfe v. Schuster, 591 S.W.2d 926, 10 A.L.R.4th 888 (Tex. Civ. App. Dallas 1979). As to the necessity of ripeness of a controversy for judicial review, see 75. [FN15] Or.Barcik v. Kubiaczyk, 321 Or. 174, 895 P.2d 765, 100 Ed. Law Rep. 759 (1995). [FN16] Me.Madore v. Maine Land Use Regulation Com'n, 1998 ME 178, 715 A.2d 157 (Me. 1998). Ripeness as sine qua non of justiciability Conn.Esposito v. Specyalski, 268 Conn. 336, 844 A.2d 211 (2004). Relationship to mootness Under the mootness doctrine, although there may have been justiciable controversy when the litigation was commenced, the action will be dismissed if that controversy ceases to exist. Del.General Motors Corp. v. New Castle County, 701 A.2d 819 (Del. 1997). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. II. Cause or Right of Action B. Abstract and Moot Questions 1. In General Topic Summary References Correlation Table 75. Ripeness requirements West's Key Number Digest West's Key Number Digest, Action 6 Under ripeness principles, the courts generally do not consider cases involving uncertain or contingent future matters, and it is required that there be an actual case or controversy between the parties that is sufficiently immediate and real so as to warrant adjudication. The traditional ripeness doctrine requires a petitioner or plaintiff to prove that the case presents definite and concrete issues, that a real and substantial controversy exists, and that there is a present need for adjudication.[1] The ripeness doctrine requires the judiciary to refrain from giving advisory opinions on hypothetical issues.[2] "Ripeness" involves the timing of judicial review and the principle that judicial machinery should be conserved for problems that are real and present or imminent, not squandered on problems that are abstract or hypothetical or remote.[3] The United States Constitution permits the federal courts to adjudicate only actual cases and controversies, and actual controversy requires that a controversy be ripe for adjudication.[4] In order for a case to be justiciable under Article III of the Federal Constitution, it must also be ripe for review.[5] "Ripeness" relates to the degree to which defined issues in the case are based on actual facts, rather than on abstract possibilities, and are capable of being adjudicated on an adequately developed record.[6] When considering a ripeness issue, the court must generally address two factors: first, whether the relevant issues are sufficiently focused to permit judicial resolution without further factual development; and, second, whether the parties would suffer any hardship by postponement of judicial action.[7] Under ripeness principles, the courts generally do not consider cases involving uncertain or contingent future matters, and it is required that there be an actual case or controversy between the parties that is sufficiently immediate and real so as to warrant adjudication.[8] In the absence of some exigency, therefore, a court will not predetermine a question, dependent upon some contingency or uncertainty, that may arise in the future,[9] or lay down rules or propositions as to possible or probable issues, for the guidance of litigants as to their future conduct or dealings.[10]
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In order to be ripe for adjudication, an action must not brought prematurely.[11] However, the ripeness requirement does not prevent a court from resolving a concrete dispute if the consequence of a deferred decision will be lingering uncertainty in the law, especially when there is widespread public interest in the answer to a particular legal question.[12] The ripeness requirement prevents the courts from issuing purely advisory opinions, or considering a hypothetical state of facts in order to give general guidance rather than to resolve a specific legal dispute.[13] Thus, under the ripeness doctrine, a court ordinarily should reserve judgment upon a law pending concrete executive action to carry its policies into effect.[14] CUMULATIVE SUPPLEMENT Cases: Ripeness requirement was satisfied with respect to suit brought by member of the public who resided in applicant's media market seeking enforcement of Federal Communications Commission (FCC) order requiring applicant to come into compliance with television/newspaper cross-ownership rules; although applicant had submitted a timely waiver extension request, the waiver period had ended, and the FCC failed to take any action to either enforce or supersede its prior orders. Ellis v. Tribune Television Co., 443 F.3d 71 (2d Cir. 2006). Ripeness doctrine's finality requirement for as-applied challenges to enforcement of zoning ordinances did not apply to landowners' Fifth Amendment takings claim, challenging zoning ordinance that prevented them from extending their sand and gravel removal operations, where landowners challenged ordinance on its face by alleging that its enactment denied them all economically viable use of their property. County Concrete Corp. v. Town of Roxbury, 442 F.3d 159 (3d Cir. 2006). Ripeness doctrine's finality requirement for as-applied challenges to enforcement of zoning ordinances did not apply to landowners' facial substantive due process challenge to township's alleged abuse of zoning process to deprive them of lawful use of their property after they sought to extend their sand and gravel extraction operations. County Concrete Corp. v. Town of Roxbury, 442 F.3d 159 (3d Cir. 2006). Landowners exhausted state just compensation procedures, and thus their facial just compensation takings claim, based on allegation that enactment of zoning ordinance deprived them of all economically viable uses of their property by preventing extension of their sand and gravel extraction operations, was ripe for judicial review, where state Supreme Court had denied review of landowners' state court appeal. County Concrete Corp. v. Town of Roxbury, 442 F.3d 159 (3d Cir. 2006). Action by owners and tenants of shopping center challenging constitutionality of legislation authorizing local governmental authority to acquire land through use of eminent domain was not ripe for adjudication, where no taking had yet been commenced, there had not been any denial of just compensation, and owners and tenants would be able to raise their constitutional challenges in state court if condemnation proceedings were commenced. Franco v. District of Columbia, 422 F. Supp. 2d 216 (D.D.C. 2006). Matters that may or may not occur in the future are not matters in controversy and, thus, do not invoke jurisdiction of a court. Case v. Alabama State Bar, 2006 WL 833065 (Ala. 2006). Ripeness implicates subject-matter jurisdiction. Pontius v. State Farm Mut. Auto. Ins. Co., 915 So. 2d 557 (Ala. 2005). [END OF SUPPLEMENT]
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[FN1] IdahoNoh v. Cenarrusa, 137 Idaho 798, 53 P.3d 1217 (2002). Rational for doctrine The ripeness doctrine's basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements. U.S.Stern v. U.S. Dist. Court for Dist. of Mass., 214 F.3d 4 (1st Cir. 2000). Ripeness requirement satisfied When a trial court determined that a former wife became a stockholder in her former husband's corporation under the terms of a settlement agreement incorporated into the final divorce judgment, the wife's claims for the husband's alleged ultra vires acts and intentional interference with a business relationship, and the wife's requests for an accounting, which could have accrued only after the date of such determination, became ripe for consideration. Ala.Braswell v. Braswell, 574 So. 2d 790 (Ala. 1991). [FN2] Ky.Associated Industries of Kentucky v. Com., 912 S.W.2d 947 (Ky. 1995). Future issues Issues which have no existence other than in the realm of the future are purely hypothetical and are not justiciable; neither the ripe nor the ripening seeds of a controversy are present. Minn.State v. Murphy, 545 N.W.2d 909 (Minn. 1996). [FN3] Ind. In re Paternity of M.G.S., 756 N.E.2d 990 (Ind. Ct. App. 2001), transfer denied, 774 N.E.2d 510 (Ind. 2002). [FN4] Ky.Associated Industries of Kentucky v. Com., 912 S.W.2d 947 (Ky. 1995) (referring to U.S. Const. Art. III 1). [FN5] U.S.American States Ins. Co. v. Kearns, 15 F.3d 142 (9th Cir. 1994). Affinity to standing Ripeness bears a close affinity to the standing issue. U.S. National Dental Council v. Com. of Pa., State Bd. of Dentistry, 677 F. Supp. 785 (M.D. Pa. 1987). As to justiciability and the relationship between standing and mootness, see 74. [FN6] Ind. Indiana Dept. of Environmental Management v. Chemical Waste Management, Inc., 643 N.E.2d 331 (Ind. 1994). [FN7] IowaIowa Coal Min. Co., Inc. v. Monroe County, 555 N.W.2d 418 (Iowa 1996).
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[FN8] Colo.Beauprez v. Avalos, 42 P.3d 642 (Colo. 2002). Rationale The basic rationale of the "ripeness" doctrine is to avoid premature adjudication and thus prevent the courts from entangling themselves in abstract disagreements over administrative or legislative policies. Wis.Tooley v. O'Connell, 77 Wis. 2d 422, 253 N.W.2d 335 (1977). [FN9] D.C.Smith v. Smith, 310 A.2d 229 (D.C. 1973). Me.Connors v. International Harvester Credit Corp., 447 A.2d 822 (Me. 1982). N.Y.Williams Press, Inc. v. Flavin, 44 A.D.2d 634, 353 N.Y.S.2d 970 (3d Dep't 1974), order aff'd, 35 N.Y.2d 499, 364 N.Y.S.2d 154, 323 N.E.2d 693 (1974). Tenn.State v. Lunati, 665 S.W.2d 739 (Tenn. Crim. App. 1983). Tex.Fort Worth Lloyds v. Garza, 527 S.W.2d 195 (Tex. Civ. App. Corpus Christi 1975), writ refused n.r.e., (Nov. 19, 1975). Wyo.Reno Livestock Corp. v. Sun Oil Co. (Delaware), 638 P.2d 147 (Wyo. 1981). Dismissal proper If, for some reason, a suit is brought before it is ripe, dismissal is proper. Miss.Gentry v. Wallace, 606 So. 2d 1117 (Miss. 1992). [FN10] U.S. Tennessee Gas Pipeline Co. v. Federal Power Commission, 606 F.2d 1373 (D.C. Cir. 1979). Ill. Senn Park Nursing Center, a Div. of Mid-States Health Centers, Inc. v. Miller, 118 Ill. App. 3d 733, 74 Ill. Dec. 132, 455 N.E.2d 162 (1st Dist. 1983), judgment aff'd, 104 Ill. 2d 169, 83 Ill. Dec. 609, 470 N.E.2d 1029 (1984). N.H.Town of Bedford v. Lynch, 113 N.H. 364, 308 A.2d 522 (1973). UtahRedwood Gym v. Salt Lake County Commission, 624 P.2d 1138 (Utah 1981). [FN11] U.S.Socialist Labor Party v. Gilligan, 406 U.S. 583, 92 S. Ct. 1716, 32 L. Ed. 2d 317 (1972); Haas v. Pittsburgh Nat. Bank, 526 F.2d 1083 (3d Cir. 1975). Fla.Rivergate Restaurant Corp. v. Metropolitan Dade County, 369 So. 2d 679 (Fla. Dist. Ct. App. 3d Dist. 1979). Md.Insurance Com'r of State of Md. v. Blue Shield of Maryland, Inc., 295 Md. 496, 456 A.2d 914 (1983). N.J. Trombetta v. Mayor and Com'rs of City of Atlantic City, 181 N.J. Super. 203, 436 A.2d 1349
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(Law Div. 1981), judgment aff'd, 187 N.J. Super. 351, 454 A.2d 900 (App. Div. 1982). Constitutionality of initiative General contentions that provisions of an initiative are unconstitutional are justiciable only after the initiative has been enacted by the electorate. AlaskaBrooks v. Wright, 971 P.2d 1025 (Alaska 1999). Validity of proposed ordinance A court will not determine the validity of a proposed ordinance before it becomes law. OhioDrockton v. Board of Elections of Cuyahoga County, 16 Ohio Misc. 211, 45 Ohio Op. 2d 171, 240 N.E.2d 896 (C.P. 1968). Indemnification of insurance company Where an injured motorist, who had collected from his insurer under his uninsured motorist coverage, sued the uninsured motorist, there being no assurance that the motorist would prevail on the underlying case, the issue of the insurer's reimbursement was premature and thus there was no justiciable controversy with respect to the insurer's action against the injured motorist and the uninsured motorist's employer's insurer. Ariz.Pacific Ins. Co. v. Bang, 134 Ariz. 474, 657 P.2d 887 (Ct. App. Div. 2 1982). [FN12] Cal.Hunt v. Superior Court, 21 Cal. 4th 984, 90 Cal. Rptr. 2d 236, 987 P.2d 705 (1999). [FN13] Cal.Hunt v. Superior Court, 21 Cal. 4th 984, 90 Cal. Rptr. 2d 236, 987 P.2d 705 (1999). [FN14] HawaiiSave Sunset Beach Coalition v. City and County of Honolulu, 102 Haw. 465, 78 P.3d 1 (2003). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 75 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. II. Cause or Right of Action B. Abstract and Moot Questions 2. Mootness a. In General Topic Summary References Correlation Table 76. Generally West's Key Number Digest West's Key Number Digest, Action 6 A moot case is one in which there is no real controversy or which seeks to determine an abstract question which does not rest on existing facts or rights, with the result that any judicial determination would have no practical or remedial effect. An issue or case is moot when there is no actual[1] or justiciable[2] controversy between the parties. A question is "moot" when it presents or involves no actual controversy, interests, or rights,[3] or where the issues involved have ceased to exist.[4] When a case becomes moot, any judgment rendered would have no practical legal effect upon a then-existing legal controversy.[5] Thus, any judicial determination would have no practical effect upon the outcome.[6 ] On the other hand, an action is not moot where only one, or some, of several issues has become moot.[7] Accordingly, an action is not moot as long as any single claim for either primary or secondary relief remains viable.[8] For example, the mooting of requests for injunctive or declaratory relief does not commonly moot an accompanying claim for monetary relief.[9] Otherwise stated, a case is not moot where a court can still provide effective relief,[10] where the effect of not deciding it would be different from the relief that might be granted by ruling on it,[11] or where a party to the action would benefit from any judgment that could be rendered.[12] Generally, a moot action will not be retained for determination merely to decide incidental questions such as liability for costs[13] or attorney's fees.[14] However, in particular circumstances mootness may be obviated in order to determine the liability, as between the parties, for attorney's fees[15] and costs.[16] Standing and mootness as related concepts. The issues of standing and mootness are related concepts to be used in analyzing the basic question of whether an adversary contest before the court is such that the court, in rendering a decision, will not be giving a
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merely advisory opinion.[17] "Standing" focuses on parties and requires that each party possess an interest in the outcome of litigation, while "mootness" applies more to issues involved and, as a general rule, requires that opinions not be given concerning issues which are no longer in existence because of changes in factual circumstances.[18] "Standing" to sue means that an individual has a sufficient personal stake in the controversy to obtain judicial resolution, while "mootness" is the doctrine of standing set in a time frame: the requisite personal interest, or standing, that existed at the commencement of the litigation must continue throughout its existence in order for the litigation not to become moot.[19] A case becomes moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.[20] Consequently, a party must have continued standing throughout the pendency of an action to avoid invocation of the mootness doctrine.[21] CUMULATIVE SUPPLEMENT Cases: Former assistant United States attorney's request from Department of Justice for information from her personnel file pursuit to the Freedom of Information Act (FOIA) became moot after she received the documents. Brown v. U.S. Dept. of Justice, 169 Fed. Appx. 537 (11th Cir. 2006). A moot case or question is a case or question in or on which there is no real controversy; a case which seeks to determine an abstract question which does not rest on existing facts or rights, or involve conflicting rights so far as plaintiff is concerned. Case v. Alabama State Bar, 2006 WL 833065 (Ala. 2006). Mootness is a time dimension of standing. Pharmacia Corp. v. Suggs, 2005 WL 3446635 (Ala. 2005). Issue of taxpayer's standing to pursue fraud and conspiracy claims against operator of hazardous waste facility was rendered moot by realignment of Department of Revenue as plaintiff in suit challenging reduction in fee on waste treated to remove hazardous characteristics. Ex parte Chemical Waste Management, Inc., 2005 WL 3083492 (Ala. 2005). A case is "moot" if it no longer presents a justiciable controversy because the issues involved are academic or nonexistent; issues are academic when an opinion would be of no force or effect in the underlying dispute. Baker v. City of Iowa City, 750 N.W.2d 93 (Iowa 2008). If the case is moot, there is no subject matter on which the judgment of the court can operate. State v. Malone, 25 So. 3d 113 (La. 2009). When the passage of time and the occurrence of events deprive the litigant of an ongoing stake in the controversy, the case is no longer justiciable. Maine School Administrative Dist. No. 37 v. Pineo, 2010 ME 11, 988 A.2d 987 (Me. 2010). A question is moot if, at the time it is before the court, there is no longer an existing controversy between the parties, so that there is no longer any effective remedy which the court can provide. People's Counsel for Baltimore County v. Elm Street Development, Inc., 172 Md. App. 690, 917 A.2d 166 (2007). A case is "moot" when the question presented for decision seeks a judgment upon some matter which, if the judgment was rendered, would not have any practical effect upon any then existing controversy. Missouri Public Service Com'n v. Missouri Interstate Gas, LLC, 266 S.W.3d 881 (Mo. Ct. App. W.D. 2008). Whether a justiciable controversy exists, and thus whether claims have become moot on the one hand and whether they have ripened on the other, is a threshold question that implicates subject matter jurisdiction. Kessling v. Friendswood Independent School Dist., 302 S.W.3d 373 (Tex. App. Houston 14th Dist. 2009), petition for review filed, (Dec. 21, 2009). A case becomes moot if a controversy ceases to exist between the parties at any stage of the legal proceed-
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ings, including the appeal. Texas Com'n on Enviro. v. San Marcos River, 267 S.W.3d 356 (Tex. App. Corpus Christi 2008), reh'g overruled, (Oct. 30, 2008) and petition for review filed, (Dec. 16, 2008). The central question in a mootness case is whether decision of a once living dispute continues to be justified by a sufficient prospect that the decision will have an impact on the parties. Northfork Citizens For Responsible Development v. Board of County Com'rs of Park County, 2010 WY 41, 228 P.3d 838 (Wyo. 2010). [END OF SUPPLEMENT]
[FN1] Ill.Walters v. Midland-Ross Corp., 116 Ill. App. 3d 324, 72 Ill. Dec. 158, 452 N.E.2d 90 (1st Dist. 1983). IowaState v. Hill, 334 N.W.2d 746 (Iowa 1983). N.M.Mowrer v. Rusk, 95 N.M. 48, 618 P.2d 886 (1980). N.D.Snortland v. Crawford, 306 N.W.2d 614 (N.D. 1981). As to the necessity of an actual and justiciable controversy, see 74. [FN2] Idaho Idaho County Property Owners Ass'n, Inc. v. Syringa General Hosp. Dist., 119 Idaho 309, 805 P.2d 1233 (1991). Where conditions for justiciability compromised The mootness doctrine is properly invoked where events have so affected relations between the parties that the two conditions for justiciability, which are an adverse interest between the parties and the existence of an effective remedy, have been compromised. HawaiiState v. Rogan, 91 Haw. 405, 984 P.2d 1231 (1999). [FN3] Ill.People v. Blaylock, 202 Ill. 2d 319, 269 Ill. Dec. 490, 781 N.E.2d 287 (2002). Actual controversy required at all stages Unless an actual case or controversy exists at all stages of the judicial process, a case will be dismissed as moot. Pa.Saucon Valley School Dist. v. Robert O., 785 A.2d 1069, 160 Ed. Law Rep. 159, 115 A.L.R.5th 763 (Pa. Commw. Ct. 2001). [FN4] Ill.People v. Blaylock, 202 Ill. 2d 319, 269 Ill. Dec. 490, 781 N.E.2d 287 (2002). IowaIn Interest of E.C.G., 345 N.W.2d 138 (Iowa 1984). Md. Koontz v. Association of Classified Employees, 297 Md. 521, 467 A.2d 753, 14 Ed. Law Rep. 535 (1983). Academic or nonexistent issues
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In general, an action is moot if it no longer presents a justiciable controversy because the issues involved have become academic or nonexistent. IowaIowa Mut. Ins. Co. v. McCarthy, 572 N.W.2d 537 (Iowa 1997). [FN5] Ark.Quinn v. Webb Wheel Products, 334 Ark. 573, 976 S.W.2d 386 (1998). Finding on case-by-case basis required Since meaningful relief is determinable by a particular set of facts, a finding of mootness can only occur on a case-by-case basis. Mont.Awareness Group v. Board of Trustees of School Dist. No. 4, 243 Mont. 469, 795 P.2d 447, 62 Ed. Law Rep. 352 (1990). [FN6] Idaho Idaho County Property Owners Ass'n, Inc. v. Syringa General Hosp. Dist., 119 Idaho 309, 805 P.2d 1233 (1991). N.C.Lange v. Lange, 357 N.C. 645, 588 S.E.2d 877 (2003). Decision merely for precedential purposes inappropriate If it is apparent that an opinion cannot affect the result as to the parties or controversy before it, the court should not resolve a question merely for the sake of setting precedent to govern future cases. Ill.People ex rel. Partee v. Murphy, 133 Ill. 2d 402, 140 Ill. Dec. 873, 550 N.E.2d 998 (1990). [FN7] U.S. University of Texas v. Camenisch, 451 U.S. 390, 101 S. Ct. 1830, 68 L. Ed. 2d 175, 1 A.D.D. 76 (1981); Gibson v. DuPree, 664 F.2d 175, 1 Ed. Law Rep. 527 (8th Cir. 1981); ITT Rayonier Inc. v. U.S., 651 F.2d 343 (5th Cir. 1981). [FN8] U.S.Ramer v. Saxbe, 522 F.2d 695 (D.C. Cir. 1975). Other remedies sought Where one remedy may be moot, but other remedies sought are not, the underlying issue may be decided. U.S.Danzy v. Johnson, 417 F. Supp. 426 (E.D. Pa. 1976), aff'd, 582 F.2d 1273 (3d Cir. 1978). [FN9] U.S.McKinnon v. Talladega County, Ala., 745 F.2d 1360, 40 Fed. R. Serv. 2d 545 (11th Cir. 1984); Gibson v. DuPree, 664 F.2d 175, 1 Ed. Law Rep. 527 (8th Cir. 1981). Ill. Senn Park Nursing Center, a Div. of Mid-States Health Centers, Inc. v. Miller, 118 Ill. App. 3d 733, 74 Ill. Dec. 132, 455 N.E.2d 162 (1st Dist. 1983), judgment aff'd, 104 Ill. 2d 169, 83 Ill. Dec. 609, 470 N.E.2d 1029 (1984). [FN10] Wash.Orwick v. City of Seattle, 37 Wash. App. 594, 682 P.2d 954 (Div. 1 1984), judgment aff'd in part, rev'd in part on other grounds, 103 Wash. 2d 249, 692 P.2d 793 (1984).
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[FN11] Fla.Curless v. Clay County, 395 So. 2d 255 (Fla. Dist. Ct. App. 1st Dist. 1981). [FN12] Ohio Jacobsen v. Cleveland Trust Co., 6 Ohio Misc. 173, 35 Ohio Op. 2d 366, 217 N.E.2d 262 (C.P. 1965). [FN13] Md.Rutherford v. Rutherford, 296 Md. 347, 464 A.2d 228 (1983). Mo.Grogan v. Hays, 639 S.W.2d 875 (Mo. Ct. App. W.D. 1982). N.D.Wahpeton Public School Dist. No. 37 v. North Dakota Ed. Ass'n, 166 N.W.2d 389 (N.D. 1969). [FN14] U.S.Flesch v. Eastern Pennsylvania Psychiatric Institute, 472 F. Supp. 798 (E.D. Pa. 1979). [FN15] U.S. Rainey v. Jackson State College, 481 F.2d 347 (5th Cir. 1973); Globus, Inc. v. Jaroff, 279 F. Supp. 807 (S.D. N.Y. 1968). [FN16] U.S. Education/Instruccion, Inc. v. U.S. Dept. of Housing and Urban Development, 471 F. Supp. 1074 (D. Mass. 1979). [FN17] Ariz. Chambers v. United Farm Workers Organizing Committee, AFL-CIO, 25 Ariz. App. 104, 541 P.2d 567 (Div. 1 1975). [FN18] Ariz. Chambers v. United Farm Workers Organizing Committee, AFL-CIO, 25 Ariz. App. 104, 541 P.2d 567 (Div. 1 1975). [FN19] Me.Maine Civil Liberties Union v. City of South Portland, 1999 ME 121, 734 A.2d 191 (Me. 1999). Mootness due to loss of standing or stake in outcome (1) A controversy may become "moot" either because a party has lost standing to assert its merits or because the dispute is no longer amenable to judicial resolution. Del.Tyson Foods, Inc. v. Aetos Corp., 809 A.2d 575 (Del. 2002). (2) Litigation ordinarily is considered "moot" when the party claiming to be aggrieved ceases to have a personal stake in its outcome. Mass.Acting Superintendent of Bournewood Hosp. v. Baker, 431 Mass. 101, 725 N.E.2d 552 (2000). [FN20] Idaho St. Alphonsus Regional Medical Center v. Edmondson, 130 Idaho 108, 937 P.2d 420 (1997). [FN21] Del.General Motors Corp. v. New Castle County, 701 A.2d 819 (Del. 1997). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 76 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. II. Cause or Right of Action B. Abstract and Moot Questions 2. Mootness a. In General Topic Summary References Correlation Table 77. Causes of mootness West's Key Number Digest West's Key Number Digest, Action 6 Cases and questions can become moot by reason of events occurring after the suit is filed, such as a change in the facts or changes in the law. Although a case may originally present an existing controversy, if it becomes moot before a decision has been rendered, through an act of the parties or other cause occurring after the commencement of the action, it becomes a moot case or question which ordinarily will not be considered by the court.[1] Accordingly, an action or a cause of action may be mooted by intervening events,[2] such as changes in the facts[3] or in the law[4] on which an action is based. This rule is applicable when the changes are a result of either judicial,[5] legislative,[6] or administrative,[7] actions. The rule is also applicable as a result of a settlement between the parties,[8] or other disposition which secures to the plaintiffs the relief which they had sought.[9] CUMULATIVE SUPPLEMENT Cases: If a new enactment supersedes the statute on which the litigants rely to define their rights, the issue no longer represents an actual controversy and is moot. In re B.T., 186 S.W.3d 276 (Mo. 2006). Lapse of time may create a condition that may cause the controversy involved in a case to become a mere moot question. In re B.T., 186 S.W.3d 276 (Mo. 2006). [END OF SUPPLEMENT]
[FN1] U.S.Connolly v. Pension Benefit Guaranty Corp., 673 F.2d 1110 (9th Cir. 1982); U.S. v. Clev-
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eland Trust Co., 392 F. Supp. 699 (N.D. Ohio 1974). N.Y.In re Kraszewski's Estate, 55 Misc. 2d 10, 284 N.Y.S.2d 194 (Sur. Ct. 1967). Mootness on appeal (1) Application of the mootness doctrine is appropriate where events subsequent to the judgment of the trial court have so affected relations between the parties that the conditions for justiciability relevant on appeal, adverse interest and effective remedy, have been compromised. HawaiiWong v. Board of Regents, University of Hawaii, 62 Haw. 391, 616 P.2d 201 (1980). (2) Cases in which an actual controversy existed at trial, but in which the controversy expired by the time of review, are moot. Miss.Allred v. Webb, 641 So. 2d 1218 (Miss. 1994). [FN2] U.S.Sherry v. New York State Ed. Dept., 479 F. Supp. 1328 (W.D. N.Y. 1979). Ill.Tucker v. Country Mut. Ins. Co., 125 Ill. App. 3d 329, 80 Ill. Dec. 610, 465 N.E.2d 956 (4th Dist. 1984). Me.Graffam v. Wray, 437 A.2d 627 (Me. 1981). Or.Turner v. Washington County, 70 Or. App. 575, 689 P.2d 1318 (1984). [FN3] Ariz.ASH, Inc. v. Mesa Unified School Dist. No. 4, 138 Ariz. 190, 673 P.2d 934, 15 Ed. Law Rep. 560 (Ct. App. Div. 1 1983). IowaPerkins v. Board of Supervisors of Madison County, 636 N.W.2d 58 (Iowa 2001). Me.Good Will Home Ass'n v. Erwin, 285 A.2d 374 (Me. 1971). Change in status of party A case is not rendered moot even though a party to the litigation has had a change in status, such that he or she no longer has a legally cognizable interest in the litigation or the issues have lost their adversarial vitality, if such issues are capable of repetition and yet will evade review. W.Va.State ex rel. Shifflet v. Rudloff, 213 W. Va. 404, 582 S.E.2d 851 (2003). As to the exception to the mootness doctrine in cases capable of repetition yet evading review, see 82. [FN4] IowaPerkins v. Board of Supervisors of Madison County, 636 N.W.2d 58 (Iowa 2001). Pa.National Development Corp. v. Planning Commission of Harrison Tp., 64 Pa. Commw. 246, 439 A.2d 1308 (1982). Choice of law
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A choice-of-law issue as to the existence of a wrongful death claim against an aircraft manufacturer became moot where, in the interim after the ruling by the trial court, the laws of the two states in question became identical by virtue of an intervening decision. Cal.Beech Aircraft Corp. v. Superior Court, 61 Cal. App. 3d 501, 132 Cal. Rptr. 541 (2d Dist. 1976). [FN5] US.Seattle Auto Glass v. N.L.R.B., 669 F.2d 1332 (9th Cir. 1982); Nesglo, Inc. v. Chase Manhattan Bank, N.A., 562 F. Supp. 1029 (D.P.R. 1983). Cal.Boccato v. City of Hermosa Beach, 158 Cal. App. 3d 804, 204 Cal. Rptr. 727 (2d Dist. 1984). La.Hope Developers v. Ourso, 446 So. 2d 885 (La. Ct. App. 1st Cir. 1984). Mich. Lucas v. Board of County Road Com'rs of Wayne County, 131 Mich. App. 642, 348 N.W.2d 660 (1984). Court order halting construction The question of whether a court should have preliminarily enjoined work on airport runways until a federal environmental impact statement was prepared and considered was moot, where work on the runways had ceased under a state court order. U.S.City of Boston v. Brinegar, 512 F.2d 319 (1st Cir. 1975). [FN6] U.S. State of N. M. ex rel. New Mexico State Highway Dept. v. Goldschmidt, 629 F.2d 665 (10th Cir. 1980); State of Ark. ex rel. Arkansas State Highway Commission v. Goldschmidt, 627 F.2d 839 (8th Cir. 1980). Conn.Nauss v. Pinkes, 2 Conn. App. 400, 480 A.2d 568 (1984). Ill. Donahue v. City of Chicago, 107 Ill. App. 3d 271, 63 Ill. Dec. 205, 437 N.E.2d 854 (1st Dist. 1982). Tex.James v. City of Round Rock, 630 S.W.2d 466 (Tex. App. Austin 1982). Regulation superseded by statute Where a determination of ineligibility for extended unemployment benefits and federal supplemental benefits was made based upon a state statute, and where that statute superceded a challenged state regulation, the validity or lack thereof of challenged state regulation was moot. Mo.Dilworth v. Labor & Indus. Relations Com'n of Missouri, 670 S.W.2d 199 (Mo. Ct. App. W.D. 1984). [FN7] U.S.East v. Pryor, 89 F.R.D. 75 (E.D. Ark. 1981). OhioState ex rel. Warner & Swasey Co. v. Industrial Commission, 50 Ohio St. 2d 152, 4 Ohio Op. 3d 346, 363 N.E.2d 736 (1977).
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Or.Turner v. Washington County, 70 Or. App. 575, 689 P.2d 1318 (1984). Restoration of reduced benefits An action challenging the reduction of a plaintiff's social security benefits on the ground that a regulation authorizing the reduction was outside the agency's statutory powers was rendered moot when the agency later decided not to reduce the plaintiff's benefits. U.S.Wilson v. Secretary of Health and Human Services, 671 F.2d 673 (1st Cir. 1982). [FN8] U.S.ITT Rayonier Inc. v. U.S., 651 F.2d 343 (5th Cir. 1981). Conn. Waterbury Hospital v. Connecticut Health Care Associates, 186 Conn. 247, 440 A.2d 310 (1982). N.J.Woodsum v. Pemberton Tp., 177 N.J. Super. 639, 427 A.2d 615 (App. Div. 1981). Consent decree In an action wherein the plaintiffs sought to void an incorporation election for a village, the substantive issues in the suit were mooted by the municipal defendant's compliance with a consent decree entered in another suit, brought by the United States, in which the complaint was similar if not identical to that brought by the instant plaintiffs. U.S.Caserta v. Kelly, 507 F. Supp. 561 (S.D. Tex. 1981). [FN9] Ill.Wheatley v. Board of Educ. of Tp. High School Dist. 205, 99 Ill. 2d 481, 77 Ill. Dec. 115, 459 N.E.2d 1364, 16 Ed. Law Rep. 220 (1984). Mo.Dugger v. Welp, 646 S.W.2d 907 (Mo. Ct. App. E.D. 1983). Wis.Evrard v. Jacobson, 117 Wis. 2d 69, 342 N.W.2d 788 (Ct. App. 1983). Recovery on another theory Whether a taxicab passenger, injured in an automobile accident, had a contract of safe carriage with the taxicab driver was moot, where the jury found in the passenger's favor against the driver on a negligence theory and, even if the jury could have found for the passenger on another theory, such a judgment would have been duplicative. Md.Rubin v. Weissman, 59 Md. App. 392, 475 A.2d 1235 (1984). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 77 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. II. Cause or Right of Action B. Abstract and Moot Questions 2. Mootness a. In General Topic Summary References Correlation Table 78. Mandatory and discretionary applications of rule West's Key Number Digest West's Key Number Digest, Action 6 Apart from jurisdictional limitations, courts may adjudicate, or decline to adjudicate, moot cases on their merits as a matter of judicial policy. Mootness may be a jurisdictional issue,[1] where a constitutional provision permits adjudication only of cases and controversies.[2] However, the doctrine of mootness is also one of a court policy which recognizes that it is the function of a judicial tribunal to determine real controversies relative to legal rights of persons and properties which are actually involved in a particular case properly brought before it, and to adjudicate those rights in such manner that determination will be operative, final, and conclusive.[3] This policy is based on the principle that the courts should decline to decide issues which, by virtue of valid and recognizable supervening circumstances, have lost their controversial vitality.[4] Where there is no constitutional provision restricting the jurisdiction of the courts of a state to actual cases and controversies,[5] the mootness doctrine is a flexible discretionary doctrine, not a mechanical rule that is invoked automatically.[6] Since the question of mootness is one of convenience and judicial discretion,[7] the courts may obviate mootness as a matter of judicial policy[8] in technically moot cases for the future guidance of public officials[9] and trial courts.[10] CUMULATIVE SUPPLEMENT Cases: One familiar principle of judicial restraint is that courts do not decide cases when the underlying controversy is moot. Rhiner v. State, 703 N.W.2d 174 (Iowa 2005). [END OF SUPPLEMENT]
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[FN1] U.S.Dr. Martin Luther King, Jr. Movement, Inc. v. City of Chicago, 419 F. Supp. 667 (N.D. Ill. 1976); Waide v. Waller, 402 F. Supp. 922 (N.D. Miss. 1975); Leonhart v. McCormick, 395 F. Supp. 1073 (W.D. Pa. 1975). Requirement of actual controversy as jurisdictional The requirement that an actual controversy exist at all times is jurisdictional, and not subject to waiver by either party. Vt.J.L. v. Miller, 174 Vt. 288, 817 A.2d 1 (2002). Mootness as species of justiciability Mootness is a species of justiciability, and a court of law exercising the judicial power of the state has authority to decide only justiciable controversies. Or.First Commerce of America, Inc. v. Nimbus Center Associates, 329 Or. 199, 986 P.2d 556 (1999). [FN2] Mich.People v. Walker, 135 Mich. App. 267, 354 N.W.2d 312 (1984). As to the constitutional requirement that the federal courts adjudicate only cases and controversies, see 74. [FN3] Kan.Board of County Com'rs of Johnson County v. Duffy, 259 Kan. 500, 912 P.2d 716 (1996). [FN4] Me.State v. Jordan, 1998 ME 174, 716 A.2d 1004 (Me. 1998). Other considerations Courts decline to hear moot cases because only factually concrete disputes are capable of resolution through the adversary process, because it is feared that parties will not adequately represent positions in which they no longer have a personal stake, and because adjudication of hypothetical disputes would encroach on the legislative domain. Mass.Wolf v. Commissioner of Public Welfare, 367 Mass. 293, 327 N.E.2d 885 (1975). [FN5] Ind. Indiana Dept. of Environmental Management v. Twin Eagle LLC, 798 N.E.2d 839 (Ind. 2003). [FN6] Minn.Jasper v. Commissioner of Public Safety, 642 N.W.2d 435 (Minn. 2002). [FN7] U.S.Chamber of Commerce of U.S. of America v. U.S. Dept. of Energy, 627 F.2d 289 (D.C. Cir. 1980); Pickus v. U.S. Bd. of Parole, 543 F.2d 240 (D.C. Cir. 1976). N.H.Royer v. State Dept. of Employment Sec., 118 N.H. 673, 394 A.2d 828 (1978). [FN8] Wis.State ex rel. La Crosse Tribune v. Circuit Court for La Crosse County, 115 Wis. 2d 220, 340 N.W.2d 460 (1983).
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As to the exception to the mootness doctrine with respect to controversies capable of repetition, yet evading review, see 82. As to the exception to the mootness doctrine in cases involving matters of public importance, see 81. [FN9] IowaDepartment of General Services, State of Iowa v. R.M. Boggs Co., Inc., 336 N.W.2d 408 (Iowa 1983). [FN10] Wis.Milwaukee Professional Firefighters, Local 215, IAFF, AFL-CIO v. City of Milwaukee, 78 Wis. 2d 1, 253 N.W.2d 481 (1977). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 78 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. II. Cause or Right of Action B. Abstract and Moot Questions 2. Mootness a. In General Topic Summary References Correlation Table 79. Application in class actions West's Key Number Digest West's Key Number Digest, Action 6 The mooting of the named plaintiff's claim in a class action does not necessarily moot the action. In a properly certified class action, mootness may be obviated if there exists a sufficiently adversarial relationship between the litigants by the time it is reached for adjudication,[1] as where either a request for an injunction or a claim for damages survives.[2] Neither is an uncertified class action necessarily mooted by the termination of the named plaintiff's claim prior to class certification,[3] as a subsequent certification may be found to "relate back" to the filing of the complaint.[4] Accordingly, a class action is not necessarily mooted due to the fact that the relief requested is no longer needed by the named plaintiff[5] or by certain other members of the class.[6]
[FN1] U.S. Franks v. Bowman Transp. Co., Inc., 424 U.S. 747, 96 S. Ct. 1251, 47 L. Ed. 2d 444 (1976). Factors for consideration The critical inquiries in defining mootness in a class action situation are whether that which is challenged is of such a nature that it escapes appellate review at the behest of any single petitioner, and whether the challenged procedure operates in such a way that there is a constant existence of a class of persons suffering deprivation. Pa.Sherrer v. Lamb, 319 Pa. Super. 290, 466 A.2d 163 (1983). [FN2] U.S.Lidie v. State of Cal., 478 F.2d 552, 17 Fed. R. Serv. 2d 952 (9th Cir. 1973).
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[FN3] Pa.Sherrer v. Lamb, 319 Pa. Super. 290, 466 A.2d 163 (1983). S.D.Shangreaux v. Westby, 281 N.W.2d 590 (S.D. 1979). [FN4] U.S.Wright v. Califano, 603 F.2d 666 (7th Cir. 1979); Morales v. Minter, 393 F. Supp. 88 (D. Mass. 1975). [FN5] U.S. McGill v. Parsons, 532 F.2d 484, 21 Fed. R. Serv. 2d 1100 (5th Cir. 1976); Conover v. Montemuro, 477 F.2d 1073 (3d Cir. 1972); Knowles v. Butz, 358 F. Supp. 228 (N.D. Cal. 1973). Social Security survivors' benefits A controversy over the right of recipients of Social Security survivors' benefits to an oral evidentiary hearing prior to reduction of their benefits due to the assertion on behalf of illegitimate children of claims which, if paid, would otherwise cause the total benefits to exceed the statutory maximum was not moot even though the recipients had been granted a hearing subsequent to the institution of suit and the district court, with the agreement of the parties, had deferred ruling on the motion for class action designation until after a hearing had been held and the case decided. U.S.Frost v. Weinberger, 515 F.2d 57 (2d Cir. 1975). Voting by prisoners A class action challenging state statutes precluding prisoners, unable to make bail or held on nonbailable offenses, from voting or registering to vote was not rendered moot by the fact that several elections had been held since the action was filed or that some of the named petitioners had lost their status as class members by being released on bail, discharged, acquitted, or convicted. U.S.Goosby v. Osser, 409 U.S. 512, 93 S. Ct. 854, 35 L. Ed. 2d 36 (1973). [FN6] U.S. Franks v. Bowman Transp. Co., Inc., 424 U.S. 747, 96 S. Ct. 1251, 47 L. Ed. 2d 444 (1976); Graham v. Caston, 568 F.2d 1092 (5th Cir. 1978). Racial discrimination An offer and acceptance of a promotion, subsequent to the filing of a class action by a black employee alleging systematic racial discrimination, did not render the suit moot as to the employee individually or as to the class he represented. U.S.Jenkins v. United Gas Corp., 400 F.2d 28, 12 Fed. R. Serv. 2d 484 (5th Cir. 1968). Election practices In a proposed class action in which relief was sought after the plaintiffs allegedly had been improperly removed from the city's voting lists and unlawfully deprived of their right to vote, the fact that two of the named plaintiffs had been reregistered did not render the case moot, in light of the fact that the reregistration did not insulate two plaintiffs from the jeopardy of being similarly injured in future elections so long as the defendants' practices remained unchanged, and in view of the fact that members of the proposed class were by definition not then currently on the voting list.
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Mass.Santana v. Registrars of Voters of Worcester, 384 Mass. 487, 425 N.E.2d 745 (1981). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 79 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. II. Cause or Right of Action B. Abstract and Moot Questions 2. Mootness a. In General Topic Summary References Correlation Table 80. Other particular applications West's Key Number Digest West's Key Number Digest, Action 6 The rules regarding mootness have found application in actions relating to statutes and regulations. The general rule of mootness has been applied to the construction[1] of a statute or proposed statute,[2] and to the applicability of a statute to facts which have been decided upon under another statute.[3] Actions challenging the validity or the manner of implementation of a statutory or regulatory provision are commonly mooted either by the repeal of the provision[4] or by its amendment or revision,[5] or by the expiration of the period of time[6] or the funding[7] provided for the provision. Such actions are not mooted, however, by an amendment or a replacement of a challenged provision which does not remove the controversy completely[8] in that it does not assertedly cure the alleged infirmity of the replaced provision[9] or does not otherwise resolve claims stemming from the past implementation of the replaced provision.[10] The expiration of a provision which moots a request for injunctive relief does not necessarily moot claims for declaratory relief[11] or money damages.[12] Actions against public officers. The question as to whether actions against public officers in their official capacity are mooted by their replacement in office is determined by the underlying nature of the claim against them in the light of the specific relief sought.[13] Accordingly, an action for compensatory damages brought against a public officer, sued in an official capacity, is not mooted when the officer dies or is succeeded in office, because the purpose and effect of such a suit is to recover damages only from the public entity for the actions of its agents.[14] Neither is an action against a public officer for declaratory and injunctive relief, alleging a violation of constitutional rights, mooted by the replacement of the defendant public officer by a successor, where it is alleged in supplemental pleadings that the challenged practices of the original defendant are subject to continuation by the successor.[15] On the other hand, actions in which the right to hold a particular office is contested are rendered moot by
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the abolition of the office[16] or by the expiration of its term,[17] or by the incumbent's departure from it[18] due to resignation,[19] or replacement,[20] except where an issue of public interest is involved.[21] Suits by prisoners. Actions by prisoners based on an alleged wrongful deprivation at a particular facility may not be mooted by the prisoners' release or transfer from a particular facility, where a substantial question likely to recur is involved in the action,[22] where it is likely that the complaining prisoners might be returned to the facility from which they have been transferred,[23] or where the challenged conditions at the facility from which they have been transferred allegedly prevail also at the facility to which they have been transferred.[24] On the other hand, the cessation of a prison practice may moot an action challenging it,[25] except where a recurrence of the practice is likely,[26] or a claim for damages remains pending.[27] Prisoners' actions which challenge prison practices and which seek either declaratory or monetary relief are not necessarily mooted by the adoption of new prison regulations while an action is pending.[28] Similarly, an action challenging a prisoner's segregation is not mooted by the prisoner's return to the general prison population where damages are claimed,[29] where the segregation may recur,[30] or where a prison record of the segregation may jeopardize a prisoner's chances for pardon, parole, or the accumulation of time off for good behavior.[ 31] The release of a prisoner on parole moots an action challenging a previous denial of parole,[32] or a previous parole revocation,[33] except for a pending claim for damages.[34] An action is also mooted where a complete release has been obtained and it is not demonstrated that the paroled prisoner will again be subject to the same parole system.[35] Actions by prisoners contesting the propriety of detainers lodged against them have been mooted by their transfer to states which had lodged the detainers.[36] Possessory actions. Actions in which the right to the possession of particular premises is in issue are mooted when the premises are surrendered voluntarily,[37] absent a claim for back rent,[38] as where former tenants are no longer interested in regaining possession,[39] or where the right of an owner to the possession of particular premises is relinquished by its sale.[40] However, a possessory action is not mooted by an involuntary surrender of the premises[41] due to their inhabitability.[42] Miscellaneous actions. Determinations as to whether adjudications on the merits are precluded by mootness have been made in actions dealing with such matters as political elections[43] and convention seating[44] which have been rectified. Determinations of mootness also have been made in cases involving demands for access to public records which have been released,[45] or the release of which has been promised.[46] Mootness determinations likewise have been made in cases involving challenges to school or university practices by students who have graduated,[47] or whose suspension has terminated,[48] or who have moved[49] or decided not to return to the school.[50] Other applications of the general rules include changes of illegal conduct, such as employment discrimination, on the part of an employer made by a terminated employee who has been reinstated[51] or by an employee whose claim has been settled.[52] The general rules also have been applied in actions involving the effect of the death of a beneficiary[53] or an allegedly incompetent creator of a trust on a trust proceeds distribution dispute,[ 54] or the effect of the death of an annuitant on an annuity dispute.[55] In addition, the general rules concerning
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mootness have been applied in cases concerning the merger[56] or replacement[57] of a union that is a party to an action against an employer, as well as in actions involving the effect of amendments of candidacy requirements,[58] and unsupervised elections,[59] following challenged labor elections. Determinations regarding mootness have also been made with respect to the construction and operation of a contract or deed,[60] the expiration of a contract as it affects an action to enforce it,[61] or for damages for its alleged breach,[62] or for a refund of an amount paid in excess of the contract price,[63] or as it affects an action challenging the constitutionality of the contract.[64] Mootness determinations also have been made in cases involving the infringement of patents found to be invalid,[65] or misused,[66] and the invalidity of patents found not to be infringed.[67] There are other adjudications applying the mootness doctrine with respect to such matters as usury in connection with an uncollectible debt,[68] discharges of employees who have been reinstated[69] or who have died prior to the effective date of the discharge,[70] or the death, in the course of litigation, of a claimant,[71] or of a party to a divorce action.[72] Determinations of mootness likewise have been made in actions involving the sterilization of a party who claims damages for its denial[73] or who sought the performance of the procedure in a class action.[74] Further applications of the mootness doctrine have been rendered in connection with contested restrictions on the use of property[75] and inverse condemnation actions,[76] as well as the remaining determination of just compensation.[77] The doctrine also has been applied in disputes concerning zoning and boundaries,[78] as affected by a subsequent clarification of standards,[79] and actions based on the alleged wrongful deprivation of property and damages therefore.[80] Determinations with respect to mootness have also been made as to other various matters.[81] CUMULATIVE SUPPLEMENT Cases: Correctional services department's decision to amend operational memorandum to ban only drawings that advocated or were likely to incite violent or illegal activity did not render moot prisoner's 1983 claim for monetary damages for any violations of his constitutional rights that had occurred prior to such amendment. 42 U.S.C.A. 1983. Keup v. Hopkins, 596 F.3d 899 (8th Cir. 2010). African-American bus driver, who was terminated for unfitness for duty, failed to establish any Monell liability against her former employer since there was no proof of any custom, policy or practice to treat the her differently from white bus operators nor were there any discriminatory actions by employer or any policymaker of employer. Perry v. Metropolitan Suburban Bus Authority, 390 F. Supp. 2d 251 (E.D. N.Y. 2005). Counterclaim of facility owner and its excess insurer against facility owner's commercial general liability (CGL) insurer for its alleged breach of an enhanced obligation of good faith in defending facility owner under reservation of rights in underlying wrongful death lawsuit was moot, where CGL insurer settled underlying wrongful death claim within its policy limits, and facility owner was privy to and agreed to the settlement. Colony Ins. Co. v. Georgia-Pacific, LLC, 2009 WL 2343673 (Ala. 2009). Individual employer's 1983 claim for damages based on the city's enforcement of ordinances prohibiting employment and housing discrimination was not rendered moot by employer's voluntary settlement on the underlying discrimination complaint against him; the settlement did not encompass individual employer's claim that the city violated his civil rights. Baker v. City of Iowa City, 750 N.W.2d 93 (Iowa 2008).
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No relief can be granted concerning the validity of a repealed statute. In re B.T., 186 S.W.3d 276 (Mo. 2006). In general, election cases are moot where the relief sought is to have a name or an issue placed on the ballot and the election was held before the case could be decided. State ex rel. Todd v. Felger, 116 Ohio St. 3d 207, 2007-Ohio-6053, 877 N.E.2d 673 (2007). The fugitive disentitlement doctrine bars an individual from calling upon the resources of the court while at the same time "thumbing his nose" at its orders. Searle v. Juvenile Court for Williamson County, 188 S.W.3d 547 (Tenn. 2006). [END OF SUPPLEMENT]
[FN1] N.Y. Hunter v. City of New York, 88 Misc. 2d 562, 391 N.Y.S.2d 289 (Sup 1976), aff'd as modified, 58 A.D.2d 136, 396 N.Y.S.2d 186 (1st Dep't 1977), order aff'd, 44 N.Y.2d 708, 405 N.Y.S.2d 455, 376 N.E.2d 928 (1978). [FN2] N.D.Anderson v. Byrne, 62 N.D. 218, 242 N.W. 687 (1932). [FN3] U.S.U.S. v. One Ford Truck, Motor No. AA4510611, Etc., 3 F. Supp. 283 (D. Wyo. 1932). [FN4] U.S.Meadows v. Hopkins, 713 F.2d 206 (6th Cir. 1983). Colo.Johns v. Powell, 190 Colo. 88, 543 P.2d 1261 (1975). IdahoCenarrusa v. Peterson, 95 Idaho 395, 509 P.2d 1316 (1973). Wyo.State ex rel. Mortg. Guar. Ins. Corp. v. Langdon, 671 P.2d 811 (Wyo. 1983). [FN5] U.S.Sannon v. U.S., 631 F.2d 1247 (5th Cir. 1980); Natural Resources Defense Council, Inc. v. U. S. Nuclear Regulatory Com'n, 680 F.2d 810 (D.C. Cir. 1982); State ex rel. Brown v. Georgeoff, 562 F. Supp. 1300 (N.D. Ohio 1983). N.Y.Henry v. Noto, 50 N.Y.2d 816, 430 N.Y.S.2d 32, 407 N.E.2d 1329 (1980). Endangered species A plaintiff's challenge to prior guidelines concerning the export of bobcats as violative of a previous standard set forth by the court in a prior decision was moot in light of a subsequent amendment of the statute which overruled the prior decision. U.S.Defenders of Wildlife, Inc. v. Endangered Species Scientific Authority, 725 F.2d 726 (D.C. Cir. 1984). [FN6] U.S.River Vale Tp. v. Harris, 444 F. Supp. 90 (D.D.C. 1978). Md.Insurance Com'r of State of Md. v. Blue Shield of Maryland, Inc., 295 Md. 496, 456 A.2d 914 (1983).
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Gasoline allocation U.S.Shapp v. Simon, 523 F.2d 1405 (Emer. Ct. App. 1975). Oil allocation U.S.Koch Refining Co. v. U. S. Dept. of Energy, 658 F.2d 799 (Emer. Ct. App. 1981). [FN7] Abortion funding Md.Kindley v. Governor of Maryland, 289 Md. 620, 426 A.2d 908 (1981). Drug rehabilitation Ill.West Side Organization Health Services Corp. v. Thompson, 79 Ill. 2d 503, 38 Ill. Dec. 784, 404 N.E.2d 208 (1980). Employment and training A petition for review of a decision of the Secretary of Labor denying statutory funds to serve the Native American population of certain counties was rendered moot by the expiration of the fiscal year in question and expiration of the statutory program. U.S.United Indians of Nebraska v. Donovan, 702 F.2d 673 (8th Cir. 1983). [FN8] U.S.U. S. v. Concentrated Phosphate Export Ass'n, 393 U.S. 199, 89 S. Ct. 361, 21 L. Ed. 2d 344 (1968). Funding for future years at issue The fact that funding which was the subject of a dispute between a community action agency and the United States Secretary of Health, Education and Welfare was for a program which was funded on a year-to-year basis and that the fiscal year in question had ended did not render the action moot, where a question of funding for present and future years was presented. U.S. Economic Opportunity Commission of Nassau County, Inc. v. Weinberger, 524 F.2d 393 (2d Cir. 1975). [FN9] Md.Rockville Grosvenor, Inc. v. Montgomery County, 289 Md. 74, 422 A.2d 353 (1980). N.J.Itzen & Robertson, Inc. v. Board of Health of Borough of Oakland, 92 N.J. Super. 241, 222 A.2d 769 (App. Div. 1966). Ohio Central Motors Corp. v. City of Pepper Pike, 9 Ohio App. 3d 18, 457 N.E.2d 1178 (8th Dist. Cuyahoga County 1983). Bilingual education
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Judicial relief designed to redress a state's violation of the statutory requirement that it take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs was not mooted by a new bilingual education statute, where the statute failed to alter a defective theory which was the basis of the deficient program. U.S.U.S. v. State of Tex., 523 F. Supp. 703, 1 Ed. Law Rep. 164 (E.D. Tex. 1981). [FN10] U.S.Nader v. Volpe, 475 F.2d 916 (D.C. Cir. 1973). AlaskaWarwick v. State ex rel. Chance, 548 P.2d 384 (Alaska 1976). Cal.Rojas v. Woods, 127 Cal. App. 3d 286, 179 Cal. Rptr. 420 (2d Dist. 1981). La.Matter of Delahoussaye, 402 So. 2d 308 (La. Ct. App. 1st Cir. 1981), writ denied, 413 So. 2d 494 (La. 1982). N.Y.Moore v. Kolb, 67 A.D.2d 785, 412 N.Y.S.2d 690 (3d Dep't 1979). Or.School Dist. No. 1, Multnomah County v. Nilsen, 271 Or. 461, 534 P.2d 1135 (1975). Wash.Marino Property Co. v. Port Com'rs of Port of Seattle, 97 Wash. 2d 307, 644 P.2d 1181 (1982). Telephone service terminations Issuance of regulations regarding billing and termination of telephone service did not render moot claims for damages by customers who had allegedly been injured by prior practices. U.S.Princiotta v. New England Tel. & Tel. Co., Inc., 532 F. Supp. 1009 (D. Mass. 1982). [FN11] Pa.Ruano v. Barbieri, 42 Pa. Commw. 67, 400 A.2d 235 (1979). [FN12] U.S.Gonzalez v. Texas Employment Commission, 486 F. Supp. 278 (S.D. Tex. 1977), aff'd, 614 F.2d 1295 (5th Cir. 1980). [FN13] U.S.Kincaid v. Rusk, 670 F.2d 737 (7th Cir. 1982). [FN14] U.S.Kincaid v. Rusk, 670 F.2d 737 (7th Cir. 1982). [FN15] U.S.American Civil Liberties Union of Mississippi, Inc. v. Finch, 638 F.2d 1336, 31 Fed. R. Serv. 2d 380 (5th Cir. 1981). [FN16] N.H.Tice v. Thomson, 120 N.H. 313, 414 A.2d 1284 (1980). [FN17] Ariz.Campbell v. Harris, 131 Ariz. 109, 638 P.2d 1355, 2 Ed. Law Rep. 277 (Ct. App. Div. 1 1981). Cal.Kilbourne v. City of Carpinteria, 56 Cal. App. 3d 11, 128 Cal. Rptr. 133 (2d Dist. 1976). Dual office holding
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The question of whether a defendant could simultaneously hold the office of municipal assessor and state representative became moot upon expiration of the defendant's term of office as assessor. Me.Lund ex rel. Wilbur v. Pratt, 308 A.2d 554 (Me. 1973). [FN18] Ga.Barr v. Jackson County, 238 Ga. 332, 232 S.E.2d 923 (1977). Mich.International Union, United Auto., Aerospace and Agr. Implement Workers of America-UAW v. O'Rourke, 388 Mich. 578, 202 N.W.2d 290 (1972). [FN19] U.S.Moreau v. Tonry, 554 F.2d 163 (5th Cir. 1977). [FN20] HawaiiLife of the Land v. Burns, 59 Haw. 244, 580 P.2d 405 (1978). [FN21] Cal. Helena Rubenstein Internat. v. Younger, 71 Cal. App. 3d 406, 139 Cal. Rptr. 473 (2d Dist. 1977). As to the exception to the mootness doctrine in cases involving matters of public importance, see 81. [FN22] N.Y. Adams v. Meloni, 98 A.D.2d 956, 470 N.Y.S.2d 199 (4th Dep't 1983), order aff'd, 63 N.Y.2d 868, 482 N.Y.S.2d 469, 472 N.E.2d 319 (1984). [FN23] U.S.Barnett v. Rodgers, 410 F.2d 995 (D.C. Cir. 1969). Mail U.S.Hardwick v. Brinson, 523 F.2d 798 (5th Cir. 1975). [FN24] U.S. Rhem v. Malcolm, 389 F. Supp. 964 (S.D. N.Y. 1975), judgment amended on other grounds, 396 F. Supp. 1195 (S.D. N.Y. 1975), judgment aff'd, 527 F.2d 1041 (2d Cir. 1975). [FN25] U.S.U. S. ex rel. Ratchford v. Jeffes, 451 F. Supp. 675 (E.D. Pa. 1978). Habeas corpus petitions U.S.Weaver v. Thomas, 399 F. Supp. 615 (S.D. Tex. 1975); Lee v. Kritzman, 390 F. Supp. 885 (C.D. Cal. 1975). Obtaining book The portion of a prison inmate's complaint seeking relief arising from a violation of the institution's policy statement by the return to the publisher of a book which the inmate had ordered without notice to the inmate of the decision to return the book was dismissed as moot, where the defendant warden and supervisor of education agreed to obtain the book for the inmate at their expense. U.S.Slade v. Petrovsky, 528 F. Supp. 99 (M.D. Pa. 1981). Record expungement To the extent that a prisoner sought expungement of a disciplinary charge from his record, a claim in
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such regard was moot where after a procedural error was uncovered references to the adjustment committee's action were ordered expunged, especially since his custody status would not be affected by such a charge. U.S.Pollard v. Baskerville, 481 F. Supp. 1157 (E.D. Va. 1979), aff'd, 620 F.2d 294 (4th Cir. 1980). [FN26] N.Y.Roudette v. Jones, 101 Misc. 2d 136, 420 N.Y.S.2d 616 (Sup 1979). Mental institution commitments U.S.Evans v. Paderick, 443 F. Supp. 583 (E.D. Va. 1977). Overcrowding U.S.Campbell v. McGruder, 580 F.2d 521 (D.C. Cir. 1978). [FN27] U.S.U. S. ex rel. Jones v. Rundle, 453 F.2d 147 (3d Cir. 1971); Pollard v. Baskerville, 481 F. Supp. 1157 (E.D. Va. 1979), aff'd, 620 F.2d 294 (4th Cir. 1980); U. S. ex rel. Ratchford v. Jeffes, 451 F. Supp. 675 (E.D. Pa. 1978). [FN28] U.S.Black v. Brown, 513 F.2d 652 (7th Cir. 1975). N.J.Avant v. Clifford, 67 N.J. 496, 341 A.2d 629 (1975). [FN29] U.S.Lokey v. Richardson, 600 F.2d 1265 (9th Cir. 1979). [FN30] U.S.Mims v. Shapp, 541 F.2d 415 (3d Cir. 1976). [FN31] U.S.West v. Cunningham, 456 F.2d 1264 (4th Cir. 1972). [FN32] U.S.La Bonte v. Gates, 406 F. Supp. 1227 (D. Conn. 1976); Snyder v. U.S. Bd. of Parole, 383 F. Supp. 1153 (D. Colo. 1974). [FN33] Pa. Simmons v. Board of Probation and Parole, 33 Pa. Commw. 168, 381 A.2d 221 (1978); Com. ex rel. Pugh v. Rundle, 22 Pa. Commw. 352, 348 A.2d 431 (1975). [FN34] U.S.DeShields v. U. S. Parole Commission, 593 F.2d 354 (8th Cir. 1979). [FN35] U.S.Weinstein v. Bradford, 423 U.S. 147, 96 S. Ct. 347, 46 L. Ed. 2d 350, 21 Fed. R. Serv. 2d 1 (1975). Challenge of prison record by parolee Even though a prisoner was out of prison on parole, where the inmate was still technically "in custody" and where the record of his past behavior could be relevant for correctional purposes, the prisoner's complaint seeking restoration of statutory good time which he lost because he violated a prison rule was not moot. U.S.Knell v. Bensinger, 489 F.2d 1014 (7th Cir. 1973).
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[FN36] U.S.Cooper v. Lockhart, 489 F.2d 308 (8th Cir. 1973). Different treatment on the basis of detainer To the extent that a Minnesota prisoner, against whom Louisiana had lodged a parole violation detainer, sought to restrain Minnesota authorities from treating him differently solely on the basis of the detainer without a prompt revocation hearing by the Louisiana authorities, the subsequent discharge of the prisoner by Minnesota authorities into the custody of the Louisiana authorities rendered the issue moot. U.S.Pehler v. Schoen, 537 F.2d 970 (8th Cir. 1976). [FN37] U.S.Matter of Gryzynger, 29 B.R. 992 (W.D. Wis. 1983). D.C.Atkins v. U. S., 283 A.2d 204 (D.C. 1971). Ga.Leonard v. Donald, 134 Ga. App. 482, 214 S.E.2d 731 (1975). Mass.Danis v. Bridge Enterprises, Inc., 8 Mass. App. Ct. 930, 397 N.E.2d 326 (1979). Minn.Hennepin County v. Mikulay, 292 Minn. 200, 194 N.W.2d 259 (1972). Office suite D.C.Dietz v. Miles Holding Corp., 277 A.2d 108 (D.C. 1971). Mobile home lot Mass.Easton Mobile Homes, Inc. v. Curtis, 9 Mass. App. Ct. 930, 404 N.E.2d 699 (1980). [FN38] U.S.Robinson v. Diamond Housing Corp., 463 F.2d 853 (D.C. Cir. 1972). [FN39] Or.Smith v. Reeves, 57 Or. App. 464, 645 P.2d 575 (1982). [FN40] Wash.Kessler v. Nielsen, 3 Wash. App. 120, 472 P.2d 616 (Div. 1 1970). [FN41] D.C.Westmoreland v. Weaver Bros., Inc., 295 A.2d 506 (D.C. 1972). Boarded up premises Despite the fact that the premises had been boarded up by the city because they were not habitable and the property had been sold to a third person, an action to foreclose the mortgage and evict the tenants was not moot, in view of the tenants' desire to move back into their apartments once the building was repaired and in view of the public importance of the issues. N.J.Guttenberg Sav. and Loan Ass'n v. Rivera, 85 N.J. 617, 428 A.2d 1289 (1981). [FN42] Cal.Lee v. Vignoli, 98 Cal. App. 3d Supp. 24, 160 Cal. Rptr. 79 (App. Dep't Super. Ct. 1979). U.S.Robinson v. Diamond Housing Corp., 463 F.2d 853 (D.C. Cir. 1972).
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N.J.Goldberg v. Hale, 172 N.J. Super. 31, 410 A.2d 706 (App. Div. 1980). Terminated lease The fact that a lease was terminated did not render moot an action for constructive eviction and breach of the covenant of quiet enjoyment, where an actual controversy still existed between parties regarding liability for damages arising from the landlords' conduct. Md.Stevan v. Brown, 54 Md. App. 235, 458 A.2d 466 (1983). [FN43] OhioMirlisena v. Fellerhoff, 11 Ohio Misc. 2d 7, 463 N.E.2d 115 (C.P. 1984). Placement on ballot U.S.Ward v. Dearman, 626 F.2d 489 (5th Cir. 1980); Smith v. Board of Election Com'rs for City of Chicago, 587 F. Supp. 1136 (N.D. Ill. 1984). AlaskaMiller v. North Pole City Council, 532 P.2d 1013 (Alaska 1975). Unqualified candidate Where it was clear that a candidate in a primary election for a position of sheriff was ineligible because he did not timely register as a party member, the issue of the standing of a citizen and member of the party executive body to maintain an action precluding the supervisor of elections from placing the candidate's name on the ballot was moot. Fla.Ingham v. Kaney, 456 So. 2d 592 (Fla. Dist. Ct. App. 5th Dist. 1984). [FN44] U.S.Keane v. National Democratic Party, 475 F.2d 1287 (D.C. Cir. 1973). [FN45] U.S.Hauptmann v. Wilentz, 570 F. Supp. 351 (D.N.J. 1983), judgment aff'd, 770 F.2d 1070 (3d Cir. 1985) and judgment aff'd, 770 F.2d 1070 (3d Cir. 1985); National Nutritional Foods Ass'n v. Califano, 457 F. Supp. 275 (S.D. N.Y. 1978), judgment aff'd, 603 F.2d 327 (2d Cir. 1979). Ga.Green v. State, 169 Ga. App. 71, 311 S.E.2d 505 (1983). Internal revenue records A motion by the defendants, charged with evasion of federal income taxes, for an order requiring the government to produce for inspection and copying all books, papers, and documents in the possession of the United States, indicating the method of and date on which the Internal Revenue Service obtained information forming the basis for prosecution, was rendered moot where the defendants had been allowed to examine the government's file and had not specifically indicated what other information they wished to obtain. U.S.U.S. v. Romenesko, 398 F. Supp. 416 (E.D. Wis. 1975). [FN46] Tenn.Hearn v. Pleasure, 624 S.W.2d 556 (Tenn. Ct. App. 1981).
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Decision to disclose rescindable Cal.Cook v. Craig, 55 Cal. App. 3d 773, 127 Cal. Rptr. 712 (3d Dist. 1976). [FN47] Pa.Gonzalez v. School Dist. of Philadelphia, 8 Pa. Commw. 130, 301 A.2d 99 (1973). In absence of class certification Where there had been no certification of any class action in a school desegregation case, the fact that counsel might wish to represent a class of unnamed individuals still attending the school who had some substantial interest in the outcome of the litigation was insufficient to avoid any mootness created by the fact that the original student plaintiffs had graduated. U.S.Pasadena City Bd. of Ed. v. Spangler, 427 U.S. 424, 96 S. Ct. 2697, 49 L. Ed. 2d 599 (1976). One not graduated In an action challenging allegedly racially discriminatory practices of a university, a finding that at least one of the plaintiffs had been enrolled as a student at the university throughout the litigation precluded mootness. U.S.Uzzell v. Friday, 592 F. Supp. 1502, 20 Ed. Law Rep. 515 (M.D. N.C. 1984). [FN48] U.S.Winnick v. Manning, 460 F.2d 545 (2d Cir. 1972); Marin v. University of Puerto Rico, 377 F. Supp. 613 (D.P.R. 1973); Demby v. Wexler, 436 F.2d 570 (2d Cir. 1970). Collateral effects An action challenging regulations governing the conduct of college students, brought on behalf of students who had been suspended for a violation of the regulations, was not moot even though the students' suspensions had expired by their own terms, in view of the possible collateral effects of the suspensions and the recurring nature of the controversy. U.S.Marin v. University of Puerto Rico, 377 F. Supp. 613 (D.P.R. 1973). Academic records affected The fact that suspensions of students from a state university had expired and that other dismissed students were enrolled at other institutions of higher learning did not render moot a proceeding by such former students of the state university challenging, on constitutional grounds, their suspension and dismissal and seeking reinstatement, since the dismissals and suspensions were on students' academic records. Cal. Goldberg v. Regents of University of Cal., 248 Cal. App. 2d 867, 57 Cal. Rptr. 463 (1st Dist. 1967). Ga. Benton v. Gwinnett County Bd. of Educ., 168 Ga. App. 533, 309 S.E.2d 680, 14 Ed. Law Rep. 1150 (1983).
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[FN49] U.S.Caldwell v. Craighead, 432 F.2d 213, 14 Fed. R. Serv. 2d 550 (6th Cir. 1970). Class action Although the plaintiffs were no longer students in the public schools within a school district, the certification of a civil rights action as a class action precluded any viable claim of mootness. U.S.Hernandez v. Hanson, 430 F. Supp. 1154 (D. Neb. 1977). School band suspension A black high school student's claim of denial of First Amendment rights by the defendant school authorities arising out of his suspension from participating in band activities because he quit playing his instrument and left the gymnasium when the pep band he was in started playing "Dixie" at a pep rally became moot when the student moved to another city and entered a high school there. U.S.Caldwell v. Craighead, 432 F.2d 213, 14 Fed. R. Serv. 2d 550 (6th Cir. 1970). [FN50] Colo.Sandoval v. Ryan, 535 P.2d 244 (Colo. Ct. App. 1975). Student newspaper editor An action involving the duty of a state university to readmit a student newspaper editor, who had refused to follow instructions as to an editorial, became moot when the student filed an affidavit that he did not plan to reenter the university. U.S.Troy State University v. Dickey, 402 F.2d 515 (5th Cir. 1968). [FN51] U.S.Miller v. Smith, 584 F. Supp. 149 (D.D.C. 1984). Sexual harassment and gender discrimination U.S.Katz v. Dole, 709 F.2d 251 (4th Cir. 1983). Wiretapping U.S.Watkins v. L.M. Berry & Co., 704 F.2d 577 (11th Cir. 1983). [FN52] U.S.E.E.O.C. v. Dayton Tire & Rubber Co., 573 F. Supp. 782 (S.D. Ohio 1983). [FN53] Cal. Elliott v. Superior Court for Los Angeles County, 265 Cal. App. 2d 825, 71 Cal. Rptr. 807 (2d Dist. 1968). [FN54] Ill.Matter of Estate of Soderholm, 127 Ill. App. 3d 871, 82 Ill. Dec. 876, 469 N.E.2d 410 (1st Dist. 1984). [FN55] D.C. Liberty v. District of Columbia Police and Firemen's Retirement and Relief Bd., 452 A.2d 1187 (D.C. 1982). [FN56] U.S.Retail Clerks Intern. Ass'n, Local Unions Nos. 128 and 633 v. Lion Dry Goods, Inc., 369
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U.S. 17, 82 S. Ct. 541, 7 L. Ed. 2d 503 (1962). [FN57] U.S.Castaneda v. Dura-Vent Corp., 648 F.2d 612 (9th Cir. 1981). [FN58] U.S.Wirtz v. Hotel, Motel and Club Emp. Union, Local 6, 391 U.S. 492, 88 S. Ct. 1743, 20 L. Ed. 2d 763 (1968). [FN59] U.S.Wirtz v. Local 153, Glass Bottle Blowers Ass'n, 389 U.S. 463, 88 S. Ct. 643, 19 L. Ed. 2d 705 (1968); Brennan v. Local 3489, United Steelworkers of America, AFL-CIO, 520 F.2d 516 (7th Cir. 1975), judgment aff'd, 429 U.S. 305, 97 S. Ct. 611, 50 L. Ed. 2d 502 (1977). [FN60] U.S.Snow v. Snow, 270 F. 364 (App. D.C. 1921). Ill.Nelson v. Burns, 255 Ill. App. 314, 1930 WL 2954 (1st Dist. 1930). [FN61] U.S.International Longshoremen's and Warehousemen's Union, Local 21 v. Reynolds Metals Co., 487 F.2d 696 (9th Cir. 1973). Covenant not to compete Where the contractual period within which a former employee was prohibited from competing with his former employer in an employment agency business expired during the pendency of an appeal from an order denying the former employer's application for a temporary injunction, the action was moot insofar as it sought to enforce a contractual covenant not to compete. Tex.Hallmark Personnel of Texas, Inc. v. Franks, 562 S.W.2d 933 (Tex. Civ. App. Houston 1st Dist. 1978). [FN62] U.S.Security Options Corp. v. Devilliers Nuclear Corp., 472 F.2d 844 (2d Cir. 1972). [FN63] Or.American Can Co. v. Davis, 28 Or. App. 207, 559 P.2d 898 (1977). [FN64] U.S.Americans United for Separation of Church and State v. Board of Ed. of Beechwood Independent School Dist., 369 F. Supp. 1059 (E.D. Ky. 1974). [FN65] U.S.Andis Clipper Co. v. Oster Corp., 481 F. Supp. 1360 (E.D. Wis. 1979); Gunter & Cooke, Inc. v. Southern Elec. Service Co., 256 F. Supp. 639 (M.D. N.C. 1966), judgment aff'd, 378 F.2d 60 (4th Cir. 1967). [FN66] U.S.Robintech, Inc. v. Chemidus Wavin, Ltd., 628 F.2d 142 (D.C. Cir. 1980). [FN67] U.S.Black, Sivalls & Bryson, Inc. v. Keystone Steel Fabrication, Inc., 584 F.2d 946, 26 Fed. R. Serv. 2d 155 (10th Cir. 1978). [FN68] Ariz.Browning v. Levy's of Tucson, 20 Ariz. App. 325, 512 P.2d 857 (Div. 2 1973). [FN69] Ala.Limbaugh v. Johnston, 393 So. 2d 963 (Ala. 1981). [FN70] N.H.Kelley's Estate v. Hillsborough County Personnel Committee, 120 N.H. 779, 423 A.2d
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607 (1980). [FN71] Ark.Odom v. Tosco Corp., 12 Ark. App. 196, 672 S.W.2d 915 (1984). [FN72] Ky.Williams v. Perry, 454 S.W.2d 360 (Ky. 1970). Tex.Parr v. White, 543 S.W.2d 445 (Tex. Civ. App. Corpus Christi 1976), writ refused n.r.e., (June 22, 1977). [FN73] U.S.McCabe v. Nassau County Medical Center, 453 F.2d 698 (2d Cir. 1971). [FN74] U.S.Taylor v. St. Vincent's Hospital, 523 F.2d 75 (9th Cir. 1975). Spousal consent Where a complaint challenged a hospital policy which originally required spousal consent for sterilizations requested by married women who were separated from their husbands for a period of time, and where a change was made in the hospital policy to provide that, in the case of married adults, elective sterilization should not require the written consent of the spouse, but that the physician must indicate that the spouse had been consulted and, in the event the spouse was not available, verification of an attempt to notify should be required, the change did not meet the claimants' objections and did not render the case moot. U.S.Holton v. Crozer-Chester Medical Center, 560 F.2d 575 (3d Cir. 1977). [FN75] U.S.Hotel Coamo Springs, Inc. v. Colon, 539 F. Supp. 1008 (D.P.R. 1982). Mont.Schara v. Anaconda Co., 187 Mont. 377, 610 P.2d 132 (1980). Water tower A permanent injunction barring a city from taking any action with respect to transactions connected with construction of a water tower did not render moot the city's action to condemn the land for a water tower. Del.City of Wilmington By and Through Water Dept. v. Lord, 340 A.2d 182 (Del. Super. Ct. 1975). [FN76] Kan. Lone Star Industries, Inc. v. Secretary of Kansas Dept. of Transp., 234 Kan. 121, 671 P.2d 511 (1983). [FN77] N.C.City of Durham v. Manson, 285 N.C. 741, 208 S.E.2d 662 (1974). [FN78] Or.Turner v. Washington County, 70 Or. App. 575, 689 P.2d 1318 (1984). [FN79] Or.Turner v. Washington County, 70 Or. App. 575, 689 P.2d 1318 (1984). [FN80] U.S. Hollis v. Itawamba County Loans, 657 F.2d 746 (5th Cir. 1981); Johnson v. American Credit Co. of Georgia, 581 F.2d 526 (5th Cir. 1978). HawaiiLane v. Yamamoto, 2 Haw. App. 176, 628 P.2d 634 (1981).
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[FN81] U.S.Langton v. Maloney, 527 F. Supp. 538 (D. Conn. 1981). Released convict's appeal A state may not effectively deny a convict access to its appellate courts until he or she has been released and then argue that his or her case has been mooted by the convict's failure to do what it alone prevented him or her from doing. U.S.Sibron v. New York, 392 U.S. 40, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968). Mental health commitment Absence of a probable cause hearing prior to involuntary commitment to a mental health facility was moot because the patient did not contest the finding of mental illness and had been fully discharged from commitment. Minn.Matter of Ringland, 357 N.W.2d 132 (Minn. Ct. App. 1984). Corporate officers' removal A securities fraud suit seeking invalidation of all acts of a board of directors subsequent to allegedly false proxy statements was moot insofar as it sought removal of corporate officers who had completed their terms. U.S.Smillie v. Park Chemical Co., 466 F. Supp. 572 (E.D. Mich. 1979). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 80 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. II. Cause or Right of Action B. Abstract and Moot Questions 2. Mootness b. Exceptions to Mootness Doctrine Topic Summary References Correlation Table 81. Public importance exception West's Key Number Digest West's Key Number Digest, Action 6 The courts may consider cases of public importance, even though they are technically moot. Two exceptions exist to the mootness doctrine: a court may resolve an otherwise moot case if the matter is one that is capable of repetition yet evading review,[1] and a court may hear moot case involving issues of great public importance, which may recur in the future.[2] In determining whether or not a sufficient public interest is involved to allow consideration of a moot case, a court should consider the public or private nature of the question presented, the desirability of an authoritative determination which will provide future guidance to public officers, and the likelihood that the question will recur.[3] An allegedly moot case that involves frequently recurring issues of public importance ought to be decided,[ 4] as where there are recurring constitutional violations.[5] However, the mere existence of a statute implicating the public interest is not sufficient to support a discretionary assertion of subject-matter jurisdiction over an issue that is not otherwise justiciable.[6] If a pending case poses an issue of broad public interest that is likely to recur, the court may exercise an inherent discretion to resolve that issue even though an event occurring during its pendency would normally render the matter moot,[7] and even though it has become moot as to the parties involved.[8] The criteria for applying the public interest exception to the mootness doctrine include the public nature of the question, the desirability of an authoritative determination for the purpose of guiding public officers, and the likelihood that the question will generally recur.[9] Mootness has been obviated, in view of the public importance of the issues sought to be litigated, in actions involving such matters as the conduct of elections,[10] the extent of the authority of public officials,[11] open meeting laws,[12] and the disclosure of public records.[13]
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CUMULATIVE SUPPLEMENT Cases: The criteria for application of the public interest exception to the mootness doctrine are: (1) the question presented is of a public nature, (2) an authoritative resolution of the question is desirable to guide public officers, and (3) the question is likely to recur. Cinkus v. Village of Stickney Municipal Officers Electoral Bd., 228 Ill. 2d 200, 319 Ill. Dec. 887, 886 N.E.2d 1011 (2008), as modified, (Apr. 23, 2008). A clear showing of each criterion is necessary for application of the public interest exception to the mootness doctrine. Cinkus v. Village of Stickney Municipal Officers Electoral Bd., 228 Ill. 2d 200, 319 Ill. Dec. 887, 886 N.E.2d 1011 (2008), as modified, (Apr. 23, 2008). A court may decide a moot question where there is an imperative and manifest urgency to establish a rule of future conduct in matters of important public concern, which may frequently recur, and which, because of inherent time constraints, may not be able to be afforded complete appellate review. In re Shawn P., 172 Md. App. 569, 916 A.2d 399 (2007). Exception to mootness doctrine, for issues capable of repetition yet evading review, did not apply to appeal by clerk of city council, from Court of Appeals' order granting writ of mandamus, to taxpayer, to compel clerk to certify to council a petition to proceed with recall election of council member, which appeal was moot because council member was now out of office because council member's term of office had expired and council member had not run for reelection; issues raised by clerk, which were related to election provisions, would not always be rendered moot before there was final judicial resolution, and clerk and taxpayer could have sought more expeditious resolution by Court of Appeals or requested accelerated briefing and evidence schedule on appeal, but neither did. State ex rel. Sawyer v. Cendroski, 118 Ohio St. 3d 50, 2008-Ohio-1771, 885 N.E.2d 938 (2008). As a general rule, Supreme Court only considers cases involving issues in dispute, and shall not address moot, abstract, academic, or hypothetical questions; however, an exception exists in cases of extreme public importance, which are capable of repetition but which evade review. Public Service Employees' Union, Local 1033, LIUNA, AFL-CIO v. City of Cranston, 960 A.2d 548 (R.I. 2008). [END OF SUPPLEMENT]
[FN1] 82. [FN2] Colo.State Bd. of Chiropractic Examiners v. Stjernholm, 935 P.2d 959 (Colo. 1997). Fla.Curless v. Clay County, 395 So. 2d 255 (Fla. Dist. Ct. App. 1st Dist. 1981). Okla.Marquette v. Marquette, 1984 OK CIV APP 25, 686 P.2d 990 (Ct. App. Div. 1 1984). Exception narrowly construed The courts construe narrowly the public interest exception to the mootness doctrine, which allows a court to resolve an otherwise moot issue if the question presented is of a public nature, the circumstances are likely to recur, and an authoritative resolution of the question is desirable for the purpose of guiding public officers.
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Ill.In re Adoption of Walgreen, 186 Ill. 2d 362, 238 Ill. Dec. 124, 710 N.E.2d 1226 (1999). [FN3] Wash. Dioxin/Organochlorine Center v. Pollution Control Hearings Bd., 131 Wash. 2d 345, 932 P.2d 158 (1997). [FN4] Md.In re Norberto C., 133 Md. App. 558, 758 A.2d 637 (2000). [FN5] Colo.State Bd. of Chiropractic Examiners v. Stjernholm, 935 P.2d 959 (Colo. 1997). [FN6] Wash.Snohomish County v. Anderson, 124 Wash. 2d 834, 881 P.2d 240 (1994). As to mandatory and discretionary applications of mootness principles, see 78. [FN7] Cal.Edelstein v. City and County of San Francisco, 29 Cal. 4th 164, 126 Cal. Rptr. 2d 727, 56 P.3d 1029 (2002). Existence of uncertainty and confusion An exception to the general rule against hearing moot claims is made in some cases because of the public interest involved, and the uncertainty and confusion that exist. Mass.Dimino v. Secretary of Com., 427 Mass. 704, 695 N.E.2d 659 (1998). [FN8] Kan. State ex rel. Stephan v. Johnson, 248 Kan. 286, 807 P.2d 664, 66 Ed. Law Rep. 828 (1991). [FN9] Ill.Radazewski v. Cawley, 159 Ill. 2d 372, 203 Ill. Dec. 102, 639 N.E.2d 141 (1994). As to the exception to the mootness doctrine with respect to controversies capable of repetition yet evading review, see 82. [FN10] AlaskaMiller v. North Pole City Council, 532 P.2d 1013 (Alaska 1975). Cal.Fields v. Eu, 18 Cal. 3d 322, 134 Cal. Rptr. 367, 556 P.2d 729 (1976). N.Y. Carr v. New York State Bd. of Elections, 40 N.Y.2d 556, 388 N.Y.S.2d 87, 356 N.E.2d 713 (1976). Ohio Foster v. Cuyahoga County Bd. of Elections, 53 Ohio App. 2d 213, 7 Ohio Op. 3d 282, 373 N.E.2d 1274 (8th Dist. Cuyahoga County 1977). [FN11] U.S.Nader v. Volpe, 475 F.2d 916 (D.C. Cir. 1973). [FN12] Mass.Ghiglione v. School Committee of Southbridge, 376 Mass. 70, 378 N.E.2d 984 (1978). [FN13] N.Y.Oneonta Star Division of Ottaway Newspapers, Inc. v. Mogavero, 77 A.D.2d 376, 434 N.Y.S.2d 781 (3d Dep't 1980). "Sunshine" provision
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Fla.Plante v. Smathers, 372 So. 2d 933 (Fla. 1979). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 81 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. II. Cause or Right of Action B. Abstract and Moot Questions 2. Mootness b. Exceptions to Mootness Doctrine Topic Summary References Correlation Table 82. Controversies capable of repetition yet evading review West's Key Number Digest West's Key Number Digest, Action 6 A technically moot case may be adjudicated on its merits where the nature of the controversy is such that it is capable of repetition yet evading review. Two exceptions exist to the mootness doctrine: a court may hear moot case involving issues of great public importance or involving recurring constitutional violations,[1] and a court may resolve an otherwise moot case if the matter is one that is capable of repetition yet evading review.[2] A case which is technically moot thus may nevertheless by adjudicated if it involves a controversy capable of repetition, yet evading review.[3] To utilize this exception to the mootness doctrine, two requirements must be met: first, the challenged action must be too short in duration to be fully litigated prior to its cessation or expiration; and second, there must be a reasonable expectation that the same complaining party would be subject to the same action again.[4] The foregoing exception to the mootness doctrine is limited to situations where the challenged action can be expected to recur and is too short in its duration to be fully litigated prior to its cessation or expectation.[5] That is, an exception exists where the challenged conduct is of such a limited duration as to prohibit full litigation prior to termination of the conduct,[6] as where the duration of the challenged action is short and the time required to complete an appeal is lengthy.[7] The presence of an actual controversy turns on whether the plaintiff is suffering the threat of actual injury to a protected legal interest, or is merely speculating about the impact of some generalized grievance.[8] Thus, in order for the above exception to apply, there must be a reasonable expectation,[9] and not merely a physical or theoretical possibility,[10] that the complaining party would be subjected again to the same action. The capable of repetition yet evading review exception to the mootness doctrine often is applied in cases of public importance which are likely to recur and to evade review.[11] Actions which have proceeded to adjudication in spite of their mootness, on the basis of the exception, have dealt with such matters as the availability of abortions,[12] elections,[13] and residency requirements.[14] The exception also has been applied in cases in-
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volving benefits, rights to welfare assistance,[15] and unemployment insurance.[16] In addition, the doctrine or exception has been applied to controversies involving the preadjudication detention[17] and incarceration after sentencing[18] of juveniles, educational services for the handicapped,[19] the treatment of children committed to welfare agencies,[20] and commitments of the mentally ill.[21] CUMULATIVE SUPPLEMENT Cases: Exception to mootness doctrine, for issues capable of repetition yet evading review, applies when challenged action is too short in duration to be fully litigated before its cessation or expiration, and there is reasonable expectation that same complaining party will be subject to same action again. State ex rel. Sawyer v. Cendroski, 118 Ohio St. 3d 50, 2008-Ohio-1771, 885 N.E.2d 938 (2008). Exception to mootness doctrine, for issues capable of repetition yet evading review, applies when the challenged action is too short in duration to be fully litigated before its cessation or expiration, and there is a reasonable expectation that the same complaining party will be subject to the same action again. State ex rel. Todd v. Felger, 116 Ohio St. 3d 207, 2007-Ohio-6053, 877 N.E.2d 673 (2007). There is an exception to the mootness doctrine for questions that are "capable of repetition yet evading review. Laney v. State, 223 S.W.3d 656 (Tex. App. Tyler 2007). [END OF SUPPLEMENT]
[FN1] 81. [FN2] Ark.Quinn v. Webb Wheel Products, 334 Ark. 573, 976 S.W.2d 386 (1998). Colo.State Bd. of Chiropractic Examiners v. Stjernholm, 935 P.2d 959 (Colo. 1997). Mich.Mead v. Batchlor, 435 Mich. 480, 460 N.W.2d 493, 32 A.L.R.5th 737 (1990). Okla.Chandler U.S.A., Inc. v. Tyree, 2004 OK 16, 87 P.3d 598 (Okla. 2004). [FN3] U.S. Trans Intern. Airlines, Inc. v. International Broth. of Teamsters, 650 F.2d 949 (9th Cir. 1980); Southern Pacific Transp. Co. v. St. Charles Parish Police Jury, 569 F. Supp. 1174 (E.D. La. 1983). Mass.Lockhart v. Attorney General, 390 Mass. 780, 459 N.E.2d 813 (1984). N.D.Bies v. Obregon, 1997 ND 18, 558 N.W.2d 855 (N.D. 1997). S.C.Treasured Arts, Inc. v. Watson, 319 S.C. 560, 463 S.E.2d 90 (1995). W.Va.State ex rel. M.C.H. v. Kinder, 173 W. Va. 387, 317 S.E.2d 150 (1984). [FN4] Miss.Allred v. Webb, 641 So. 2d 1218 (Miss. 1994). OhioState ex rel. Dispatch Printing Co. v. Louden, 91 Ohio St. 3d 61, 2001 -Ohio- 268, 741 N.E.2d
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517 (2001). Tex.Williams v. Lara, 52 S.W.3d 171 (Tex. 2001). Exclusion of media from trial A trial court's decision to exclude all members of the media from the voir dire of a high-profile trial was capable of repetition yet evading review and was therefore an appropriate matter for a writ of mandamus, even though the voir dire proceeding was complete when the petition for a writ was heard. Tex.Houston Chronicle Pub. Co. v. Crapitto, 907 S.W.2d 99 (Tex. App. Houston 14th Dist. 1995). Applicability in cases other than class actions In cases that are not class actions, the exception to mootness for cases that are capable of repetition while evading review requires that the duration of the challenged action be too short to be fully litigated prior to its expiration, and that there be a reasonable expectation that the same complaining party will be subject to the same action again. Vt.State v. Gundlah ex rel. Smallheer, 160 Vt. 193, 624 A.2d 368 (1993). As to the application of the mootness doctrine to class actions, generally, see 79. [FN5] U.S.Weinstein v. Bradford, 423 U.S. 147, 96 S. Ct. 347, 46 L. Ed. 2d 350, 21 Fed. R. Serv. 2d 1 (1975). Ill.People v. Bailey, 116 Ill. App. 3d 259, 72 Ill. Dec. 96, 452 N.E.2d 28 (1st Dist. 1983). No reasonable expectation of recurrence shown A challenge to an appointed district attorney's authority to remove an assistant district attorney at his discretion was moot, and not capable of repetition yet evading review, as there was no reasonable expectation that the situation would be faced again, since a different district attorney had been elected. Miss.Allred v. Webb, 641 So. 2d 1218 (Miss. 1994). [FN6] IdahoState v. Hoyle, 99 P.3d 1069 (Idaho 2004). [FN7] Miss.Mississippi High School Activities Ass'n, Inc. v. Coleman By and on Behalf of Laymon, 631 So. 2d 768, 89 Ed. Law Rep. 692 (Miss. 1994). Issues escaping review at appellate level Issues which may be repeatedly presented to the trial courts, yet escape review at the appellate level because of their fleeting and determinate nature, may appropriately be decided. W.Va.West Virginia Educ. Ass'n v. Consolidated Public Retirement Bd., 194 W. Va. 501, 460 S.E.2d 747, 102 Ed. Law Rep. 1210 (1995). [FN8] Vt.J.L. v. Miller, 174 Vt. 288, 817 A.2d 1 (2002).
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Prospective danger of injury insufficient Miss.Shaw v. Shaw, 603 So. 2d 287 (Miss. 1992). [FN9] U.S.Murphy v. Hunt, 455 U.S. 478, 102 S. Ct. 1181, 71 L. Ed. 2d 353 (1982); Morrell v. Harris, 505 F. Supp. 1063 (E.D. Pa. 1981). Ill.People v. Bailey, 116 Ill. App. 3d 259, 72 Ill. Dec. 96, 452 N.E.2d 28 (1st Dist. 1983). [FN10] U.S.Murphy v. Hunt, 455 U.S. 478, 102 S. Ct. 1181, 71 L. Ed. 2d 353 (1982). [FN11] U.S.U.S. v. W. T. Grant Co., 345 U.S. 629, 73 S. Ct. 894, 97 L. Ed. 1303 (1953). Cal.Daly v. Superior Court, 19 Cal. 3d 132, 137 Cal. Rptr. 14, 560 P.2d 1193 (1977). Colo.Bestway Disposal v. Public Utilities Commission, 184 Colo. 428, 520 P.2d 1039 (1974). Fla.In Interest of T. A. A., 388 So. 2d 41 (Fla. Dist. Ct. App. 5th Dist. 1980). IowaGere v. Council Bluffs Community School Dist., 334 N.W.2d 307, 11 Ed. Law Rep. 629 (Iowa 1983). Md.Kindley v. Governor of Maryland, 289 Md. 620, 426 A.2d 908 (1981). Mich.Kennedy v. Board of State Canvassers, 127 Mich. App. 493, 339 N.W.2d 477 (1983). N.J.Application of Boardwalk Regency Corp. for Casino License, 90 N.J. 361, 447 A.2d 1335 (1982) . Okla.Marquette v. Marquette, 1984 OK CIV APP 25, 686 P.2d 990 (Ct. App. Div. 1 1984). Pa.Allen v. Colautti, 53 Pa. Commw. 392, 417 A.2d 1303 (1980). As to the exception to the mootness doctrine in cases involving issues of importance to the public, see 81. [FN12] U.S.Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973) (holding modified on other grounds by, Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992)); Doe v. Israel, 482 F.2d 156 (1st Cir. 1973). IowaCatholic Charities of Archdiocese of Dubuque v. Zalesky, 232 N.W.2d 539 (Iowa 1975). [FN13] U.S.CBS, Inc. v. F. C. C., 629 F.2d 1 (D.C. Cir. 1980), judgment aff'd, 453 U.S. 367, 101 S. Ct. 2813, 69 L. Ed. 2d 706 (1981). Filing deadline U.S.Rock v. Bryant, 459 F. Supp. 64 (E.D. Ark. 1978), aff'd, 590 F.2d 340 (8th Cir. 1978). Primary election
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Although a case involving the manner of the placement of names of candidates on a primary election ballot would not be heard on its merits until after an election, that did not necessarily moot the case, where, as to plaintiffs who might be candidates in the future, the issue involved was capable of repetition but evaded review. U.S.Bloomenthal v. Lavelle, 614 F.2d 1139 (7th Cir. 1980). [FN14] U.S.Sosna v. Iowa, 419 U.S. 393, 95 S. Ct. 553, 42 L. Ed. 2d 532, 19 Fed. R. Serv. 2d 925 (1975). [FN15] U.S.Fischer v. Weaver, 55 F.R.D. 454, 16 Fed. R. Serv. 2d 247 (N.D. Ill. 1972). Benefit computation A claim that the plaintiffs were entitled, in the computation of AFDC benefits, to disregard of their income under public service contracts was not mooted by the expiration of a contract, inasmuch as the claim was based upon a governmental policy which was capable of repetition, yet evading review. U.S.Betts v. Weinberger, 391 F. Supp. 1122 (D. Vt. 1975), judgment aff'd, 423 U.S. 975, 96 S. Ct. 388, 46 L. Ed. 2d 299 (1975). [FN16] U.S.Indiana Employment Security Division v. Burney, 409 U.S. 540, 93 S. Ct. 883, 35 L. Ed. 2d 62 (1973). N.H.Royer v. State Dept. of Employment Sec., 118 N.H. 673, 394 A.2d 828 (1978). [FN17] W.Va.State ex rel. M.C.H. v. Kinder, 173 W. Va. 387, 317 S.E.2d 150 (1984). [FN18] Ill.People v. Bailey, 116 Ill. App. 3d 259, 72 Ill. Dec. 96, 452 N.E.2d 28 (1st Dist. 1983). [FN19] U.S. Town of Burlington v. Department of Educ. for Com. of Mass., 736 F.2d 773, 18 Ed. Law Rep. 278 (1st Cir. 1984), judgment aff'd, 471 U.S. 359, 105 S. Ct. 1996, 85 L. Ed. 2d 385, 1 A.D.D. 234, 23 Ed. Law Rep. 1189 (1985); Selelyo v. Drury, 508 F. Supp. 122 (S.D. Ohio 1980). [FN20] Pa.Janet D. v. Carros, 240 Pa. Super. 291, 362 A.2d 1060 (1976). [FN21] U.S.Rex v. Owens ex rel. State of Okl., 585 F.2d 432 (10th Cir. 1978); Friend v. U.S., 388 F.2d 579 (D.C. Cir. 1967). Indian reservation resident In view of a finding that it was likely that a mentally ill Indian resident of a reservation would again require commitment, a controversy as to whether state, county or federal officials had responsibility was not moot. U.S.White v. Califano, 437 F. Supp. 543 (D.S.D. 1977), judgment aff'd, 581 F.2d 697 (8th Cir. 1978) . Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. II. Cause or Right of Action B. Abstract and Moot Questions 2. Mootness b. Exceptions to Mootness Doctrine Topic Summary References Correlation Table 83. Voluntary cessation of challenged practice West's Key Number Digest West's Key Number Digest, Action 6 The voluntary cessation of a practice does not moot an action challenging it unless its effects have been eradicated and its recurrence is unlikely. An action challenging an allegedly illegal practice ordinarily is not mooted by the voluntary cessation of the practice,[1] particularly if it is one which is deeply rooted and of long standing,[2] unless its effects have been completely eradicated[3] and it is not likely to recur.[4] A case will not become moot, therefore, merely because a defendant agrees voluntarily to cease engaging in the challenged conduct, as there remains a risk that the defendant will merely resume the challenged conduct after the case is dismissed.[5] An action is not mooted by the voluntary cessation of the practice being challenged, if the underlying controversy on which the action is based continues,[6] or if the cessation of the practice is not expected to be permanent.[7] In actions which challenge a government practice, mootness is obviated where a probability of the recurrence of the practice is coupled with a certainty that the impact of the recurrence will fall on the litigants before the court.[8] On the other hand, while a case may be kept alive, despite its apparent mootness, if there exists some cognizable danger of a recurrent violation, something more than a mere possibility of recurrence is required to obviate mootness,[9] as a case may cease to represent a live controversy if the possibility of a recurrence of a challenged practice is only a speculative contingency.[10] Moreover, mootness may not be avoided on the basis of an asserted possibility of a recurrence of a voluntarily ceased practice which would affect persons other than the plaintiffs, when class action relief is not sought.[11] Effect of disclaimers or promises. In determining whether the cessation of an alleged illegal activity compels a finding of mootness, a court may consider the good faith of an announced intention to discontinue the challenged activity, the effectiveness of the discontinuance, and the character of the past violation.[12] Accordingly, while there is authority to the ef-
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fect that an action may be mooted by a governmental promise to take steps to insure that a challenged government action will not be repeated,[13] or by a governmental statement that it does not intend to violate the claimed right of plaintiff,[14] claims for relief often are not mooted by mere assurances,[15] statements,[16] or promises[17] to refrain from a challenged activity. Exceptions. Exceptions to the general rule that voluntary cessation of allegedly illegal conduct does not make a case moot exist where it can be said with assurance that there is no reasonable expectation the alleged violation will recur, and where interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.[18] When both of these conditions are satisfied, it may be said that the case is moot despite the fact that the defendant voluntarily stopped his or her illegal conduct, because neither party has a legally cognizable interest in a final determination of the underlying questions of fact and law.[19] Burden of demonstrating mootness. The burden to demonstrate mootness is a heavy one,[20] and while the party moving for injunctive relief must satisfy the court that there exists some cognizable danger of recurrent violation despite the discontinuance of illegal conduct,[21] the burden of persuasion on the issue of mootness is on the defendant[22] or on the party arguing that a case is moot.[23] Thus, even if a defendant voluntarily stops the allegedly wrongful conduct, the defendant must still show with assurance that there is no reasonable expectation that the alleged violation will recur.[24] CUMULATIVE SUPPLEMENT Cases: A case may become moot if the party challenging the legality of government restrictions on the party's conduct voluntarily forswears any intent to engage in the conduct the government has prohibited. Unity08 v. F.E.C., 596 F.3d 861 (D.C. Cir. 2010). [END OF SUPPLEMENT]
[FN1] U.S. City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 102 S. Ct. 1070, 71 L. Ed. 2d 152 (1982); Los Angeles County v. Davis, 440 U.S. 625, 99 S. Ct. 1379, 59 L. Ed. 2d 642 (1979); Gilroy v. Ferro, 534 F. Supp. 326 (W.D. N.Y. 1982). N.D.Tibert v. City of Minto, 2004 ND 97, 679 N.W.2d 440 (2004). Pa. Highway Auto Service v. Com., Dept. of Environmental Resources, 64 Pa. Commw. 160, 439 A.2d 238 (1982). Environmental regulation An action to enjoin spraying of herbicides in national forests without preparation of an environmental impact statement, in compliance with statutory requirements, was not mooted by termination of the project sought to be enjoined.
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U.S.State of Wis. v. Butz, 389 F. Supp. 1065 (E.D. Wis. 1975). [FN2] U.S.Gray v. Sanders, 372 U.S. 368, 83 S. Ct. 801, 9 L. Ed. 2d 821 (1963); U.S. v. Beach Associates, Inc., 286 F. Supp. 801 (D. Md. 1968). Cessation of illegal activity The mere voluntary cessation of allegedly illegal activity does not moot a case, but such a case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur. Vt.All Cycle, Inc. v. Chittenden Solid Waste Dist., 164 Vt. 428, 670 A.2d 800 (1995). [FN3] U.S. Los Angeles County v. Davis, 440 U.S. 625, 99 S. Ct. 1379, 59 L. Ed. 2d 642 (1979); Halet v. Wend Inv. Co., 672 F.2d 1305 (9th Cir. 1982); Finberg v. Sullivan, 658 F.2d 93 (3d Cir. 1980); Balliet v. Blue Ridge Pressure Castings, Inc., 572 F. Supp. 796 (E.D. Pa. 1983). Adults-only rental policy The owner of an apartment complex failed to demonstrate that a tenant's action charging that an adultsonly rental policy violated his right to live with his family and was racially discriminatory was moot after the city adopted an ordinance prohibiting the adults-only rental policy and the owner announced a new policy under which it would rent to households with minor children, where the owner could revert to the adults-only policy in the future and it was not clear that the owner's new policy had completely eradicated the effect of the owner's adults-only policy. U.S.Halet v. Wend Inv. Co., 672 F.2d 1305 (9th Cir. 1982). [FN4] U.S.U. S. v. Concentrated Phosphate Export Ass'n, 393 U.S. 199, 89 S. Ct. 361, 21 L. Ed. 2d 344 (1968); N.L.R.B. v. Riley-Beaird, Inc., 681 F.2d 1083 (5th Cir. 1982). Cal.Lee v. Gates, 141 Cal. App. 3d 989, 190 Cal. Rptr. 682 (2d Dist. 1983). Or.Associated Reforestation Contractors, Inc. v. State, Workers' Compensation Bd., 59 Or. App. 348, 650 P.2d 1068 (1982). [FN5] U.S.Washington Legal Foundation v. Henney, 202 F.3d 331 (D.C. Cir. 2000). [FN6] U.S.Petersen v. Talisman Sugar Corp., 478 F.2d 73 (5th Cir. 1973). Mass.Wolf v. Commissioner of Public Welfare, 367 Mass. 293, 327 N.E.2d 885 (1975). Class actions (1) A class action is not moot where an actual controversy concerning valuable rights of a named plaintiff and other members of his or her class exists when the litigation begins and the defendant abandons the activity giving rise to the controversy with respect to the named plaintiff before the trial court renders its decision but still maintains that he or she has the power to annul these valuable rights in future, where the claimed rights of named the plaintiff and his fellow or her class members continue to
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exist after the trial court renders its decision, and where the controversy is likely to recur; in such a case, a real controversy exists when the trial court renders its decision and case is not moot. Ill.Payne v. Coates-Miller, Inc., 52 Ill. App. 3d 288, 10 Ill. Dec. 18, 367 N.E.2d 406 (1st Dist. 1977). (2) The "capable of repetition, yet evading review" exception to the mootness doctrine applies when the plaintiff in a class action had a personal stake at the outset of the lawsuit, and where a claim may arise again with respect to that plaintiff. Ind.Matter of Tina T., 579 N.E.2d 48 (Ind. 1991). As to the application of the mootness doctrine to class actions, generally, see 79. [FN7] U.S.Hooker Chemical Co., Ruco Div. v. U.S. E.P.A., Region II, 642 F.2d 48 (3d Cir. 1981); Smith v. Young Men's Christian Ass'n of Montgomery, Inc., 462 F.2d 634 (5th Cir. 1972); Kearney & Trecker Corp. v. Milwaukee Boiler Mfg. Co., 554 F. Supp. 53 (E.D. Wis. 1982). Food stamp program Even if state officials administering a food stamp program were presently found to be in substantial compliance with federal hearing requirements, an action complaining of their alleged failure to implement a fair hearing decision within a certain number of days of a request for a hearing was not rendered moot, since compliance was merely voluntary and the state officials still believed that the federal regulations did not require implementation within that time, but only the holding of a hearing and issuance of a decision in such period. U.S.Lambus v. Walsh, 448 F. Supp. 240 (W.D. Mo. 1978). [FN8] U.S.State Highway Commission of Missouri v. Volpe, 479 F.2d 1099, 27 A.L.R. Fed. 183 (8th Cir. 1973). [FN9] U.S.Gould v. McCue and McCue, P. C., 417 F. Supp. 988 (S.D. N.Y. 1976). U.S.Delta Air Lines, Inc. v. C. A. B., 674 F.2d 1 (D.C. Cir. 1982). Pa. Highway Auto Service v. Com., Dept. of Environmental Resources, 64 Pa. Commw. 160, 439 A.2d 238 (1982). [FN10] U.S.Burbank v. Twomey, 520 F.2d 744 (7th Cir. 1975). Inequality in police services U.S.Burner v. Washington, 399 F. Supp. 44 (D.D.C. 1975). Jury selection Where any discrimination in jury selection had been corrected by intervention of a state judge, and where nothing appeared to suggest that the alleged discrimination would reappear, the plaintiff's claim for equitable relief was moot.
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U.S.Blackwell v. Thomas, 476 F.2d 443 (4th Cir. 1973). [FN11] U.S.Danzy v. Johnson, 417 F. Supp. 426 (E.D. Pa. 1976), aff'd, 582 F.2d 1273 (3d Cir. 1978). [FN12] Pa.Cox v. City of Chester, 76 Pa. Commw. 446, 464 A.2d 613 (1983). [FN13] U.S.Doe v. U.S. Civil Service Commission, 483 F. Supp. 539 (S.D. N.Y. 1980). [FN14] U.S.Becket v. Marks, 358 F. Supp. 1180 (S.D. N.Y. 1973). [FN15] Mass.Wolf v. Commissioner of Public Welfare, 367 Mass. 293, 327 N.E.2d 885 (1975). [FN16] U.S.U. S. v. Concentrated Phosphate Export Ass'n, 393 U.S. 199, 89 S. Ct. 361, 21 L. Ed. 2d 344 (1968). [FN17] U.S.Halet v. Wend Inv. Co., 672 F.2d 1305 (9th Cir. 1982). [FN18] La.Louisiana Associated General Contractors, Inc. v. State Through Div. of Admin., Office of State Purchasing, 669 So. 2d 1185 (La. 1996). [FN19] La.Louisiana Associated General Contractors, Inc. v. State Through Div. of Admin., Office of State Purchasing, 669 So. 2d 1185 (La. 1996). [FN20] U.S. Los Angeles County v. Davis, 440 U.S. 625, 99 S. Ct. 1379, 59 L. Ed. 2d 642 (1979); Pacific Legal Foundation v. Watt, 539 F. Supp. 1194 (D. Mont. 1982). [FN21] U.S.U.S. v. W. T. Grant Co., 345 U.S. 629, 73 S. Ct. 894, 97 L. Ed. 1303 (1953); Becket v. Marks, 358 F. Supp. 1180 (S.D. N.Y. 1973). [FN22] U.S.Selelyo v. Drury, 508 F. Supp. 122 (S.D. Ohio 1980); Doe v. U.S. Civil Service Commission, 483 F. Supp. 539 (S.D. N.Y. 1980). [FN23] U.S.Princeton Community Phone Book, Inc. v. Bate, 582 F.2d 706 (3d Cir. 1978); Knuckles v. Weinberger, 511 F.2d 1221 (9th Cir. 1975). D.C.In re Morris, 482 A.2d 369 (D.C. 1984). [FN24] U.S.U.S. v. W. T. Grant Co., 345 U.S. 629, 73 S. Ct. 894, 97 L. Ed. 1303 (1953); Kearney & Trecker Corp. v. Milwaukee Boiler Mfg. Co., 554 F. Supp. 53 (E.D. Wis. 1982); U.S. v. Westinghouse Elec. Corp., 471 F. Supp. 532, 4 Fed. R. Evid. Serv. 390 (N.D. Cal. 1978), judgment aff'd, 648 F.2d 642 (9th Cir. 1981). La.Cat's Meow, Inc. v. City of New Orleans Through Dept. of Finance, 720 So. 2d 1186 (La. 1998). Pa.Allen v. Colautti, 53 Pa. Commw. 392, 417 A.2d 1303 (1980). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 83
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END OF DOCUMENT
CJS ACTIONS III REF 1A C.J.S. Actions III Refs.
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. III. Conditions Precedent Topic Summary Correlation Table Research References A.L.R. Library West's A.L.R. Digest, Action 10 , 11
A.L.R. Index: Civil Procedure Rules; Conditions Precedent; Demand or Request; Equity Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS III REF END OF DOCUMENT
CJS ACTIONS III A REF 1A C.J.S. Actions III A Refs.
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. III. Conditions Precedent A. In General Topic Summary Correlation Table Research References A.L.R. Library West's A.L.R. Digest, Action 10 , 11
A.L.R. Index: Civil Procedure Rules; Conditions Precedent; Equity Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS III A REF END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. III. Conditions Precedent A. In General Topic Summary References Correlation Table 84. Generally West's Key Number Digest West's Key Number Digest, Action 10 Unless excused or waived, conditions precedent to the maintenance of an action, whether arising from statute, agreement, or circumstances, must ordinarily be performed or complied with before the action may be instituted. Where conditions precedent to the right to maintain an action are imposed,[1] whether because of a statute[2 ] or an agreement,[3] or because of the nature and circumstances of the particular case,[4] they must be performed or complied with before the action may be instituted.[5] This is particularly applicable where the imposed conditions form part of the right itself,[6] as where a statute creates a right to which some condition is expressly attached.[7] Performance of a condition precedent may be excused or dispensed with where compliance has become unnecessary[8] or would be unavailing.[9] It may also be excused or dispensed with where performance is prevented by act of defendant.[10] Where the conditions are such that they do not prevent the accrual of the right, but operate merely on the remedy, performance of the condition may also be waived by the defendant.[11] Statutory interpretation. While no particular words in a statute are necessary to create a condition precedent, conditions are generally not favored and, where doubt exists, will not be presumed.[12] Payment or tender. Where a right of action exists in plaintiff, it is generally no condition precedent to the bringing of the action that plaintiff pay or offer to pay a counterclaim or demand which the defendant may have.[13] In any event, tender prior to suit is unnecessary where it is reasonably certain that it will be refused if made.[14]
[FN1] Tex. Trevino v. Allstate Ins. Co., 651 S.W.2d 8 (Tex. App. Dallas 1983), writ refused n.r.e., (Sept. 14, 1983).
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Exhaustion of administrative remedies Pa.Sharkey v. Showers, 18 Pa. Commw. 363, 336 A.2d 453 (1975). [FN2] Fla.Ferry-Morse Seed Co. v. Hitchcock, 426 So. 2d 958 (Fla. 1983). [FN3] Tex.Glass v. Hoblitzelle, 83 S.W.2d 796 (Tex. Civ. App. Dallas 1935), writ dismissed. [FN4] N.Y.Wangler v. Swift, 90 N.Y. 38, 1882 WL 12738 (1882). [FN5] Failure to comply with statutory requirements bars claim Va.Sabre Const. Corp. v. County of Fairfax, 256 Va. 68, 501 S.E.2d 144 (1998). Condition precedent limits time within which prescribed act must be done Wis.Snopek v. Lakeland Medical Center, 223 Wis. 2d 288, 588 N.W.2d 19 (1999). [FN6] U.S.Lee v. Port Authority of New York/New Jersey, 487 F. Supp. 88 (S.D. N.Y. 1980). [FN7] U.S.Shriver v. Woodbine Sav. Bank of Woodbine, Iowa, 285 U.S. 467, 52 S. Ct. 430, 76 L. Ed. 884 (1932). Mont. Eagle Communications, Inc. v. Treasurer of Flathead County, 211 Mont. 195, 685 P.2d 912 (1984). Special limitation part of statute creating substantive right Va.Sabre Const. Corp. v. County of Fairfax, 256 Va. 68, 501 S.E.2d 144 (1998). [FN8] La.Haynesville Lumber Co. v. Casey, 165 La. 1065, 116 So. 559 (1928). [FN9] Kan. Panhandle Agri-Service, Inc. v. Becker, 231 Kan. 291, 644 P.2d 413, 33 U.C.C. Rep. Serv. 1320 (1982). [FN10] N.Y.Oakley v. Morton, 11 N.Y. 25, 1854 WL 5978 (1854). [FN11] Wis.Malloy v. Chicago & N.W.R. Co., 109 Wis. 29, 85 N.W. 130 (1901). [FN12] N.Y. Arnold v. Village of North Tarrytown, 137 A.D. 68, 122 N.Y.S. 92 (2d Dep't 1910), aff'd, 203 N.Y. 536, 96 N.E. 1109 (1911). [FN13] La.Morgan v. Culpepper, 324 So. 2d 598 (La. Ct. App. 2d Cir. 1975), writ denied, 326 So. 2d 377 (La. 1976) and writ denied, 326 So. 2d 378 (La. 1976). [FN14] Okla.Chandler v. Independent School Dist. No. 12, Edmond, Oklahoma County., 1981 OK 9, 625 P.2d 620 (Okla. 1981).
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. III. Conditions Precedent A. In General Topic Summary References Correlation Table 85. Notice West's Key Number Digest West's Key Number Digest, Action 11 Notice must, where required, be given in the time and manner prescribed before an action may be maintained. Notice must be given before an action is brought where it is required, either expressly by statute[1] or agreement,[2] or, impliedly, by the agreement or obligation sought to be enforced.[3] In the absence of an express requirement, however, the necessity for such notice ordinarily depends on whether the facts on which defendant's liability depends is exclusively within the knowledge of plaintiff or is within the cognizance of both parties.[4] Generally, in the former event notice must be given, but in the latter it is not necessary.[5] That plaintiff has the better means of ascertaining whether the fact in question is insufficient to require notice, as the plaintiff is not required to give notice of any fact of which defendant has other means of informing himself or herself.[6] Where the liability of defendant depends on the act or default of some third person, no notice to him or her by plaintiff is necessary.[7] The same is true where the liability depends on an act to be done by plaintiff, if defendant has adequate means of informing himself or herself as to whether the act has been performed.[8] Where, on the other hand, defendant undertakes to perform an act for the benefit of plaintiff, defendant is entitled to notice of any facts which may be necessary to enable him or her to perform the undertaking, and of which defendant cannot reasonably obtain information except from plaintiff.[9] Defendant is not, however, entitled to notice of facts which he or she has other adequate means of ascertaining.[10] When regulated by statute, notice must be given in the manner[11] and within the time[12] prescribed. Where notice is made a condition precedent by the agreement or statute creating the right itself, such notice constitutes a condition on the right and an essential element of the cause of action.[13] Accordingly, the designated time period within which a notice of claim must be served operates, in such instances, as a limitation upon the right to recover, rather than as a statute of limitation which limits the remedy only.[14] Where, however, the right exists independent of the requirement of notice, the giving of notice is considered in the nature of a limitation on the remedy,[15] and may be waived.[16] Moreover, courts may, in actions against private defendants, construe notice of claim provisions liberally[17] and, thus, afford equitable relief to a plaintiff who fails to com-
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ply with the strict terms of a notice of claim provision.[18] Purpose. The main purpose of a notice requirement as a condition precedent to the commencement of an action is to provide the parties with an opportunity to settle the claim without resorting to litigation.[19]
[FN1] U.S.Denver & R.G.R. Co. v. Wagner, 167 F. 75 (C.C.A. 8th Cir. 1908). [FN2] Ind.Prudential Ins. Co. of America v. Myers, 15 Ind. App. 339, 44 N.E. 55 (1896). [FN3] N.Y.Wangler v. Swift, 90 N.Y. 38, 1882 WL 12738 (1882). [FN4] N.Y.Wangler v. Swift, 90 N.Y. 38, 1882 WL 12738 (1882). [FN5] N.Y.Wangler v. Swift, 90 N.Y. 38, 1882 WL 12738 (1882). [FN6] Vt.Lamphere v. Cowen, 42 Vt. 175, 1869 WL 3827 (1869). [FN7] Conn.Hammond v. Gilmore's Adm'r, 14 Conn. 479, 1841 WL 379 (1841). [FN8] Ky.Peck v. McMurtry, 9 Ky. 358, 2 UCCRs2 358, 1820 WL 1054 (1820). [FN9] N.Y.Wangler v. Swift, 90 N.Y. 38, 1882 WL 12738 (1882). [FN10] N.H.Whitton v. Whitton, 38 N.H. 127, 1859 WL 3726 (1859). [FN11] Wis.Smith v. Chicago, M. & St. P.R. Co., 124 Wis. 120, 102 N.W. 336 (1905). [FN12] Va.Hale v. Chamberlain, 54 Va. 658, 13 Gratt. 658, 1857 WL 3469 (1857). [FN13] U.S.Denver & R.G.R. Co. v. Wagner, 167 F. 75 (C.C.A. 8th Cir. 1908). Similar to mandatory precondition to exercise of jurisdiction N.M.Marrujo v. New Mexico State Highway Transp. Dept., 118 N.M. 753, 887 P.2d 747 (1994). [FN14] N.Y.Cohen v. Pearl River Union Free School Dist., 51 N.Y.2d 256, 434 N.Y.S.2d 138, 414 N.E.2d 639 (1980). [FN15] Wis.Meisenheimer v. Kellogg, 106 Wis. 30, 81 N.W. 1033 (1900). [FN16] U.S.Welsh v. Barber Asphalt Pav. Co., 167 F. 465 (C.C.A. 9th Cir. 1909). [FN17] Tex.McClung v. Komorn, 629 S.W.2d 813 (Tex. App. Houston 14th Dist. 1982), writ refused n.r.e., (June 23, 1982). [FN18] U.S.Burdett v. Methodist Hospital, 484 F. Supp. 1338 (N.D. Tex. 1980). [FN19] N.H.Mountain Environmental, Inc. v. Abatement International/Advatex Associates, Inc., 149
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N.H. 671, 826 A.2d 556 (2003). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 85 END OF DOCUMENT
CJS ACTIONS III B REF 1A C.J.S. Actions III B Refs.
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. III. Conditions Precedent B. Demand Topic Summary Correlation Table Research References A.L.R. Library West's A.L.R. Digest, Action 11
A.L.R. Index: Civil Procedure Rules; Conditions Precedent; Demand or Request; Equity Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS III B REF END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. III. Conditions Precedent B. Demand 1. In General Topic Summary References Correlation Table 86. Generally West's Key Number Digest West's Key Number Digest, Action 11 When expressly or impliedly required, a demand must be made prior to the institution of an action. A demand, as a condition precedent to the maintenance of an action, is necessary when expressly required by statute,[1] or by the terms of an agreement,[2] or implied from the nature of the undertaking or the circumstances of the particular case.[3] The primary object of a demand is to enable the defendant to perform his or her obligation or otherwise discharge his or her liability without being subjected to the inconvenience and expense of litigation.[4] Ordinarily, a demand is a condition precedent whenever it constitutes an essential element of the cause of action, as where there is no precedent debt or duty.[5] A defendant cannot, therefore, be in default or guilty of any breach of duty until a demand, in such instance, is made.[6] On the other hand, a demand is not necessary unless it is an essential part of the cause of action.[7] Thus, it is not necessary where the defendant's liability is predicated on a precedent debt or duty,[8] or where there is present an unconditional duty or liability to pay or perform some particular act.[9] In the latter instances, the bringing of the action is a sufficient demand.[10] Refusal of compliance. A refusal to perform must follow a demand, though such refusal need not be made in express and unequivocal terms, but may be implied from the defendant's conduct.[11]
[FN1] Ohio Ammon v. Delaney, 11 Ohio N.P. (n.s.) 574, 21 Ohio Dec. 251, 1911 WL 1680 (C.P. 1911). [FN2] Ill.West Side Bank of Evansville v. Parr, 219 Ill. App. 545, 1920 WL 1244 (3d Dist. 1920). [FN3] S.C.West v. Murph, 21 S.C.L. 284, 3 Hill (S.C.) 284, 1837 WL 1479 (Ct. App. 1837).
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[FN4] Cal.Cox v. Delmas, 99 Cal. 104, 33 P. 836 (1893). As to obviating the necessity for a demand, generally, see 87. [FN5] Ill.West Side Bank of Evansville v. Parr, 219 Ill. App. 545, 1920 WL 1244 (3d Dist. 1920). [FN6] Cal.Cox v. Delmas, 99 Cal. 104, 33 P. 836 (1893). [FN7] Cal.McDonald v. Filice, 252 Cal. App. 2d 613, 60 Cal. Rptr. 832 (5th Dist. 1967). [FN8] Conn.Manning v. Chesky, 90 Conn. 647, 98 A. 357 (1916). [FN9] La.Porter v. Town of Ville Platte, 158 La. 342, 104 So. 67 (1925). [FN10] Cal.McDonald v. Filice, 252 Cal. App. 2d 613, 60 Cal. Rptr. 832 (5th Dist. 1967). [FN11] Del.Truax v. Parvis, 12 Del. 330, 7 Houst. 330, 32 A. 227 (Super. Ct. 1886). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 86 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. III. Conditions Precedent B. Demand 1. In General Topic Summary References Correlation Table 87. Obviating necessity for demand; waiver West's Key Number Digest West's Key Number Digest, Action 11 A demand is unnecessary where waived or where it will not, or cannot, be complied with. A demand, although otherwise essential, need not be made where it sufficiently appears that, if made, it will be futile and unavailing, or a mere useless ceremony which will not be complied with.[1] The necessity for making a demand is thus obviated where defendant cannot comply with such demand,[2] particularly where, by his or her own act, the defendant has disabled himself or herself from complying.[3] Additionally, if defendant prevents the making of a demand, defendant cannot take advantage of his or her own wrong.[4] Waiver. The necessity for a demand may be waived by a defendant,[5] as may be any objection to its form and sufficiency[6] or to the authority of the person making it.[7] Such waiver may be either express[8] or implied.[9]
[FN1] Ind.Gagnon v. Baden Lick Sulphur Springs Co., 56 Ind. App. 407, 105 N.E. 512 (Div. 2 1914). [FN2] Ind.Gagnon v. Baden Lick Sulphur Springs Co., 56 Ind. App. 407, 105 N.E. 512 (Div. 2 1914). [FN3] IowaFay v. Fitzpatrick, 130 Iowa 279, 105 N.W. 398 (1905). [FN4] Ind.Pay v. Shanks, 56 Ind. 554, 1877 WL 6848 (1877). Act of defendant in absenting self Kan.Schnier v. Fay, 12 Kan. 184, 1873 WL 593 (1873). [FN5] Ind.Ferguson v. Hull, 136 Ind. 339, 36 N.E. 254 (1894).
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[FN6] Ind.Bartlett v. Adams, 43 Ind. 447, 1873 WL 5315 (1873). [FN7] Miss.Robertson v. Crane, 27 Miss. 362, 1854 WL 3548 (1854). [FN8] Ill.Hamilton v. Seeger, 75 Ill. App. 599, 1897 WL 2991 (3d Dist. 1898). [FN9] N.Y.Clark v. Crandall, 3 Barb. 612, 1848 WL 5036 (N.Y. Gen. Term 1848). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 87 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. III. Conditions Precedent B. Demand 2. Requisites and Sufficiency Topic Summary References Correlation Table 88. Generally West's Key Number Digest West's Key Number Digest, Action 11 While statutory or contractual provisions must be observed, any language understood as a demand which gives the defendant an opportunity to perform in accordance with his or her obligation is generally sufficient. A legal demand means a demand properly made as to form, time, and place by a person lawfully authorized to make it on the person liable.[1] Ordinarily, no particular form of demand is required, provided it gives the defendant an opportunity to perform.[2] The sufficiency of such demand must be considered in the light of the circumstances.[3] Generally, however, any language which is understood by the parties to be a demand is sufficient.[4] Where regulated by statute or contract, the demand must be made in the form and manner prescribed.[5 ] A demand is sufficient even though it calls for performance in excess of that due insofar as it affects defendant's obligation to perform in accordance with the obligation.[6] It is, however, otherwise if such demand indicates that any performance less than that demanded will not be accepted.[7] Writing. Unless required by statute[8] or agreement,[9] the demand need not be in writing. Where a writing is required, however, a mere reading of it is insufficient.[10] Personal demand. Where necessary to enable the defendant to, at once, discharge his or her obligation, the demand made must be personal, and the mere leaving of a written demand at the home of defendant is insufficient.[11] The contrary is, however, true when performance is such that it cannot be immediately discharged, even if the demand is personally made.[12]
[FN1] Me.Foss v. Norris, 70 Me. 117, 1879 WL 3275 (1879).
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As to the person liable in an action, generally, see 99. [FN2] La.Southern Hardware Co., Ltd. v. Honeywell Information Systems, Inc., 373 So. 2d 738 (La. Ct. App. 2d Cir. 1979), writ denied, 376 So. 2d 319 (La. 1979). [FN3] La.Southern Hardware Co., Ltd. v. Honeywell Information Systems, Inc., 373 So. 2d 738 (La. Ct. App. 2d Cir. 1979), writ denied, 376 So. 2d 319 (La. 1979). [FN4] Del.Truax v. Parvis, 12 Del. 330, 7 Houst. 330, 32 A. 227 (Super. Ct. 1886). [FN5] La.Berard v. Boagni, 30 La. Ann. 1125, 1878 WL 8544 (1878). [FN6] U.S.Colby v. Reed, 99 U.S. 560, 25 L. Ed. 484 (1878). [FN7] Vt.Gragg v. Hull, 41 Vt. 217, 1868 WL 3473 (1868). [FN8] La.Berard v. Boagni, 30 La. Ann. 1125, 1878 WL 8544 (1878). [FN9] U.S.Colby v. Reed, 99 U.S. 560, 25 L. Ed. 484 (1878). [FN10] Ill.Seem v. McLees, 24 Ill. 192, 1860 WL 6377 (1860). [FN11] N.H.Haynes v. Brown, 36 N.H. 545, 1858 WL 3198 (1858). [FN12] La.Hunter v. Spurlock, 3 La. 97, 1831 WL 688 (1831). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 88 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. III. Conditions Precedent B. Demand 2. Requisites and Sufficiency Topic Summary References Correlation Table 89. By and on whom made West's Key Number Digest West's Key Number Digest, Action 11 A demand must be made by plaintiff, or a person authorized to make it and to accept or receive compliance with such demand, on defendant or his or her authorized agent. While a demand may be made by a person other than plaintiff, who is authorized to represent him or her for this purpose,[1] it must nevertheless be made by a person having the authority to accept or receive compliance on the part of defendant with such demand.[2] Ordinarily, the demand must be made on defendant himself or herself,[3] though there are circumstances under which a demand made on an agent of defendant is sufficient,[4] as where, by reason of defendant's absence, the demand cannot be made on defendant.[5] Where two persons are jointly liable, a demand on one is sufficient and will sustain an action against both.[6]
[FN1] Conn.Bridgeport Bank v. New York & N. H. R. Co., 30 Conn. 231, 1861 WL 1088 (1861). [FN2] Ky.Owens v. Ballard County Court, 71 Ky. 611, 8 Bush 611, 1872 WL 10596 (1872). [FN3] Ky.Thompson v. Healy, 61 Ky. 257, 4 Met. 257, 1863 WL 2552 (1863). [FN4] Ind.Deeters v. Sellers, 102 Ind. 458, 1 N.E. 854 (1885). [FN5] Me.Hunt v. Hotchkiss, 64 Me. 241, 1874 WL 3808 (1874). [FN6] N.Y.Scholey v. Halsey, 72 N.Y. 578, 1878 WL 12523 (1878). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 89
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END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. III. Conditions Precedent B. Demand 2. Requisites and Sufficiency Topic Summary References Correlation Table 90. Time and place of demand West's Key Number Digest West's Key Number Digest, Action 11 A demand must be made before an action is instituted within the time required by the statute or agreement providing for same, or, where no time is so prescribed, within a reasonable time. A demand must ordinarily be made before the institution of an action,[1] although this may be done after process is issued, but before it is served.[2] When regulated by the provisions of a statute or agreement, the demand must be made within the time prescribed by the statute[3] or agreement,[4] or within a reasonable time, according to the circumstances of the particular action.[5] Jurisdiction. Where the applicable statutory provision requires that a demand be made prior to the filing of an action, the demand must be made properly, or jurisdiction will not attach.[6] Place of demand. In the absence of an express agreement or statute fixing the place where the demand must be made, the demand may be made at any place if the obligation involves the payment of money.[7] Where, however, specific articles of property are called for, the demand must be made at defendant's place of residence.[8]
[FN1] Ill.Keller v. Robinson & Co., 153 Ill. 458, 38 N.E. 1072 (1894). [FN2] R.I.Cross v. Barber, 16 R.I. 266, 15 A. 69 (1888). [FN3] La.Kelly v. Sandidge, 30 La. Ann. 1190, 1878 WL 8748 (1878). [FN4] Ind.Pay v. Shanks, 56 Ind. 554, 1877 WL 6848 (1877). [FN5] Mass.Crosby v. Baker, 88 Mass. 295, 6 Allen 295, 1863 WL 3402 (1863).
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[FN6] Ill.Eddy v. Kerr, 96 Ill. App. 3d 680, 52 Ill. Dec. 495, 422 N.E.2d 176 (2d Dist. 1981). [FN7] Pa.Hamilton v. Calhoun, 2 Watts 139, 1833 WL 3405 (Pa. 1833). [FN8] Pa.Hamilton v. Calhoun, 2 Watts 139, 1833 WL 3405 (Pa. 1833). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 90 END OF DOCUMENT
CJS ACTIONS IV REF 1A C.J.S. Actions IV Refs.
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. IV. Defenses Topic Summary Correlation Table Research References A.L.R. Library West's A.L.R. Digest, Action 7 , 12
A.L.R. Index: Civil Procedure Rules; Defenses; Equity Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS IV REF END OF DOCUMENT
CJS ACTIONS IV A REF 1A C.J.S. Actions IV A Refs.
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. IV. Defenses A. In General Topic Summary Correlation Table Research References A.L.R. Library West's A.L.R. Digest, Action 7 , 12
A.L.R. Index: Civil Procedure Rules; Defenses; Equity Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS IV A REF END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. IV. Defenses A. In General Topic Summary References Correlation Table 91. Generally West's Key Number Digest West's Key Number Digest, Action 12 A defense signifies any fact or state of facts that may be set up to defeat a cause of action, in whole or in part. The essence of a defense is resistance to a cause of action asserted in a complaint, counterclaim, or crossclaim.[1] The term defense is used, as well, in legal, as in popular, language to signify not a clause or form in pleading, but the subject or substance of the plea, dealing not with the pleading but with a principle of law.[2] A defense may, therefore, consist of any fact or state of facts which will defeat a cause of action, in whole or in part, or, in other words, any matter which tends to diminish the amount of recovery or to entirely defeat the cause of action.[3] The absence of an essential element of any defense is fatal to the defense.[4] A defendant may also attempt to avoid or defeat a cause of action by means of an affirmative defense[5] which does not deny the allegations but relies on an issue not raised by the pleadings.[6] An affirmative defense is offered and alleged by the defendant as a reason in law or fact why plaintiff cannot recover or establish what he or she seeks.[7] Defenses that must be set forth affirmatively must be raised prior to trial or be waived.[8] Creation and elimination of defenses. Substantive defenses may be created by the state[9] and may also be eliminated by state law.[10]
[FN1] N.Y. Seligson v. Chase Manhattan Bank, Nat. Ass'n, 50 A.D.2d 206, 376 N.Y.S.2d 899 (1st Dep't 1975). [FN2] Ala.Skains v. Barnes, 168 Ala. 426, 53 So. 268 (1910). [FN3] Miss.Waterford Lumber Co. v. Jacobs, 132 Miss. 638, 97 So. 187 (1923). Any allegation raised by defendant that, if true, defeats or avoids cause of action
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Fla.Martin County v. Edenfield, 609 So. 2d 27 (Fla. 1992). [FN4] Okla.Barringer v. Baptist Healthcare of Oklahoma, 2001 OK 29, 22 P.3d 695 (Okla. 2001). [FN5] Mo. Terre Du Lac Property Owners' Ass'n v. Wideman, 655 S.W.2d 803 (Mo. Ct. App. E.D. 1983). [FN6] Tex.Metrocon Const. Co., Inc. v. Gregory Const. Co., Inc., 663 S.W.2d 460 (Tex. App. Dallas 1983), writ refused n.r.e., (Feb. 29, 1984). Affirmative defense defined IowaErickson v. Wright Welding Supply, Inc., 485 N.W.2d 82 (Iowa 1992). Differentiated from immunity Minn.Sletten v. Ramsey County, 675 N.W.2d 291 (Minn. 2004). [FN7] Independent reason why plaintiff cannot recover Tex.Texas Beef Cattle Co. v. Green, 921 S.W.2d 203 (Tex. 1996). Essence of affirmative defenses Neb.Sherrod v. State Dept. of Correctional Services, 251 Neb. 355, 557 N.W.2d 634 (1997). Legal argument asserted by defendant to require dismissal or prevail at trial Colo.State v. Nieto, 993 P.2d 493 (Colo. 2000). [FN8] Ark.Jackson v. Mundaca Financial Services, Inc., 349 Ark. 84, 76 S.W.3d 819 (2002). [FN9] U.S.ARA Services, Inc. v. School Dist. of Philadelphia, 590 F. Supp. 622, 19 Ed. Law Rep. 983 (E.D. Pa. 1984). Immunity U.S.Ferri v. Ackerman, 444 U.S. 193, 100 S. Ct. 402, 62 L. Ed. 2d 355 (1979). [FN10] U.S.ARA Services, Inc. v. School Dist. of Philadelphia, 590 F. Supp. 622, 19 Ed. Law Rep. 983 (E.D. Pa. 1984). Abolition of common-law defenses N.M.Bottijliso v. Hutchison Fruit Co., 96 N.M. 789, 635 P.2d 992 (Ct. App. 1981) (disapproved of on other grounds by, Michaels v. Anglo American Auto Auctions, Inc., 117 N.M. 91, 869 P.2d 279 (1994)).
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. IV. Defenses A. In General Topic Summary References Correlation Table 92. Motive in bringing action West's Key Number Digest West's Key Number Digest, Action 7 The motive of the plaintiff in bringing an action on a good and valid cause of action is ordinarily immaterial and cannot be inquired into or set up as a defense. The right of a person to institute an action is generally not dependent on, or affected by, the motive which prompts the plaintiff in the exercise of his or her right.[1] Thus, if a plaintiff acts within his or her legal rights in suing on a good and valid cause of action, his or her motive in bringing the action[2] or in not joining a proper, but unnecessary, party,[3] is generally entirely immaterial. The legal pursuit by plaintiff of his or her rights, no matter what plaintiff's motive in bringing the action, cannot be deemed either illegal or inequitable,[4] unless the motive is illegal or contrary to public policy,[5] or the plaintiff seeks the exercise of the discretionary power of the court, and asks its assistance as a favor, and not as a right.[6] Accordingly, it generally does not constitute a defense to a legal cause of action that plaintiff, in bringing the action, is actuated by improper motives,[7] or malice,[8] or by spite or a desire for revenge.[9] In some jurisdictions, however, a person having a legal right will not be permitted to avail himself or herself of it for the purpose of injustice or oppression,[10] as good faith in the maintenance of litigation is the standard expected of all litigants.[11] Actions in equity. The motive of a plaintiff in bringing an action in equity is immaterial, and will not be inquired into as a matter of defense, if the action is to enforce a clear equitable right.[12] Action by corporation. If the action is by a corporation, the motives of its officers in bringing the action cannot be imputed to the corporation, as the motives of such officers will not operate to defeat the action if it is theirs individually.[13] Action by government. A government agency may not bring a civil action solely to obtain evidence for a criminal prosecution.[14] Dismissing and bringing new action. The motive of a plaintiff in dismissing an action in one court and bringing a new action in another court, if
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not forbidden by law, is generally immaterial,[15] as is his or her motive in dismissing an action against one defendant, and instituting a new action by joining other defendants whom plaintiff considers liable, and who are legally liable.[16]
[FN1] N.M.Gabaldon v. Sanchez, 92 N.M. 224, 585 P.2d 1105 (Ct. App. 1978). [FN2] N.M.Gabaldon v. Sanchez, 92 N.M. 224, 585 P.2d 1105 (Ct. App. 1978). Party's bad motives in commencing action Ill.Nika v. Danz, 199 Ill. App. 3d 296, 145 Ill. Dec. 255, 556 N.E.2d 873 (4th Dist. 1990). [FN3] R.I.Nourie v. Peckham, 51 R.I. 474, 155 A. 588 (1931). As to the joinder of parties defendant, generally, see C.J.S., Parties 56 to 73. [FN4] U.S.Johnson v. King-Richardson Co., 36 F.2d 675, 67 A.L.R. 1465 (C.C.A. 1st Cir. 1930). [FN5] OhioSpahr v. Brown, 19 Ohio App. 107, 3 Ohio L. Abs. 603, 1925 WL 2482 (2d Dist. Franklin County 1925). [FN6] N.Y.Pollitz v. Wabash R. Co., 150 A.D. 715, 135 N.Y.S. 789 (1st Dep't 1912), order modified on other grounds, 207 N.Y. 113, 100 N.E. 721 (1912). [FN7] Cal.Ballard v. Krug, 111 Cal. App. 555, 295 P. 871 (1st Dist. 1931). Conspiracy N.Y. Business Capital Corp. v. Premier Albums, Inc., 29 A.D.2d 522, 285 N.Y.S.2d 305 (1st Dep't 1967). [FN8] Mass.Corkery v. Dorsey, 223 Mass. 97, 111 N.E. 795 (1916). Driving out of business U.S.Johnson v. King-Richardson Co., 36 F.2d 675, 67 A.L.R. 1465 (C.C.A. 1st Cir. 1930). [FN9] Wis.Guse v. Flohr, 195 Wis. 139, 217 N.W. 730 (1928). [FN10] D.C.Entrepreneur, Ltd. v. Yasuna, 498 A.2d 1151 (D.C. 1985). [FN11] Del.Emerald Partners v. Berlin, 726 A.2d 1215 (Del. 1999). Improper motive of circumventing state or federal law U.S.In re Whittom, 220 B.R. 365 (Bankr. C.D. Ill. 1998). [FN12] U.S.Dickerman v. Northern Trust Co., 176 U.S. 181, 20 S. Ct. 311, 44 L. Ed. 423 (1900).
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Instigation of action by another Wyo.Burnett v. Taylor, 36 Wyo. 12, 252 P. 790 (1927). [FN13] N.J. Board of Com'rs of Borough of Vineland v. Maretti, 93 N.J. Eq. 513, 117 A. 483 (Ch. 1922). [FN14] U.S.U.S. Commodity Futures Trading Com'n v. A.S. Templeton Group, Inc., 297 F. Supp. 2d 531 (E.D. N.Y. 2003). [FN15] UtahMcLaughlin v. Chief Consol. Mining Co., 62 Utah 532, 220 P. 726 (1923). [FN16] U.S.Burt v. Missouri Pac. R. Co., 294 F. 911 (E.D. Ark. 1924). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 92 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. IV. Defenses A. In General Topic Summary References Correlation Table 93. Consent or procurement West's Key Number Digest West's Key Number Digest, Action 12 A person cannot recover for the consequences of an act which he or she has procured or consented to, unless his or her consent is procured by duress or fraud, or the act constitutes a public offense. A person cannot recover for the consequences of an act which he or she has procured or consented to,[1] or provoked.[2] Accordingly, injury, as a basis of a cause of action, does not include an act to which the party complaining has assented, unless the consent is procured by duress[3] fraud, or misrepresentation,[4] or is given by a minor.[5] The applicability of such prohibition is, however, limited to injuries which are not of vital concern to the public welfare, so that it is inapplicable to violations of statutes enacted for the protection of the public.[6] A party consenting to participate in an illegal activity may, where provided, claim damages for resulting injuries[7] where the activity amounts to a public offense.[8] Thus, if two persons engage voluntarily in a fight, either may recover damages from the other for injuries received.[9]
[FN1] Neb.Yant Const. Co. v. Village of Campbell, 123 Neb. 360, 243 N.W. 77 (1932). [FN2] La.Greening v. Hill, 221 So. 2d 261 (La. Ct. App. 2d Cir. 1969). [FN3] Ill.News Pub. Co. v. Associated Press, 114 Ill. App. 241, 1904 WL 1739 (1st Dist. 1904). [FN4] Mich.McDonald v. Hall, 193 Mich. 50, 159 N.W. 358 (1916). [FN5] Ga.Gaines v. Wolcott, 119 Ga. App. 313, 167 S.E.2d 366, 36 A.L.R.3d 621 (1969), judgment aff'd, 225 Ga. 373, 169 S.E.2d 165 (1969). [FN6] Ohio Johnson v. Hardnett, 62 Ohio App. 2d 165, 16 Ohio Op. 3d 345, 405 N.E.2d 324 (6th Dist. Lucas County 1978).
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[FN7] N.C.Ange v. Sovereign Camp of Woodmen of the World, 173 N.C. 33, 91 S.E. 586 (1917). [FN8] N.C.Stout v. Wren, 8 N.C. 420, 1 Hawks 420, 1821 WL 220 (1821). [FN9] Me.Grotton v. Glidden, 84 Me. 589, 24 A. 1008 (1892). As to the defense that both parties are violating the same law, generally, see 94. Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 93 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. IV. Defenses A. In General Topic Summary References Correlation Table 94. Violation of law West's Key Number Digest West's Key Number Digest, Action 12 The fact that plaintiff bases his or her action on a violation of the law is, in some instances, a defense, notwithstanding that defendant was violating the same law, or that defendant has been a customer of plaintiff with respect to the illegal matter. The fact that plaintiff bases his or her action on a violation of the law is, in some instances, a defense, notwithstanding that defendant was violating the same law,[1] or that defendant has been a customer of plaintiff with respect to the illegal matter.[2] In an action alleging negligence, however, a violation by the plaintiff of a statute constitutes a defense only where the violated statute is intended to prevent the type of accident on which the action is based.[3] A distinction must be drawn, in this connection, between lawful activities regulated by statute and activities which are entirely prohibited by law.[4] In the latter instance, the fact that plaintiff's injuries are caused by illegal conduct of a serious nature in which plaintiff is engaged constitutes a defense in a tort action based on the injuries,[5] even where plaintiff is a minor when the injuries were sustained.[6]
[FN1] Ill. Kessinger v. Standard Oil Co., 245 Ill. App. 376, 1925 WL 4623 (4th Dist. 1925), cert. denied. [FN2] Ill. Kessinger v. Standard Oil Co., 245 Ill. App. 376, 1925 WL 4623 (4th Dist. 1925), cert. denied. [FN3] Tenn.Chattanooga Ry. & Light Co. v. Bettis, 139 Tenn. 332, 202 S.W. 70 (1918). [FN4] N.Y.Barker v. Kallash, 63 N.Y.2d 19, 479 N.Y.S.2d 201, 468 N.E.2d 39 (1984). [FN5] Liability for consequence of antisocial conduct
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A person convicted of a crime is precluded from imposing liability on others for the consequences of that antisocial conduct. AlaskaBurcina v. City of Ketchikan, 902 P.2d 817 (Alaska 1995). [FN6] Making of explosives N.Y.Barker v. Kallash, 63 N.Y.2d 19, 479 N.Y.S.2d 201, 468 N.E.2d 39 (1984). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 94 END OF DOCUMENT
CJS ACTIONS IV B REF 1A C.J.S. Actions IV B Refs.
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. IV. Defenses B. Necessity for, and Scope of, Defense Topic Summary Correlation Table Research References A.L.R. Library West's A.L.R. Digest, Action 12
A.L.R. Index: Civil Procedure Rules; Defenses; Equity Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS IV B REF END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. IV. Defenses B. Necessity for, and Scope of, Defense Topic Summary References Correlation Table 95. Generally West's Key Number Digest West's Key Number Digest, Action 12 A defendant, in order to avoid liability or loss of rights by entry of a judgment against him or her, must defend his or her own interests. In order for a defendant who has capacity to avoid liability or the loss of rights by the entry of a judgment against him or her, the defendant must protect himself or herself and defend his or her own interests.[1] The defendant is entitled to the preservation of his or her strict legal rights, regardless of the motives actuating him or her in relying on same.[2] The defendant may, therefore, set up, as a defense, any available fact or facts which will defeat the cause of action, in whole or in part.[3] The defense must, however, be germane.[4] It may not consist of a recital of irrelevant facts,[5] conjectural and conclusory assertions,[6] or a statement of a conclusion of law.[7] It is no defense to an action at law that a prospective judgment against the defendant will be worthless[8] in that the defendant has no property and that a judgment and execution will pay no part of the claim.[9] Inequity or hardship is also not a valid defense if the hardship is due to defendant's own act or to events clearly foreseeable.[10] It is not a proper defense to a personal and transitory action by a person in undisputed possession of land that title to the land is in a third person.[11] It is also not a proper defense to an action for injury to plaintiff's property that plaintiff is guilty of neglect or nonuse of the property.[12] The fact that a judgment against defendant will obligate a third party to indemnify the defendant is, similarly, not a proper defense.[13] A defense also may not be based on allegations of wrongdoing which are unrelated to the plaintiff's cause of action.[14] Reliance on advice of counsel is a defense which may negate allegations of wrongdoing only where such advice is based on a full disclosure of relevant facts.[15] Interspousal tort immunity is, by its nature, personal to the spouse so as to be unavailable as a defense to third persons.[16] It is not a statutory requirement that defensive matters be raised that makes a particular defense jurisdictional.[17] A defense is, instead, nonjurisdictional where the court has the power to adjudicate the claim even though the defense is factually established.[18] Extension of state's immunity. The immunity of a state against action may extend to a public contractor and provide that party with an af-
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firmative defense.[19] Waiver. Defenses may be waived under some circumstances.[20] In pari delicto. The defense of in pari delicto bars an action at law or equity where the party seeking relief is involved in defendant's alleged wrongdoing.[21] Thus, a plaintiff is not allowed to profit from his or her own wrongdoing, and is barred from recovering damages if his or her losses are substantially caused by activities which the law forbade the plaintiff to engage in.[22] It is derived from the broader equitable defense of unclean hands, and is only applicable where the wrongdoing of the party seeking relief is necessarily related to the claim brought before the court.[23] The proper application of this doctrine requires that the fault or guilt of the adversary parties be approximately equal.[24] Act of God. An act of God furnishes a defense for the nonperformance of a duty imposed by law, but not for the nonperformance of a duty imposed by an express contract from which liability, arising out of an act of God, is not excepted.[25] Ignorance or mistake of law. Ignorance of the law is generally not an excuse for failure to comply with it,[26] but this is subject to exceptions, as where reasonable means for finding out what the law consists of is denied,[27] or where a mistaken, or later overruled, official statement of the law is relied upon.[28] Sovereign compulsion. The defense of sovereign compulsion is applicable to private actions compelled by a foreign sovereign, and is based on the rationale that the courts of one country will not sit in judgment on the acts of a government of another done within its own territory.[29] Selective enforcement. The defense of selective enforcement, although applicable in criminal cases, does not extend to civil actions.[30] Technical defenses. The courts are not inclined to, and generally will not, allow a bare technical defense,[31] except where its allowance cannot be escaped.[32] Courts cannot, therefore, disregard the provisions of the constitution and statutes notwithstanding the fact that defenses interposed pursuant to same may be designated as technical,[33] though such defenses will be strictly construed to avoid forfeiture of the plaintiff's rights.[34]
[FN1] N.J.Feickert v. Feickert, 98 N.J. Eq. 444, 131 A. 576 (Ch. 1926). [FN2] N.J.Follender v. Schwartz, 107 N.J. Eq. 451, 151 A. 55 (Ct. Err. & App. 1930) (disapproved of on other grounds by, Looman Realty Corp. v. Broad St. Nat. Bank of Trenton, 32 N.J. 461, 161 A.2d 247 (1960)). [FN3] Miss.Waterford Lumber Co. v. Jacobs, 132 Miss. 638, 97 So. 187 (1923).
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Statutory defense constitutes accrued right Okla.Cole v. Silverado Foods, Inc., 2003 OK 81, 78 P.3d 542 (Okla. 2003). [FN4] Wyo.Peters Grazing Ass'n v. Legerski, 544 P.2d 449 (Wyo. 1975). [FN5] N.Y.Frank v. Miller, 116 A.D. 855, 102 N.Y.S. 277 (2d Dep't 1907). [FN6] N.Y.Business Capital Corp. v. Premier Albums, Inc., 29 A.D.2d 522, 285 N.Y.S.2d 305 (1st Dep't 1967). [FN7] N.Y.Hicks v. New Jersey Car-Spring & Rubber Co., 22 Misc. 585, 49 N.Y.S. 401 (Sup 1898). [FN8] La.Henton v. Southeastern Fidelity Ins. Co., 364 So. 2d 1383 (La. Ct. App. 3d Cir. 1978). [FN9] U.S.City of Ft. Madison v. Ft. Madison Water Co., 114 F. 292 (C.C.A. 8th Cir. 1902). [FN10] Pa.Steuart v. McChesney, 284 Pa. Super. 29, 424 A.2d 1375 (1981), order aff'd, 498 Pa. 45, 444 A.2d 659 (1982). [FN11] Ala.De Kalb County v. McClain, 201 Ala. 565, 78 So. 961 (1918). [FN12] Mass.Birch v. Boston & M.R.R., 259 Mass. 528, 156 N.E. 859 (1927). [FN13] Wash.Andersen v. Gold Seal Vineyards, Inc., 81 Wash. 2d 863, 505 P.2d 790 (1973). [FN14] N.Y.TNT Communications Inc. v. Management Television Systems, Inc., 32 A.D.2d 55, 299 N.Y.S.2d 692 (1st Dep't 1969), order aff'd, 26 N.Y.2d 639, 307 N.Y.S.2d 667, 255 N.E.2d 780 (1970). [FN15] U.S.Griffin v. Red Run Lodge, Inc., 610 F.2d 1198 (4th Cir. 1979). [FN16] Ill.Farmers Ins. Group v. Nudi, 108 Ill. App. 3d 151, 63 Ill. Dec. 897, 438 N.E.2d 1260 (1st Dist. 1982). As to interspousal tort immunity, generally, see C.J.S., Husband and Wife 114. [FN17] Ariz.Magma Copper Co. v. Industrial Com'n of Arizona, 139 Ariz. 38, 676 P.2d 1096 (1983). [FN18] Ariz.Magma Copper Co. v. Industrial Com'n of Arizona, 139 Ariz. 38, 676 P.2d 1096 (1983). [FN19] N.J.Ornes v. Daniels, 278 N.J. Super. 536, 651 A.2d 1040 (App. Div. 1995). [FN20] Liability insurance U.S.Wilhelm v. Baxter, 436 F. Supp. 1322 (S.D. Ill. 1977). [FN21] U.S. First Beverages, Inc. of Las Vegas v. Royal Crown Cola Co., 612 F.2d 1164 (9th Cir. 1980); Schick v. Steiger, 583 F. Supp. 841 (E.D. Mich. 1984).
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[FN22] U.S.Recchion on Behalf of Westinghouse Elec. Corp. v. Kirby, 637 F. Supp. 1309 (W.D. Pa. 1986). [FN23] U.S.Schick v. Steiger, 583 F. Supp. 841 (E.D. Mich. 1984). As to the clean hands doctrine, generally, see C.J.S., Equity 102 to 114. [FN24] U.S.Schick v. Steiger, 583 F. Supp. 841 (E.D. Mich. 1984). Kan.Goben v. Barry, 234 Kan. 721, 676 P.2d 90 (1984). [FN25] U.S.Southern Ry. Co. v. White, 284 F. 560, 26 A.L.R. 1429 (C.C.A. 6th Cir. 1922). [FN26] Wis.Putnam v. Time Warner Cable of Southeastern Wisconsin, Ltd. Partnership, 255 Wis. 2d 447, 2002 WI 108, 649 N.W.2d 626 (2002). [FN27] N.C.Orange County v. North Carolina Dept. of Transp., 46 N.C. App. 350, 265 S.E.2d 890 (1980). [FN28] U.S.Kratz v. Kratz, 477 F. Supp. 463 (E.D. Pa. 1979). [FN29] U.S. Zenith Radio Corp. v. Matsushita Elec. Indus. Co., Ltd., 513 F. Supp. 1100 (E.D. Pa. 1981), judgment aff'd in part, rev'd in part on other grounds, 723 F.2d 319 (3d Cir. 1983) and judgment aff'd in part, rev'd in part on other grounds, 723 F.2d 238, 14 Fed. R. Evid. Serv. 401 (3d Cir. 1983), decision rev'd on other grounds, 475 U.S. 574, 106 S. Ct. 1348, 89 L. Ed. 2d 538, 4 Fed. R. Serv. 3d 368 (1986) and (abrogated on other grounds by, Pfeiffer by Pfeiffer v. Marion Center Area School Dist., Bd. of School Directors for Marion Center Area School Dist., 917 F.2d 779, 63 Ed. Law Rep. 727, 31 Fed. R. Evid. Serv. 675 (3d Cir. 1990)) and (rejected on other grounds by, State v. Phillips, 194 W. Va. 569, 461 S.E.2d 75 (1995)). [FN30] U.S.U.S. v. Snepp, 595 F.2d 926 (4th Cir. 1979), judgment rev'd on other grounds, 444 U.S. 507, 100 S. Ct. 763, 62 L. Ed. 2d 704 (1980). [FN31] Ark.Miller v. Fearis, 184 Ark. 858, 44 S.W.2d 343 (1931). Defeat of just obligations UtahJuab County Dept. of Public Welfare v. Summers, 19 Utah 2d 49, 426 P.2d 1 (1967). [FN32] Ark.Miller v. Fearis, 184 Ark. 858, 44 S.W.2d 343 (1931). [FN33] IdahoStein v. Morrison, 9 Idaho 426, 75 P. 246 (1904). [FN34] Cal. Taylor v. Forte Hotels International, 235 Cal. App. 3d 1119, 1 Cal. Rptr. 2d 189 (4th Dist. 1991), reh'g denied and opinion modified, (Nov. 20, 1991). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 95
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END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. IV. Defenses B. Necessity for, and Scope of, Defense Topic Summary References Correlation Table 96. Legal or equitable defenses West's Key Number Digest West's Key Number Digest, Action 12 A defendant to an action at law may make all the defenses he or she has, both legal and equitable, and the same rule and measure of justice must be applied whether the action or defense is equitable or legal. A defendant to an action at law may make all the defenses he or she has, both legal and equitable.[1] The same rule and measure of justice must be applied whether the action or defense is equitable or legal.[2] Where a statutory defense is asserted, the defendant is entitled to rely upon the language of the existing statute for the requisite elements of that defense.[3] An equitable defense cannot be sustained unless the facts stated are sufficient to move a court of equity to restrain the execution of the judgment.[4] Facts which may be set up as a defense at law cannot be pleaded as an equitable defense,[5] though equitable defenses need not be limited to equitable claims.[6] A plaintiff who is subject to an equitable defense cannot avoid that defense by bringing the action in a representative capacity.[7] Fraud. The defense of fraud can be availed of in a court of law, as well as in a court of equity.[8]
[FN1] Neb.Millard Rural Fire Protection Dist. No. 1 v. City of Omaha, 226 Neb. 50, 409 N.W.2d 574 (1987). [FN2] N.Y.Royal Indemnity Co. v. Heller, 256 N.Y. 322, 176 N.E. 410 (1931). [FN3] UtahBerger v. Minnesota Mut. Life Ins. Co. of St. Paul, Minnesota, 723 P.2d 388 (Utah 1986). [FN4] Md.British & Foreign Marine Ins. Co., Limited, of Liverpool v. Cummings, 113 Md. 350, 76 A. 571 (1910). [FN5] Md.British & Foreign Marine Ins. Co., Limited, of Liverpool v. Cummings, 113 Md. 350, 76
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A. 571 (1910). [FN6] U.S.Matter of Lapiana, 909 F.2d 221 (7th Cir. 1990). [FN7] Wis.Becker v. Becker, 66 Wis. 2d 731, 225 N.W.2d 884 (1975). [FN8] Mich.Cole Lakes, Inc. v. Linder, 99 Mich. App. 496, 297 N.W.2d 918 (1980). Fraudulent conveyance Ill.Peric v. Chicago Title & Trust Co., 89 Ill. App. 3d 271, 44 Ill. Dec. 568, 411 N.E.2d 934 (1st Dist. 1980). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 96 END OF DOCUMENT
CJS ACTIONS V REF 1A C.J.S. Actions V Refs.
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. V. Persons Entitled to Sue and Persons Liable Topic Summary Correlation Table Research References A.L.R. Library West's A.L.R. Digest, Action 13 to 15
A.L.R. Index: Civil Procedure Rules; Class Actions; Derivative Actions; Equity; Parties Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS V REF END OF DOCUMENT
CJS ACTIONS V A REF 1A C.J.S. Actions V A Refs.
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. V. Persons Entitled to Sue and Persons Liable A. General Considerations Topic Summary Correlation Table Research References A.L.R. Library West's A.L.R. Digest, Action 13 to 15
A.L.R. Index: Civil Procedure Rules; Equity; Parties Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS V A REF END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. V. Persons Entitled to Sue and Persons Liable A. General Considerations Topic Summary References Correlation Table 97. Generally West's Key Number Digest West's Key Number Digest, Action 13, 15 Every action must be between persons who may sue and be sued. The very existence of a cause of action implies that there is someone entitled to sue and someone who may lawfully be sued.[1] Every action must be between legal parties plaintiff and defendant, for and against whom judgment may be rendered.[2] Thus, an action can be brought only by a party possessing an adequate interest in it, which the law recognizes, against a defendant having a substantial adverse interest.[3] Fugitive disentitlement. A court may properly sanction parties when their fugitive status has some connection to the proceeding.[4] CUMULATIVE SUPPLEMENT Cases: As public policy, the fugitive disentitlement doctrine has been justified because of enforceability concerns, because of its deterrence function, because it advances efficiency in the appellate process, because it is a sanction for disrespect of the court, and because flight is construed as a waiver. Searle v. Juvenile Court for Williamson County, 188 S.W.3d 547 (Tenn. 2006). The fugitive disentitlement doctrine limits access to courts in the United States by a fugitive who has fled a criminal conviction in a court in the United States. Searle v. Juvenile Court for Williamson County, 188 S.W.3d 547 (Tenn. 2006). [END OF SUPPLEMENT]
[FN1] Pa.Thompson v. Peck, 320 Pa. 27, 181 A. 597 (1935). [FN2] Ala.Ex parte Collins, 49 Ala. 69, 1873 WL 746 (1873).
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Natural or artificial persons recognizable as legal parties Pa.Thompson v. Peck, 320 Pa. 27, 181 A. 597 (1935). [FN3] La. Smith v. State Through Div. of Family Services, Dept. of Health and Human Resources, 452 So. 2d 388 (La. Ct. App. 3d Cir. 1984). [FN4] U.S.Pharaon v. Board of Governors of Federal Reserve System, 135 F.3d 148 (D.C. Cir. 1998) . Not punishment, but exercise of court's inherent power N.J.Matsumoto v. Matsumoto, 171 N.J. 110, 792 A.2d 1222, 112 A.L.R.5th 765 (2002). A.L.R. Library Application of "Fugitive Disentitlement Doctrine" in federal civil actions,, 176 A.L.R. Fed. 333. Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 97 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. V. Persons Entitled to Sue and Persons Liable A. General Considerations Topic Summary References Correlation Table 98. Persons entitled to sue West's Key Number Digest West's Key Number Digest, Action 13 Only persons whose rights have been violated and in whom title to the cause of action rests may commence an action. To maintain an action, plaintiff must have a right to be enforced or a wrong to be prevented or redressed,[1] either in his or her own right, or in a representative capacity.[2] Accordingly, the party entitled to sue is the party who has been aggrieved[3] by suffering a direct injury[4] and actual damages.[5] Civil litigation by escapee. A prisoner who escapes from incarceration and is involuntarily returned while his or her civil litigation is pending may properly be prohibited from maintaining the civil action.[6] Private conventions of parties. Who may maintain an action is a matter of law, which is not subject to control by the private conventions of parties.[7] Lack of alternative plaintiff. The right to commence an action does not accrue to a person who does not possess such right merely because the appropriate plaintiff[8] or someone else[9] is unwilling or unable to assert it. Statutory designation. When a statute creates a cause of action and designates those who may sue pursuant to it, none except those so designated may sue.[10] CUMULATIVE SUPPLEMENT Cases: The standing doctrine is consistent with notions of judicial restraint and ensures that courts refrain from issuing advisory opinions, that cases be ripe for decision and not moot, and that issues be fully developed between
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true adversaries. Bennett v. Brownlow, 211 Ariz. 193, 119 P.3d 460 (2005). The Arizona requirement that plaintiffs establish standing is prudential and constitutes an exercise of judicial restraint, and Supreme Court is thus reluctant to waive the standing requirement and have done so only on rare occasions. Bennett v. Brownlow, 211 Ariz. 193, 119 P.3d 460 (2005). To establish standing, Supreme Court requires that petitioners show a particularized injury to themselves. Bennett v. Brownlow, 211 Ariz. 193, 119 P.3d 460 (2005). Unlike the Constitution of the United States, the Arizona Constitution does not require a party to assert an actual case or controversy in order to establish standing, but as a matter of sound judicial policy Supreme Court has long required that persons seeking redress in Arizona courts must first establish standing to sue. Bennett v. Brownlow, 211 Ariz. 193, 119 P.3d 460 (2005). A litigant can be heard to question the validity of a statute only when and in so far as it is applied to his disadvantage. Mt. San Jacinto Community College Dist. v. Superior Court, 40 Cal. 4th 648, 54 Cal. Rptr. 3d 752, 151 P.3d 1166 (2007). To have standing, a complaining party must (1) have a specific personal or legal interest in the litigation and (2) be injuriously affected; having a legal interest in the litigation and being injuriously affected are separate requirements for standing. Alons v. Iowa Dist. Court for Woodbury County, 698 N.W.2d 858 (Iowa 2005). [END OF SUPPLEMENT]
[FN1] Mont.Powder River County v. State, 2002 MT 259, 312 Mont. 198, 60 P.3d 357 (2002). Legal or equitable right N.D.Nodak Mut. Ins. Co. v. Ward County Farm Bureau, 2004 ND 60, 676 N.W.2d 752 (N.D. 2004). [FN2] Conn.Dow and Condon, Inc. v. Brookfield Development Corp., 266 Conn. 572, 833 A.2d 908 (2003). As to the capacity to sue and standing, generally, see 101 et seq. [FN3] Pa.Nye v. Erie Ins. Exchange, 504 Pa. 3, 470 A.2d 98 (1983). Question of fact Conn. Steeneck v. University of Bridgeport, 235 Conn. 572, 668 A.2d 688, 106 Ed. Law Rep. 203 (1995). [FN4] Ind.City of Gary ex rel. King v. Smith & Wesson Corp., 801 N.E.2d 1222 (Ind. 2003). [FN5] IowaMartin v. Life Investors, Inc., 356 N.W.2d 597 (Iowa Ct. App. 1984). [FN6] Mo.Nitcher v. Thompson, 832 S.W.2d 933 (Mo. Ct. App. W.D. 1992). [FN7] U.S.Mackay v. Randolph Macon Coal Co., 178 F. 881 (C.C.A. 8th Cir. 1910). [FN8] U.S.Stanton v. Ash, 384 F. Supp. 625 (S.D. Ind. 1974).
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Attorney General Ill.Fuchs v. Bidwill, 65 Ill. 2d 503, 3 Ill. Dec. 748, 359 N.E.2d 158 (1976). [FN9] U.S.Sierra Club v. Hickel, 433 F.2d 24 (9th Cir. 1970), judgment aff'd, 405 U.S. 727, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972). [FN10] Colo. Berry Properties v. City of Commerce City, Adams County, 667 P.2d 247 (Colo. Ct. App. 1983). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 98 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. V. Persons Entitled to Sue and Persons Liable A. General Considerations Topic Summary References Correlation Table 99. Persons liable West's Key Number Digest West's Key Number Digest, Action 14 The person against whom a cause of action exists, and only such person, is the person liable to be sued. Civil suits may be maintained only against parties having an actual or legal existence.[1] The person liable to be sued, and only such person, is the person against whom the cause of action exists.[2] An offending thing may also be made liable for damages resulting from its unlawful use.[3] The person liable to be sued is a question of law,[4] and not of private convention.[5] No person is necessarily immune from judicial remedy where he or she violates or is threatening to violate another's rights.[6] On the other hand, that the remedy available to the party suing is inadequate does not justify resort against a person involved, but guilty of no violation of duty to the plaintiff.[7]
[FN1] Tex. Bailey v. Vanscot Concrete Co., 894 S.W.2d 757 (Tex. 1995) (disapproved of on other grounds by, Chilkewitz v. Hyson, 22 S.W.3d 825 (Tex. 1999)). No legal identity of sole proprietorship separate from person who owns it Ill.Vernon v. Schuster, 179 Ill. 2d 338, 228 Ill. Dec. 195, 688 N.E.2d 1172 (1997). [FN2] N.Y.King v. Lehigh Val. R. Co., 15 Misc. 260, 36 N.Y.S. 786 (Super. Ct. 1895). Solidarily liability La.Berlier v. A.P. Green Industries, Inc., 815 So. 2d 39 (La. 2002). [FN3] U.S.Aktieselskabet Dampskib Gansfjord v. U.S., 32 F.2d 236 (C.C.A. 5th Cir. 1929). [FN4]
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Enterprise liability not recognized Wyo.Hamilton v. Natrona County Educ. Ass'n, 901 P.2d 381, 102 Ed. Law Rep. 1198 (Wyo. 1995). [FN5] Designation by contracting parties precluded N.Y.Knorr v. Bates, 14 Misc. 501, 35 N.Y.S. 1060 (C.P. 1895). [FN6] Wis. Ekern v. McGovern, 154 Wis. 157, 142 N.W. 595 (1913) (overruled in part on other grounds by, Boerschinger v. Elkay Enterprises, Inc., 26 Wis. 2d 102, 132 N.W.2d 258 (1965)). [FN7] Wis.Przybylski v. Von Berg, 211 Wis. 178, 248 N.W. 101 (1933). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 99 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. V. Persons Entitled to Sue and Persons Liable A. General Considerations Topic Summary References Correlation Table 100. Same person as plaintiff and defendant West's Key Number Digest West's Key Number Digest, Action 15 No action may ordinarily be maintained in which one person is both the plaintiff and the defendant, even in different capacities. Inasmuch as a cause of action cannot be stated where the primary right and the primary duty lie in the same person,[1] a person cannot sue himself or herself.[2] Thus, the same party person cannot be both the plaintiff and the defendant in the same action, even in different capacities.[3] This is so whether the action is one in contract[ 4] or in tort,[5] and applies in all instances where the character of plaintiff and defendant unite in the same person,[6] although such person is not the sole plaintiff or defendant.[7] Such prohibition is not, however, applicable where, according to the actual interests involved, the suit does not amount to an action by one party against himself or herself,[8] or where, in order to maintain the action, it is not necessary for the same person to appear on the record as both plaintiff and defendant.[9] An action is also maintainable, despite the merging of the identities of the plaintiff and the defendant, where, due to the intervention of a third party, there remains an actual and legal party to the action with an interest adverse to that of the merged parties.[10] The prohibition against a person suing himself or herself is technical.[11] Where it precludes the maintenance of an action at law, relief may ordinarily be had only in equity, and, if resort cannot be had to equity, and a party having a meritorious case would otherwise be without remedy, the prohibition will not be enforced, even at law.[12]
[FN1] Cal.Mayo v. White, 178 Cal. App. 3d 1083, 224 Cal. Rptr. 373 (5th Dist. 1986). [FN2] Pa.Lee Publications, Inc. v. Dickinson School of Law, 848 A.2d 178, 187 Ed. Law Rep. 917 (Pa. Commw. Ct. 2004), appeal granted, 578 Pa. 717, 854 A.2d 969, 191 Ed. Law Rep. 339 (2004) and review dismissed as improvidently granted, 857 A.2d 675 (Pa. 2004). [FN3] Ga.Connell v. Murray, 205 Ga. App. 702, 423 S.E.2d 304 (1992).
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[FN4] Mo.Faulkner v. Faulkner, 73 Mo. 327, 1880 WL 9469 (1880). [FN5] Ga.Connell v. Murray, 205 Ga. App. 702, 423 S.E.2d 304 (1992). [FN6] Ga.Langford v. Johnson, 46 Ga. App. 444, 167 S.E. 779 (1933). Condemnation Ala.State v. J. E. Paterson Lumber Co., 284 Ala. 648, 227 So. 2d 418 (1969). [FN7] Mo.Faulkner v. Faulkner, 73 Mo. 327, 1880 WL 9469 (1880). [FN8] U.S.The Majestic, 73 F. 499 (N.D. Ill. 1896). [FN9] N.Y.Blanchard v. Ely, 21 Wend. 342, 1839 WL 3371 (N.Y. Sup 1839). [FN10] Cal.Redevelopment Agency v. City of Berkeley, 80 Cal. App. 3d 158, 143 Cal. Rptr. 633 (1st Dist. 1978). [FN11] U.S.Alexander v. Mare, 5 F.2d 964 (C.C.A. 1st Cir. 1925). [FN12] As to the granting of relief in equity when an action is precluded at law, generally, see C.J.S., Equity 34. Mandamus U.S.Alexander v. Mare, 5 F.2d 964 (C.C.A. 1st Cir. 1925). Guardian of claimant also administrator of estate Cal.Haberly v. Haberly, 27 Cal. App. 139, 149 P. 53 (1st Dist. 1915). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 100 END OF DOCUMENT
CJS ACTIONS V B REF 1A C.J.S. Actions V B Refs.
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. V. Persons Entitled to Sue and Persons Liable B. Capacity to Sue and Standing Topic Summary Correlation Table Research References A.L.R. Library West's A.L.R. Digest, Action 13
A.L.R. Index: Civil Procedure Rules; Class Actions; Derivative Actions; Equity; Parties Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS V B REF END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. V. Persons Entitled to Sue and Persons Liable B. Capacity to Sue and Standing 1. In General Topic Summary References Correlation Table 101. Generally West's Key Number Digest West's Key Number Digest, Action 13 To be entitled to bring an action, a party must have both the capacity to sue and standing. To be entitled to bring an action, a party must have both the capacity to sue[1] and standing.[2] Capacity to sue is a threshold matter allied with, but conceptually distinct from, the question of standing.[3] A determination as to whether a plaintiff has standing to bring a particular action is also a threshold requirement which must be met before a court may properly proceed to consider the merits of the action.[4] While capacity to sue is an absence of a legal disability which would deprive a party of the right to come into court,[5] standing consists of an entity's sufficient interest in the outcome of the litigation to warrant consideration of its position by a court.[6] It is the legal right to set the judicial machinery in motion,[7] but is not a procedural technicality.[8] Standing is, rather, that concept of justiciability that is concerned with whether a particular person may raise legal arguments or claims.[9] Standing must be defined on a case-by-case basis[10] and motive is irrelevant to the determination.[11] Although a determination of standing focuses on the party seeking adjudication, rather than on the issues sought to be adjudicated,[12] standing is not an absolute concept, but is, rather, variable and closely related to the nature of the controversy and the relief sought.[13] Accordingly, standing is determined by the nature of the action,[14] as well as by the plaintiff's interest in its outcome.[15] In deciding the question of standing, therefore, it is both appropriate and necessary to look to the substantive issues involved for the purpose of determining whether there is a logical nexus between the status asserted by the complainant and the claim sought to be adjudicated.[16] CUMULATIVE SUPPLEMENT Cases: "Standing" turns on whether the party has suffered an actual injury and whether that injury is to a legally
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protected right. Carey v. Howard, 2006 WL 1119260 (Ala. 2006). A litigant may not claim standing to assert the rights of a third party. Lott v. Eastern Shore Christian Center, 908 So. 2d 922 (Ala. 2005), cert. denied, 126 S. Ct. 416, 163 L. Ed. 2d 317 (U.S. 2005). Where plaintiff cannot allege that defendant inflicted distinct and palpable injury on her, she cannot sue that defendant. It logically follows that same plaintiff should not be able to sue that defendant by bringing class action purporting to represent class of people who actually were harmed by defendant. To permit plaintiff to do that would severely weaken, if not entirely eliminate, standing requirement. Fernandez v. Takata Seat Belts, Inc., 210 Ariz. 138, 108 P.3d 917 (2005). Where the interests of two parties interweave, either party has standing to litigate issues that have an impact upon the related interests. In re Desiree M., 181 Cal. App. 4th 329, 2010 WL 276177 (4th Dist. 2010). Standing is a threshold issue, because without it no justiciable controversy exists. Iglesia Evangelica Latina, Inc. v. Southern Pacific Latin American Dist. of Assemblies of God, 173 Cal. App. 4th 420, 93 Cal. Rptr. 3d 75 (2d Dist. 2009), review denied, (July 8, 2009). To have standing, a complaining party must (1) have a specific personal or legal interest in the litigation and (2) be injuriously affected; having a legal interest in the litigation and being injuriously affected are separate requirements for standing. Alons v. Iowa Dist. Court for Woodbury County, 698 N.W.2d 858 (Iowa 2005). For purposes of determining whether a complaining party has standing, the focus is on the party, not on the claim; even if the claim could be meritorious, the court will not hear the claim if the party bringing it lacks standing. Alons v. Iowa Dist. Court for Woodbury County, 698 N.W.2d 858 (Iowa 2005). Where there exists a party having standing to bring an action, court shall not ordinarily inquire as to whether another party on the same side also has standing. Garner v. Archers Glen Partners, Inc., 405 Md. 43, 949 A.2d 639 (2008). The essence of standing, as it pertains to a private person, is whether the person has alleged a personal stake in the outcome of a controversy. In re Care and Protection of Sharlene, 445 Mass. 756, 840 N.E.2d 918 (2006). The state has very liberal standing requirements; parties have standing to sue when they assert a colorable interest in the subject matter of the litigation or experience an adverse effect from the conduct of defendant, or as otherwise provided by law. Moore v. Marathon Asset Management, LLC, 973 So. 2d 1017 (Miss. Ct. App. 2008). Injury-in-fact, the cornerstone of requirements for standing, is conceptually distinct from the question of whether the plaintiff has incurred a legal injury, that is, whether the plaintiff has a viable cause of action on the merits. Stop the Ordinances Please v. City of New Braunfels, 306 S.W.3d 919 (Tex. App. Austin 2010). [END OF SUPPLEMENT]
[FN1] Tex. Coastal Liquids Transp., L.P. v. Harris County Appraisal Dist., 46 S.W.3d 880 (Tex. 2001). Cause of action distinguished IowaTroester v. Sisters of Mercy Health Corp., 328 N.W.2d 308 (Iowa 1982). [FN2] Tex. Coastal Liquids Transp., L.P. v. Harris County Appraisal Dist., 46 S.W.3d 880 (Tex. 2001). Judicially developed test
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Colo.Ainscough v. Owens, 90 P.3d 851 (Colo. 2004). Purpose of inquiry Neb.Adam v. City of Hastings, 267 Neb. 641, 676 N.W.2d 710 (2004). Distinguished from aggrievement Conn. Gladysz v. Planning and Zoning Com'n of Town of Plainville, 256 Conn. 249, 773 A.2d 300 (2001). Distinguished from ripeness Tex.McAllen Medical Center, Inc. v. Cortez, 66 S.W.3d 227 (Tex. 2001). [FN3] N.Y.Silver v. Pataki, 96 N.Y.2d 532, 730 N.Y.S.2d 482, 755 N.E.2d 842 (2001). Waiver of capacity to sue Tex.Coastal Liquids Transp., L.P. v. Harris County Appraisal Dist., 46 S.W.3d 880 (Tex. 2001). [FN4] Colo.Ainscough v. Owens, 90 P.3d 851 (Colo. 2004). As to standing as a jurisdictional prerequisite, generally, see 102. Threshold issue bearing on court's power to adjudicate disputes Me.Lamson v. Cote, 2001 ME 109, 775 A.2d 1134 (Me. 2001). Ensures litigation before tribunal is appropriate Del.Dover Historical Soc. v. City of Dover Planning Com'n, 838 A.2d 1103 (Del. 2003). Constitutional prerequisite Tex.Williams v. Lara, 52 S.W.3d 171 (Tex. 2001). [FN5] Fla.Keehn v. Joseph C. Mackey and Co., 420 So. 2d 398 (Fla. Dist. Ct. App. 4th Dist. 1982). [FN6] Fla.Keehn v. Joseph C. Mackey and Co., 420 So. 2d 398 (Fla. Dist. Ct. App. 4th Dist. 1982). Generalized interest insufficient to confer standing Conn.Broadnax v. City of New Haven, 270 Conn. 133, 851 A.2d 1113 (2004). Sufficient stake to obtain judicial resolution of controversy Wyo.Sinclair Oil Corp. v. Wyoming Public Service Com'n, 2003 WY 22, 63 P.3d 887 (Wyo. 2003). [FN7] Nev.Heller v. Legislature of State of Nev., 120 Nev. 51, 93 P.3d 746 (2004).
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[FN8] Conn.Label Systems Corp. v. Aghamohammadi, 270 Conn. 291, 852 A.2d 703 (2004). [FN9] Colo.HealthONE v. Rodriguez ex rel. Rodriguez, 50 P.3d 879 (Colo. 2002). Justiciability as compound concept Ala.J.L.N. v. State, 2004 WL 1233977 (Ala. 2004). [FN10] Ill.People v. Greco, 204 Ill. 2d 400, 274 Ill. Dec. 73, 790 N.E.2d 846 (2003). [FN11] N.D.Billey v. North Dakota Stockmen's Ass'n, 1998 ND 120, 579 N.W.2d 171 (N.D. 1998). [FN12] W.Va.State ex rel. Leung v. Sanders, 213 W. Va. 569, 584 S.E.2d 203 (2003). Standing and mootness distinguished Me.Maine Civil Liberties Union v. City of South Portland, 1999 ME 121, 734 A.2d 191 (Me. 1999). [FN13] U.S.Taylor v. Cohen, 405 F.2d 277 (4th Cir. 1968). [FN14] Gauged by specific common law, statutory, or constitutional claims presented W.Va.Findley v. State Farm Mut. Auto. Ins. Co., 213 W. Va. 80, 576 S.E.2d 807 (2002), cert. denied, 539 U.S. 942, 123 S. Ct. 2609, 156 L. Ed. 2d 628 (2003). [FN15] Ill.Wexler v. Wirtz Corp., 211 Ill. 2d 18, 284 Ill. Dec. 294, 809 N.E.2d 1240 (2004). As to the required nature of the plaintiff's interest to establish standing, generally, see 105 et seq. As to the requirement of a personal stake in the outcome of the litigation to establish standing, generally, see 108. Test HawaiiSierra Club v. Hawaii Tourism Authority ex rel. Board of Directors, 100 Haw. 242, 59 P.3d 877 (2002). Proper party to bring action Ala.Moore v. John Hancock Life Ins. Co., 876 So. 2d 443 (Ala. 2003). Nonparty Ga.Johnson Cent. Service of Georgia, Inc. v. Emory University, 170 Ga. App. 493, 317 S.E.2d 303 (1984). [FN16] Conn.Maloney v. Pac, 183 Conn. 313, 439 A.2d 349 (1981). Causal connection
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Pa.Com. v. J.H., 563 Pa. 248, 759 A.2d 1269 (2000). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 101 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. V. Persons Entitled to Sue and Persons Liable B. Capacity to Sue and Standing 1. In General Topic Summary References Correlation Table 102. Jurisdictional requirement West's Key Number Digest West's Key Number Digest, Action 13 Standing generally represents a jurisdictional requirement which remains open to review at all stages of the litigation, though the jurisdictions vary as to whether a lack of standing can be waived by the defendant. Standing generally represents a jurisdictional requirement[1] which remains open to review at all stages of the litigation,[2] even on appeal.[3] The issue of standing presents a pure question of law,[4] thus a trial court's ruling on the issue is entitled to no deference on appeal.[5] Standing is generally not a matter of equitable estoppel between parties,[6] nor is it subject to their control.[7] If a party is found to lack standing, the court is, in some jurisdictions, deemed to be without subject matter jurisdiction to determine the cause,[8] though in other jurisdictions, standing is a separate and distinct legal concept from subject matter jurisdiction.[9] Where standing raises an issue of subject matter jurisdiction, the court must address the issue.[10] A lack of standing cannot, in some jurisdictions, be waived.[11] In other jurisdictions, however, it can be waived, unless timely asserted,[12] in that it is an affirmative defense,[13] which the defendant bears the burden of pleading and proving.[14] CUMULATIVE SUPPLEMENT Cases: When a party without standing purports to commence an action, the trial court acquires no subject-matter jurisdiction; under such a circumstance, the trial court has no alternative but to dismiss the action. Ex parte Bd. of Trustees/Directors and/or Deacons of Old Elam Baptist Church, 2007 WL 1519867 (Ala. 2007). Standing represents a jurisdictional requirement which remains open to review at all stages of the litigation. Carey v. Howard, 2006 WL 1119260 (Ala. 2006). When a party without standing purports to commence an action, the trial court acquires no subject-matter
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jurisdiction. Carey v. Howard, 2006 WL 1119260 (Ala. 2006). When a party without standing purports to commence an action, the trial court acquires no subject-matter jurisdiction and has no alternative but to dismiss the action. Ex parte Chemical Waste Management, Inc., 2005 WL 3083492 (Ala. 2005). Objections to standing, unlike objections that a plaintiff is not the real party in interest, cannot be waived. RLI Ins. Co. v. MLK Ave. Redevelopment Corp., 2005 WL 1415411 (Ala. 2005). When a party without standing purports to commence an action, the trial court acquires no subject-matter jurisdiction. Eagerton v. Second Economic Development Co-op. Dist. of Lowndes County, 909 So. 2d 783 (Ala. 2005). To gain standing to bring an action, a plaintiff must allege a distinct and palpable injury. Fernandez v. Takata Seat Belts, Inc., 210 Ariz. 138, 108 P.3d 917 (2005). An individual must have standing in order to maintain an action. Solid Rock Church, Disciples of Christ v. Friendship Public Charter School, Inc., 925 A.2d 554 (D.C. 2007). Basic to standing is the requirement that the individual be injured in fact by the conduct of the other party; the three other essential requisites of standing are causation, redressability, and the zone of interest requirement, which is prudential, rather than constitutionally compelled. Solid Rock Church, Disciples of Christ v. Friendship Public Charter School, Inc., 925 A.2d 554 (D.C. 2007). When the asserted harm is a "generalized grievance" shared in substantially equal measure by all or by a large class of citizens, that harm alone normally does not warrant exercise of jurisdiction. Alons v. Iowa Dist. Court for Woodbury County, 698 N.W.2d 858 (Iowa 2005). When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue and not whether the controversy is otherwise justiciable, or whether, on the merits, the plaintiff has a legally protected interest that the defendant's action has invaded. Alons v. Iowa Dist. Court for Woodbury County, 698 N.W.2d 858 (Iowa 2005). Standing is a doctrine courts employ to refuse to determine the merits of a legal controversy irrespective of its correctness, where the party advancing it is not properly situated to prosecute the action. Alons v. Iowa Dist. Court for Woodbury County, 698 N.W.2d 858 (Iowa 2005). For purposes of determining whether a complaining party has standing, the focus is on the party, not on the claim; even if the claim could be meritorious, the court will not hear the claim if the party bringing it lacks standing. Alons v. Iowa Dist. Court for Woodbury County, 698 N.W.2d 858 (Iowa 2005). Standing is a jurisdictional issue that cannot be waived. Locator Services Group, Ltd. v. Treasurer and Receiver General, 443 Mass. 837, 825 N.E.2d 78 (2005). Standing cannot be conferred by estoppel. Fernandez v. Frost Nat. Bank, 267 S.W.3d 75 (Tex. App. Corpus Christi 2008), petition for review filed, (July 7, 2008). Standing is implicit in the concept of subject-matter jurisdiction, and the trial court can consider evidence on the standing issue when evidence is necessary to determine jurisdictional facts. In re Kelso, 266 S.W.3d 586 (Tex. App. Fort Worth 2008). Standing is a component of subject matter jurisdiction and cannot be waived. Wells v. Dotson, 261 S.W.3d 275 (Tex. App. Tyler 2008). Although a challenge to standing is jurisdictional and may be brought at any stage of the litigation, such a challenge is to be evaluated under the standard used for a dispositive motion at the relevant stage of litigation. Brown v. Division of Water Rights of Dept. of Natural Resources, 2010 UT 14, 228 P.3d 747 (Utah 2010). [END OF SUPPLEMENT]
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[FN1] Lack of standing as jurisdictional defect Ala.Ex parte Fort James Operating Co., 871 So. 2d 51 (Ala. 2003). Jurisprudential rule of jurisdictional magnitude Wyo.Pedro/Aspen, Ltd. v. Board of County Com'rs for Natrona County, 2004 WY 84, 94 P.3d 412 (Wyo. 2004). [FN2] Ala. Alabama Alcoholic Beverage Control Bd. v. Henri-Duval Winery, L.L.C., 2003 WL 22161441 (Ala. 2003), as modified on denial of reh'g, (Apr. 30, 2004). Lack of standing cannot be cured nunc pro tunc Ala.State v. Property at 2018 Rainbow Drive known as Oasis, 740 So. 2d 1025 (Ala. 1999). [FN3] Colo.HealthONE v. Rodriguez ex rel. Rodriguez, 50 P.3d 879 (Colo. 2002). Sua sponte by appellate court N.M.Gunaji v. Macias, 2001 -NMSC- 028, 130 N.M. 734, 31 P.3d 1008 (2001). [FN4] Ala.Blue Cross and Blue Shield of Alabama v. Hodurski, 2004 WL 1588107 (Ala. 2004). Standing threshold question of law, while causation question of fact Colo.Hall v. Walter, 969 P.2d 224 (Colo. 1998). Label placed on allegations by parties not controlling Conn.Dow and Condon, Inc. v. Brookfield Development Corp., 266 Conn. 572, 833 A.2d 908 (2003). Factual findings may bear on issue of standing Utah Washington County Water Conservancy Dist. v. Morgan, 2003 UT 58, 82 P.3d 1125 (Utah 2003). [FN5] Ala.Blue Cross and Blue Shield of Alabama v. Hodurski, 2004 WL 1588107 (Ala. 2004). [FN6] Wis.Cornwell Personnel Associates, Ltd. v. Department of Industry, Labor and Human Relations, 92 Wis. 2d 53, 284 N.W.2d 706 (Ct. App. 1979). [FN7] U.S.Mackay v. Randolph Macon Coal Co., 178 F. 881 (C.C.A. 8th Cir. 1910). Standing cannot be conferred by consent N.D.Nodak Mut. Ins. Co. v. Ward County Farm Bureau, 2004 ND 60, 676 N.W.2d 752 (N.D. 2004).
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Standing statutorily controlled S.D. Edgemont School Dist. 23-1 v. South Dakota Dept. of Revenue, 1999 SD 48, 593 N.W.2d 36 (S.D. 1999). [FN8] Conn.Cheryl Terry Enterprises, Ltd. v. City of Hartford, 270 Conn. 619, 854 A.2d 1066 (2004) . Component of subject matter jurisdiction Tex.Douglas v. Delp, 987 S.W.2d 879 (Tex. 1999). [FN9] R.I.Direct Action for Rights and Equality v. Gannon, 713 A.2d 218 (R.I. 1998). Matter of judicial policy, rather than jurisdictional prerequisite Wis.Milwaukee Dist. Council 48 v. Milwaukee County, 244 Wis. 2d 333, 2001 WI 65, 627 N.W.2d 866 (2001). [FN10] Conn.Edgewood Village, Inc. v. Housing Authority of City of New Haven, 265 Conn. 280, 828 A.2d 52 (2003), cert. denied, 124 S. Ct. 1416, 158 L. Ed. 2d 82 (U.S. 2004). [FN11] Mo.Farmer v. Kinder, 89 S.W.3d 447 (Mo. 2002). [FN12] N.Y.Auto Body Federation of Empire State, Inc. v. Lewis, 80 A.D.2d 593, 436 N.Y.S.2d 32 (2d Dep't 1981). [FN13] Ill.Wexler v. Wirtz Corp., 211 Ill. 2d 18, 284 Ill. Dec. 294, 809 N.E.2d 1240 (2004). [FN14] Ill.Glisson v. City of Marion, 188 Ill. 2d 211, 242 Ill. Dec. 79, 720 N.E.2d 1034 (1999). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 102 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. V. Persons Entitled to Sue and Persons Liable B. Capacity to Sue and Standing 1. In General Topic Summary References Correlation Table 103. Standing in state courts West's Key Number Digest West's Key Number Digest, Action 13 State courts are not bound by the standing requirements applicable in federal courts, but rather by their own constitutional limitations and discretionary doctrines. State courts are not bound by the standing requirements applicable in federal courts,[1] but rather by their own constitutional limitations and discretionary doctrines.[2] Accordingly, state courts are free to fashion their own law of standing consistent with their own notions of substantial justice and sound judicial administration.[3] Consequently, while state standing requirements do, in some instances, parallel federal requirements,[4] in other instances they are different and, in some cases, more liberal.[5] CUMULATIVE SUPPLEMENT Cases: Federal test for standing is based in part upon constitutional strictures and prudential considerations while the state's rule on standing is self-imposed. Alons v. Iowa Dist. Court for Woodbury County, 698 N.W.2d 858 (Iowa 2005). [END OF SUPPLEMENT]
[FN1] Nev.Heller v. Legislature of State of Nev., 120 Nev. 51, 93 P.3d 746 (2004). [FN2] Mont.Stewart v. Board of County Com'rs of Big Horn County, 175 Mont. 197, 573 P.2d 184 (1977). Application of standing as matter of judicial self-restraint
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AlaskaSonneman v. State, 969 P.2d 632 (Alaska 1998). [FN3] N.J.Salorio v. Glaser, 82 N.J. 482, 414 A.2d 943 (1980). Key component to maintain state constitutional scheme of separation of powers Ind.Pence v. State, 652 N.E.2d 486 (Ind. 1995). Prudential considerations Colo. City of Greenwood Village v. Petitioners for Proposed City of Centennial, 3 P.3d 427 (Colo. 2000). [FN4] U.S.Vietnamese Fishermen's Ass'n v. Knights of the Ku Klux Klan, 543 F. Supp. 198, 34 Fed. R. Serv. 2d 875 (S.D. Tex. 1982). Federal jurisprudence on standing instructive, though not binding Ariz.Bennett v. Napolitano, 206 Ariz. 520, 81 P.3d 311 (2003). Procedural standing a construct based on federal statutes HawaiiSierra Club v. Hawaii Tourism Authority ex rel. Board of Directors, 100 Haw. 242, 59 P.3d 877 (2002). [FN5] Miss.State v. Quitman County, 807 So. 2d 401 (Miss. 2001). State courts not subject to cases and controversies limitation Pa.In re Hickson, 573 Pa. 127, 821 A.2d 1238 (2003). Unlike federal system, doctrine of standing not rigidly followed Fla. Coalition for Adequacy and Fairness in School Funding, Inc. v. Chiles, 680 So. 2d 400 (Fla. 1996). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 103 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. V. Persons Entitled to Sue and Persons Liable B. Capacity to Sue and Standing 1. In General Topic Summary References Correlation Table 104. Power of legislature West's Key Number Digest West's Key Number Digest, Action 13 The legislature may confer standing on persons who may not meet judicially-imposed standards for establishing standing. The legislature may confer standing on persons who may not meet judicially-imposed standards for establishing standing in the absence of legislation specifying proper parties in any given type of judicial action.[1] Thus, a party may have standing to bring a particular action pursuant to a statutory provision.[2] The issue of standing is governed by the requirements of a specific statute having a standing requirement, rather than by a general grant of standing.[3] A statute which creates a cause of action not recognized at common law, and which expressly states who may sue pursuant to it, must be read narrowly.[4] When, therefore, the legislature has clearly delineated a class that can petition to enforce a statutory scheme, the court must implement that determination meticulously.[5]
[FN1] Minn. Minnesota Public Interest Research Group v. Minnesota Dept. of Labor and Industry, 311 Minn. 65, 249 N.W.2d 437 (1976). Power of legislature to grant party standing UtahDOIT, Inc. v. Touche, Ross & Co., 926 P.2d 835 (Utah 1996). On official or agency Md.State Administrative Bd. of Election Laws v. Board of Sup'rs of Elections of Baltimore City, 342 Md. 586, 679 A.2d 96 (1996). [FN2] Pa. Pennsylvania Nat. Mut. Cas. Ins. Co. v. Department of Labor and Industry, Prevailing Wage Appeals Bd., 552 Pa. 385, 715 A.2d 1068 (1998).
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[FN3] Mass.Boston Edison Co. v. Boston Redevelopment Authority, 374 Mass. 37, 371 N.E.2d 728 (1977). [FN4] U.S.U.S. v. Burlington Northern, Inc., 500 F.2d 637 (9th Cir. 1974). [FN5] N.H.O'Brien v. O'Brien, 141 N.H. 435, 684 A.2d 1352 (1996). Legislative intent N.M.Key v. Chrysler Motors Corp., 1996 -NMSC- 038, 121 N.M. 764, 918 P.2d 350 (1996). Determination of contours of standing Or.Local No. 290, Plumbers and Pipefitters v. Oregon Dept. of Environmental Quality, 323 Or. 559, 919 P.2d 1168 (1996). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 104 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. V. Persons Entitled to Sue and Persons Liable B. Capacity to Sue and Standing 2. Nature of Interest Required a. In General Topic Summary References Correlation Table 105. Generally West's Key Number Digest West's Key Number Digest, Action 13 To warrant standing as a plaintiff, a party must have some actual and real, justiciable interest susceptible of protection through litigation. A plaintiff generally has standing to sue when it has such a legitimate interest in a matter as to warrant asking a court to entertain it.[1] Thus, to warrant standing as a plaintiff, a party must have, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title, or interest in the subject matter of the controversy,[2] susceptible of protection through litigation.[3] Conversely, a party may be precluded from maintaining an action where it has no such interest in the matter in controversy,[4] either personal or fiduciary.[5] A party may have standing to bring an action on the basis of a bare legal title,[6] without a beneficial interest in a cause of action.[7] Conversely, a party may have standing to bring an action on the basis of a beneficial interest in the subject matter and relief sought, without a legal title or interest in same.[8] CUMULATIVE SUPPLEMENT Cases: To say that a person has standing is to say that that person is a proper party to bring the action; to be a proper party, the person must have a real, tangible legal interest in the subject matter of the lawsuit. Ex parte Chemical Waste Management, Inc., 2005 WL 3083492 (Ala. 2005). To have standing to prosecute an action, a party must be beneficially interested in the controversy, and have some special interest to be served or some particular right to be preserved or protected. Iglesia Evangelica Latina, Inc. v. Southern Pacific Latin American Dist. of Assemblies of God, 173 Cal. App. 4th 420, 93 Cal. Rptr. 3d 75 (2d Dist. 2009), review denied, (July 8, 2009). In order to have standing, a complaining party must (1) have a specific personal or legal interest in the litig-
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ation, and (2) be injuriously affected. Sanchez v. State, 692 N.W.2d 812 (Iowa 2005). "Standing to sue" means that a party must have sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy. Sanchez v. State, 692 N.W.2d 812 (Iowa 2005). To establish standing, a party must have a sufficient relationship with the lawsuit so as to have a justiciable interest in its outcome. Girsh v. St. John, 218 S.W.3d 921 (Tex. App. Beaumont 2007). [END OF SUPPLEMENT]
[FN1] Ill.Chicago Park Dist. v. City of Chicago, 127 Ill. App. 3d 215, 82 Ill. Dec. 481, 468 N.E.2d 1261 (1st Dist. 1984), judgment aff'd, 111 Ill. 2d 7, 94 Ill. Dec. 721, 488 N.E.2d 968 (1986). Sufficient personal interest in outcome of litigation required Wyo.Sinclair Oil Corp. v. Wyoming Public Service Com'n, 2003 WY 22, 63 P.3d 887 (Wyo. 2003). [FN2] Conn.Label Systems Corp. v. Aghamohammadi, 270 Conn. 291, 852 A.2d 703 (2004). Community property interest sufficiently real interest to confer standing Wash.Dean v. Lehman, 143 Wash. 2d 12, 18 P.3d 523 (2001). Justiciable interest cognizable in court precondition to maintenance of action IdahoBowles v. Pro Indiviso, Inc., 132 Idaho 371, 973 P.2d 142 (1999). [FN3] Ill. Wolinsky v. Kadison, 114 Ill. App. 3d 527, 70 Ill. Dec. 277, 449 N.E.2d 151 (1st Dist. 1983). [FN4] Ill. Raintree Homes, Inc. v. Village of Long Grove, 209 Ill. 2d 248, 282 Ill. Dec. 815, 807 N.E.2d 439 (2004). Assignor of chose in action Idaho Union Warehouse and Supply Co., Inc. v. Illinois R.B. Jones, Inc., 128 Idaho 660, 917 P.2d 1300 (1996). [FN5] OhioBoulger v. Evans, 54 Ohio St. 2d 371, 8 Ohio Op. 3d 388, 377 N.E.2d 753 (1978). [FN6] Mo. State ex rel. J. S. Alberici, Inc. v. City of Fenton, 576 S.W.2d 574 (Mo. Ct. App. E.D. 1979). [FN7] Tex.City of San Antonio v. Reed, 192 S.W. 549 (Tex. Civ. App. 1917), writ refused (Jun 06, 1917). Nominee of another Pa.Purdy v. Massey, 306 Pa. 288, 159 A. 545 (1932).
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[FN8] Ill.Solomon v. City of Evanston, 29 Ill. App. 3d 782, 331 N.E.2d 380 (1st Dist. 1975). As to the requirement of a personal stake in the outcome of the litigation to establish standing, generally, see 108. Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 105 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. V. Persons Entitled to Sue and Persons Liable B. Capacity to Sue and Standing 2. Nature of Interest Required a. In General Topic Summary References Correlation Table 106. Right, or wrong, of public nature West's Key Number Digest West's Key Number Digest, Action 13 A private individual cannot maintain an action to enforce a right, or redress a wrong, of a public nature, unless the party has sustained some injury which is special and peculiar to him or her, however slight. A private individual generally cannot maintain an action to enforce a right, or redress a wrong, of a public nature,[1] unless the individual has sustained some injury which is special and peculiar to him or her,[2] however slight.[3] Thus, a party is not entitled to sue on the basis of a generalized grievance shared by all or a large class of citizens,[4] unless the party is able to show that the matters in dispute affect it differently than they do other citizens,[5] or that it is not merely an interloper in the dispute.[6] Although the alleged injury sustained by the plaintiff claiming standing to sue must be distinguishable from the injury sustained by the general public,[7] the injury need not be exclusive to the complaining party.[8] Thus, standing will not be denied to a party alleging an injury simply because many people, in addition to the party suing, suffer the same injury.[9] A party has a substantial interest in the outcome of litigation if his or her interest exceeds that of all citizens in procuring obedience to the law.[10] Alleging injury alone is not, however, enough for a private plaintiff to establish standing to challenge an act of a public defendant.[11] Plaintiff must also allege a breach of duty owed to him or her by the defendant.[12] Once the requirement of injury in fact has been satisfied in deciding a standing issue, the court may properly permit plaintiffs to assert the broader claims of the public at large, in order to vindicate the public interest.[13] An action to enforce a statute, the enforcement of which is vested exclusively in a particular governmental authority, may not be brought by a private individual or by any other governmental authority.[14] A plaintiff need not, however, show a special interest, apart from that of the general public, where a statute provides that any interested person may bring an action to prevent particular violations.[15] Thus, in some instances, any person may be given a right to proceed, as where any aggrieved party is either too diffuse a class, or too helpless to
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protect itself.[16] CUMULATIVE SUPPLEMENT Cases: The claimed nonobservance of a law, standing alone, affects only the generalized interest of all citizens, and such an injury is abstract in nature, which is not sufficient for standing. Alons v. Iowa Dist. Court for Woodbury County, 698 N.W.2d 858 (Iowa 2005). When the only claim is nonobservance of the law, such claim affects only the generalized interest of all citizens; any injury resulting from such nonobservance is abstract in nature and not sufficient for standing. Alons v. Iowa Dist. Court for Woodbury County, 698 N.W.2d 858 (Iowa 2005). Plaintiff raising only a generally available grievance about government, claiming only harm to his and every citizen's interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large, does not provide a basis for standing. Alons v. Iowa Dist. Court for Woodbury County, 698 N.W.2d 858 (Iowa 2005). [END OF SUPPLEMENT]
[FN1] Me.Heald v. School Administrative Dist. No. 74, 387 A.2d 1 (Me. 1978). [FN2] S.C. Joytime Distributors and Amusement Co., Inc. v. State, 338 S.C. 634, 528 S.E.2d 647 (1999). [FN3] N.J.Salorio v. Glaser, 82 N.J. 482, 414 A.2d 943 (1980). Quantum of interest affected not dispositive HawaiiMottl v. Miyahira, 95 Haw. 381, 23 P.3d 716, 154 Ed. Law Rep. 350 (2001). [FN4] IdahoNoh v. Cenarrusa, 137 Idaho 798, 53 P.3d 1217 (2002). Common interest of all citizens in procuring obedience to law insufficient Pa.In re Hickson, 573 Pa. 127, 821 A.2d 1238 (2003). Suffering in indefinite way in common with people generally insufficient Mich. National Wildlife Federation v. Cleveland Cliffs Iron Co., 471 Mich. 608, 684 N.W.2d 800 (2004). [FN5] Md.Jones v. Prince George's County, 378 Md. 98, 835 A.2d 632 (2003). Injury must be particularized Me.Collins v. State, 2000 ME 85, 750 A.2d 1257 (Me. 2000). Requirement of particularized injury not suspended where public trust doctrine asserted
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Vt.Parker v. Town of Milton, 169 Vt. 74, 726 A.2d 477 (1998). [FN6] N.J.Matter of Quinlan, 70 N.J. 10, 355 A.2d 647, 79 A.L.R.3d 205 (1976). Stranger to record Ark.Reynolds v. Guardianship of Sears, 327 Ark. 770, 940 S.W.2d 483 (1997). [FN7] Injury distinct from that of general public required N.Y. Transactive Corp. v. New York State Dept. of Social Services, 92 N.Y.2d 579, 684 N.Y.S.2d 156, 706 N.E.2d 1180 (1998). [FN8] Mont.Geil v. Missoula Irr. Dist., 2002 MT 269, 312 Mont. 320, 59 P.3d 398 (2002). [FN9] U.S.U.S. v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 93 S. Ct. 2405, 37 L. Ed. 2d 254 (1973). Mich.Karrip v. Cannon Tp., 115 Mich. App. 726, 321 N.W.2d 690 (1982). [FN10] Pa.City of Philadelphia v. Com., 575 Pa. 542, 838 A.2d 566 (2003). [FN11] Mass.Ginther v. Commissioner of Ins., 427 Mass. 319, 693 N.E.2d 153 (1998). [FN12] Mass.Ginther v. Commissioner of Ins., 427 Mass. 319, 693 N.E.2d 153 (1998). [FN13] R.I.Associated Builders & Contractors of Rhode Island, Inc. v. Department of Admin., 787 A.2d 1179 (R.I. 2002). [FN14] Mass.Knowles v. Codex Corp., 12 Mass. App. Ct. 493, 426 N.E.2d 734 (1981). [FN15] As to standing to enforce an issue of great importance and interest to the public, generally, see 107. Open meetings statute Tex.Board of Trustees of Austin Independent School Dist. v. Cox Enterprises, Inc., 679 S.W.2d 86, 21 Ed. Law Rep. 402 (Tex. App. Texarkana 1984), writ granted, (May 1, 1985) and judgment aff'd in part, rev'd in part on other grounds, 706 S.W.2d 956, 31 Ed. Law Rep. 1040 (Tex. 1986). [FN16] N.C.Matter of Thomas, 290 N.C. 410, 226 S.E.2d 371 (1976). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 106 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. V. Persons Entitled to Sue and Persons Liable B. Capacity to Sue and Standing 2. Nature of Interest Required a. In General Topic Summary References Correlation Table 107. Right, or wrong, of public natureIssues of great importance and interest to the public West's Key Number Digest West's Key Number Digest, Action 13 When the issues sought to be litigated are of great importance and interest to the public, they may, in some jurisdictions, be resolved in a form of action that involves no rights or obligations peculiar to the named parties. When the issues sought to be litigated are of great importance and interest to the public, they may, in some jurisdictions, be resolved in a form of action that involves no rights or obligations peculiar to the named parties.[ 1] The doctrine of great public interest or importance must, however, be applied with caution in expanding or relaxing the definition of standing.[2] Its exercise must be a matter where strict standards are applied to avoid the temptation to apply a judge's own beliefs and philosophies to a determination of what questions are of great public importance.[3] Standing may be found under a public interest standing test if the matter is of great public importance, if the plaintiff, although lacking a distinct injury is in as good a position to challenge the alleged illegality as any other potential plaintiff, and if the issue is unlikely to ever be raised if the plaintiff is denied standing to sue.[4] CUMULATIVE SUPPLEMENT Cases: Although, as a matter of discretion, the court can waive the requirement of standing, it does so only in exceptional circumstances, generally in cases involving issues of great public importance that are likely to recur. Fernandez v. Takata Seat Belts, Inc., 210 Ariz. 138, 108 P.3d 917 (2005). The court will consider the merits of a case without a distinct and palpable injury to the plaintiff only in exceptional circumstances, generally in cases involving issues of great public importance that are likely to recur. Fernandez v. Takata Seat Belts, Inc., 210 Ariz. 138, 108 P.3d 917 (2005). Normally, a party may only assert his own rights; however, there is an exception to this general rule where the challenger's interest is as great as the persons whose rights are alleged to be violated. Ames Rental Property Ass'n v. City of Ames, 736 N.W.2d 255 (Iowa 2007), petition for cert. filed (U.S. Oct. 24, 2007).
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Standing may be conferred upon a party when an issue is of such public importance as to require its resolution for future guidance. Sloan v. Department of Transp., 379 S.C. 160, 666 S.E.2d 236 (2008). [END OF SUPPLEMENT]
[FN1] Eliminates requirement plaintiff have interest in outcome different from general public Ind.State ex rel. Cittadine v. Indiana Dept. of Transp., 790 N.E.2d 978 (Ind. 2003). [FN2] Wyo.Jolley v. State Loan and Inv. Bd., 2002 WY 7, 38 P.3d 1073 (Wyo. 2002). [FN3] Wyo.Jolley v. State Loan and Inv. Bd., 2002 WY 7, 38 P.3d 1073 (Wyo. 2002). [FN4] Utah Haymond v. Bonneville Billing & Collections, Inc., 2004 UT 27, 89 P.3d 171 (Utah 2004). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 107 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. V. Persons Entitled to Sue and Persons Liable B. Capacity to Sue and Standing 2. Nature of Interest Required a. In General Topic Summary References Correlation Table 108. Injury and personal stake; protected interest West's Key Number Digest West's Key Number Digest, Action 13 Standing to sue is commonly based on an alleged injury in fact, a personal stake in the outcome of the action, and a protectable interest. Standing to sue must be based on an alleged injury in fact[1] to a right[2] protected by constitutional or statutory provisions or under the common law, a statute, or a rule or regulation,[3] which is likely to be redressed if the requested relief is granted.[4] A plaintiff must also, in order to establish standing, demonstrate a personal stake in the outcome of the controversy[5] in order to insure that the litigation will occur in an adversary context[6] and that the disputed issue will be vigorously presented.[7] This tangible interest requirement guarantees that a litigant is sufficiently interested in the action to present a justiciable controversy.[8] A party has no standing when there is no personal stake in the outcome of the controversy.[9] Although standing must be established on the basis of an interest which is substantial, direct, and immediate,[10] the degree of injury which must be shown in order to satisfy the injury in fact requirement, and to assure the necessary adversity, need not be great.[11] Moreover, the affected interest which gives rise to standing need not be primarily economic,[12] but may be ethical, recreational, environmental, aesthetic, or conservational,[13] as well as pecuniary.[14] It is not, however, sufficient that the party has merely a general interest, common to all members of the public.[15] CUMULATIVE SUPPLEMENT Cases: Professionals subject to Kansas statute requiring doctors, teachers, and others to notify state government of suspected injury to minor resulting from sexual abuse satisfied injury-in-fact prong of standing in action challen-
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ging statute's constitutionality as applied to incidents involving consensual sexual activity between minors of similar ages, based on professionals' due process claim alleging lack of fair notice, given conflicting interpretations of reporting statute and uncertainty as to what conduct would lead to prosecution, and given professionals' allegations that they were among those covered by statute and had patients or clients under age of 16 who were sexually active, which raised risk that professionals would be prosecuted if they failed to report such sexual activity. Aid for Women v. Foulston, 441 F.3d 1101 (10th Cir. 2006). Professionals subject to Kansas statute requiring doctors, teachers, and others to notify state government of suspected injury to minor resulting from sexual abuse satisfied causation and redressability prongs of standing in action challenging statute's constitutionality as applied to incidents involving consensual sexual activity between minors of similar ages, given that professionals' alleged due process injury stemming from lack of fair notice was result both of Kansas Attorney General's interpretation of statute and prosecutors' potential enforcement of statute against professionals, and injunction against enforcement of statute in challenged context would redress alleged injury. Aid for Women v. Foulston, 441 F.3d 1101 (10th Cir. 2006). Standing turns on whether the party has been injured in fact and whether the injury is to a legally protected right. Ex parte Chemical Waste Management, Inc., 2005 WL 3083492 (Ala. 2005). A party lacks standing to invoke the power of the court in his behalf in the absence of a concrete stake in the outcome of the court's decision. Lott v. Eastern Shore Christian Center, 908 So. 2d 922 (Ala. 2005), cert. denied, 126 S. Ct. 416, 163 L. Ed. 2d 317 (U.S. 2005). A plaintiff who cannot allege that a defendant inflicted a distinct and palpable injury on her lacks standing to sue that defendant. Fernandez v. Takata Seat Belts, Inc., 210 Ariz. 138, 108 P.3d 917 (2005). To have standing to prosecute an action, a party must be able to demonstrate that he or she has some beneficial interest in the controversy that is concrete and actual, and not conjectural or hypothetical. Iglesia Evangelica Latina, Inc. v. Southern Pacific Latin American Dist. of Assemblies of God, 173 Cal. App. 4th 420, 93 Cal. Rptr. 3d 75 (2d Dist. 2009), review denied, (July 8, 2009). In order to have standing, the plaintiff must have a specific personal or legal interest and must be injured in fact. Iowa Beta Chapter of Phi Delta Theta Fraternity v. State, University of Iowa, 763 N.W.2d 250, 243 Ed. Law Rep. 441 (Iowa 2009). A direct economic injury through constriction of the market and imposition of sanctions is a sufficient injury to satisfy standing. Ames Rental Property Ass'n v. City of Ames, 736 N.W.2d 255 (Iowa 2007), petition for cert. filed (U.S. Oct. 24, 2007). "Standing to sue" means a party must have sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy. Alons v. Iowa Dist. Court for Woodbury County, 698 N.W.2d 858 (Iowa 2005). Irreducible constitutional minimum of standing requires that plaintiff have suffered an "injury in fact," which is an invasion of a legally protected interest which is concrete and particularized and actual or imminent rather than conjectural or hypothetical, that there be a causal connection between the injury and conduct complained of so that the injury is fairly traceable to the challenged action of defendant and not the result of the independent action of some third party who is not before the court, and that it be likely, as opposed to merely speculative, that injury will be redressed by a favorable decision. Alons v. Iowa Dist. Court for Woodbury County, 698 N.W.2d 858 (Iowa 2005). For injury to be "particularized," as necessary for plaintiff to have standing, it must affect plaintiff in a personal and individual way; abstract injury is not enough. Alons v. Iowa Dist. Court for Woodbury County, 698 N.W.2d 858 (Iowa 2005). In order to have standing, a complaining party must (1) have a specific personal or legal interest in the litigation, and (2) be injuriously affected. Sanchez v. State, 692 N.W.2d 812 (Iowa 2005).
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Not only is standing confined to those whose interest in the controversy is direct, immediate, and substantial, but also, a litigant must have a personal stake in the outcome. State ex rel. Bd. of Regents for Oklahoma Agr. and Mechanical Colleges v. McCloskey Bros., Inc., 2009 OK 90, 227 P.3d 133 (Okla. 2009). For a plaintiff to have standing, he must be personally aggrieved; his alleged injury must be concrete and particularized, actual or imminent, not hypothetical; if plaintiff does not allege real and personal injury to himself, it is irrelevant whether defendant acted improperly. Kessling v. Friendswood Independent School Dist., 302 S.W.3d 373 (Tex. App. Houston 14th Dist. 2009), petition for review filed, (Dec. 21, 2009). At the pleading stage of litigation, plaintiffs alleging a possible future injury may satisfy state standing requirements merely by alleging that there is a reasonable probability that they will be injured by the defendant's conduct, so long as the complaint contains adequate factual context to satisfy state's notice pleading requirements. Brown v. Division of Water Rights of Dept. of Natural Resources, 2010 UT 14, 228 P.3d 747 (Utah 2010). "Standing" is short for "standing to sue," which requires a legally protectable and tangible interest at stake in the litigation. Ultra Resources, Inc. v. Hartman, 2010 WY 36, 226 P.3d 889 (Wyo. 2010). [END OF SUPPLEMENT]
[FN1] U.S.Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 94 S. Ct. 2925, 41 L. Ed. 2d 706 (1974). Mich. National Wildlife Federation v. Cleveland Cliffs Iron Co., 471 Mich. 608, 684 N.W.2d 800 (2004). Injury in fact defined R.I.Meyer v. City of Newport, 844 A.2d 148 (R.I. 2004). [FN2] Ala.J.L.N. v. State, 2004 WL 1233977 (Ala. 2004). Right to be immune from damage La.Smith v. State Through Div. of Family Services, Dept. of Health and Human Resources, 452 So. 2d 388 (La. Ct. App. 3d Cir. 1984). [FN3] Colo.Ainscough v. Owens, 90 P.3d 851 (Colo. 2004). [FN4] U.S.Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99 S. Ct. 1601, 60 L. Ed. 2d 66 (1979). Mich. National Wildlife Federation v. Cleveland Cliffs Iron Co., 471 Mich. 608, 684 N.W.2d 800 (2004). [FN5] U.S.Socialist Labor Party v. Gilligan, 406 U.S. 583, 92 S. Ct. 1716, 32 L. Ed. 2d 317 (1972); Sierra Club v. Morton, 405 U.S. 727, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972). Ind.State ex rel. Cittadine v. Indiana Dept. of Transp., 790 N.E.2d 978 (Ind. 2003).
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Personal stake in subject matter of litigation S.C.Sloan v. Sanford, 357 S.C. 431, 593 S.E.2d 470 (2004). [FN6] U.S.Sierra Club v. Morton, 405 U.S. 727, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972). N.D.Shark v. U.S. West Communications, Inc., 545 N.W.2d 194 (N.D. 1996). [FN7] Ala.Liberty Nat. Life Ins. Co. v. University of Alabama Health Services Foundation, P.C., 881 So. 2d 1013 (Ala. 2003). [FN8] Wyo.Pedro/Aspen, Ltd. v. Board of County Com'rs for Natrona County, 2004 WY 84, 94 P.3d 412 (Wyo. 2004). [FN9] Mont.In re B.F., 2004 MT 61, 320 Mont. 261, 87 P.3d 427 (2004). [FN10] Pa.Dauphin County Public Defender's Office v. Court of Common Pleas of Dauphin County, 578 Pa. 59, 849 A.2d 1145 (2004). Terms explicated Pa.DeFazio v. Civil Service Com'n of Allegheny County, 562 Pa. 431, 756 A.2d 1103 (2000). Real, tangible, legal interest in subject matter required Ala.Moore v. John Hancock Life Ins. Co., 876 So. 2d 443 (Ala. 2003). Harm cannot be remote or speculative Pa.City of Philadelphia v. Com., 575 Pa. 542, 838 A.2d 566 (2003). Imminent prejudice required S.C. Sea Pines Ass'n for Protection of Wildlife, Inc. v. South Carolina Dept. of Natural Resources, 345 S.C. 594, 550 S.E.2d 287 (2001). No standing conveyed by remote possibility of future injury Colo.Ainscough v. Owens, 90 P.3d 851 (Colo. 2004). [FN11] AlaskaAlaskans for a Common Language, Inc. v. Kritz, 3 P.3d 906 (Alaska 2000). Degree of injury must only amount to identifiable trifle AlaskaIn re Dissolution of Marriage of Alaback, 997 P.2d 1181 (Alaska 2000). Line is between injury and no injury R.I. Associated Builders & Contractors of Rhode Island, Inc. v. Department of Admin., 787 A.2d 1179 (R.I. 2002).
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Some injury as opposed to no injury R.I.Weybosset Hill Investments, LLC v. Rossi, 857 A.2d 231 (R.I. 2004). [FN12] U.S. Brown v. Alexander, 516 F. Supp. 607 (M.D. Tenn. 1981), judgment aff'd, 718 F.2d 1417 (6th Cir. 1983). Potential economic injury sufficient Mont.Geil v. Missoula Irr. Dist., 2002 MT 269, 312 Mont. 320, 59 P.3d 398 (2002). Injury alleged must be injury in fact, economic or otherwise R.I.Weybosset Hill Investments, LLC v. Rossi, 857 A.2d 231 (R.I. 2004). [FN13] Tex.Housing Authority of City of Harlingen v. State ex rel. Velasquez, 539 S.W.2d 911 (Tex. Civ. App. Corpus Christi 1976), writ refused n.r.e. Prospect of criminal prosecution Mont.Helena Parents Com'n v. Lewis and Clark County Com'rs, 277 Mont. 367, 922 P.2d 1140, 112 Ed. Law Rep. 1051 (1996). Protection of intangible interests Colo.Ainscough v. Owens, 90 P.3d 851 (Colo. 2004). Aesthetic injuries Del.Dover Historical Soc. v. City of Dover Planning Com'n, 838 A.2d 1103 (Del. 2003). [FN14] Ark.First United Bank v. Phase II, 347 Ark. 879, 69 S.W.3d 33 (2002). [FN15] UtahCouncil of Holladay City v. Larkin, 2004 UT 24, 89 P.3d 164 (Utah 2004). As to standing to sue with regard to a wrong of a public nature, generally, see 106. Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 108 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. V. Persons Entitled to Sue and Persons Liable B. Capacity to Sue and Standing 2. Nature of Interest Required b. Third-Party Standing; Derivative and Class Actions Topic Summary References Correlation Table 109. Generally West's Key Number Digest West's Key Number Digest, Action 13 Parties alleging a personal stake in the outcome of an action are allowed, in particular circumstances, to also represent the interests of third parties not before the court. While plaintiffs generally may not assert the rights of third parties not before the court,[1] they may, nevertheless, be accorded third-party standing when, in addition to the showing of an injury in fact,[2] or a personal stake in the outcome of the action,[3] on their own part, a showing is also made of a special relationship,[4] or of exceptional circumstances which make it difficult, if not impossible, for persons whose rights are being denied to present their grievances to a court.[5] Moreover, third-party standing may also be established on the basis that the latters' representation by the plaintiffs will avoid an adverse effect on, or a dilution of, the constitutional rights of the third parties sought to be represented.[6]
[FN1] U.S.Warth v. Seldin, 422 U.S. 490, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975); Laird v. Tatum, 408 U.S. 1, 92 S. Ct. 2318, 33 L. Ed. 2d 154 (1972); Barrows v. Jackson, 346 U.S. 249, 73 S. Ct. 1031, 97 L. Ed. 1586 (1953). UtahProvo City Corp. v. Thompson, 2004 UT 14, 86 P.3d 735 (Utah 2004). Consent agreement not determinative U.S.U.S. v. Louisiana-Pacific Corp., 569 F. Supp. 1141 (D. Or. 1983). [FN2] U.S. Carey v. Population Services, Intern., 431 U.S. 678, 97 S. Ct. 2010, 52 L. Ed. 2d 675 (1977); Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976). As to the necessity of an injury in fact in order to establish standing, generally, see 108.
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No standing where harm asserted is indirect Colo.Ainscough v. Owens, 90 P.3d 851 (Colo. 2004). Legal or equitable right, title, or interest in subject of controversy required Neb.Adam v. City of Hastings, 267 Neb. 641, 676 N.W.2d 710 (2004). [FN3] N.J.Frazier v. Liberty Mut. Ins. Co., 150 N.J. Super. 123, 374 A.2d 1259 (Law Div. 1977). As to the necessity of a personal stake in the litigation in order to establish standing, generally, see 108. Standing analysis requires two-fold inquiry N.D.Nodak Mut. Ins. Co. v. Ward County Farm Bureau, 2004 ND 60, 676 N.W.2d 752 (N.D. 2004). [FN4] U.S.National Ass'n for Advancement of Colored People v. State of Ala. ex rel. Patterson, 357 U.S. 449, 78 S. Ct. 1163, 2 L. Ed. 2d 1488 (1958); In re Seven Springs Apartments, Phase II, 34 B.R. 987 (N.D. Ga. 1983). No standing in representative capacity unless authorized by statute Va.W.S. Carnes, Inc. v. Board of Sup'rs of Chesterfield County, 252 Va. 377, 478 S.E.2d 295 (1996). [FN5] U.S.National Ass'n for Advancement of Colored People v. State of Ala. ex rel. Patterson, 357 U.S. 449, 78 S. Ct. 1163, 2 L. Ed. 2d 1488 (1958). Colo. City of Greenwood Village v. Petitioners for Proposed City of Centennial, 3 P.3d 427 (Colo. 2000). Genuine obstacle to assertion of right by third party must exist Mass. Planned Parenthood League of Massachusetts, Inc. v. Bell, 424 Mass. 573, 677 N.E.2d 204 (1997). [FN6] U.S.Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976). Colo. City of Greenwood Village v. Petitioners for Proposed City of Centennial, 3 P.3d 427 (Colo. 2000). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 109 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. V. Persons Entitled to Sue and Persons Liable B. Capacity to Sue and Standing 2. Nature of Interest Required b. Third-Party Standing; Derivative and Class Actions Topic Summary References Correlation Table 110. Derivative actions West's Key Number Digest West's Key Number Digest, Action 13 A party may, in some instances, bring a derivative action to redress a wrong done to another or to redress a wrong to itself which is proximately caused by a wrong done to another. A party may, under particular circumstances, bring a derivative action to redress a wrong done to another[1] or to redress a wrong to itself which is proximately caused by a wrong done to another.[2] No derivative action, however, will generally lie unless the principal has a cause of action.[3] Derivative claims are, therefore, unique in that they depend entirely upon the right of the injured person to recover.[4] Accordingly, a party cannot base a derivative cause of action on injuries done to another as a result of conduct directed solely against the party plaintiff.[5]
[FN1] IowaIrlbeck v. Pomeroy, 210 N.W.2d 831 (Iowa 1973). [FN2] Two categories of derivative liability U.S.Garfield v. U.S., 297 F. Supp. 891 (W.D. Wis. 1969). Contractors Conn.Walter Kidde Constructors, Inc. v. State, 37 Conn. Supp. 50, 434 A.2d 962 (Super. Ct. 1981). [FN3] N.Y.Balestrero v. Prudential Ins. Co. of America, 126 N.Y.S.2d 792 (Sup 1953), order aff'd, 283 A.D. 794, 128 N.Y.S.2d 295 (2d Dep't 1954), order aff'd, 307 N.Y. 709, 121 N.E.2d 537 (1954).
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[FN4] Colo.Colorado Compensation Ins. Authority v. Jorgensen, 992 P.2d 1156 (Colo. 2000). [FN5] U.S.Sauls v. Bristol-Myers Co., 462 F. Supp. 887 (S.D. N.Y. 1978). Mental suffering N.Y. Balestrero v. Prudential Ins. Co. of America, 126 N.Y.S.2d 792 (Sup 1953), order aff'd, 283 A.D. 794, 128 N.Y.S.2d 295 (2d Dep't 1954), order aff'd, 307 N.Y. 709, 121 N.E.2d 537 (1954). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 110 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. V. Persons Entitled to Sue and Persons Liable B. Capacity to Sue and Standing 2. Nature of Interest Required b. Third-Party Standing; Derivative and Class Actions Topic Summary References Correlation Table 111. Class actions West's Key Number Digest West's Key Number Digest, Action 13 A class action must be prosecuted by one or more members of a class who are, themselves, aggrieved. A class action must be prosecuted by one or more members of a class[1] who are, themselves, aggrieved.[2] If the named plaintiff has not been injured by the wrong alleged, then no case or controversy is presented and the plaintiff has no standing to sue, either on his or her own behalf or on behalf of a class.[3] An allegation of a generalized harm that is shared alike by all or a large class of citizens is generally not sufficient to confer standing.[ 4] The question of whether the named plaintiff is a proper class representative is not a part of the standing inquiry.[5] CUMULATIVE SUPPLEMENT Statutes: 28 USCA 1711 et seq. comprise the Class Action Fairness Act of 2005. The purposes of the Act are to (1) assure fair and prompt recoveries for class members with legitimate claims, (2) restore the intent of the framers of the United States Constitution by providing for federal court consideration of interstate cases of national importance, and (3) benefit society by encouraging innovation and lowering consumer prices. 28 USCA 1711 et seq. comprise the Class Action Fairness Act of 2005. The purposes of the Act are to (1) assure fair and prompt recoveries for class members with legitimate claims, (2) restore the intent of the framers of the United States Constitution by providing for federal court consideration of interstate cases of national importance under diversity jurisdiction, and (3) benefit society by encouraging innovation and lowering consumer prices. Cases: The proper standing inquiry in a class action lawsuit must initially focus on whether the plaintiff has an in-
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dividual claim against the defendant; if she does not, she cannot maintain a class action against that defendant. Fernandez v. Takata Seat Belts, Inc., 210 Ariz. 138, 108 P.3d 917 (2005). Supreme Court would not waive standing requirement and hear automobile owner's class action claims against four automobile manufacturers based on allegedly defective seatbelt buckles, as case did not concern a matter of statewide importance, involve constitutional questions, or present issues of great public importance. Fernandez v. Takata Seat Belts, Inc., 210 Ariz. 138, 108 P.3d 917 (2005). In over 150 laborers' asbestos-related action against manufacturer of protective masks and disposable respirators, as well as various other defendants, denial of defendant's motion to sever claims was reversed and defendant was entitled to judgment notwithstanding verdict. Actions leading to litigation did not arise out of same transaction or occurrence. Only similar trait shared by plaintiffs was alleged exposure to asbestos at some point in their work history. Plaintiffs worked in different occupations, for different employers, at different times, were exposed to different products and used different respiratory protection equipment or no respiratory protection equipment at all. 3M Co. v. Johnson, 895 So. 2d 151 (Miss. 2005). [END OF SUPPLEMENT]
[FN1] N.C.In re Coleman, 11 N.C. App. 124, 180 S.E.2d 439 (1971). [FN2] Pa.Nye v. Erie Ins. Exchange, 504 Pa. 3, 470 A.2d 98 (1983). [FN3] Ala.Kid's Care, Inc. v. Alabama Dept. of Human Resources, 843 So. 2d 164 (Ala. 2002). Membership by plaintiff in class essential N.C.Carnahan v. Reed, 53 N.C. App. 589, 281 S.E.2d 408 (1981). Individual standing at time action filed required Tex.The M.D. Anderson Cancer Center v. Novak, 52 S.W.3d 704 (Tex. 2001). [FN4] Ariz.Sears v. Hull, 192 Ariz. 65, 961 P.2d 1013 (1998). [FN5] Tex.The M.D. Anderson Cancer Center v. Novak, 52 S.W.3d 704 (Tex. 2001). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 111 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. V. Persons Entitled to Sue and Persons Liable B. Capacity to Sue and Standing 2. Nature of Interest Required c. Governmental Action Topic Summary References Correlation Table 112. Generally West's Key Number Digest West's Key Number Digest, Action 13 An action challenging a governmental action may be brought by a party who is injured by such action. Standing is a threshold requirement for a plaintiff seeking to challenge a governmental action.[1] A private person may not invoke the judicial power to determine the validity of executive or legislative action unless he or she has sustained, or is in immediate danger of sustaining, prejudice from such action.[2] Therefore, only parties who are,[3] or may be adversely affected by the state action,[4] may challenge such action, either with regard to its constitutionality[5] or implementation.[6] Some causal connection between the alleged injury and the actions being challenged must also exist.[7] Additionally, the relief requested must provide a remedy for the injury complained of.[8] An action based on an injury due to a violation of a statute may be brought by a party whom the statute was designed to protect[9] or for whose benefit it was enacted,[10] and to whom a duty of compliance with it is owed.[11] Only parties who are arguably within the zone of interest sought to be protected by a statute or regulation have standing to sue.[12] Where, however, a denial of standing would pose, in effect, an impenetrable barrier to any judicial scrutiny of legislative action, the court's duty is to open, rather than close, the door to the courthouse.[13] Effect of absence of controlling statute or constitutional provision. A party has standing to protect itself against injury as a result of unlawful governmental action, even in the absence of a controlling statute or constitutional provision.[14] Requirement of class action. Where statutorily provided, attacks on governmental decisions may be required to be brought as class actions.[15] Competitors.
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Parties alleging that governmental action jeopardizes their competitive business interests are, where provided, accorded standing to challenge such action in federal[16] and state[17] courts. Organizations. An organization can, where provided, challenge a governmental action, deriving standing from those of its members who are adversely affected by such governmental action.[18] CUMULATIVE SUPPLEMENT Cases: Generally, a private individual may not invoke the judicial power to determine the validity of an executive or legislative act unless the private individual can show that, as a result of that action, a direct injury has been sustained, or that there is immediate danger a direct injury will be sustained. Sloan v. Department of Transp., 379 S.C. 160, 666 S.E.2d 236 (2008). [END OF SUPPLEMENT]
[FN1] N.Y.New York State Ass'n of Nurse Anesthetists v. Novello, 2 N.Y.3d 207, 778 N.Y.S.2d 123, 810 N.E.2d 405 (2004). [FN2] U.S.Laird v. Tatum, 408 U.S. 1, 92 S. Ct. 2318, 33 L. Ed. 2d 154 (1972). S.C.Sloan v. Sanford, 357 S.C. 431, 593 S.E.2d 470 (2004). Standing exists where plaintiff is object of action at issue Va.Mattaponi Indian Tribe v. Com., Dept. of Environmental Quality, ex rel. State Water Control Bd., 261 Va. 366, 541 S.E.2d 920 (2001). [FN3] UtahKearns-Tribune Corp. v. Wilkinson, 946 P.2d 372 (Utah 1997). Abstract injury insufficient Me.Collins v. State, 2000 ME 85, 750 A.2d 1257 (Me. 2000). Mere allegations of adverse impact insufficient UtahState v. Mace, 921 P.2d 1372 (Utah 1996). Confidentiality N.Y. Matter of District Attorney of Suffolk County, 58 N.Y.2d 436, 461 N.Y.S.2d 773, 448 N.E.2d 440 (1983). [FN4] U.S.U.S. v. Abell, 552 F. Supp. 316, 68 A.L.R. Fed. 157 (D. Me. 1982). Personal stake required
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Okla. Citizens Against Taxpayer Abuse, Inc. v. City of Oklahoma City, 2003 OK 65, 73 P.3d 871 (Okla. 2003). [FN5] Colo.Augustin v. Barnes, 626 P.2d 625 (Colo. 1981). [FN6] N.Y.Fritz v. Huntington Hospital, 39 N.Y.2d 339, 384 N.Y.S.2d 92, 348 N.E.2d 547 (1976). [FN7] Okla.Oklahoma Public Employees Ass'n v. Oklahoma Dept. of Central Services, 2002 OK 71, 55 P.3d 1072 (Okla. 2002). [FN8] UtahKearns-Tribune Corp. v. Wilkinson, 946 P.2d 372 (Utah 1997). [FN9] N.Y. Glen HeadGlenwood Landing Civic Council, Inc. v. Town of Oyster Bay, 88 A.D.2d 484, 453 N.Y.S.2d 732 (2d Dep't 1982). Legislative purpose Mass. Town of Holden v. Division of Water Pollution Control, 6 Mass. App. Ct. 423, 376 N.E.2d 1259 (1978). Injury to interest protected by legislation Conn.Stauton v. Planning and Zoning Com'n, 271 Conn. 152, 856 A.2d 400 (2004). Absence of special injury not conclusive Ill.Joliet Currency Exchange, Inc. v. First Nat. Bank of Joliet, 1 Ill. App. 3d 816, 276 N.E.2d 46 (3d Dist. 1971). [FN10] La.Morris v. Rental Tools, Inc., 435 So. 2d 528 (La. Ct. App. 5th Cir. 1983). Regulated industry Mass.Massachusetts Ass'n of Independent Ins. Agents & Brokers, Inc. v. Commissioner of Ins., 373 Mass. 290, 367 N.E.2d 796 (1977). [FN11] Ill.Wade v. Kramer, 121 Ill. App. 3d 377, 76 Ill. Dec. 890, 459 N.E.2d 1025 (4th Dist. 1984). [FN12] Conn.St. George v. Gordon, 264 Conn. 538, 825 A.2d 90 (2003). [FN13] N.Y.Saratoga County Chamber of Commerce, Inc. v. Pataki, 100 N.Y.2d 801, 766 N.Y.S.2d 654, 798 N.E.2d 1047 (2003), cert. denied, 124 S. Ct. 570, 157 L. Ed. 2d 430 (U.S. 2003). [FN14] N.M.De Vargas Sav. and Loan Ass'n of Santa Fe v. Campbell, 87 N.M. 469, 535 P.2d 1320 (1975). [FN15] As to standing in class actions, generally, see 111. Harassing litigation
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Ind.Hatcher v. Board of Com'rs of Lake County, 155 Ind. App. 27, 290 N.E.2d 801 (3d Dist. 1972). [FN16] U.S.Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S. Ct. 827, 25 L. Ed. 2d 184 (1970). [FN17] Pa.Farmland Industries, Inc. v. Penn Dairies, Inc., 81 Pa. Commw. 340, 473 A.2d 730 (1984). [FN18] U.S.Sierra Club v. Morton, 405 U.S. 727, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972). Minn.No Power Line, Inc., (NPL) v. Minnesota Environmental Quality Council, 311 Minn. 330, 250 N.W.2d 158 (1976). Allegation of injury made by organization on behalf of its members N.M.New Mexico Right to Choose/NARAL v. Johnson, 1999 -NMSC- 005, 126 N.M. 788, 975 P.2d 841 (1998). Applicable considerations N.Y. Boulevard Gardens Tenants Action Committee, Inc. v. Boulevard Gardens Housing Corp., 88 Misc. 2d 98, 388 N.Y.S.2d 215 (Sup 1976). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 112 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. V. Persons Entitled to Sue and Persons Liable B. Capacity to Sue and Standing 2. Nature of Interest Required c. Governmental Action Topic Summary References Correlation Table 113. Taxpayers West's Key Number Digest West's Key Number Digest, Action 13 Standing to sue is generally not accorded to parties suing as federal taxpayers to challenge the constitutionality of the implementation of a congressional enactment, but the jurisdictions vary as to whether a party's status as a state or local taxpayer gives rise to the interest necessary to establish standing. Standing to sue is generally not accorded to parties suing as federal taxpayers to challenge the constitutionality of the implementation of a congressional enactment.[1] A federal taxpayer may, however, been permitted to challenge the constitutionality of the implementation of a congressional enactment in some instances.[2] A party's status as a state or local taxpayer may, in some jurisdictions, give rise to the interest necessary to establish standing.[3] There is, however, authority to the contrary.[4] Where the right of a state or local taxpayer to challenge an illegal governmental action is recognized as an exception to the requirement that rights of a public nature be enforced by a public authority, rather than by individual citizens,[5] no taxpayer action may be brought, absent a demand upon, and a refusal by, the proper state agency to bring the action in its own name.[6] Upon such refusal, however, a taxpayer may commence and prosecute an equitable action to enforce such right of action the governing body has refused to enforce.[7]
[FN1] Compliance with property clause U.S. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 102 S. Ct. 752, 70 L. Ed. 2d 700 (1982). Executive failure of compliance with accounts clause
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U.S.U. S. v. Richardson, 418 U.S. 166, 94 S. Ct. 2940, 41 L. Ed. 2d 678 (1974). Compliance with incompatibility clause U.S.Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 94 S. Ct. 2925, 41 L. Ed. 2d 706 (1974). Deprivation of property without due process of law U.S.Commonwealth of Massachusetts v. Mellon, 262 U.S. 447, 43 S. Ct. 597, 67 L. Ed. 1078 (1923). [FN2] Taxing and spending power U.S.Flast v. Cohen, 392 U.S. 83, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1968). [FN3] Pa.Farmland Industries, Inc. v. Penn Dairies, Inc., 81 Pa. Commw. 340, 473 A.2d 730 (1984). [FN4] Expenditure of state or municipal funds Conn.Bell v. Planning and Zoning Commission of Town of Westport, 174 Conn. 493, 391 A.2d 154 (1978). [FN5] Minn.Channel 10, Inc. v. Independent School Dist. No. 709, St. Louis County, 298 Minn. 306, 215 N.W.2d 814 (1974). [FN6] Ill.People ex rel. Lee v. Kenroy, Inc., 54 Ill. App. 3d 688, 12 Ill. Dec. 455, 370 N.E.2d 78 (1st Dist. 1977). [FN7] Neb.City of Ralston v. Balka, 247 Neb. 773, 530 N.W.2d 594 (1995). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 113 END OF DOCUMENT
CJS ACTIONS VI REF 1A C.J.S. Actions VI Refs.
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action Topic Summary Correlation Table Research References A.L.R. Library West's A.L.R. Digest, Action 16 , 18 to 30 , 32 , 36 , 37
A.L.R. Index: Common Law; Contracts; Detinue; Election of Remedies; Equity; In Rem Jurisdiction; Torts; Trespass Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS VI REF END OF DOCUMENT
CJS ACTIONS VI A REF 1A C.J.S. Actions VI A Refs.
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action A. In General Topic Summary Correlation Table Research References A.L.R. Library West's A.L.R. Digest, Action A.L.R. Index: In Rem Jurisdiction Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS VI A REF END OF DOCUMENT 16 , 18 to 20 , 36 , 37
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action A. In General Topic Summary References Correlation Table 114. Generally West's Key Number Digest West's Key Number Digest, Action 16 The common law divides actions into three classes: personal, real, and mixed. Personal actions differ from real actions in that the former seeks the recovery of personal property, the enforcement of a contract, or damages for breach of contract or injury of any kind, while the recovery of lands, tenements, or hereditaments are excepted therefrom; mixed actions partake of the nature of both. The common law divides actions into three classes, namely, real, personal and mixed.[1] The terms, real or personal, as used in a statute of a civil law jurisdiction relating to personal, real, and mixed actions, correspond roughly to the common-law concepts of rights in rem and rights in personam.[2] Personal actions are to be distinguished from real actions in that the former are those brought for the specific recovery of goods and chattels or for damages or other redress for breach of contract or other injury of whatever description, the specific recovery of lands, tenements, and hereditaments only excepted.[3] Mixed actions, as the name implies, are such as appertain in some degree to both real and personal actions, and therefore are reducible to neither of them;[4] such actions seek not only a specific recovery of lands, tenements, or hereditaments, but also a recovery of damages for an injury sustained.[5] It follows, of course, that personal actions include all actions whether local or transitory that do not seek the specific recovery of lands, tenements, or hereditaments.[6] Mixed actions include: (1) action of waste,[7] (2) writ of entry a claim for mesne profits,[8] (3) an action of dower in which a claim for detention may be made.[9]
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[FN1] Okla.Mathews v. Sniggs, 1919 OK 196, 75 Okla. 108, 182 P. 703 (1919). [FN2] U.S.Moreland v. Rucker Pharmacal Co., Inc., 59 F.R.D. 537 (W.D. La. 1973). [FN3] Okla.Mathews v. Sniggs, 1919 OK 196, 75 Okla. 108, 182 P. 703 (1919). La.Duncan v. Blackman, 3 La. App. 421, 1926 WL 3107 (2d Cir. 1926). [FN4] Okla.Mathews v. Sniggs, 1919 OK 196, 75 Okla. 108, 182 P. 703 (1919). [FN5] Okla.Mathews v. Sniggs, 1919 OK 196, 75 Okla. 108, 182 P. 703 (1919). [FN6] Me.Boyd v. Cronan, 71 Me. 286, 1880 WL 4142 (1880); Linscott v. Fuller, 57 Me. 406, 1869 WL 2733 (1869). [FN7] Me.Hall v. Decker, 48 Me. 255, 1860 WL 2710 (1860). Mich.Stevens v. Rose, 69 Mich. 259, 37 N.W. 205 (1888). [FN8] Me.Hall v. Decker, 48 Me. 255, 1860 WL 2710 (1860). [FN9] Me.Hall v. Decker, 48 Me. 255, 1860 WL 2710 (1860). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 114 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action A. In General Topic Summary References Correlation Table 115. Actions and special proceedings West's Key Number Digest West's Key Number Digest, Action 20 A special proceeding is one where the law confers a right and authorizes a special application to the court to enforce, as opposed to an action which involves prosecuting alleged rights between parties ending in a final judgment. Special proceedings are those which were not actions in law or suits in equity under common law. Remedies may be expressly divided into actions and special proceedings,[1] the division being made sometimes only with respect to remedies in civil cases;[2] and even where this is not done in express terms these two classes of proceedings and the distinctions between them are recognized.[3] Whether a proceeding is a civil one or a special one, is important to determine,[4] and while the distinction between the two is well recognized,[5] and definite rules for its determination have been stated,[6] it is not always easy to apply it to particular cases.[7] The question is one for the courts to determine,[8] for a statutory designation of a particular proceeding as a special proceeding[9] is not conclusive, nor does the designation of the parties thereto as plaintiff and defendant necessarily make it an action.[10] There is no procedural "no man's land," and all proceedings must be either an action or a special proceeding.[11] The term "action," in a broad sense, includes a "special proceeding,"[12] it being sometimes in effect provided that it may be so construed when necessary.[13] The two terms, however, are not synonymous,[14] as there is a well recognized distinction between them, the term "action" being ordinarily more properly used in contradistinction to, and not to include, "special proceeding."[15] A proceeding is "special" where the law confers a right and authorizes a special application to the court to enforce it.[16] "Special proceedings" are those which were not actions in law or suits in equity under common law and which may be commenced by motion or petition upon notice for the purpose of obtaining relief of a special or distinct type.[17] An "action" involves prosecuting alleged rights between parties and ends in a final judgment, whereas a "special proceeding," within meaning of statute defining final order, does not.[18] A "civil action" is an ordinary proceeding in a court of justice by one party against another for the enforcement or protection of a private right or to redress or prevent a private wrong, and may also be brought for the re-
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covery of a penalty or forfeiture.[19] A special proceeding entails civil statutory remedies not encompassed in civil procedure statutes.[20] Special proceedings may be distinguished from other civil actions by the manner of pleading, practice, and procedure prescribed by the law.[21] Thus, all proceedings not covered by the definition of civil action are special proceedings.[22] Special proceedings are ordinarily statutory,[23] and are practically all of a civil nature,[24] although there are a few which have been regarded as of a criminal or quasi-criminal nature.[25] Proceedings commenced by prerogative and judicial writs have been regarded as actions, rather than special proceedings.[26] In the absence of a special statutory provision, damages may only be recovered in an ordinary proceeding.[27] Various particular proceedings have been considered to be special proceedings,[28] such as condemnation[ 29] or certiorari[30] proceedings, a voluntary assignment for the benefit of creditors,[31] and an application by a surviving spouse or a minor child for an allowance from a decedent's estate.[32] Other proceedings which have been considered to be special proceedings include a proceeding to remove the disabilities of minority,[33] an application by a life tenant to sell realty,[34] and matters in probate.[35]
[FN1] N.D.Dow v. Lillie, 26 N.D. 512, 144 N.W. 1082 (1914). Okla.Armstrong v. Phillips, 1921 OK 81, 82 Okla. 82, 198 P. 499 (1921). Wis.State v. Zimmerman, 202 Wis. 69, 231 N.W. 590 (1930). [FN2] Ky.Janin v. Logan, 209 Ky. 811, 273 S.W. 531 (1925). [FN3] Ohio Missionary Soc. of Methodist Episcopal Church v. Ely, 56 Ohio St. 405, 47 N.E. 537 (1897); State, on Complaint of Board of Education of Pickaway Tp. Rural School Dist., Pickaway County v. Steeley, 21 Ohio App. 396, 4 Ohio L. Abs. 763, 153 N.E. 285 (4th Dist. Pickaway County 1926). [FN4] Ind.Miller v. Bode, 80 Ind. App. 338, 139 N.E. 456 (Div. 2 1923). Ohio State, on Complaint of Board of Education of Pickaway Tp. Rural School Dist., Pickaway County v. Steeley, 21 Ohio App. 396, 4 Ohio L. Abs. 763, 153 N.E. 285 (4th Dist. Pickaway County 1926). N.D.Dow v. Lillie, 26 N.D. 512, 144 N.W. 1082 (1914). Wis.State ex rel. Ashley v. Circuit Court of Milwaukee County, 219 Wis. 38, 261 N.W. 737 (1935). [FN5] Cal.In re Central Irr. Dist., 117 Cal. 382, 49 P. 354 (1897). Minn.Williams v. Grundysen, 53 Minn. 346, 55 N.W. 557 (1893). [FN6] N.C.Tate v. Powe, 64 N.C. 644, 1870 WL 1854 (1870).
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Ohio Missionary Soc. of Methodist Episcopal Church v. Ely, 56 Ohio St. 405, 47 N.E. 537 (1897); Barger v. Cochran, 15 Ohio St. 460, 1864 WL 55 (1864). [FN7] Wis.The Brooklyn, 24 Wis. 616, 1869 WL 3554 (1869). [FN8] N.C.Tate v. Powe, 64 N.C. 644, 1870 WL 1854 (1870). [FN9] Wis.State v. Zimmerman, 202 Wis. 69, 231 N.W. 590 (1930). [FN10] Cal.In re Joseph's Estate, 118 Cal. 660, 50 P. 768 (1897). N.Y.Davis v. Turner, 4 How. Pr. 190, 1849 WL 4744 (N.Y. Sup 1849). [FN11] N.Y. Haroche v. Leary, 64 Misc. 2d 191, 314 N.Y.S.2d 553 (Sup 1970), judgment aff'd, 38 A.D.2d 972, 331 N.Y.S.2d 1005 (2d Dep't 1972). [FN12] Kan.In re Wilcox, 90 Kan. 646, 135 P. 995 (1913). [FN13] Cal.In re Joseph's Estate, 118 Cal. 660, 50 P. 768 (1897). [FN14] Cal.In re Central Irr. Dist., 117 Cal. 382, 49 P. 354 (1897). Minn.Williams v. Grundysen, 53 Minn. 346, 55 N.W. 557 (1893). OhioMissionary Soc. of Methodist Episcopal Church v. Ely, 56 Ohio St. 405, 47 N.E. 537 (1897). [FN15] Cal.In re Sutter-Butte By-Pass Assessment Number Six of Sacramento & San Joaquin Drainage Dist., 190 Cal. 532, 213 P. 974 (1923); Agricultural Labor Bd. v. Superior Court, 149 Cal. App. 3d 709, 196 Cal. Rptr. 920 (5th Dist. 1983). Colo.Bonfils v. Public Utilities Com'n of Colorado, 67 Colo. 563, 189 P. 775 (1920). IowaGates v. Colfax Northern Ry. Co., 177 Iowa 690, 159 N.W. 456 (1916). Me.Head v. Fuller, 122 Me. 15, 118 A. 714 (1922). OhioWilansky v. Ansche Polen Congregation, 12 Ohio App. 301, 1920 WL 703 (1st Dist. Hamilton County 1920). [FN16] Md.Bryan v. State Roads Com'n of State Highway Admin., 115 Md. App. 707, 694 A.2d 522 (1997), aff'd, 356 Md. 4, 736 A.2d 1057 (1999). Neb.State v. Jacques, 253 Neb. 247, 570 N.W.2d 331 (1997). Okla.Ward Petroleum Corp. v. Stewart, 64 P.3d 1113 (Okla. 2003). Wyo.In re WJH, 2001 WY 54, 24 P.3d 1147 (Wyo. 2001). [FN17] Cal. People v. Superior Court (Laff), 25 Cal. 4th 703, 107 Cal. Rptr. 2d 323, 23 P.3d 563 (2001).
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Wyo.In re WJH, 2001 WY 54, 24 P.3d 1147 (Wyo. 2001). [FN18] Neb.State v. Jacques, 253 Neb. 247, 570 N.W.2d 331 (1997). [FN19] Ark.Sosebee v. County Line School Dist., 320 Ark. 412, 897 S.W.2d 556, 100 Ed. Law Rep. 426 (1995). [FN20] Neb.In re Estate of Peters, 259 Neb. 154, 609 N.W.2d 23 (2000). Okla.Ward Petroleum Corp. v. Stewart, 64 P.3d 1113 (Okla. 2003). [FN21] Okla.Ward Petroleum Corp. v. Stewart, 64 P.3d 1113 (Okla. 2003). [FN22] Ark.Sosebee v. County Line School Dist., 320 Ark. 412, 897 S.W.2d 556, 100 Ed. Law Rep. 426 (1995). [FN23] N.Y.Town of Johnstown v. City of Gloversville, 36 A.D.2d 143, 319 N.Y.S.2d 123 (3d Dep't 1971). N.D.Dow v. Lillie, 26 N.D. 512, 144 N.W. 1082 (1914). [FN24] Cal.Carpenter v. Jones, 121 Cal. 362, 53 P. 842 (1898). [FN25] N.Y.City of New York v. Kaiser, 125 Misc. 637, 210 N.Y.S. 598 (Spec. Sess. 1925). [FN26] Wis. State ex rel. Milwaukee Medical College v. Chittenden, 127 Wis. 468, 107 N.W. 500 (1906); State v. Huegin, 110 Wis. 189, 85 N.W. 1046 (1901). [FN27] La.Himbola Manor Apartments v. Allen, 315 So. 2d 790 (La. Ct. App. 3d Cir. 1975). [FN28] Cal.Application of Herman, 183 Cal. 153, 191 P. 934 (1920). [FN29] N.M.State ex rel. State Highway Commission v. Burks, 79 N.M. 373, 443 P.2d 866 (1968). [FN30] N.D.Parker Hotel Co. v. City of Grand Forks, 177 N.W.2d 764 (N.D. 1970). [FN31] Wis.Wisconsin Brick & Block Corp. v. Vogel, 54 Wis. 2d 321, 195 N.W.2d 664 (1972). [FN32] Mo.In re Guthland's Estate, 438 S.W.2d 12 (Mo. Ct. App. 1969). [FN33] Okla.Armstrong v. Phillips, 1921 OK 81, 82 Okla. 82, 198 P. 499 (1921). [FN34] N.Y.In re Roosevelt's Estate, 131 Misc. 800, 228 N.Y.S. 323 (Sup 1928). [FN35] Wis.In re Stoeber's Estate, 36 Wis. 2d 448, 153 N.W.2d 599 (1967). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 115 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action A. In General Topic Summary References Correlation Table 116. Civil and criminal West's Key Number Digest West's Key Number Digest, Action 18 A civil action differs from a criminal action primarily in that the former is for the enforcement of a private right or redress of a private wrong, while the latter is for the punishment of a public wrong. The essential distinction between a civil and a criminal action or proceeding is that the former is for the enforcement of a private right, or the redress of a private wrong, and the latter for the punishment of a public offense.[1] Another distinction between a civil and criminal violation of the law is that, except in the case of a civil commitment for contempt, there can be no incarceration in a civil case.[2] The question whether statute is civil or punitive in nature is initially one of statutory construction, court must initially ascertain whether legislature meant statute to establish civil proceedings,[3] and if so, court ordinarily defers to legislature's stated intent.[4] The character of the action should be determined from the facts and issues raised in the complaint, the nature of the entire grievance, and the relief sought.[5] The mere fact that the act may be tied to criminal activity is insufficient to render the statute punitive.[6] The formal attributes of a legislative enactment, such as the manner of its codification or the enforcement procedures it establishes, are probative, but not dispositive, of the legislature's intent as to whether a statute is civil or criminal.[7] While "substantial weight" is accorded to the legislative expression of purpose, for the purpose of determining whether an offense is civil or criminal, the inquiry is not resolved by relying on labels, but, rather, the court will analyze the statutory scheme to determine whether its purpose or effect is so punitive as to negate the express legislative intention to authorize a civil action.[8] Thus, the court in determining the civil vs. punitive nature of a statute may reject the legislature's manifest intent to create civil proceedings only on the clearest proof that the statutory scheme is so punitive in either purpose or effect as to negate the state's intention.[9] Proceedings which partake somewhat of the nature of both civil and criminal proceedings are frequently
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termed quasi civil,[10] or quasi criminal.[11] A proceeding is quasi-criminal if it provides for punishment but is civil in form.[12] When a claim is essentially civil in nature, the proper approach is to seek redress in a civil court.[13] Juvenile matters. Juvenile matters are considered to be civil in nature.[14] They retain their special and informal nature despite any penal overtones that the juvenile justice system may have acquired.[15] Recordkeeping procedures. A criminal action cannot become a civil action or vice versa by recordkeeping procedures.[16] The assignment of a civil file number to a criminal proceeding after the entry of a judgment does not change the action from criminal to civil.[17] Sanctions. The question whether a given sanction is civil or criminal is one of statutory construction.[18] Hence, the fact that a forfeiture provision of a statute is labeled "Penalties" does not establish that the forfeiture is a criminal, as opposed to a civil, sanction.[19] A legislature may provide that one same act may result in both a civil and criminal sanction[20] and a provision for fines in a civil proceeding does not convert the proceeding into a criminal one.[21] Various particular actions or proceedings have been considered to be civil rather than criminal,[22] such as proceedings under implied consent[23] or habitual offender[24] statutes, defective delinquency proceedings,[25] deportation,[26] habeas corpus proceedings,[27] an action to quiet title[28] or to recover land,[29] and proceedings for the forfeiture of a bond,[30] or of a vehicle used in the commission of a criminal offense.[31] Various other particular actions or proceedings have been considered to be civil rather than criminal, such as proceedings under a statute providing a rehabilitation program for narcotic addicts,[32] actions, based on a civil rights act, for money judgments,[33] proceedings for violation of a municipal ordinance,[34] and an action for the support of a minor child.[35] Other actions or proceedings which have been deemed to be civil rather than criminal include an application for postconviction relief,[36] such as a motion attacking a sentence,[37] or a proceeding to vacate a judgment of conviction or sentence,[38] and a petition for a new trial.[39] On the other hand, various particular actions or proceedings have been ruled to be criminal rather than civil,[40] such as a proceeding to correct or reduce a sentence,[41] proceedings under a statute prohibiting the operation of any motor vehicle while a court order prohibiting such operation remains in effect,[42] proceedings, by grand jury accusation, against a law enforcement officer for willful or corrupt misconduct in public office,[43 ] a commitment procedure under a sexual offense statute,[44] and proceedings under an obscenity statute, initiated by a criminal complaint.[45] CUMULATIVE SUPPLEMENT Cases: In determining whether a proceeding is civil or criminal, reviewing court will reject the legislature's manifest intent only if a challenging party provides the clearest proof that the statutory scheme is so punitive either in purpose or effect as to negate the State's intention to deem it civil. In re Bradford, 712 N.W.2d 144 (Iowa 2006). Proceedings to determine whether person is habitual traffic offender are civil actions. State v. Freeman, 705
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N.W.2d 286 (Iowa 2005). As a general matter, proceedings involving motor vehicle violations in the municipal courts are quasicriminal in nature where the offenses must be proved beyond a reasonable doubt. State v. Cummings, 184 N.J. 84, 875 A.2d 906 (2005). Rule that courts strictly construe criminal statutes against the State does not apply to "implied consent" statute governing revocation of a driver's license; statute does not constitute a criminal offense, as it confers only an administrative penalty. State v. Collins, 166 S.W.3d 721 (Tenn. 2005). Refusing to submit to a breath or blood-alcohol test is civil, rather than criminal, in nature. Dixon v. Com., 270 Va. 34, 613 S.E.2d 398 (2005). [END OF SUPPLEMENT]
[FN1] U.S.Johnson Waste Materials v. Marshall, 611 F.2d 593, 29 Fed. R. Serv. 2d 192, 53 A.L.R. Fed. 544 (5th Cir. 1980). Ill.Department of Law Enforcement v. Willis, 61 Ill. App. 3d 495, 18 Ill. Dec. 775, 378 N.E.2d 239 (5th Dist. 1978). Mo.State Farm Mut. Auto. Ins. Co. v. Johnson, 586 S.W.2d 47 (Mo. Ct. App. E.D. 1979). [FN2] IdahoState v. Bennion, 112 Idaho 32, 730 P.2d 952 (1986). Me.Matter of Benoit, 487 A.2d 1158 (Me. 1985). [FN3] U.S.Smith v. Doe, 538 U.S. 84, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003); Seling v. Young, 531 U.S. 250, 121 S. Ct. 727, 148 L. Ed. 2d 734 (2001); Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997). Del.Helman v. State, 784 A.2d 1058 (Del. 2001). S.C.State v. Walls, 348 S.C. 26, 558 S.E.2d 524 (2002). W.Va.Hensler v. Cross, 210 W. Va. 530, 558 S.E.2d 330 (2001). [FN4] U.S.Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997). [FN5] HawaiiRanger Ins. Co. v. Hinshaw, 103 Haw. 26, 79 P.3d 119 (2003), as amended, (Dec. 18, 2003). [FN6] IowaIn re Detention of Garren, 620 N.W.2d 275 (Iowa 2000). [FN7] U.S.Smith v. Doe, 538 U.S. 84, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003). [FN8] Me.Department of Environmental Protection v. Emerson, 616 A.2d 1268 (Me. 1992). Okla.Hill v. State, 1995 OK CR 28, 898 P.2d 155 (Okla. Crim. App. 1995).
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[FN9] U.S. Seling v. Young, 531 U.S. 250, 121 S. Ct. 727, 148 L. Ed. 2d 734 (2001); Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997). Okla.Hill v. State, 1995 OK CR 28, 898 P.2d 155 (Okla. Crim. App. 1995). W.Va.Hensler v. Cross, 210 W. Va. 530, 558 S.E.2d 330 (2001). [FN10] Ky.Montee v. Com., 3 J.J.Marsh 132, 26 Ky. 132 (Ky. App. 1830). Mass.Chapel v. White, 57 Mass. 537, 3 Cush. 537, 1849 WL 4432 (1849). [FN11] Fla.Edmond N.E. v. State, 25 Fla. 268, 6 So. 58 (1889). Mich.People v. Phalen, 49 Mich. 492, 13 N.W. 830 (1882). N.Y. People v. Van Houten, 13 Misc. 603, 35 N.Y.S. 186 (Ct. Sess. 1895), aff'd, 36 N.Y.S. 1130 (Gen. Term 1895). Wis.State ex rel. City of Milwaukee v. Newman, 96 Wis. 258, 71 N.W. 438 (1897). [FN12] Colo. Ahart v. Colorado Dept. of Corrections, Div. of Adult Services, Buena Vista Correctional Facility, 964 P.2d 517 (Colo. 1998). Mass.Com. v. Lobo, 385 Mass. 436, 432 N.E.2d 496 (1982). [FN13] La.Jones v. Soileau, 448 So. 2d 1268 (La. 1984). [FN14] Ind. State ex rel. Atkins v. Juvenile Court of Marion County, 252 Ind. 237, 247 N.E.2d 53 (1969). Md.In re Victor B., 336 Md. 85, 646 A.2d 1012 (1994). [FN15] Md.In re Victor B., 336 Md. 85, 646 A.2d 1012 (1994). [FN16] Ill.People v. Wasilewski, 66 Ill. App. 3d 1, 22 Ill. Dec. 667, 383 N.E.2d 31 (3d Dist. 1978). [FN17] N.C.State v. Golden, 40 N.C. App. 37, 251 S.E.2d 875 (1979). [FN18] U.S.One Lot Emerald Cut Stones and One Ring v. U.S., 409 U.S. 232, 93 S. Ct. 489, 34 L. Ed. 2d 438 (1972). [FN19] U.S.U.S. v. One Assortment of 89 Firearms, 465 U.S. 354, 104 S. Ct. 1099, 79 L. Ed. 2d 361 (1984). [FN20] S.D.State v. Feiok, 364 N.W.2d 536 (S.D. 1985). [FN21] Wash. State v. Ralph Williams' North West Chrysler Plymouth, Inc., 82 Wash. 2d 265, 510 P.2d 233, 59 A.L.R.3d 1209 (1973). [FN22] U.S.Phillips v. U.S. Bd. of Parole, 254 F. Supp. 529 (N.D. Ill. 1966).
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Ga.Commins v. Ross, 44 Ga. App. 182, 160 S.E. 679 (1931); Clark v. Hilliard, 19 Ga. App. 514, 91 S.E. 926 (1917). Ill.People v. Aikens, 133 Ill. App. 2d 131, 264 N.E.2d 850 (3d Dist. 1970). La. Louisiana Livestock Sanitary Bd. v. Johnson, 372 So. 2d 585 (La. Ct. App. 3d Cir. 1979), writ denied, 373 So. 2d 967 (La. 1979). Md.State v. Strickland, 42 Md. App. 357, 400 A.2d 451 (1979). Mass.Morse v. O'Hara, 247 Mass. 183, 142 N.E. 40 (1924). N.Y.Alphonso C. v. Morgenthau, 50 A.D.2d 97, 376 N.Y.S.2d 126 (1st Dep't 1975). Or.Lacey v. Motor Vehicles Division, 45 Or. App. 419, 608 P.2d 599 (1980). Tenn.Griffin v. State, 595 S.W.2d 96 (Tenn. Crim. App. 1980). Wash.State v. Cramer, 167 Wash. 159, 8 P.2d 1004 (1932). [FN23] Ill.People v. Golden, 117 Ill. App. 3d 150, 72 Ill. Dec. 710, 453 N.E.2d 15 (5th Dist. 1983); People v. Frye, 113 Ill. App. 3d 853, 69 Ill. Dec. 630, 447 N.E.2d 1065 (4th Dist. 1983). [FN24] Va.Shope v. Com., 228 Va. 203, 321 S.E.2d 282 (1984). [FN25] Md.Bush v. Director, Patuxent Inst., 22 Md. App. 353, 324 A.2d 162 (1974). [FN26] U.S.Bassett v. U.S. Immigration and Naturalization Service, 581 F.2d 1385 (10th Cir. 1978); Chabolla-Delgado v. Immigration and Naturalization Service, 384 F.2d 360 (9th Cir. 1967); Nason v. Immigration and Naturalization Service, 370 F.2d 865 (2d Cir. 1967). [FN27] Kan.State v. Andrews, 228 Kan. 368, 614 P.2d 447 (1980). [FN28] OhioSellman v. Schaaf, 17 Ohio App. 2d 69, 46 Ohio Op. 2d 91, 244 N.E.2d 494 (3d Dist. Logan County 1969). [FN29] OhioSellman v. Schaaf, 17 Ohio App. 2d 69, 46 Ohio Op. 2d 91, 244 N.E.2d 494 (3d Dist. Logan County 1969). [FN30] U.S.U.S. v. Barger, 458 F.2d 396 (9th Cir. 1972). Ariz.State v. Rogers, 117 Ariz. 258, 571 P.2d 1054 (Ct. App. Div. 1 1977). La.State v. Johnson, 342 So. 2d 863 (La. 1977); State v. Dugas, 338 So. 2d 132 (La. Ct. App. 1st Cir. 1976). [FN31] Ill. People ex rel. Stamos v. 1965 Chevrolet Chevy II, 99 Ill. App. 2d 201, 240 N.E.2d 169 (1st Dist. 1968). [FN32] Cal.People v. Whelchel, 255 Cal. App. 2d 455, 63 Cal. Rptr. 258 (4th Dist. 1967).
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[FN33] U.S.Rhodes v. Houston, 258 F. Supp. 546 (D. Neb. 1966), judgment aff'd, 418 F.2d 1309 (8th Cir. 1969). [FN34] Ill.People v. Stout, 108 Ill. App. 2d 103, 246 N.E.2d 319 (4th Dist. 1969). Pa.City of Philadelphia v. Chase & Walker Corp., 213 Pa. Super. 23, 245 A.2d 698 (1968). [FN35] Tex.Foster v. Smith, 424 S.W.2d 689 (Tex. Civ. App. Waco 1968). [FN36] IdahoClark v. State, 92 Idaho 827, 452 P.2d 54 (1969). [FN37] Kan.State v. Andrews, 228 Kan. 368, 614 P.2d 447 (1980). [FN38] U.S.Semet v. U.S., 422 F.2d 1269 (10th Cir. 1970). Mo.Lalla v. State, 463 S.W.2d 797 (Mo. 1971). [FN39] Conn.Lombardo v. State, 172 Conn. 385, 374 A.2d 1065 (1977). [FN40] IdahoState v. Jesser, 95 Idaho 43, 501 P.2d 727 (1972). Ill.People v. Wasilewski, 66 Ill. App. 3d 1, 22 Ill. Dec. 667, 383 N.E.2d 31 (3d Dist. 1978). Minn.State v. Brown, 303 Minn. 114, 226 N.W.2d 747 (1975). N.Y.City of Buffalo v. Murphy, 228 A.D. 279, 239 N.Y.S. 206 (4th Dep't 1930). [FN41] U.S.Semet v. U.S., 422 F.2d 1269 (10th Cir. 1970). [FN42] U.S.Virginia ex rel. Shifflett v. Cook, 333 F. Supp. 718 (W.D. Va. 1971). [FN43] Ariz.State v. Burr, 12 Ariz. App. 72, 467 P.2d 784 (Div. 2 1970). [FN44] U.S.Hill v. Burke, 289 F. Supp. 921 (W.D. Wis. 1968), judgment aff'd, 422 F.2d 1195 (7th Cir. 1970). [FN45] Ill.People v. Brown, 27 Ill. App. 3d 891, 326 N.E.2d 568 (2d Dist. 1975). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 116 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action A. In General Topic Summary References Correlation Table 117. In rem and in personam West's Key Number Digest West's Key Number Digest, Action 16 Actions in personam and actions in rem differ in that the former are directed against specific persons and seek personal judgments, while the latter are directed against the thing or property or status of a person and seek judgments with respect thereto as against the world. The classification of actions or proceedings as in rem or in personam is chiefly used in admiralty,[1] but it is also recognized and applied in other courts and with reference to other proceedings,[2] and is important chiefly with regard to the character of process necessary,[3] and with regard to the operation and effect of the judgment rendered.[4] The terms as used in this connection are not readily susceptible of exact definition.[5] An "in rem action" is directed against the property and seeks a judgment as against the world with respect to the property that is the subject of the action.[6] Actions and proceedings in rem comprise four different classes, namely, those which are directed primarily against particular property, and are intended to dispose of it without reference to the titles of individual claimants,[7] those which are instituted to determine the status of particular persons or property,[8] those which are in form personal suits, but which seek to subject property brought by existing lien or by attachment or some collateral proceeding under the control of the court so as to give effect to the rights of the parties,[9] and those which seek to dispose of property, or relate to some interest therein, but which touch the property or interest only through the judgment recovered.[10] Proceedings in rem may involve not only realty but personalty as well,[11] and include actions or proceedings to establish a personal status or relation.[12] An "in personam action" is directed against specific persons and seeks a judgment to be enforced personally against the defendant,[13] such as when damages are sought to assuage wrongful detention.[14] A proceeding brought to enforce personal rights and obligations against a person and based on the jurisdiction of the person is an in personam action, even though it may involve rights to or ownership of specific property.[15] In the light of these principles, various particular actions or proceedings have been determined to be in per-
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sonam and not in rem,[16] such as an action on quantum meruit,[17] or for a breach of contract,[18] or for cancellation of contractual rights, obligations or choses in action,[19] and to determine the ownership of proceeds of a benefit certificate.[20] A "quasi in rem action" is an action against the person in respect of the res, where, for example, it has for its object the partition, or the sale or other disposition of the defendant's property.[21] The aims and objects of the action determine its nature or character as in rem or in personam,[22] and what it may be designated by statute is not conclusive.[23] Whether a proceeding is in rem or in personam is determined not by the party's characterization, but by the nature and purpose of the action.[24] Change of character. Since an action in personam is based upon jurisdiction over the person of the defendant, and an action in rem upon jurisdiction over the res or thing, any conversion or change of action from one into the other is dependent upon the requisite jurisdiction having been acquired.[25] It has been said that an action or proceeding originally in rem may on an appeal and trial de novo assume the character of an action in personam.[26]
[FN1] U.S.Vandewater v. Mills, Claimant of Yankee Blade, 60 U.S. 82, 19 How. 82, 15 L. Ed. 554 (1856). W.Va.Dulin v. McCaw, 39 W. Va. 721, 20 S.E. 681 (1894). [FN2] Cal.Cunningham v. Shanklin, 60 Cal. 118, 1882 WL 1698 (1882). Neb.Peters v. Dunnells, 5 Neb. 460, 1877 WL 4227 (1877). [FN3] N.Y.White v. Glover, 138 A.D. 797, 123 N.Y.S. 482 (1st Dep't 1910). W.Va.Dulin v. McCaw, 39 W. Va. 721, 20 S.E. 681 (1894). [FN4] OhioCross v. Armstrong, 44 Ohio St. 613, 10 N.E. 160 (1887). [FN5] Mont.Gassert v. Strong, 38 Mont. 18, 98 P. 497 (1908). [FN6] N.D.Cass County Joint Water Resource Dist. v. 1.43 Acres of Land in Highland Tp., 2002 ND 83, 643 N.W.2d 685 (2002). Wis.In re Return of Property in State v. Glass, 243 Wis. 2d 636, 2001 WI 61, 628 N.W.2d 343 (2001) . [FN7] U.S.Galpin v. Page, 9 F. Cas. 1126, No. 5206 (C.C.D. Cal. 1874). Mont.Gassert v. Strong, 38 Mont. 18, 98 P. 497 (1908). N.D. Cass County Joint Water Resource Dist. v. 1.43 Acres of Land in Highland Tp., 2002 ND 83,
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643 N.W.2d 685 (2002). OhioState, Dept. of Natural Resources, Div. of Wildlife v. Prescott, 42 Ohio St. 3d 65, 537 N.E.2d 204 (1989). Tex. Citizens Nat. Bank in Abilene v. Cattleman's Production Credit Ass'n, 617 S.W.2d 731 (Tex. Civ. App. Waco 1981). [FN8] U.S.Galpin v. Page, 9 F. Cas. 1126, No. 5206 (C.C.D. Cal. 1874). [FN9] U.S.Galpin v. Page, 9 F. Cas. 1126, No. 5206 (C.C.D. Cal. 1874). Mont.Gassert v. Strong, 38 Mont. 18, 98 P. 497 (1908). [FN10] U.S.Galpin v. Page, 9 F. Cas. 1126, No. 5206 (C.C.D. Cal. 1874). [FN11] Ariz.Hook v. Hoffman, 16 Ariz. 540, 147 P. 722 (1915). [FN12] Neb.Atkins v. Atkins, 9 Neb. 191, 2 N.W. 466 (1879). [FN13] U.S.Automotive Products Corp. v. Wolverine Bumper & Specialty Co., 15 F.2d 745 (C.C.A. 6th Cir. 1926); Zellen v. Second New Haven Bank, 454 F. Supp. 1359 (D. Conn. 1978). Cal.Central Bank v. Superior Court, 30 Cal. App. 3d 962, 106 Cal. Rptr. 912 (3d Dist. 1973). Wis.In re Return of Property in State v. Glass, 243 Wis. 2d 636, 2001 WI 61, 628 N.W.2d 343 (2001) . [FN14] OhioState, Dept. of Natural Resources, Div. of Wildlife v. Prescott, 42 Ohio St. 3d 65, 537 N.E.2d 204 (1989). [FN15] Vt.Bills v. Wardsboro School Dist., 150 Vt. 541, 554 A.2d 673, 52 Ed. Law Rep. 163 (1988). [FN16] U.S.National Sur. Co. v. Austin Machinery Corp., 35 F.2d 842 (C.C.A. 6th Cir. 1929). Tex.Kirshenbaum v. Smith, 480 S.W.2d 500 (Tex. Civ. App. El Paso 1972). [FN17] Tenn.Paschall's, Inc. v. Dozier, 219 Tenn. 45, 407 S.W.2d 150 (1966). [FN18] Ga.Hartsog v. Robinson, 115 Ga. App. 824, 156 S.E.2d 141 (1967). [FN19] Tex.Steger v. Shofner, 54 S.W.2d 1013 (Tex. Civ. App. Beaumont 1932). [FN20] Ill.Austin v. Royal League, 316 Ill. 188, 147 N.E. 106 (1925). [FN21] Ala.Ex parte Bruner, 749 So. 2d 437 (Ala. 1999). Action not quasi in rem An action against the defendants described as "persons, forms or corporations who own or claim to own
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any interest in the real estate adjoining a non-navigable tributary of the Choctawhatchee River" was not a "quasi in rem action", because neither the pleadings nor the rest of the record showed conformity with requirements of rule governing class actions, due diligence to identify any of the private landowner defendants, or facts sufficient to excuse the absence of personal service. Ala.Ex parte Bruner, 749 So. 2d 437 (Ala. 1999). [FN22] U.S.National Sur. Co. v. Austin Machinery Corp., 35 F.2d 842 (C.C.A. 6th Cir. 1929); Zellen v. Second New Haven Bank, 454 F. Supp. 1359 (D. Conn. 1978). [FN23] U.S.Southwestern Bank & Trust Co. of Oklahoma City v. Metcalf State Bank, 525 F.2d 140 (10th Cir. 1975); Beck v. Otero Irr. Dist., 50 F.2d 951 (D. Colo. 1931); State of N. J. v. Moriarity, 268 F. Supp. 546 (D.N.J. 1967). [FN24] Vt.Bills v. Wardsboro School Dist., 150 Vt. 541, 554 A.2d 673, 52 Ed. Law Rep. 163 (1988). [FN25] Del.Nye Odorless Incinerator Corp. v. Nye Odorless Crematory Co., 18 Del. Ch. 179, 156 A. 176 (1931). Ga.Harper v. Allen, 41 Ga. App. 736, 154 S.E. 651 (1930); Cincinnati, N.O. & T.P. Ry. Co. v. Pless & Slade, 3 Ga. App. 400, 60 S.E. 8 (1908). La.Kohlman v. Witherell & Dobbins Co., 155 La. 57, 98 So. 756 (1924). Ohio Cleveland Nat. Bank v. Burroughs Land Co., 10 Ohio App. 61, 1917 WL 1461 (8th Dist. Cuyahoga County 1917). Okla.Royal Neighbors of America v. Fletcher, 1924 OK 506, 99 Okla. 297, 227 P. 426 (1924). Pa.David E. Kennedy, Inc., v. Schleindl, 290 Pa. 38, 137 A. 815, 53 A.L.R. 1020 (1927). [FN26] Ill.Storey v. Storey, 120 Ill. 244, 11 N.E. 209 (1887). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 117 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action A. In General Topic Summary References Correlation Table 118. Remedial and penal West's Key Number Digest West's Key Number Digest, Action 19 Penal actions differ from remedial actions in that the former seek the recovery of a penalty imposed by statute, while the latter seek the recovery of indemnity. Actions have been classed as remedial and penal, and whether a particular action is one or the other depends upon the character of the liability sought to be enforced.[1] A remedial action is to be distinguished from a penal action in that the former is given to, and is brought by, the party aggrieved,[2] and the recovery allowed is in the nature of compensation or indemnity for the injury done or loss sustained,[3] an action of this character being remedial notwithstanding the amount recoverable may exceed the damages proved.[4] On the other hand, a penal action is given to, and may be brought by, a common informer,[5] or a designated plaintiff who need not show that he or she has sustained any injury,[6] and the recovery allowed is not to compensate plaintiff, but to punish defendant.[7] The test in determining whether an action is remedial or penal is whether the wrong to be remedied or punished is primarily to an individual or to the state.[8] An action is not penal because it establishes a minimum recovery which does not reflect actual damages,[9] and actions for damage to property are not penal, even though they may be so labeled.[10] The deterrent effect of a statute, which is designed to encourage victims of unlawful acts to bring suits by creating cumulative damages for injury to their property or monetary interests, does not make the cause of action penal.[11]
[FN1] U.S.U.S. v. Joles, 251 F. 417 (D. Mass. 1917). [FN2] U.S.Moore v. Jones, 23 Vt. 739, 17 F. Cas. 686, No. 9768 (D. Vt. 1848).
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[FN3] U.S.U.S. v. Joles, 251 F. 417 (D. Mass. 1917). Mass.Goodridge v. Rogers, 39 Mass. 495, 22 Pick. 495, 1839 WL 2990 (1839). [FN4] U.S.U.S. v. Joles, 251 F. 417 (D. Mass. 1917); Porter v. Household Finance Corp. of Columbus, 385 F. Supp. 336, 46 Ohio Misc. 53, 75 Ohio Op. 2d 426 (S.D. Ohio 1974). Or.O'Keefe v. Weber, 14 Or. 55, 12 P. 74 (1886). [FN5] Mass.Goodridge v. Rogers, 39 Mass. 495, 22 Pick. 495, 1839 WL 2990 (1839). [FN6] U.S.U.S. v. Joles, 251 F. 417 (D. Mass. 1917). Me.Mansfield v. Ward, 16 Me. 433, 1840 WL 841 (1840) [FN7] U.S.U.S. v. Joles, 251 F. 417 (D. Mass. 1917). Me.Mansfield v. Ward, 16 Me. 433, 1840 WL 841 (1840). [FN8] U.S.Porter v. Household Finance Corp. of Columbus, 385 F. Supp. 336, 46 Ohio Misc. 53, 75 Ohio Op. 2d 426 (S.D. Ohio 1974). [FN9] U.S.Porter v. Household Finance Corp. of Columbus, 385 F. Supp. 336, 46 Ohio Misc. 53, 75 Ohio Op. 2d 426 (S.D. Ohio 1974). [FN10] U.S.Porter v. Household Finance Corp. of Columbus, 385 F. Supp. 336, 46 Ohio Misc. 53, 75 Ohio Op. 2d 426 (S.D. Ohio 1974). [FN11] U.S.Porter v. Household Finance Corp. of Columbus, 385 F. Supp. 336, 46 Ohio Misc. 53, 75 Ohio Op. 2d 426 (S.D. Ohio 1974). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 118 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action A. In General Topic Summary References Correlation Table 119. Petitory and possessory West's Key Number Digest West's Key Number Digest, Action 16 Petitory and possessory actions differ in that the former is concerned only with title, while the latter is founded on possession. Actions brought for the trial of rights of ownership or possession are sometimes divided into the two classes, petitory and possessory.[1] This classification is used chiefly in admiralty,[2] and under the practice in some jurisdictions.[3] Whether an action is the one or the other depends upon the prayer of the complaint.[4] If the issue involved is one of title, the action is petitory,[5] but if the action is merely for the restoration or protection of the possession, the action is possessory.[6]
[FN1] U.S.The Tilton, 23 F. Cas. 1277, No. 14054 (C.C.D. Mass. 1830). As to definitions of petitory and possessory, see 10. [FN2] U.S.The Tilton, 23 F. Cas. 1277, No. 14054 (C.C.D. Mass. 1830). [FN3] La.State v. Burchewski, 148 La. 969, 88 So. 235 (1921). [FN4] La.Williams v. Harmanson, 41 La. Ann. 702, 6 So. 604 (1889). [FN5] U.S.The Tilton, 23 F. Cas. 1277, No. 14054 (C.C.D. Mass. 1830). HawaiiJacobs v. Cummins, 4 Haw. 113, 1878 WL 7508 (King. 1878). [FN6] U.S.The Tilton, 23 F. Cas. 1277, No. 14054 (C.C.D. Mass. 1830). La.State v. Burchewski, 148 La. 969, 88 So. 235 (1921).
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action A. In General Topic Summary References Correlation Table 120. Determination and change of character or form West's Key Number Digest West's Key Number Digest, Action 16, 36 The character of an action as fixed by the complaint is not to be changed or affected by subsequent pleadings, nor may it, except as permitted by amendment of the pleadings, statute, or consent of the parties, be changed at the trial of the action. In determining the nature of the character or form of the action, courts look to the nature and substance rather than form,[1] and it is the facts alleged which determine the cause of action[2] and not the nomenclature employed.[3] Thus, a plaintiff will not be able to mask an abolished action behind a common law label, but if the essence of the complaint is directed to a cause of action other than one which has been abolished, that claim is legally cognizable.[4] In addition, even if a pleading mistakenly identifies the cause of action, the right to recover under the facts alleged is not affected.[5] Finally, the mere existence of presuit administrative filing requirements does not change the essential nature of the underlying claim.[6] As a general rule, the character or form of an action is to be determined from the essential allegations of the complaint.[7] Furthermore, the character of an action is determined from the facts stated in, and the issues raised by, the plaintiff's complaint, declaration, or petition, including, the nature of the grievance, and the relief sought.[8] Generally, if an action is commenced in a particular form or character, it is not ordinarily permissible to change it on the trial to a different form or character.[9] Thus, an action of tort cannot be changed on trial to an act ex contractu,[10] or vice versa,[11] or a criminal proceeding be changed into a civil proceeding,[12] or an action commenced by plaintiff in an individual capacity be changed into one in a representative capacity,[13] or vice versa.[14] It is also not permissible to convert an action based on the affirmance of a contract into one involving a disaffirmance of such contract[15] or vice versa.[16] In some cases, however, a transferred cause because of an incorrect filing, may change an action from one in rem to one in personam.[17] Similarly, where allowed by civil procedure rules, a trial court could apply to convert condemnation proceedings, with the consent of the parties, into an action for quiet title.[18] The giving up of possession of property by a tenant either before,[19] or after,[20] the commencement of an unlawful de-
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tainer proceeding converts the action into an ordinary one for damages. A defendant in a possessory action converts the suit into a petitory action by asserting title in himself or herself, in the alternative or otherwise.[21] However, the assertion of title must consist of some formal claim of recognition of title rather than an offhand allegation.[22] In this connection, all the allegations of the answer, as well as the prayer, should be considered in determining whether defendant has asserted title in himself.[23] A possessory suit is not converted into a petitory action by incidental allegations of ownership, where the pleading as a whole, and especially the prayer, shows that possessory and not petitory relief is sought.[24] Where the prayer of a complaint seeks only a restoration or protection of the possession, a possessory action is not changed to a petitory action by an allegation of title or ownership,[25] or by annexing a deed to the complaint.[26] Where the nature or form of an action has been changed, it will thereafter be treated and tried as if originally instituted in the form to which it has been changed.[27] Where the change is made by amendment the original pleadings are superseded.[28] A change from one form of action to another may operate as a waiver or abandonment of rights asserted or available in the former, but not in the latter,[29] in the case of a change from law to equity, at least until the equitable issues have been disposed of.[30] It may also operate to change the venue of the action.[31] A petition in equity may be changed by amendment into an action at law, or vice versa, and may be amended to seek redress in the form of damages as well as equitable relief.[32] Although the interposing of an equitable defense does not normally convert an action otherwise at law to one in equity, the actions in ejectment constitute an exception to that rule and, when the defendant presents an equitable defense in an ejectment action, the case is tried and reviewed as an action in equity.[33] An action may not be converted from one kind to another merely to avoid a statute of limitations.[34] A defendant in a possessory action converts the suit into a petitory action by asserting title in himself or herself, in the alternative or otherwise.[35] However, the assertion of title must consist of some formal claim of recognition of title rather than an offhand allegation.[36]
[FN1] Ariz.Witt v. State ex rel. Eyman, 18 Ariz. App. 120, 500 P.2d 905 (Div. 2 1972). Colo.State ex rel. Colorado Dept. of Health v. I.D.I., Inc., 642 P.2d 14 (Colo. Ct. App. 1981). Miss.Wilson v. Freeland, 773 So. 2d 305 (Miss. 2000). OhioMotorists Mut. Ins. Co. v. Huron Rd. Hosp., 73 Ohio St. 3d 391, 1995 -Ohio- 119, 653 N.E.2d 235 (1995). [FN2] Conn.Hartford Acc. and Indem. Co. v. Chung, 37 Conn. Supp. 587, 429 A.2d 158 (Super. Ct. Appellate Sess. 1981). HawaiiBlair v. Ing, 96 Haw. 327, 31 P.3d 184 (2001).
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[FN3] Colo.State ex rel. Colorado Dept. of Health v. I.D.I., Inc., 642 P.2d 14 (Colo. Ct. App. 1981). Conn.Hartford Acc. and Indem. Co. v. Chung, 37 Conn. Supp. 587, 429 A.2d 158 (Super. Ct. Appellate Sess. 1981). HawaiiTroyer v. Adams, 102 Haw. 399, 77 P.3d 83 (2003). La.Espenan v. Espenan, 403 So. 2d 115 (La. Ct. App. 4th Cir. 1981). Miss.Wilson v. Freeland, 773 So. 2d 305 (Miss. 2000). [FN4] Ky.Osborne v. Payne, 31 S.W.3d 911 (Ky. 2000). [FN5] Neb.City of Wood River v. Geer-Melkus Const. Co., Inc., 233 Neb. 179, 444 N.W.2d 305, 9 U.C.C. Rep. Serv. 2d 957 (1989). [FN6] Mass.Rosati v. Boston Pipe Covering, Inc., 434 Mass. 349, 749 N.E.2d 143 (2001). [FN7] HawaiiBlair v. Ing, 96 Haw. 327, 31 P.3d 184 (2001). S.C.Truck South, Inc. v. Patel, 339 S.C. 40, 528 S.E.2d 424 (2000). Tenn.Paduch v. City of Johnson City, 896 S.W.2d 767 (Tenn. 1995). Vt.Powers v. Office of Child Support, 173 Vt. 390, 795 A.2d 1259 (2002). [FN8] HawaiiTroyer v. Adams, 102 Haw. 399, 77 P.3d 83 (2003). [FN9] Del.Goldstein v. City of Wilmington, 598 A.2d 149 (Del. 1991). La.White v. White, 233 So. 2d 289 (La. Ct. App. 1st Cir. 1970), writ refused, 256 La. 361, 236 So. 2d 497 (1970). Mo.Cox v. Blackwell, 661 S.W.2d 831 (Mo. Ct. App. S.D. 1983). Or.Griffith v. Western Sur. Co., 248 Or. 198, 432 P.2d 1019 (1967). Tex.Yoast v. Yoast, 649 S.W.2d 289 (Tex. 1983). Wash.Hill v. Hill, 3 Wash. App. 783, 477 P.2d 931 (Div. 1 1970) (disapproved of on other grounds by, Stokes v. Polley, 145 Wash. 2d 341, 37 P.3d 1211 (2001)). [FN10] Colo.Ryan Gulch Reservoir Co. v. Swartz, 83 Colo. 225, 263 P. 728 (1928). Ga.Houze v. Blackwell, 20 Ga. App. 438, 93 S.E. 16 (1917). Ill.Malina v. Oplatka, 304 Ill. 381, 136 N.E. 666 (1922). [FN11] Ark.City Nat. Bank v. Riggs, 188 Ark. 420, 66 S.W.2d 293 (1933). Colo.Ryan Gulch Reservoir Co. v. Swartz, 83 Colo. 225, 263 P. 728 (1928).
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Ga.Glover-White Mercantile Co. v. Ausburn, 25 Ga. App. 780, 104 S.E. 927 (1920). Va.Mathieson Alkali Works v. Virginia Banner Coal Corporation, 147 Va. 125, 136 S.E. 673 (1927). [FN12] N.C.State v. Wike, 32 N.C. App. 475, 232 S.E.2d 844 (1977). Pa.Clader v. Shepowich, 13 Pa. C.C. 459, 2 Pa. Dist. 824, 1893 WL 2946 (Pa. C.P. 1893). [FN13] Ala. North Birmingham American Bank v. Realty Mortg. Co., 223 Ala. 30, 134 So. 796 (1931). [FN14] Colo.Peete v. Renshaw, 69 Colo. 530, 196 P. 187 (1921). [FN15] Mo.Wimer v. Wagner, 323 Mo. 1156, 20 S.W.2d 650, 79 A.L.R. 1231 (1929). [FN16] Colo.Peete v. Renshaw, 69 Colo. 530, 196 P. 187 (1921). IdahoSorensen v. Larue, 43 Idaho 292, 252 P. 494 (1926). [FN17] Ala.Ex parte Grimmer Realty Co., 551 So. 2d 388 (Ala. 1989). [FN18] N.C.Virginia Elec. and Power Co. v. Tillett, 316 N.C. 73, 340 S.E.2d 62 (1986). [FN19] Cal. Fish Construction Co. v. Moselle Coach Works, Inc., 148 Cal. App. 3d 654, 196 Cal. Rptr. 174 (2d Dist. 1983). [FN20] Cal. Fish Construction Co. v. Moselle Coach Works, Inc., 148 Cal. App. 3d 654, 196 Cal. Rptr. 174 (2d Dist. 1983); Nork v. Pacific Coast Medical Enterprises, Inc., 73 Cal. App. 3d 410, 140 Cal. Rptr. 734 (4th Dist. 1977). [FN21] La.Avery v. Nash, 448 So. 2d 841 (La. Ct. App. 2d Cir. 1984); Lacour v. Crais, App., 367 So.2d 1203 (La. App. 1978), writ denied, 369 So.2d 141 (La. 1979); Suire v. Primeaux, 363 So. 2d 963 (La. Ct. App. 3d Cir. 1978), writ denied, 365 So. 2d 243 (La. 1978). [FN22] La. Crowell Land and Mineral Corp. v. Neal, 428 So. 2d 496 (La. Ct. App. 3d Cir. 1983); Beninate v. Bodenger, 315 So. 2d 372 (La. Ct. App. 4th Cir. 1975), writ refused, 320 So. 2d 560 (La. 1975); Haas Land Co. v. O'Quin, 187 So. 2d 208 (La. Ct. App. 3d Cir. 1966). [FN23] La.Fontenot v. Chapman, 377 So. 2d 492 (La. Ct. App. 3d Cir. 1979); Lemoine v. Couvillon, 321 So. 2d 37 (La. Ct. App. 3d Cir. 1975), writ refused, 323 So. 2d 471 (La. 1975); Voisin v. Luke, 234 So. 2d 862 (La. Ct. App. 1st Cir. 1970). [FN24] La.Haas Land Co. v. O'Quin, 187 So. 2d 208 (La. Ct. App. 3d Cir. 1966). [FN25] La.Williams v. Harmanson, 41 La. Ann. 702, 6 So. 604 (1889). [FN26] La.Hermitage Planting & Mfg. Co. v. Higgason, 46 La. Ann. 425, 14 So. 919 (1894). [FN27] AlaskaGreater Anchorage Area Borough v. City of Anchorage, 504 P.2d 1027 (Alaska 1972) (overruled on other grounds by, City and Borough of Juneau v. Thibodeau, 595 P.2d 626 (Alaska 1979)
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). La. Vallee v. Richardson, 331 So. 2d 201 (La. Ct. App. 3d Cir. 1976), writ denied, 337 So. 2d 523 (La. 1976); Ballard Island Oil & Gas Co. v. Douglas, 172 La. 385, 134 So. 257 (1931). [FN28] Ill.Central Lumber Co. v. Kelter, 201 Ill. 503, 66 N.E. 543 (1903). OhioRaymond v. Toledo, St. L. & K.C.R. Co., 57 Ohio St. 271, 48 N.E. 1093 (1897). [FN29] Ky.Thompson's Adm'r v. Harris, 1 Ky. Op. 18, 1866 WL 3075 (Ky. 1866). [FN30] U.S.People of Porto Rico v. Livingston, 47 F.2d 712 (C.C.A. 1st Cir. 1931). [FN31] Tex.Fant v. Kenedy Pasture Co., 29 Tex. Civ. App. 530, 69 S.W. 420 (1902). [FN32] Neb.Chadron Energy Corp. v. First Nat. Bank of Omaha, 221 Neb. 590, 379 N.W.2d 742, 42 U.C.C. Rep. Serv. 1519 (1986). [FN33] Neb.Miller v. Radtke, 230 Neb. 561, 432 N.W.2d 542 (1988). [FN34] N.Y.McKinney's CPLR 217, 7801 et seq. Allied Chemical, an Operating Unit of Allied Corp. v. Niagara Mohawk Power Corp., 72 N.Y.2d 271, 532 N.Y.S.2d 230, 528 N.E.2d 153 (1988). Vt.Bevins v. King, 147 Vt. 203, 514 A.2d 1044, 1 U.C.C. Rep. Serv. 2d 787 (1986). [FN35] La.Avery v. Nash, 448 So. 2d 841 (La. Ct. App. 2d Cir. 1984); Suire v. Primeaux, 363 So. 2d 963 (La. Ct. App. 3d Cir. 1978), writ denied, 365 So. 2d 243 (La. 1978). [FN36] La. Crowell Land and Mineral Corp. v. Neal, 428 So. 2d 496 (La. Ct. App. 3d Cir. 1983); Beninate v. Bodenger, 315 So. 2d 372 (La. Ct. App. 4th Cir. 1975), writ refused, 320 So. 2d 560 (La. 1975). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 120 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action A. In General Topic Summary References Correlation Table 121. Error as to character or form West's Key Number Digest West's Key Number Digest, Action 37 While at common law an error in the form of action is fatal, under modern practice any such error is ordinarily disregarded, the court granting whatever relief the pleading and proof show plaintiff to be entitled to, limited, however, by the requirement that recovery must be in accord with the theory of the action as instituted. While at common law an error in the form of action instituted by a party, if duly objected to, is fatal to a recovery,[1] under modern practice governed by statutory provisions or rules of procedure an action is not permitted to fail and relief denied a party merely because the party has mistaken the form of the remedy.[2] So, the form in which an action is brought is wholly immaterial,[3] and technical distinctions between forms of action are disregarded.[4] It is not necessary for a plaintiff to give the action a formal designation, it being sufficient for the plaintiff merely to state the facts showing his or her right of action.[5] If the complaint states a cause of action, the law will afford the plaintiff a remedy[6] and give such relief as the pleadings and proof show that he or she is entitled to.[7] This rule is held to apply, although the parties may have gone to trial upon a mistaken theory of the case,[8] or made a mistake as to the proper form of remedy,[9] and even though the action was improperly named[10] or entitled.[11] Nevertheless, and if seasonably interposed, it is still a good ground of objection that the complaint is not framed upon a definite theory.[12] Hence, when the action instituted is based on one theory the trial may not proceed and there may not be a recovery on a theory inconsistent therewith, the rule still obtaining that plaintiff cannot sue upon one cause of action and recover upon another.[13] Proceeding against body or officer. Provided the court has jurisdiction over the parties,[14] a statutory proceeding against a body or officer, which is an improper remedy under the circumstances, may be converted by the court into a plenary action,[15] or into an action for declaratory[16] or injunctive[17] relief. So, where the issues raised in such proceeding require the court to pass upon the validity of a statute[18] or other legislative enactment,[19] or a regulation,[20] it may be converted to an action for a declaratory judgment. Where a part of an action or proceeding is appropriate
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for review under a special proceeding and another aspect requires conversion to a declaratory judgment action, a hybrid action and proceeding is authorized.[21] Improper appeal. A court may treat an application for an appeal, which is not available under the circumstances, as a petition for a writ of certiorari[22] or mandamus.[23] An objection to the form of action, even at common law,[24] may be waived.[25] Such objection is waived by a party answering on the merits and going to trial without raising it,[26] or by generally failing seasonably to interpose the objection.[27] The objection is also waived where defendant pleads over after his or her demurrer has been overruled,[28] or where the case has been submitted to the court on an agreed statement of fact.[29] An error in the form of the proceeding is not waived, however, by the failure to object in the manner provided, where a condition precedent to the action which might otherwise properly have been maintained has not been performed.[30]
[FN1] Pa.McIlvaine v. Pennsylvania State Police, 454 Pa. 129, 309 A.2d 801 (1973). Vt.McKay v. Darling, 65 Vt. 639, 27 A. 324 (1893). [FN2] U.S.Moon Motor Car Co. v. Moon, 58 F.2d 90 (C.C.A. 8th Cir. 1932); Ira S. Bushey & Sons, Inc. v. U. S., 276 F. Supp. 518 (E.D. N.Y. 1967), judgment aff'd, 398 F.2d 167 (2d Cir. 1968). Fla. Pridgen v. Board of County Com'rs of Orange County, 389 So. 2d 259 (Fla. Dist. Ct. App. 5th Dist. 1980). Ind.Bixwood, Inc. v. Becker, 181 Ind. App. 223, 391 N.E.2d 646 (3d Dist. 1979). N.Y.Verbanic v. Nyquist, 41 A.D.2d 466, 344 N.Y.S.2d 406 (3d Dep't 1973); Haroche v. Leary, 64 Misc. 2d 191, 314 N.Y.S.2d 553 (Sup 1970), judgment aff'd, 38 A.D.2d 972, 331 N.Y.S.2d 1005 (2d Dep't 1972). Wis.State ex rel. Furlong v. County Court for Waukesha County, 47 Wis. 2d 515, 177 N.W.2d 333 (1970). [FN3] N.Y.Nassau County v. Sterling, 59 A.D.2d 902, 399 N.Y.S.2d 246 (2d Dep't 1977); Chase v. Boisvert, 78 Misc. 2d 1061, 359 N.Y.S.2d 400 (Sup 1974); Cioppa v. Turri, 67 Misc. 2d 127, 323 N.Y.S.2d 520 (Sup 1971). UtahBrady v. McGonagle, 57 Utah 424, 195 P. 188 (1921). [FN4] Ariz.Genardini v. Kline, 19 Ariz. 558, 173 P. 882 (1918). Cal.Hillyer v. Eggers, 32 Cal. App. 764, 164 P. 27 (1st Dist. 1917). N.C.Moore v. Carolina Power & Light Co., 163 N.C. 300, 79 S.E. 596 (1913).
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S.D.Putnam v. Pyle, 57 S.D. 250, 232 N.W. 20 (1930). UtahLynch v. Jacobsen, 55 Utah 129, 184 P. 929 (1919). [FN5] 132. [FN6] IowaJohnson v. Home Mut. Ins. Ass'n, 191 Iowa 535, 181 N.W. 244 (1921). R.I.Sarni v. Meloccaro, 113 R.I. 630, 324 A.2d 648 (1974). UtahLynch v. Jacobsen, 55 Utah 129, 184 P. 929 (1919). [FN7] Cal.Hillyer v. Eggers, 32 Cal. App. 764, 164 P. 27 (1st Dist. 1917). Nev.Jaksich v. Guisti, 36 Nev. 104, 134 P. 452 (1913). N.Y.Brooks v. Wheeler, 243 N.Y. 28, 152 N.E. 454, 47 A.L.R. 549 (1926); Corbeau Const. Corp. v. Board of Ed., Union Free School Dist. No. 9, Town of Greenburgh, Elmsford, 32 A.D.2d 958, 302 N.Y.S.2d 940 (2d Dep't 1969). UtahKuttes v. Luke, 59 Utah 324, 203 P. 347 (1921). Wyo.Karn v. Hayes, 530 P.2d 156 (Wyo. 1975). [FN8] Cal.Fairfield v. Hagan, 248 Cal. App. 2d 194, 56 Cal. Rptr. 402 (2d Dist. 1967) (abrogated on other grounds by, Lundquist v. Reusser, 7 Cal. 4th 1193, 31 Cal. Rptr. 2d 776, 875 P.2d 1279 (1994)). Hawaii Nishi v. Hartwell, 52 Haw. 188, 52 Haw. 296, 473 P.2d 116 (1970) (overruled on other grounds by, Carr v. Strode, 79 Haw. 475, 904 P.2d 489 (1995)). Nev.Jaksich v. Guisti, 36 Nev. 104, 134 P. 452 (1913). N.Y.First Nat. City Bank v. City of New York Finance Administration, 36 N.Y.2d 87, 365 N.Y.S.2d 493, 324 N.E.2d 861 (1975). Wash.MacCormack v. Robins Const., 11 Wash. App. 80, 521 P.2d 761 (Div. 1 1974). [FN9] Fla.City of Miami v. Southeast First Nat. Bank of Miami, 320 So. 2d 836 (Fla. Dist. Ct. App. 3d Dist. 1975). N.Y.Santiago v. Blum, 75 A.D.2d 596, 426 N.Y.S.2d 819 (2d Dep't 1980). Or.Brooks v. Cupp, 6 Or. App. 539, 488 P.2d 804, 47 A.L.R.3d 1188 (1971). Tenn.Fallin v. Knox County Bd. of Com'rs, 656 S.W.2d 338 (Tenn. 1983). Wis.Milwaukee County v. Schmidt, 52 Wis. 2d 58, 187 N.W.2d 777 (1971). [FN10] U.S.Stamp v. Union Stevedoring Corporation, 11 F.2d 172 (E.D. Pa. 1925).
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Cal.Benzler v. Van Fleet, 28 Cal. App. 389, 152 P. 736 (1st Dist. 1915). [FN11] N.H.Lisbon Village Dist. v. Town of Lisbon, 85 N.H. 173, 155 A. 252 (1931). [FN12] Ind.Green v. Groves, 109 Ind. 519, 10 N.E. 401 (1887). Wis.Kewaunee County Sup'rs v. Decker, 30 Wis. 624, 1872 WL 3139 (1872). [FN13] Mo.Sumner v. Rogers, 90 Mo. 324, 2 S.W. 476 (1886). Pa.Rees, Weaver & Co., Inc. v. M.B.C. Paper Mill Corp., 267 Pa. Super. 148, 406 A.2d 562 (1979). [FN14] N.Y. Matter of Schmidt, 97 A.D.2d 244, 468 N.Y.S.2d 663 (2d Dep't 1983); Bank of New York v. Triangle Meat & Provisions Corp., 82 A.D.2d 815, 439 N.Y.S.2d 684 (2d Dep't 1981). [FN15] N.Y.Altona Citizens Committee, Inc. v. Town of Altona, 77 A.D.2d 954, 430 N.Y.S.2d 894 (3d Dep't 1980), order aff'd, 54 N.Y.2d 908, 445 N.Y.S.2d 131, 429 N.E.2d 809 (1981). [FN16] N.Y. Friends of the Pine Bush v. Planning Bd. of the City of Albany, 59 N.Y.2d 849, 465 N.Y.S.2d 924, 452 N.E.2d 1252 (1983); Oneida County v. Berle, 49 N.Y.2d 515, 427 N.Y.S.2d 407, 404 N.E.2d 133 (1980). [FN17] N.Y. Kraemer v. Office of Employee Relations, 63 Misc. 2d 708, 313 N.Y.S.2d 302 (Sup 1970). [FN18] N.Y. Top Tile Bldg. Supply Corp. v. New York State Tax Com'n, 94 A.D.2d 885, 463 N.Y.S.2d 558 (3d Dep't 1983); Repka v. Meyers, 86 A.D.2d 770, 448 N.Y.S.2d 67 (4th Dep't 1982). [FN19] N.Y. Board of Ed. of Belmont Central School Dist. v. Gootnick, 49 N.Y.2d 683, 427 N.Y.S.2d 777, 404 N.E.2d 1318 (1980); Swanick v. Erie County Legislature, 103 A.D.2d 1036, 478 N.Y.S.2d 404 (4th Dep't 1984). [FN20] N.Y.Montgomery Ward & Co., Inc. v. New York State Dept. of Motor Vehicles, 90 A.D.2d 643, 456 N.Y.S.2d 274 (3d Dep't 1982); New York State Coalition of Public Employers v. New York State Dept. of Labor, 89 A.D.2d 283, 456 N.Y.S.2d 465 (3d Dep't 1982), order aff'd, 60 N.Y.2d 789, 469 N.Y.S.2d 679, 457 N.E.2d 785 (1983). [FN21] N.Y. Tommy and Tina Inc. v. Department of Consumer Affairs of City of New York, 117 Misc. 2d 415, 459 N.Y.S.2d 220 (Sup 1983), judgment aff'd, 95 A.D.2d 724, 464 N.Y.S.2d 132 (1st Dep't 1983), order aff'd, 62 N.Y.2d 671, 476 N.Y.S.2d 290, 464 N.E.2d 988 (1984). [FN22] Ala.Citicorp Person to Person Financial Center, Inc. v. Sanderson, 421 So. 2d 1293 (Ala. Civ. App. 1982). IowaState v. West, 320 N.W.2d 570 (Iowa 1982). N.H.Appeal of Connolly, 122 N.H. 678, 448 A.2d 422 (1982). N.C.Rudder v. Lawton, 62 N.C. App. 277, 302 S.E.2d 487 (1983).
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[FN23] U.S.Bridge C.A.T. Scan Associates v. Technicare Corp., 710 F.2d 940, 36 Fed. R. Serv. 2d 1182 (2d Cir. 1983). Ala.Boyd v. Boyd, 447 So. 2d 790 (Ala. Civ. App. 1984). Fla.Golding v. Director of Public Safety Dept., Metropolitan Dade County, 400 So. 2d 990 (Fla. Dist. Ct. App. 3d Dist. 1981). [FN24] Me.Pope v. Machias Water Power & Mill Co., 52 Me. 535, 1864 WL 1357 (1864). [FN25] Ark.Holland v. Quitman College, 63 Ark. 510, 39 S.W. 557 (1897). [FN26] Ill.Mahin v. Myers, 108 Ill. App. 2d 416, 247 N.E.2d 812 (4th Dist. 1969). [FN27] Ky.Stone v. Richmond & Tate's Creek Turnpike R. Co., 1 Ky. Op. 172, 1866 WL 3143 (Ky. 1866). N.H.Rider v. Chick, 59 N.H. 50, 1879 WL 4138 (1879). [FN28] Ark.Holland v. Quitman College, 63 Ark. 510, 39 S.W. 557 (1897). [FN29] U.S.In re Blake, 150 F. 279 (C.C.A. 8th Cir. 1906). [FN30] IowaHarvey v. Kirton, 182 Iowa 973, 164 N.W. 888 (1917). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 121 END OF DOCUMENT
CJS ACTIONS VI B REF 1A C.J.S. Actions VI B Refs.
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action B. Common-Law Forms of Action Topic Summary Correlation Table Research References A.L.R. Library West's A.L.R. Digest, Action 16 , 29 , 30 , 32
A.L.R. Index: Common Law; Detinue; Election of Remedies; Trespass Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS VI B REF END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action B. Common-Law Forms of Action Topic Summary References Correlation Table 122. Generally West's Key Number Digest West's Key Number Digest, Action 16, 29, 32 The distinction between the common-law forms of action must be observed except as these distinctions have been abolished or modified by the adoption of statutes. At common law there were a number of distinct and technical forms of civil actions, both ex contractu, and ex delicto;[1] and under the common-law practice it is important that the distinctions between these forms of action be observed and that the proper form of action be in all cases adopted.[2] In those jurisdictions where modern practice codes and rule have been adopted, these formal distinctions have been expressly abolished,[3] but in other jurisdictions where statutes have not been adopted they may be still observed,[4] although even in these jurisdictions some of the distinctions formerly recognized have been modified or abolished by statute.[5]
[FN1] Tenn.Jones v. Littlefield, 11 Tenn. 133, 3 Yer. 133, 1832 WL 1110 (Ct. Err. & App. 1832). [FN2] N.Y.Vail v. Lewis, 4 Johns. 450, 1809 WL 1219 (N.Y. Sup 1809). Effect of error as to the form, see 121. [FN3] 132. [FN4] Md.Smith v. Woman's Medical College of Baltimore City, 110 Md. 441, 72 A. 1107 (1909). [FN5] 132. Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 122
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END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action B. Common-Law Forms of Action Topic Summary References Correlation Table 123. Actions ex contractu West's Key Number Digest West's Key Number Digest, Action 16, 29 Common-law actions ex contractu include account, assumpsit, covenant, debt, and detinue, although the last is more often considered ex delicto. The common-law actions ex contractu include the actions of account;[1] the action of assumpsit,[2] although originally in form and theory an action ex delicto,[3] and sometimes termed a species of action on the case.[4] Also included in the common-law actions ex contractu are the action of covenant,[5] the action of debt,[ 6] and, according to some authorities, the action of detinue.[7] While detinue is usually classed as an action ex delicto,[8] it has sometimes been characterized as the connecting link between actions ex contractu and ex delicto;[9] and it has also been ruled that it may be either an action ex contractu or an action ex delicto, according to the facts and circumstances of the particular case.[10]
[FN1] Ind.Field v. Brown, 146 Ind. 293, 45 N.E. 464 (1896). Pa.Hall v. Stewart, 12 Pa. 211, 1849 WL 5535 (1849). Common-law action of account, generally, see C.J.S., Accounting 1. [FN2] U.S.U.S. v. Porter, 9 F.2d 153 (E.D. Mich. 1925). [FN3] W.Va.Robinson v. Welty, 40 W. Va. 385, 22 S.E. 73 (1895). [FN4] U.S.Carrol v. Green, 92 U.S. 509, 23 L. Ed. 738 (1875). Nature of assumpsit, generally, see C.J.S., Assumpsit, Action of 1 to 3. [FN5] Mich.Jerome v. Ortman, 66 Mich. 668, 33 N.W. 759 (1887).
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[FN6] Va.Russell v. Louisville & N.R. Co., 93 Va. 322, 25 S.E. 99 (1896). Nature of debt, generally, see C.J.S., Debt, Action of 2. [FN7] Ky.Luke v. Marshall, 5 J.J.Marsh. 353, 28 Ky. 353 (1831). [FN8] 124. [FN9] Miss.Whitfield v. Whitfield, 44 Miss. 254, 1870 WL 2886 (1870) (overruled in part on other grounds by, George v. Hewlette, 70 Miss. 1, 12 So. 855 (1890)). [FN10] Tenn.Jones v. Littlefield, 11 Tenn. 133, 3 Yer. 133, 1832 WL 1110 (Ct. Err. & App. 1832). Nature of detinue, generally, see C.J.S., Detinue 1. Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 123 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action B. Common-Law Forms of Action Topic Summary References Correlation Table 124. Actions ex delicto West's Key Number Digest West's Key Number Digest, Action 16, 29 Common-law actions ex delicto include case, detinue, ejectment, replevin, trespass, with its different forms, and trover. The common-law actions ex delicto include case or action on the case or trespass on the case, which are ordinarily treated as equivalent and convertible terms,[1] and which, although case is a generic term of broad application,[2] and in this sense may be said to include assumpsit, are ordinarily understood as implying an action ex delicto.[3] Also included in the common-law actions ex delicto are the action of detinue;[4] the action of ejectment;[5] and the action of replevin.[6] Also included among the common-law actions ex delicto are the action of trespass with its different forms as trespass de bonis asportatis, trespass quare clausum fregit, and trespass vi et armis, ordinarily designated in abbreviated form merely as trespass,[7] and the action of trover.[8]
[FN1] U.S.Munal v. Brown, 70 F. 967 (C.C.D. Colo. 1895). N.H.Cochran v. Laton, 78 N.H. 562, 103 A. 658 (1918). R.I.Malone v. Ryan, 14 R.I. 614, 1885 WL 2740 (1885). [FN2] U.S.Carrol v. Green, 92 U.S. 509, 23 L. Ed. 738 (1875). W.Va.Robinson v. Welty, 40 W. Va. 385, 22 S.E. 73 (1895). [FN3] Ala.Mobile Life Ins. Co. v. Randall, 74 Ala. 170, 1883 WL 996 (1883). As to assumpsit, generally, see 123.
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[FN4] U.S.Elgee v. Lovell, 8 FCAS 4,344, Woolw. 102. [FN5] Pa.Henninger v. Boyer, 10 Pa.Co. 506. Nature of ejectment, generally, see C.J.S., Ejectment 2 to 7. [FN6] U.S.Williamson v. Richardson, 30 F. Cas. 17, No. 17754 (C.C.S.D. Ga. 1867). Nature of replevin, generally, see C.J.S., Replevin 2 to 7. [FN7] U.S.Munal v. Brown, 70 F. 967 (C.C.D. Colo. 1895). N.H.Cochran v. Laton, 78 N.H. 562, 103 A. 658 (1918). R.I.Mossessian v. Callender, McAuslan & Troup Co., 24 R.I. 168, 52 A. 806 (1902). Nature of action of trespass, generally, see C.J.S., Trespass 62 to 74. [FN8] S.C.Citizens' Nat. Bank of Prosperity v. Hawkins, 140 S.C. 43, 138 S.E. 541 (1927). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 124 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action B. Common-Law Forms of Action Topic Summary References Correlation Table 125. Necessity and mode of determination West's Key Number Digest West's Key Number Digest, Action 16, 29 It is often necessary to determine the form of an action brought, such question being determinable from the declaration and the real nature and substance of the facts therein alleged. What is the form of the particular action brought is often necessary of determination at the very outset, not only because of the importance under the common-law practice of adopting in all cases the proper form of action, but also for the purpose of properly determining questions incident to the particular action.[1] This question is to be determined from the allegations of the pleadings,[2] and from the real nature and substance of the facts therein alleged,[3] and not from what the pleader may have called it.[4]
[FN1] Conn.Gates v. Miles, 3 Conn. 64, 1819 WL 16 (1819). Wis.Grafton v. Carmichael, 48 Wis. 660, 4 N.W. 1079 (1880). As to the determination of the form of action, see, 121, 122. [FN2] Ill.Durham v. Stubbings, 111 Ill. App. 10, 1903 WL 1817 (2d Dist. 1903). Kan.Malone v. University of Kansas Medical Center, 220 Kan. 371, 552 P.2d 885 (1976). Vt.Bellows v. Sowles, 71 Vt. 214, 44 A. 68 (1899). [FN3] Mich.U. S. Mfg. Co. v. Stevens, 52 Mich. 330, 17 N.W. 934 (1883). Or.Cash v. Garrison, 81 Or. 135, 158 P. 521 (1916). R.I.Ilczyszyn v. Mostecki, 43 R.I. 523, 112 A. 785 (1921).
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[FN4] Mich.U. S. Mfg. Co. v. Stevens, 52 Mich. 330, 17 N.W. 934 (1883). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 125 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action B. Common-Law Forms of Action Topic Summary References Correlation Table 126. Different forms compared and distinguished West's Key Number Digest West's Key Number Digest, Action 30 Account is distinguished from assumpsit in that the latter is based on a promise involving a duty of direct payment, while the former is based on a duty that is one of outlay in the performance of a trust or business which from its nature requires an exhibit of sums expended and the ascertainment of a balance before the direct duty arises. Account and covenant have theoretically different provinces although there may be circumstances under which either will lie. Account and assumpsit are distinguishable in that the latter is the proper remedy where the promise, express or implied, involves the duty of direct payment to plaintiff, and the former is the proper remedy where the duty is not direct, but one of outlay in the performance of a trust or business which from its nature requires an exhibit of the sums expended, and an ascertainment of the balance, before the direct duty can arise.[1] Actions of account and of covenant have theoretically different provinces, although they may practically overreach each other in some points,[2] and although there may be circumstances under which either the one or the other will lie.[3] Covenant and debt are clearly distinguishable in that the former is based on a contract under seal and seeks the recovery of an unliquidated amount as damages, while the latter may be based on any contract and seeks to recover a debt the amount of which is liquidated or can be reduced to a certainty.[4] Of course, where recovery of a sum certain is sought on an instrument under seal, covenant and debt are considered concurrent.[5] Ejectment and other forms. Ejectment differs materially from forcible entry and detainer, the latter not being intended as a substitute for the former[6] in that ejectment involves the question of title and right of possession, while forcible entry and detainer involves merely the right to possession and not the question of title.[7] The gravamen of the first is merely a wrongful detention, but of the latter it is a wrongful detention by force.[8]
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Ejectment, and not trespass, is the form of action by one seeking possession of property as well as damages and alleging the right of possession, entry, and ouster.[9]
[FN1] Pa.Reeside v. Reeside, 49 Pa. 322, 1865 WL 4561 (1865). [FN2] Pa.Addams v. Tutton, 39 Pa. 447, 1861 WL 5839 (1861). [FN3] Pa.Hall v. Stewart, 12 Pa. 211, 1849 WL 5535 (1849). [FN4] Ark.Gregory v. Bewly, 5 Ark. 318. Ky.Watson v. McNairy, 4 Ky. 356, 1 Bibb 356, 1809 WL 737 (1809). Me.Manning v. Perkins, 86 Me. 419, 29 A. 1114 (1894). R.I.Congdon v. Read, 7 R.I. 576, 1863 WL 1453 (1863). S.C.State v. Staggers, 46 S.C.L. 286, 12 Rich. 286, 1859 WL 4918 (Ct. App. Law 1859). [FN5] Me.Baldwin v. Emery, 89 Me. 496, 36 A. 994 (1897). [FN6] Cal.Hodgkins v. Jordan, 29 Cal. 577, 1866 WL 669 (1866). Or.Taylor v. Scott, 10 Or. 483, 1883 WL 1106 (1883). [FN7] Kan.Buettinger v. Hurley, 34 Kan. 585, 9 P. 197 (1886). Va.Olinger v. Shepherd, 53 Va. 462, 12 Gratt. 462, 1855 WL 3484 (1855). [FN8] Cal.Hodgkins v. Jordan, 29 Cal. 577, 1866 WL 669 (1866). [FN9] Colo.Rudolph v. Thompson, 66 Colo. 98, 179 P. 151 (1919). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 126 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action B. Common-Law Forms of Action Topic Summary References Correlation Table 127. Different forms compared and distinguishedAssumpit and other forms West's Key Number Digest West's Key Number Digest, Action 30 Assumpsit is distinguishable from covenant in that assumpsit involves a simple contract and covenant a contract under seal. Assumpsit and covenant are distinguishable in that the former lies for nonperformance of a simple or parol contract, while the latter can only be supported by a contract under seal,[1] and in that when covenants are made for the benefit of third persons, the action of covenant must, as a general rule, be brought by a party to the instrument, while in assumpsit for breach of a simple contract the action may be maintained by the person in whose behalf the contract was made.[2] Assumpsit and covenant were never concurrent at common law,[3] but under some statutes assumpsit may be maintained in any case where covenant will lie.[4] It has been said that a distinguishing feature between assumpsit and debt is that assumpsit is an action founded on a promise while debt rests on a contract.[5] Ordinarily, the distinction between assumpsit and debt is that the former is to recover damages for the breach of a simple or parol contract, and the latter for the recovery of a debt eo nomine and in numero and, that assumpsit may lie where the amount sought is uncertain or unliquidated, while debt lies only where it is a sum certain or one capable of being readily reduced to certainty that is sought.[ 6] Assumpsit and case. Assumpsit and case are distinguishable in that the former is based on contract, and the latter on tort.[7] Assumpsit and trespass. Assumpsit and trespass are distinguishable in that the former is founded on contract, and the latter on tort.[8 ]
[FN1] Me.Jackson v. York & C.R. Co., 48 Me. 147, 1858 WL 2509 (1858).
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Md.Kerr, Evans & Co. v. Co-operative Improvement Co., 129 Md. 469, 99 A. 708 (1916). N.H.Douglas v. Oldham, 6 N.H. 150, 1833 WL 1263 (1833). [FN2] Me.Packard v. Brewster, 59 Me. 404, 1871 WL 3125 (1871); Hinkley v. Fowler, 15 Me. 285, 1839 WL 794 (1839). [FN3] Me.Manning v. Perkins, 86 Me. 419, 29 A. 1114 (1894). [FN4] Va.Grubb v. Burford, 98 Va. 553, 37 S.E. 4 (1900). [FN5] U.S.Metcalf v. Robinson, 17 F. Cas. 177, No. 9497 (C.C.D. Ind. 1841). [FN6] U.S.Carrol v. Green, 92 U.S. 509, 23 L. Ed. 738 (1875). N.Y.McKeon v. Caherty, 3 Wend. 494, 1830 WL 2806 (N.Y. Sup 1830). [FN7] U.S.U.S. v. Porter, 9 F.2d 153 (E.D. Mich. 1925). N.H.Welch v. Concord R. R., 68 N.H. 206, 44 A. 304 (1895). [FN8] Ala.Cox v. Awtry, 211 Ala. 356, 100 So. 337 (1924) (overruled in part on other grounds by, First Nat. Bank v. Morgan, 213 Ala. 125, 104 So. 403 (1925)). Pa.Brandmeier v. Pond Creek Coal Co., 229 Pa. 280, 78 A. 273 (1910). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 127 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action B. Common-Law Forms of Action Topic Summary References Correlation Table 128. Different forms compared and distinguishedCase and other forms West's Key Number Digest West's Key Number Digest, Action 30 Case is distinguishable from trespass in that the latter involves injuries which are direct and immediate while the former involves injuries which are merely consequential. Case and trespass are clearly distinguishable,[1] although the distinction is somewhat subtle[2] and sometimes difficult of application.[3] As ordinarily stated, the distinction lies in that trespass is an action for an injury which is the direct and immediate result of a particular act, while case is an action for an injury which is not the direct result of such act but merely the consequential result thereof.[4] This distinction, although expressed in terms which are somewhat vague and indefinite, is the one usually stated and approved,[5] but it has been suggested that the true gist of the distinction intended lies not so much in the proximate or remote character of the damage as in the primary or secondary nature of the trespass.[6] The real difficulty of applying the distinction lies in the determination of whether in the particular case the injury is direct or merely consequential.[7] The distinction does not depend on whether the act was lawful or unlawful,[8] or whether it was willful or otherwise,[9] or on the intention with which it was done,[10] for if the injury is direct, although not intentional but merely the result of negligence, trespass, and not case, is ordinarily the proper remedy.[11] Also, the distinction does not depend on the time which the act occupied, or the space through which it passed, or the place from which it began, or the instrument or agent employed.[12] The distinction has been made, however, that while in some cases, notwithstanding the injury is direct, plaintiff may waive the trespass and bring case for the consequential damage,[13] as, according to some authorities, where the injury is due merely to negligence,[14] yet where the injury is both direct and intentional, trespass is the only remedy.[15] Case, and not trespass, is the proper remedy of a landowner for an injury to his or her land while it is in possession of another,[16] for an injury to a reversionary interest in either real or personal property,[17] for the removal of lateral or subjacent support,[18] and generally for a consequential injury to plaintiff's land caused by acts done on the adjacent land of another,[19] and for the abuse of a privilege exercised upon the land of another.[20]
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Furthermore, case and not trespass, is the proper remedy where, by reason of defendant's failure to instruct workmen in his or her lands as to the boundary line, they commit a trespass on the lands of plaintiff.[21] Case or trover, and not trespass de bonis, is the proper remedy where plaintiff has neither the actual possession nor the immediate right to possession of the chattel at the time it was taken by defendant.[22] Debt, and not case, is the proper remedy to recover a statutory penalty,[23] and it has been adjudicated that case, and not a writ of entry, is the proper remedy to recover a mere easement for a right of way.[24] Case and trover. Case and trover are distinguishable in that trover will lie where plaintiff has legal title, while case will lie if plaintiff has but an equitable title or lien,[25] and in that to sustain trover there must be a positive tortious act, while case will lie for a mere nonfeasance or neglect of legal duty.[26] Case also differs from trover in that the value of the property is the measure of damages in trover, while in case plaintiff may recover such damages as will compensate for the injury actually sustained, according to the circumstances of the particular case.[27] Case and covenant. Case and covenant are distinguishable in that case is not founded on any contract, express or implied.[28]
[FN1] Ill.Painter v. Baker, 16 Ill. 103, 1854 WL 4782 (1854). [FN2] U.S.Munal v. Brown, 70 F. 967 (C.C.D. Colo. 1895). [FN3] Ala.Taylor v. Smith, 104 Ala. 537, 16 So. 629 (1894). [FN4] Del.Reed v. Guessford, 30 Del. 228, 7 Boyce 228, 105 A. 428 (Super. Ct. 1918). Wyo.Town Council of Town of Hudson v. Ladd, 37 Wyo. 419, 263 P. 703 (1928). [FN5] Va.Jordan v. Wyatt, 45 Va. 151, 4 Gratt. 151, 1847 WL 2422 (1847). [FN6] IowaBever v. Swecker, 138 Iowa 721, 116 N.W. 704 (1908). [FN7] S.C.Carsten v. Murray, 16 S.C.L. 113, Harp. 113, 1824 WL 903 (Const. Ct. App. 1824). Tenn.Johnson v. Perry, 21 Tenn. 569, 2 Hum. 569, 1841 WL 1818 (1841). [FN8] Va.Jordan v. Wyatt, 45 Va. 151, 4 Gratt. 151, 1847 WL 2422 (1847). [FN9] Del.Reed v. Guessford, 30 Del. 228, 7 Boyce 228, 105 A. 428 (Super. Ct. 1918). [FN10] N.C.Loubz v. Hafner, 12 N.C. 185, 1 Dev. 185, 1827 WL 290 (1827). Va.Jordan v. Wyatt, 45 Va. 151, 4 Gratt. 151, 1847 WL 2422 (1847). [FN11] Del.Reed v. Guessford, 30 Del. 228, 7 Boyce 228, 105 A. 428 (Super. Ct. 1918). [FN12] Va.Jordan v. Wyatt, 45 Va. 151, 4 Gratt. 151, 1847 WL 2422 (1847).
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[FN13] N.C.Kelly v. Lett, 35 N.C. 50, 13 Ired. 50, 1851 WL 1221 (1851). R.I.Trafford v. Hubbard, 15 R.I. 326, 4 A. 762 (1886). [FN14] U.S.Canadian Pac. Ry. Co. v. Clark, 73 F. 76 (C.C.A. 2d Cir. 1896). Va.Taylor v. Rainbow, 12 Va. 423, 2 Hen. & M. 423, 1808 WL 594 (1808). [FN15] R.I.Brennan v. Carpenter, 1 R.I. 474, 1849 WL 2000 (1849). [FN16] Mass.Lienow v. Ritchie, 25 Mass. 235, 8 Pick. 235, 1829 WL 1851 (1829). [FN17] Fla.Bucki v. Cone, 25 Fla. 1, 6 So. 160 (1889). [FN18] Pa.Williams v. Hay, 120 Pa. 485, 14 A. 379 (1888). [FN19] Ala.Drake v. Lady Ensley Coal, Iron & Ry. Co., 102 Ala. 501, 14 So. 749 (1894). Tex.Trinity Portland Cement Co. v. Horton, 214 S.W. 510 (Tex. Civ. App. Amarillo 1919), writ dismissed w.o.j., (Nov. 10, 1920). [FN20] Vt.Gregoir v. Leonard, 71 Vt. 410, 45 A. 748 (1899). [FN21] Mich.Bath v. Caton, 37 Mich. 199, 1877 WL 3799 (1877). [FN22] Ala.Davis v. Young, 20 Ala. 151, 1852 WL 280 (1852). [FN23] Va.Russell v. Louisville & N.R. Co., 93 Va. 322, 25 S.E. 99 (1896). [FN24] N.H.Smith v. Wiggin, 48 N.H. 105, 1868 WL 2269 (1868). [FN25] Ala. Mt. Vernon-Woodberry Mills v. Union Springs Guano Co., 26 Ala. App. 136, 155 So. 710 (1934); Steverson v. W.C. Agee & Co., 9 Ala. App. 389, 63 So. 794 (1913). [FN26] Tenn.Jones v. Allen, 38 Tenn. 626, 1 Head 626, 1858 WL 2971 (1858). [FN27] N.C.Rogers v. Pitman, 47 N.C. 56, 2 Jones 56, 1854 WL 1392 (1854). Tenn.Jones v. Allen, 38 Tenn. 626, 1 Head 626, 1858 WL 2971 (1858). [FN28] N.J.Jones v. Clark, 45 N.J.L. 437, 1883 WL 8114 (N.J. Sup. Ct. 1883). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 128 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action B. Common-Law Forms of Action Topic Summary References Correlation Table 129. Different forms compared and distinguishedDetinue and other forms West's Key Number Digest West's Key Number Digest, Action 30 Detinue differs from replevin primarily in that possession of the property is not given to plaintiff pending the action as may be done in replevin, and in that judgment therein awards the property or its value if it cannot be had, while in replevin the judgment awards the property alone. Although detinue and replevin are similar in that both seek primarily the recovery of specific chattels,[1] and in that both are based on a wrongful detention,[2] they are distinguishable in that originally detinue would lie where defendant acquired possession rightfully, while replevin would lie only where the original taking was wrongful.[3] Also, detinue is distinguishable from replevin in that in detinue the property in controversy remained in the possession of defendant pending determination of the right thereto, while in replevin plaintiff could acquire possession of the property in the first instance and prior to a final determination of the rights of the parties on the filing of a bond.[4] These actions differ also in respect of the judgments rendered; in detinue plaintiff, if successful, having adjudged to him or her the property, if it is to be had, or its value, together with damages for the wrongful detention, while in replevin, where the declaration is in detinuit, plaintiff having adjudged to him or her but the right of possession of the property and damages for its detention.[5] The essential difference between detinue and trespass is that detinue seeks to recover a specific chattel, if it is to be had, or its value, together with damages for its detention, while trespass seeks damages merely.[6] While a detention may be included in a trespass, there may nevertheless be a detention which will support detinue and yet not be such trespass as will support an action in trespass.[7] Detinue also differs from trespass with regard to the right to maintain separate actions where different chattels are taken at the same time and afterward detained, separate actions being maintainable in detinue for the detention of each chattel, while in trespass the act is considered indivisible and permits of but a single action therefor.[8] Also with regard to the effect of a nonjoinder of a necessary party plaintiff, a nonjoinder of parties in detinue is a ground for a nonsuit or arrest of judgment, while in trespass such nonjoinder entitles defendant to but a pro rata reduction in damages.[9]
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Detinue and trover are distinguishable in that detinue is primarily for the recovery of the property itself, with damages for its detention, while trover is for the recovery of damages for its wrongful conversion.[10] Detinue further differs from trover with regard to the right to maintain separate actions where different chattels are taken at the same time and after detained, separate actions being maintainable in detinue for the detention of each chattel while trover permits of but one action for the conversion, which is considered a single act and indivisible.[11]
[FN1] N.H.Dame v. Dame, 43 N.H. 37, 1861 WL 2051 (1861). [FN2] Mich.Hickey v. Hinsdale, 12 Mich. 99, 1863 WL 2413 (1863). [FN3] Mich.Hickey v. Hinsdale, 12 Mich. 99, 1863 WL 2413 (1863). N.H.Dame v. Dame, 43 N.H. 37, 1861 WL 2051 (1861). [FN4] N.H.Dame v. Dame, 43 N.H. 37, 1861 WL 2051 (1861). W.Va.Young v. Edwards, 64 W. Va. 67, 60 S.E. 992 (1908). [FN5] Md.Brown v. Ravenscraft, 88 Md. 216, 44 A. 170 (1898); Benesch v. Weil, 69 Md. 276, 14 A. 666 (1888). [FN6] Ala.Traun v. Wittick, 27 Ala. 570, 1855 WL 479 (1855) (overruled in part on other grounds by, Handley v. Lawley, 90 Ala. 527, 8 So. 101 (1890)). [FN7] Ala.Wittick v. Traun, 27 Ala. 562, 1855 WL 478 (1855) (overruled in part on other grounds by, Handley v. Lawley, 90 Ala. 527, 8 So. 101 (1890)). [FN8] Ala.Wittick v. Traun, 27 Ala. 562, 1855 WL 478 (1855) (overruled in part on other grounds by, Handley v. Lawley, 90 Ala. 527, 8 So. 101 (1890)). [FN9] Ky.Luke v. Marshall, 5 J.J.Marsh. 353, 28 Ky. 353 (1831). [FN10] Okla. Leeper, Graves & Co. v. First Nat. Bank, 1910 OK 231, 26 Okla. 707, 110 P. 655 (1910). [FN11] Ala.Wittick v. Traun, 27 Ala. 562, 1855 WL 478 (1855) (overruled in part on other grounds by, Handley v. Lawley, 90 Ala. 527, 8 So. 101 (1890)). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 129 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action B. Common-Law Forms of Action Topic Summary References Correlation Table 130. Different forms compared and distinguishedReplevin and other forms West's Key Number Digest West's Key Number Digest, Action 30 Replevin differs from both trespass and trover in that it seeks recovery of the property itself, while trespass and trover seek damages. Replevin also differs from trover in that no conversion is necessary for its maintenance. While replevin and trespass are analogous,[1] and while replevin will lie for the unlawful taking of a chattel whenever trespass for such taking would lie,[2] replevin nevertheless differs from trespass in that replevin primarily seeks the recovery of the property itself, while in trespass only damages are sought,[3] and that in replevin plaintiff's right of possession must ordinarily be coupled with a general or special right of property, while in trespass a mere right of possession is sufficient.[4] Also, in replevin plaintiff's right of possession must exist at the time that the action is instituted, while in trespass it is sufficient if it existed at the time of the trespass, although it may have terminated before the bringing of the action.[5] Replevin and trover. While replevin and trover are analogous,[6] and are governed by the same rules when plaintiff seeks judgment for the value of the property and damages for its detention,[7] they are distinguishable in that to maintain replevin no conversion of the property is necessary as is the case in trover,[8] and in that replevin is primarily for the recovery of the property itself, and trover merely for the recovery of damages.[9]
[FN1] Wis.Commercial Inv. Trust v. William Frankfurth Hardware Co., 179 Wis. 21, 190 N.W. 1004 (1922). [FN2] N.J.Bruen v. Ogden, 11 N.J.L. 370, 1830 WL 2293 (N.J. 1830). [FN3] Miss.Burrage v. Melson, 48 Miss. 237, 1873 WL 4117 (1873).
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N.J.Bruen v. Ogden, 11 N.J.L. 370, 1830 WL 2293 (N.J. 1830). N.Y.Sinnott v. Feiock, 165 N.Y. 444, 59 N.E. 265 (1901). [FN4] U.S.Williamson v. Richardson, 30 F. Cas. 17, No. 17754 (C.C.S.D. Ga. 1867). [FN5] N.J.Chambers v. Hunt, 18 N.J.L. 339, 1841 WL 3017 (N.J. 1841). [FN6] Miss.Burrage v. Melson, 48 Miss. 237, 1873 WL 4117 (1873). [FN7] Mich.Parmalee v. Loomis, 24 Mich. 242, 1872 WL 3193 (1872). [FN8] Cal.Commercial & Savings Bank of Stockton v. Foster, 210 Cal. 76, 290 P. 583 (1930). [FN9] Minn.Benjamin v. Smith, 43 Minn. 146, 44 N.W. 1083 (1890). Miss.Burrage v. Melson, 48 Miss. 237, 1873 WL 4117 (1873). N.Y.Sinnott v. Feiock, 165 N.Y. 444, 59 N.E. 265 (1901). Or.La Vie v. Crosby, 43 Or. 612, 74 P. 220 (1903). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 130 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action B. Common-Law Forms of Action Topic Summary References Correlation Table 131. Different forms compared and distinguishedTrespass and other forms West's Key Number Digest West's Key Number Digest, Action 30 Trespass differs from trover in that in trespass the taking is wrongful, while in trover the taking is lawful. Trespass differs from forcible entry and detainer by reason of the persons against whom the respective actions may be brought. Apart from the fact that trespass relates to both realty and personalty and trover to personalty only, insofar as it involves the taking of personalty trespass is ordinarily stated to differ from trover in that in trespass the taking is always wrongful, while in trover the taking is assumed to be lawful.[1] Also, in trespass a recovery may be had for the wrongful taking, while trover waives any trespass in the taking, admits the possession to have been lawfully acquired, and proceeds merely for the conversion.[2] Trespass further differs from trover in that trespass lies for any wrongful force, while trover will not lie where it is employed in recognition of plaintiff's right and with no intent to deprive him or her of it.[3] Also, in trespass, if the property has not been converted or destroyed, plaintiff recovers only the damages he or she has sustained, while in trover the plaintiff recovers the value of the property;[4] and a satisfaction of the judgment in trespass awarding damages only does not affect the title to the property, while in trover it operates as a transfer of title to defendant.[5] Debt, and not trespass, is the proper remedy to recover a penalty for cutting trees on plaintiff's land.[6] Trespass and forcible entry and detainer. Trespass and forcible entry and detainer are distinguishable in that forcible entry and detainer may be maintained where trespass cannot, as, for example, against the owner of land having a right of entry thereon.[7] Trespass quare clausum and real actions. Trespass quare clausum and real actions are distinguishable in that the former is merely a possessory action, and the latter involves the question of seizin or title.[8] The test for whether a complaint states cause of action for trespass or for trespass on the case is whether the
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tort was committed by direct application of force or was accomplished indirectly.[9]
[FN1] N.Y. Burnham v. Pidcock, 33 Misc. 65, 66 N.Y.S. 806 (Sup 1900), aff'd, 58 A.D. 273, 68 N.Y.S. 1007 (1st Dep't 1901). [FN2] Del.Cannon v. Horsey, 6 Del. 440, 1 Houst. 440, 1857 WL 1013 (Super. Ct. 1857). [FN3] Ala.Prince v. Puckett, 12 Ala. 832, 1848 WL 375 (1848). [FN4] N.Y.Hammond v. Sullivan, 112 A.D. 788, 99 N.Y.S. 472 (3d Dep't 1906); May v. Georger, 21 Misc. 622, 47 N.Y.S. 1057 (App. Term 1897). [FN5] N.YMay v. Georger, 21 Misc. 622, 47 N.Y.S. 1057 (App. Term 1897). [FN6] N.H.Morrison v. Bedell, 22 N.H. 234, 1850 WL 2395 (1850). [FN7] Va.Olinger v. Shepherd, 53 Va. 462, 12 Gratt. 462, 1855 WL 3484 (1855). [FN8] Me.Kimball v. Hilton, 92 Me. 214, 42 A. 394 (1898). [FN9] Ala.Archie v. Enterprise Hosp. and Nursing Home, 508 So. 2d 693 (Ala. 1987). A.L.R. Library Applicability Of Common-Law Trespass Actions To Electronic Communications, 107 A.L.R. 5th 549. Recovery In Trespass For Injury To Land Caused By Airborne Pollutants, 2 A.L.R. 4th 1054. Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 131 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action B. Common-Law Forms of Action Topic Summary References Correlation Table 132. Effect of modern practice codes and rules West's Key Number Digest West's Key Number Digest, Action 32 Modern practice codes and rules of practice have done away with the formal aspects of the common-law forms of action and substituted a single form of action for the enforcement of particular causes of action under the common law known as the civil action. Under modern practice codes and rules of practice adopted in most jurisdictions, technical forms of action or technical remedies for the enforcement of particular causes of action, so important under common-law practice, have been abolished and there is but one form of action in civil suits, known as the "civil action."[1] The hallmark of modern procedural statutes and rules is the abolition of formal distinctions between actions.[2] Forms of action were abolished in order to award adequate relief to the victim of a wrong, regardless of the form of the action.[3] The modern civil action embraces not only all of the old common-law actions but equity actions as well, and under modern practice there is generally no such thing as a particular form of action or a court in which particular forms of action can be prosecuted or special remedies obtained.[4] Where a statute gives a right of action without prescribing the form, the right of action may be enforced by any appropriate remedy, legal or equitable.[5] The action is to be adapted to the nature of the case and its form may be such as the particular nature of the wrong or injury may require.[6] If the facts set forth in a complaint entitle a party to relief, the form or name of the action is immaterial,[7] for forms of action are a means of administering justice rather than an end in themselves, and when the practical result of a form of action is a failure of justice, courts will make such changes as are necessary to do justice.[8] A litigant may not, by a particular characterization of the nature and form of his or her action, control the application of legal principles; the court will look beyond the characterization and ascertain the true scope and nature of the action.[9] The courts look to the substantial rights of the parties to determine the remedy irrespective of the form of the complaint, the cause being tried on the theory of its essential nature.[10] Hence, if the facts alleged and proved are such as would have entitled plaintiff to relief under any of the recognized forms of action at common law, they are sufficient as a basis of relief, whatever it may be.[11] CUMULATIVE SUPPLEMENT
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Cases: At common law, choosing the wrong form of action was fatal to the case, but modern civil procedure has abandoned such rigid distinctions. Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1 (Tex. 2008). [END OF SUPPLEMENT]
[FN1] Ala.Du Boise v. Brewer, 349 So. 2d 1086 (Ala. 1977). Cal.IFS Industries, Inc. v. Stephens, 159 Cal. App. 3d 740, 205 Cal. Rptr. 915 (4th Dist. 1984). N.M.Rutherford v. Buhler, 89 N.M. 594, 555 P.2d 715 (Ct. App. 1976). [FN2] Ark. Plunkett-Jarrell Grocery Co. v. Terry, 222 Ark. 784, 263 S.W.2d 229, 44 A.L.R.2d 917 (1953). Ga.Central of Georgia Ry. Co. v. Brown, 113 Ga. 414, 38 S.E. 989 (1901). Okla.Ft. Smith & W.R. Co. v. Ford, 1912 OK 585, 34 Okla. 575, 126 P. 745 (1912). [FN3] Or.Selman v. Shirley, 161 Or. 582, 85 P.2d 384, 124 A.L.R. 1 (1938), adhered to on reh'g, 161 Or. 582, 91 P.2d 312, 124 A.L.R. 1 (1939). [FN4] Ariz.Starkovich v. Noye, 111 Ariz. 347, 529 P.2d 698 (1974). UtahWeyant v. Utah Savings & Trust Co., 54 Utah 181, 182 P. 189, 9 A.L.R. 1119 (1919). [FN5] Cal.Friends of "B" Street v. City of Hayward, 106 Cal. App. 3d 988, 165 Cal. Rptr. 514 (1st Dist. 1980). [FN6] W.Va.Mapel v. John, 42 W. Va. 30, 24 S.E. 608 (1896). [FN7] Cal.Kingsbury v. Tevco, Inc., 79 Cal. App. 3d 314, 144 Cal. Rptr. 773 (3d Dist. 1978). Wash.Smith v. Driscoll, 94 Wash. 441, 162 P. 572 (1917). [FN8] Mass.Miller v. Hyde, 161 Mass. 472, 37 N.E. 760 (1894). [FN9] Ky.Chesapeake & O. R. Co. v. State Nat. Bank of Maysville, 280 Ky. 444, 133 S.W.2d 511, 130 A.L.R. 1306 (1939), judgment aff'd, 283 Ky. 443, 141 S.W.2d 869, 130 A.L.R. 1306 (1940). [FN10] Cal.Hansen v. Hevener, 69 Cal. App. 337, 231 P. 361 (2d Dist. 1924). Wash.Miller v. Smith, 119 Wash. 163, 205 P. 386 (1922). [FN11] U.S.City of Waterbury v. H. L. Yoh Co., 253 F. Supp. 778 (D. Conn. 1966). Cal.Rogers v. Duhart, 97 Cal. 500, 32 P. 570 (1893).
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Wash.Miller v. Smith, 119 Wash. 163, 205 P. 386 (1922). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 132 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action B. Common-Law Forms of Action Topic Summary References Correlation Table 133. Effect of modern practice codes and rulesEffectiveness of substantive common-law rights West's Key Number Digest West's Key Number Digest, Action 32 Although the technical forms of actions which existed at common law have generally been abolished, the abolition of the common-law forms of action does not affect substantive rights and liabilities which existed under the common law. Although the technical forms of actions which existed at common law have generally been abolished in favor of the "civil action," under which any recognized cause of action may be enforced,[1] the abolition of the common-law forms of action does not affect substantive rights and liabilities which existed under the common law.[2] The common-law causes of action, including the rules of law governing what constitutes a cause of action, remain the same,[3] and courts will refer to the common-law forms of action to determine whether a cause of action exists upon a particular set of facts.[4] The fundamental requirements on which the right to recover for an injury remain the same as they were prior to the adoption of modern practice rules.[5] Also, the provisions have not abolished the natural classifications of actions according to substance,[6] such as the classifications dependent upon whether the action is in contract or in tort,[7] or is real or personal,[8] or legal or equitable.[9] Any right may still be asserted, or any wrong still be redressed, under the new procedure that could have been asserted or redressed under the old.[10] On the other hand, the change has not created any new rights or causes of action,[11] nor has it authorized a recovery where none could previously have been had in any form of action.[12] While the names of the old forms are no longer appropriate[13] or material,[14] they are still sometimes used as a convenient means of designating the causes of action with which they were previously associated.[15]
[FN1] 132. [FN2] Cal.Baar v. Smith, 201 Cal. 87, 255 P. 827 (1927).
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Mont.Fleming v. Lockwood, 36 Mont. 384, 92 P. 962 (1907). [FN3] Nev.Cann v. George B. Williams Land & Livestock Co., 56 Nev. 242, 48 P.2d 887 (1935). Tex.Birk v. Jackson, 75 S.W.2d 918 (Tex. Civ. App. Eastland 1934), writ dismissed. [FN4] Kan.North River Ins. Co. v. Aetna Finance Co., 186 Kan. 758, 352 P.2d 1060 (1960). [FN5] Mo.Griesenauer v. Emsco Corp., 399 S.W.2d 147 (Mo. Ct. App. 1965). [FN6] Colo.Schroers v. Fisk, 10 Colo. 599, 16 P. 285 (1888). Ind.Ricketts v. Dorrel, 55 Ind. 470, 1876 WL 6653 (1876). [FN7] U.S.Stamp v. Union Stevedoring Corporation, 11 F.2d 172 (E.D. Pa. 1925). [FN8] Ind.Ricketts v. Dorrel, 55 Ind. 470, 1876 WL 6653 (1876). [FN9] Ind.Ricketts v. Dorrel, 55 Ind. 470, 1876 WL 6653 (1876). [FN10] Cal.Rogers v. Duhart, 97 Cal. 500, 32 P. 570 (1893). Nev.Cann v. George B. Williams Land & Livestock Co., 56 Nev. 242, 48 P.2d 887 (1935). S.D.Cullen v. Dickenson, 33 S.D. 27, 144 N.W. 656 (1913). [FN11] Nev.Cann v. George B. Williams Land & Livestock Co., 56 Nev. 242, 48 P.2d 887 (1935). [FN12] Ariz.Jahnke v. Palomar Financial Corp., 22 Ariz. App. 369, 527 P.2d 771 (Div. 1 1974). [FN13] Mont.Samuell v. Moore Mercantile Co., 62 Mont. 232, 204 P. 376 (1922). Tex.Birk v. Jackson, 75 S.W.2d 918 (Tex. Civ. App. Eastland 1934), writ dismissed. [FN14] UtahBrady v. McGonagle, 57 Utah 424, 195 P. 188 (1921). [FN15] Conn.Metropolis Manuf'g Co. v. Lynch, 68 Conn. 459, 36 A. 832 (1896). Tex.Birk v. Jackson, 75 S.W.2d 918 (Tex. Civ. App. Eastland 1934), writ dismissed. Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 133 END OF DOCUMENT
CJS ACTIONS VI C REF 1A C.J.S. Actions VI C Refs.
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action C. Contract and Tort Topic Summary Correlation Table Research References A.L.R. Library West's A.L.R. Digest, Action or Suit 26 to 28
A.L.R. Index: Contracts; Election of Remedies; Torts Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS VI C REF END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action C. Contract and Tort 1. In General Topic Summary References Correlation Table 134. Generally West's Key Number Digest West's Key Number Digest, Action 26, 27, 27(1) An action ex contractu differs from an action ex delicto in that the former involves a breach of duty arising from contract, while the latter involves a breach of duty imposed by law. Actions are classified with regard to the nature of the cause of action, as ex contractu and delicto, in contract and in tort,[1] and certain classes of actions which have been held to be neither strictly in contract nor strictly in tort have been termed quasi ex contractu, and quasi ex delicto.[2] The distinction between an action in contract and one in tort is not one merely of form but is rather one of substance, the remedy in tort being broader than that in contract.[3] Actions in contract and in tort are to be distinguished in that an action in contract is for the breach of a duty arising out of a contract either express or implied,[4] while an action in tort is for a breach of duty imposed by law,[5] which arises from an obligation created by a relation,[6] ordinarily unconnected with a contract,[7] but may arise either independently of any contract or by virtue of certain contract relations.[8] In the latter, if the cause of action as stated arises from a breach of promise it is ex contractu, but if it arises from a breach of a duty growing out of the contract it is in form ex delicto even though it incidentally involves a breach of contract.[9] Tort law is traditionally concerned with compensation for injury to person or property, whereas contract law is concerned with agreement entered into by mutual obligation.[10] The traditional contract remedies are designed to redress loss of the benefit of the bargain,[11] while tort remedies may be designed to protect the public from dangerous products.[12] Also, contract actions protect the interest in having promises performed,[13] whereas tort actions protect the interest in freedom from various kinds of harm.[14] Furthermore, contract actions are created to enforce the intentions of the parties to the agreement and tort law is primarily designed to vindicate social policy.[15] A claim of equitable estoppel lies in tort, whereas a claim of promissory estoppel lies in contract.[16] CUMULATIVE SUPPLEMENT
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Cases: An action for the negligence of an attorney in the performance of professional services, while sounding in tort, is an action for breach of contract. Cox v. Geary, 271 Va. 141, 624 S.E.2d 16 (2006). [END OF SUPPLEMENT]
[FN1] Tenn.Smith v. Noe, 159 Tenn. 498, 19 S.W.2d 245 (1929). [FN2] N.Y.Willard v. Doran & Wright Co., 1 N.Y.S. 588 (Gen. Term 1888); Walker v. City of New York, 72 Misc. 97, 129 N.Y.S. 1059 (Sup 1911). Pa.Steward v. Renner, 87 Pa. Super. 411, 1926 WL 4201 (1926). [FN3] Mich.Barth v. Kliepera, 248 Mich. 460, 227 N.W. 757 (1929). [FN4] U.S.Stamp v. Union Stevedoring Corporation, 11 F.2d 172 (E.D. Pa. 1925); Cresci v. Standard Fisheries, 7 F.2d 378 (N.D. Cal. 1925); Kokusai Kisen Kabushiki Kaisha v. Argos Mercantile Corporation, 280 F. 700 (C.C.A. 2d Cir. 1922). Colo.Town of Alma v. Azco Const., Inc., 10 P.3d 1256 (Colo. 2000). Ga.Reynolds v. Speer, 38 Ga. App. 570, 144 S.E. 358 (1928). Ind.Federal Life Ins. Co. v. Maxam, 70 Ind. App. 266, 117 N.E. 801 (1917). Kan. Tamarac Development Co., Inc. v. Delamater, Freund & Associates, P.A., 234 Kan. 618, 675 P.2d 361 (1984); Haysville U.S.D. No. 261 v. GAF Corp., 233 Kan. 635, 666 P.2d 192, 12 Ed. Law Rep. 957 (1983); Guarantee Abstract & Title Co., Inc. v. Interstate Fire and Cas. Co., Inc., 232 Kan. 76, 652 P.2d 665 (1982); Atkinson v. Orkin Exterminating Co., Inc., 5 Kan. App. 2d 739, 625 P.2d 505 (1981), judgment aff'd and remanded, 230 Kan. 277, 634 P.2d 1071 (1981). Neb.L.J. Vontz Const. Co., Inc. v. State, Dept. of Roads, 230 Neb. 377, 432 N.W.2d 7 (1988). Or.Gearin v. Marion County, 110 Or. 390, 223 P. 929 (1924). [FN5] U.S.Federal Deposit Ins. Corp. v. Citizens Bank & Trust Co. of Park Ridge, Ill., 592 F.2d 364 (7th Cir. 1979). Colo.Town of Alma v. Azco Const., Inc., 10 P.3d 1256 (Colo. 2000). Ind.Federal Life Ins. Co. v. Maxam, 70 Ind. App. 266, 117 N.E. 801 (1917). Kan. Tamarac Development Co., Inc. v. Delamater, Freund & Associates, P.A., 234 Kan. 618, 675 P.2d 361 (1984); Haysville U.S.D. No. 261 v. GAF Corp., 233 Kan. 635, 666 P.2d 192, 12 Ed. Law Rep. 957 (1983); Guarantee Abstract & Title Co., Inc. v. Interstate Fire and Cas. Co., Inc., 232 Kan. 76, 652 P.2d 665 (1982).
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Neb.L.J. Vontz Const. Co., Inc. v. State, Dept. of Roads, 230 Neb. 377, 432 N.W.2d 7 (1988). N.C.Fisher v. Greensboro Water-Supply Co., 128 N.C. 375, 38 S.E. 912 (1901). N.J.Huck v. Gabriel Realty, 136 N.J. Super. 468, 346 A.2d 628 (Law Div. 1975). Or.Gearin v. Marion County, 110 Or. 390, 223 P. 929 (1924). [FN6] U.S.Stamp v. Union Stevedoring Corporation, 11 F.2d 172 (E.D. Pa. 1925). [FN7] Tex.Wartman v. Empire Loan Co., 45 Tex. Civ. App. 469, 101 S.W. 499 (1907). [FN8] N.Y.Busch v. Interborough Rapid Transit Co., 187 N.Y. 388, 80 N.E. 197 (1907). [FN9] Ala.Jefferson County v. Reach, 368 So. 2d 250 (Ala. 1978); U. S. Fidelity & Guaranty Co. v. Birmingham Oxygen Service, Inc., 290 Ala. 149, 274 So. 2d 615 (1973); Paul v. Escambia County Hospital Bd., 283 Ala. 488, 218 So. 2d 817 (1969). Ariz.Amphitheater Public Schools v. Eastman, 117 Ariz. 559, 574 P.2d 47 (Ct. App. Div. 2 1977). Cal. Tameny v. Atlantic Richfield Co., 27 Cal. 3d 167, 164 Cal. Rptr. 839, 610 P.2d 1330, 9 A.L.R.4th 314 (1980); Jones v. Kelly, 208 Cal. 251, 280 P. 942 (1929); Berning v. Colodny & Colodny, 103 Cal. App. 188, 284 P. 496 (1st Dist. 1930). Mich.Mintz v. Jacob, 163 Mich. 280, 128 N.W. 211 (1910). Okla.Uptegraft v. Home Ins. Co., 1983 OK 41, 662 P.2d 681 (Okla. 1983). Tex.Pecos & N.T. Ry. Co. v. Amarillo St. Ry. Co., 171 S.W. 1103 (Tex. Civ. App. Amarillo 1914). Existence of breach of contract as not precluding action in tort, see 137. [FN10] U.S.Corporate Air Fleet of Tennessee, Inc. v. Gates Learjet, Inc., 589 F. Supp. 1076 (M.D. Tenn. 1984). [FN11] Ariz.Arrow Leasing Corp. v. Cummins Arizona Diesel, Inc., 136 Ariz. 444, 666 P.2d 544 (Ct. App. Div. 1 1983). N.Y.Queensbury Union Free School Dist. v. Jim Walter Corp., 94 A.D.2d 834, 463 N.Y.S.2d 114, 11 Ed. Law Rep. 593 (3d Dep't 1983). [FN12] Ariz.Arrow Leasing Corp. v. Cummins Arizona Diesel, Inc., 136 Ariz. 444, 666 P.2d 544 (Ct. App. Div. 1 1983). [FN13] Ark.L.L. Cole & Son, Inc. v. Hickman, 282 Ark. 6, 665 S.W.2d 278 (1984). Wis.Brockmeyer v. Dun & Bradstreet, 113 Wis. 2d 561, 335 N.W.2d 834 (1983) (rejected on other grounds by, Payne v. Rozendaal, 147 Vt. 488, 520 A.2d 586 (1986)). [FN14] U.S.Redgrave v. Boston Symphony Orchestra, Inc., 557 F. Supp. 230 (D. Mass. 1983).
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Ark.L.L. Cole & Son, Inc. v. Hickman, 282 Ark. 6, 665 S.W.2d 278 (1984). Wis.Brockmeyer v. Dun & Bradstreet, 113 Wis. 2d 561, 335 N.W.2d 834 (1983) (rejected on other grounds by, Payne v. Rozendaal, 147 Vt. 488, 520 A.2d 586 (1986)). [FN15] Cal.Erlich v. Menezes, 21 Cal. 4th 543, 87 Cal. Rptr. 2d 886, 981 P.2d 978 (1999). [FN16] Colo.Board of County Com'rs of Summit County v. DeLozier, 917 P.2d 714 (Colo. 1996). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 134 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action C. Contract and Tort 1. In General Topic Summary References Correlation Table 135. Necessity for determination West's Key Number Digest West's Key Number Digest, Action 27(1) Various reasons have been given for the necessity of determining whether a particular action is in contract or in tort. It frequently and for a variety of reasons becomes necessary to determine whether a particular action is in contract or in tort,[1] such as for the purpose of determining whether the action is brought by or against the proper parties,[2] whether the allegations of the complaint state a cause of action,[3] whether there has been a proper or improper joinder of actions,[4] and whether a contract referred to must be filed with the complaint.[5] The courts have given other reasons for the necessity of determining whether a particular action is in contract or in tort, such as to determine whether there is a variance between the summons and the complaint,[6] whether a proposed amendment is allowable,[7] whether an affidavit of defense is necessary,[8] whether a defendant may interpose a setoff or counterclaim,[9] whether a defendant may plead infancy,[10] coverture,[11] or the statute of frauds,[12] whether the action is dischargeable in bankruptcy,[13] and whether the action abates or survives the death of a party.[14] Also, various other reasons have been given for the necessity of determining whether a particular action is in contract or in tort, such as to ascertain whether the action is barred by the statute of limitations,[15] whether the action is referable,[16] whether an attachment may be issued,[17] whether a defendant may be arrested on mesne or final process in the action,[18] and whether a defendant is entitled to the benefit of a homestead exemption.[19] Other reasons that have been given for the necessity of determining whether a particular action is in contract or in tort include the determination of what is the proper form of judgment,[20] whether a verdict or judgment may properly be rendered against some of the defendants and in favor of the others,[21] whether the evidence is sufficient to sustain the verdict or judgment,[22] what is the proper rule as to damages,[23] and the determination of questions relating to costs.[24]
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[FN1] U.S.Genuine Panama Hat Works v. Webb, 36 F.2d 265 (S.D. N.Y. 1929). Cal.Rushing v. Pickwick Stages System, 113 Cal. App. 240, 298 P. 150 (1st Dist. 1931). La.Hodges v. General Motors Acceptance Corp., 141 So. 783 (La. Ct. App. 2d Cir. 1932). [FN2] N.J.State v. Oliver, 61 N.J.L. 154, 38 A. 693 (N.J. Sup. Ct. 1897). [FN3] Ind.Gentry v. Purcell, 84 Ind. 83, 1882 WL 6298 (1882). Wis.Potter v. Van Norman, 73 Wis. 339, 41 N.W. 524 (1889). [FN4] Ala.Whilden v. Merchants' & Planters' Nat. Bank, 64 Ala. 1, 1879 WL 1060 (1879). N.Y. First Const. Co. of Brooklyn v. Rapid Transit Subway Const. Co., 122 Misc. 145, 203 N.Y.S. 359 (Sup 1923), aff'd, 211 A.D. 184, 206 N.Y.S. 822 (1st Dep't 1924); Central Gas & Electric Fixture Co. v. Sheridan, 1 Misc. 386, 22 N.Y.S. 76 (City Ct. 1892). [FN5] Ind.Rauh v. Stevens, 21 Ind. App. 650, 52 N.E. 997 (1899). [FN6] N.Y.Prudden v. City of Lockport, 43 How. Pr. 286, 1870 WL 7217 (N.Y. Sup 1870). [FN7] Ala.Holland v. Southern Exp. Co., 114 Ala. 128, 21 So. 992 (1897). [FN8] U.S.Naylor & Co. v. Lehigh Valley R. Co., 188 F. 860 (C.C.E.D. Pa. 1911). [FN9] N.Y.Stoneman v. Van Vechten, 46 A.D. 370, 61 N.Y.S. 513 (3d Dep't 1899), aff'd, 165 N.Y. 666, 59 N.E. 1131 (1901). [FN10] N.Y.Studwell v. Shapter, 54 N.Y. 249, 1873 WL 10474 (1873); Munger v. Hess, 28 Barb. 75, 1858 WL 7100 (N.Y. Gen. Term 1858). [FN11] Ala.Britt v. Pitts, 111 Ala. 401, 20 So. 484 (1896). [FN12] Mo. Nichols v. Commercial Bank of Burlington Junction, 55 Mo. App. 81, 1893 WL 1604 (1893). [FN13] Ga.Symmes v. Rollins, 39 Ga. App. 53, 146 S.E. 42 (1928). Minn.Burleson v. Langdon, 174 Minn. 264, 219 N.W. 155 (1928). [FN14] Ga.Alexander v. Dean, 157 Ga. 280, 121 S.E. 238 (1924). [FN15] Cal.Harding v. Liberty Hospital Corp., 177 Cal. 520, 171 P. 98 (1918). La.Hodges v. General Motors Acceptance Corp., 141 So. 783 (La. Ct. App. 2d Cir. 1932); American Heating & Plumbing Co. v. West End Country Club, 171 La. 482, 131 So. 466 (1930); Liles v. Barnhart, 152 La. 419, 93 So. 490 (1922). N.Y. Monohan v. Devinny, 131 Misc. 248, 225 N.Y.S. 601 (Sup 1927), order modified on other
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grounds, 223 A.D. 547, 229 N.Y.S. 60 (3d Dep't 1928). [FN16] N.Y.Willard v. Doran & Wright Co., 1 N.Y.S. 345 (Gen. Term 1888). [FN17] Cal.Stanford Hotel Co. v. M. Schwind Co., 180 Cal. 348, 181 P. 780 (1919). [FN18] Wis.State ex rel. Alliance Elevator Co. v. Helms, 101 Wis. 280, 77 N.W. 194 (1898). [FN19] Va.Jewett v. Ware, 107 Va. 802, 60 S.E. 131 (1908). [FN20] N.C.Fisher v. Greensboro Water-Supply Co., 128 N.C. 375, 38 S.E. 912 (1901). Pa.Lovell Mfg. Co. v. Dougherty, 5 Kulp 148, 5 Pa.C.C. 399, 1888 WL 3965 (Pa.Com.Pl. 1888). [FN21] U.S.Chaffee & Co. v. U.S., 85 U.S. 516, 21 L. Ed. 908 (1873). [FN22] Minn.Mykleby v. Chicago, St. P., M. & O.R. Co., 39 Minn. 54, 38 N.W. 763 (1888). [FN23] Ga.Louisville & N.R. Co. v. Spinks, 104 Ga. 692, 30 S.E. 968 (1898). [FN24] N.Y.Lange v. Schile, 111 A.D. 613, 98 N.Y.S. 81 (1st Dep't 1906). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 135 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action C. Contract and Tort 1. In General Topic Summary References Correlation Table 136. Mode of determination West's Key Number Digest West's Key Number Digest, Action 27(1) The nature of an action as in contract or in tort is determined from the essential allegations of the complaint, taken as a whole. Whether an action is in contract or in tort must be determined from the pleadings,[1] and by an examination and construction of the essential allegations of the complaint,[2] rather than from the form adopted by the pleader,[3] what the pleader calls it,[4] the understanding of counsel[5] or the trial court,[6] or from the judgment rendered,[7] and the question must be determined with reference to the complaint as a whole, and not by particular words or allegations considered apart from the context.[8] Where on the facts the action may sound in contract or tort or in both, the court itself may determine the real character of the action.[9] While the prayer for relief or measure of damages sought does not necessarily determine the character of the action,[10] nor is it binding or conclusive,[11] it may be material in the determination of the question, and is therefore entitled to consideration,[12] and in cases of doubt will often determine the character of the action.[13] So, where relief or a measure of recovery is sought which is adapted to one form of action only, the action will be considered as such.[14] Where the damages sought are not consistent with an action in contract, it will be construed as in tort.[15] Where, under the circumstances, either form of action might be maintained, it must be determined from the allegations of the complaint what is the gravamen of the complaint and substance of the cause of action relied on.[16] Where a complaint states a cause of action in contract and it appears that this is the gravamen of the complaint, the nature of the action as ex contractu is not affected or changed by the fact that there are also allegations in regard to tortious conduct on the part of defendant,[17] such as allegations in regard to negligence,[18] or fraud,[19] or conversion.[20] Conversely, if the complaint states a cause of action in tort and it appears that this is the gravamen of the complaint, the nature of the action as ex delicto is not affected or changed by allegations in regard to the existence or breach of a contract,[21] which may be disregarded as surplusage,[22] or treated as matter of induce-
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ment,[23] as where the contract serves merely to show the relation between the parties and the existence and nature of the duty out of which the liability in tort arose.[24] To be construed as in tort, however, the wrong ascribed to defendant must be the gist of the action, the contract being collateral.[25] The action, in the case of doubt, should be construed to uphold it rather than to defeat it, as the court presumes the pleader's purpose is to serve his or her best interest.[26] Accordingly, the action should ordinarily be so construed as to sustain the complaint if the allegations are sufficient to state a good cause of action in contract, but not in tort,[27] or vice versa,[28] or so as to sustain the jurisdiction if the court would have jurisdiction of the action in one form but not in the other;[29] or so as to avoid the bar of the statute of limitations if the action would be barred in one form but not in the other.[30] A complaint will be construed as in contract or in tort if necessary to sustain it against the objection of a variance in the proof,[31] and so as to avoid a plea of misjoinder where several counts are joined in the complaint,[32] unless forbidden by some recognized and inflexible rule of pleading,[33] and so as otherwise to sustain the judgment.[34] Where there is doubt or it is not clear whether an action is in contract or in tort, it will ordinarily be construed as in contract rather than in tort,[35] a contrary tendency existing in regard to actions against common carriers.[36]
[FN1] Ill.Malina v. Oplatka, 304 Ill. 381, 136 N.E. 666 (1922). Ind.Gentry v. Purcell, 84 Ind. 83, 1882 WL 6298 (1882). Kan. Cairo Co-op. Exchange v. First Nat. Bank of Cunningham, 228 Kan. 613, 620 P.2d 805, 30 U.C.C. Rep. Serv. 1025 (1980), reh'g denied and opinion modified on other grounds, 229 Kan. 184, 624 P.2d 420 (1981). Mich.Nicholson v. Han, 12 Mich. App. 35, 162 N.W.2d 313, 33 A.L.R.3d 1386 (1968). N.H.J. Dunn & Sons, Inc. v. Paragon Homes of New England, Inc., 110 N.H. 215, 265 A.2d 5 (1970). N.Y. Churchill v. St. George Development Co. of Florida, 174 A.D. 1, 160 N.Y.S. 357 (4th Dep't 1916). Or.Gearin v. Marion County, 110 Or. 390, 223 P. 929 (1924). Wash.Gazija v. Nicholas Jerns Co., 86 Wash. 2d 215, 543 P.2d 338 (1975). Wis.Kewaunee County Sup'rs v. Decker, 30 Wis. 624, 1872 WL 3139 (1872). [FN2] Cal.Berning v. Colodny & Colodny, 103 Cal. App. 188, 284 P. 496 (1st Dist. 1930). Colo.Thuringer v. Bonner, 74 Colo. 539, 222 P. 1118 (1924); Haynie v. Sites, 56 Colo. 115, 138 P. 42 (1913). Ind.Holt Ice & Cold-Storage Co. v. Arthur Jordan Co., 25 Ind. App. 314, 57 N.E. 575 (1900).
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La.State ex rel. Guste v. Simoni, Heck and Associates, 297 So. 2d 918 (La. Ct. App. 1st Cir. 1974). Neb.Henriksen v. Gleason, 263 Neb. 840, 643 N.W.2d 652 (2002); Cimino v. FirsTier Bank, N.A., 247 Neb. 797, 530 N.W.2d 606 (1995); Thomas v. Countryside of Hastings, Inc., 246 Neb. 907, 524 N.W.2d 311 (1994). Nev.Calloway v. City of Reno, 116 Nev. 250, 993 P.2d 1259 (2000). N.C.Roebuck v. Short, 196 N.C. 61, 144 S.E. 515 (1928). Wash.Mueller v. Winston Bros. Co., 165 Wash. 130, 4 P.2d 854 (1931). [FN3] U.S.Wolfe v. Continental Cas. Co., 647 F.2d 705, 22 Ohio Op. 3d 144 (6th Cir. 1981). Ariz.Wenk v. Horizon Moving & Storage Co., 131 Ariz. 131, 639 P.2d 321 (1982). Cal.Voth v. Wasco Public Util. Dist., 56 Cal. App. 3d 353, 128 Cal. Rptr. 608 (5th Dist. 1976); Rushing v. Pickwick Stages System, 113 Cal. App. 240, 298 P. 150 (1st Dist. 1931); Nathan v. Locke, 108 Cal. App. 158, 287 P. 550 (1st Dist. 1930), aff'd on reh'g, 108 Cal. App. 158, 291 P. 286 (1st Dist. 1930). Mo.Hunter v. Sloan, 195 Mo. App. 69, 190 S.W. 57 (1916). Neb.Henriksen v. Gleason, 263 Neb. 840, 643 N.W.2d 652 (2002); Cimino v. FirsTier Bank, N.A., 247 Neb. 797, 530 N.W.2d 606 (1995); Thomas v. Countryside of Hastings, Inc., 246 Neb. 907, 524 N.W.2d 311 (1994). Nev.Calloway v. City of Reno, 116 Nev. 250, 993 P.2d 1259 (2000). Wash.Gazija v. Nicholas Jerns Co., 86 Wash. 2d 215, 543 P.2d 338 (1975). [FN4] N.H. French v. R.S. Audley, Inc., 123 N.H. 476, 464 A.2d 279 (1983); Town of Madbury v. State, 115 N.H. 196, 340 A.2d 103 (1975); J. Dunn & Sons, Inc. v. Paragon Homes of New England, Inc., 110 N.H. 215, 265 A.2d 5 (1970). Wash.Gazija v. Nicholas Jerns Co., 86 Wash. 2d 215, 543 P.2d 338 (1975). [FN5] Ill. Malina v. Oplatka, 223 Ill. App. 236, 1921 WL 1921 (1st Dist. 1921), rev'd on other grounds, 304 Ill. 381, 136 N.E. 666 (1922). Wash.Gazija v. Nicholas Jerns Co., 86 Wash. 2d 215, 543 P.2d 338 (1975). [FN6] Ill. Malina v. Oplatka, 223 Ill. App. 236, 1921 WL 1921 (1st Dist. 1921), rev'd on other grounds, 304 Ill. 381, 136 N.E. 666 (1922). Wash.Gazija v. Nicholas Jerns Co., 86 Wash. 2d 215, 543 P.2d 338 (1975). [FN7] Ill. Malina v. Oplatka, 223 Ill. App. 236, 1921 WL 1921 (1st Dist. 1921), rev'd on other grounds, 304 Ill. 381, 136 N.E. 666 (1922).
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[FN8] Cal.Berning v. Colodny & Colodny, 103 Cal. App. 188, 284 P. 496 (1st Dist. 1930). La.Kohn v. Carrollton, 10 La.Ann. 719, 1855 WL 4735 (La. 1855). Mich.Nicholson v. Han, 12 Mich. App. 35, 162 N.W.2d 313, 33 A.L.R.3d 1386 (1968). N.Y.Foote v. Ffoulke, 55 A.D. 617, 67 N.Y.S. 368 (1st Dep't 1900). Wash.Gazija v. Nicholas Jerns Co., 86 Wash. 2d 215, 543 P.2d 338 (1975). [FN9] Ark.L.L. Cole & Son, Inc. v. Hickman, 282 Ark. 6, 665 S.W.2d 278 (1984). [FN10] N.Y.Thompson v. Strauss, 29 Hun 256 (N.Y. Gen. Term 1883). [FN11] Mo.Hunter v. Sloan, 195 Mo. App. 69, 190 S.W. 57 (1916). [FN12] N.Y. Central Gas & Electric Fixture Co. v. Sheridan, 1 Misc. 386, 22 N.Y.S. 76 (City Ct. 1892); Chambers v. Lewis, 10 Abb. Pr. 206, 1860 WL 7126 (N.Y.C.P. 1860), aff'd, 28 N.Y. 454, 16 Abb. Pr. 433, 1863 WL 4347 (1863). Tenn.Harvest Corp. v. Ernst & Whinney, 610 S.W.2d 727 (Tenn. Ct. App. 1980). Wis.Lane v. Frawley, 102 Wis. 373, 78 N.W. 593 (1899); Van Oss v. Synon, 85 Wis. 661, 56 N.W. 190 (1893). [FN13] N.Y. Chambers v. Lewis, 10 Abb. Pr. 206, 1860 WL 7126 (N.Y.C.P. 1860), aff'd, 28 N.Y. 454, 16 Abb. Pr. 433, 1863 WL 4347 (1863). [FN14] Ala.Whilden v. Merchants' & Planters' Nat. Bank, 64 Ala. 1, 1879 WL 1060 (1879). N.Y.Frankel v. Wolper, 181 A.D. 485, 169 N.Y.S. 15 (2d Dep't 1918), aff'd, 228 N.Y. 582, 127 N.E. 913 (1920). OhioKirchner v. Smith, 18 Ohio C.D. 45, 1905 WL 1176 (Ohio Cir. Ct. 1905). Tex. First Nat. Bank v. Martin & Co., 162 S.W. 1029 (Tex. Civ. App. Austin 1914), writ refused, (Apr. 15, 1914). [FN15] Colo.Thuringer v. Bonner, 74 Colo. 539, 222 P. 1118 (1924). [FN16] U.S. Board of Com'rs of Kay County, Okl. v. Pollard-Campbell Dredging Co., 251 F. 249 (C.C.A. 8th Cir. 1918). Colo.Haynie v. Sites, 56 Colo. 115, 138 P. 42 (1913). [FN17] U.S.Redgrave v. Boston Symphony Orchestra, Inc., 557 F. Supp. 230 (D. Mass. 1983). Cal.Nathan v. Locke, 108 Cal. App. 158, 287 P. 550 (1st Dist. 1930), aff'd on reh'g, 108 Cal. App. 158, 291 P. 286 (1st Dist. 1930).
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Colo.Frankfort Oil Co. v. Abrams, 159 Colo. 535, 413 P.2d 190 (1966). Fla.American Intern. Land Corp. v. Hanna, 323 So. 2d 567 (Fla. 1975). Neb.Lincoln Grain, Inc. v. Coopers & Lybrand, 216 Neb. 433, 345 N.W.2d 300 (1984). N.Y.Price v. Parker, 44 Misc. 582, 90 N.Y.S. 98 (Sup 1904). [FN18] U.SGenuine Panama Hat Works v. Webb, 36 F.2d 265 (S.D. N.Y. 1929); Chipman v. Lollar, 304 F. Supp. 440 (N.D. Miss. 1969). Ala.Western Union Telegraph Co. v. Bowen, 16 Ala. App. 253, 76 So. 985 (1917). N.Y.Welch v. Jamaica Water Supply Co., 171 N.Y.S. 101 (App. Term 1918); Archibald v. Hill Sanatorium, 121 Misc. 193, 201 N.Y.S. 86 (Sup 1923). [FN19] N.Y.Graves v. Waite, 59 N.Y. 156, 1874 WL 11371 (1874). [FN20] U.S. Board of Com'rs of Kay County, Okl. v. Pollard-Campbell Dredging Co., 251 F. 249 (C.C.A. 8th Cir. 1918). N.Y.Paradies-Carroll Co. v. Lyman, 193 A.D. 766, 184 N.Y.S. 604 (1st Dep't 1920). Wis.Van Oss v. Synon, 85 Wis. 661, 56 N.W. 190 (1893). [FN21] U.S.Garland v. Davis, 45 U.S. 131, 4 How. 131, 11 L. Ed. 907 (1846); Attleboro Mfg. Co. v. Frankfort Marine, Acc. & Plate Glass Ins. Co., 240 F. 573 (C.C.A. 1st Cir. 1917); Redgrave v. Boston Symphony Orchestra, Inc., 557 F. Supp. 230 (D. Mass. 1983). Cal.Harding v. Liberty Hospital Corp., 177 Cal. 520, 171 P. 98 (1918); Rushing v. Pickwick Stages System, 113 Cal. App. 240, 298 P. 150 (1st Dist. 1931); Nathan v. Locke, 108 Cal. App. 158, 287 P. 550 (1st Dist. 1930), aff'd on reh'g, 108 Cal. App. 158, 291 P. 286 (1st Dist. 1930). Ga.Luke v. Du Pree, 158 Ga. 590, 124 S.E. 13 (1924); McCranie v. Bank of Willacoochee, 29 Ga. App. 552, 116 S.E. 202 (1923). Mich.City of Kalamazoo v. Standard Paper Co., 182 Mich. 476, 148 N.W. 743 (1914). N.Y. First Const. Co. of Brooklyn v. Rapid Transit Subway Const. Co., 122 Misc. 145, 203 N.Y.S. 359 (Sup 1923), aff'd, 211 A.D. 184, 206 N.Y.S. 822 (1st Dep't 1924). S.C.Cabe v. Ligon, 115 S.C. 376, 105 S.E. 739 (1921). [FN22] Pa.Dungan v. Read, 167 Pa. 393, 31 A. 639 (1895). [FN23] U.S.Chesapeake & O. Ry. Co. v. Patton, 23 App. D.C. 113 (App. D.C. 1904). IowaCowan v. W.U. Tel. Co., 122 Iowa 379, 98 N.W. 281 (1904). [FN24] U.S.Garland v. Davis, 45 U.S. 131, 4 How. 131, 11 L. Ed. 907 (1846); Blackshear Mfg. Co.
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v. Umatilla Fruit Co., 48 F.2d 174 (C.C.A. 5th Cir. 1931); Attleboro Mfg. Co. v. Frankfort Marine, Acc. & Plate Glass Ins. Co., 240 F. 573 (C.C.A. 1st Cir. 1917). Fla.Banfield v. Addington, 104 Fla. 661, 140 So. 893 (1932). Ga.Luke v. Du Pree, 158 Ga. 590, 124 S.E. 13 (1924). Mich.Chase v. Clinton County, 241 Mich. 478, 217 N.W. 565 (1928). Mo.Applegate v. Quincy, O. & K.C.R. Co., 252 Mo. 173, 158 S.W. 376 (1913). Okla. Jackson v. Central Torpedo Co., 1926 OK 434, 117 Okla. 245, 246 P. 426, 46 A.L.R. 338 (1926). [FN25] U.S. Closed Circuit Corp. of America v. Jerrold Electronics Corp., 426 F. Supp. 361, 22 U.C.C. Rep. Serv. 716 (E.D. Pa. 1977). Tenn.Smith v. Noe, 159 Tenn. 498, 19 S.W.2d 245 (1929). [FN26] Ga.Monroe v. Guess, 41 Ga. App. 697, 154 S.E. 301 (1930). UtahJuab County Dept. of Public Welfare v. Summers, 19 Utah 2d 49, 426 P.2d 1 (1967). [FN27] Colo.Haynie v. Sites, 56 Colo. 115, 138 P. 42 (1913). HawaiiBraham v. Honolulu Amusement Co., 21 Haw. 583, 1913 WL 1656 (1913). [FN28] N.Y.Allen v. Allen, 5 N.Y.S. 518 (Gen. Term 1889). [FN29] Ga.Wright v. Southern Ry. Co., 7 Ga. App. 542, 67 S.E. 272 (1910). N.C.White v. Eley, 145 N.C. 36, 58 S.E. 437 (1907); Brittain v. Payne, 118 N.C. 989, 24 S.E. 711 (1896). [FN30] IowaMatthys v. Donelson, 179 Iowa 1111, 160 N.W. 944 (1917). [FN31] Colo.Haynie v. Sites, 56 Colo. 115, 138 P. 42 (1913). [FN32] N.Y.Roth v. Palmer, 27 Barb. 652, 1858 WL 7087 (N.Y. Gen. Term 1858). W.Va.Chambers v. Spruce Lighting Co., 81 W. Va. 714, 95 S.E. 192 (1918). [FN33] W.Va.Chambers v. Spruce Lighting Co., 81 W. Va. 714, 95 S.E. 192 (1918). [FN34] Ala.Dothan Chero-Cola Bottling Co. v. Weeks, 16 Ala. App. 639, 80 So. 734 (1918). [FN35] U.S.Felder v. Great Am. Ins. Co., 260 F. Supp. 575 (D.S.C. 1966). Ariz.Andersen v. Thude, 42 Ariz. 271, 25 P.2d 272 (1933). Cal.Voth v. Wasco Public Util. Dist., 56 Cal. App. 3d 353, 128 Cal. Rptr. 608 (5th Dist. 1976); Nath-
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an v. Locke, 108 Cal. App. 158, 287 P. 550 (1st Dist. 1930), aff'd on reh'g, 108 Cal. App. 158, 291 P. 286 (1st Dist. 1930). Mont.Travelers Indem. Co. v. Andersen, 1999 MT 201, 295 Mont. 438, 983 P.2d 999 (1999). N.Y.Kosolapov v. Russo-Asiatic Bank, 240 A.D. 731, 265 N.Y.S. 695 (2d Dep't 1933); May v. Georger, 21 Misc. 622, 47 N.Y.S. 1057 (App. Term 1897). S.C. Seebaldt v. First Federal Sav. & Loan Ass'n, 269 S.C. 691, 239 S.E.2d 726 (1977); Lawson v. Metropolitan Life Ins. Co., 169 S.C. 540, 169 S.E. 430 (1933); Timmons v. Williams Wood Products Corp., 164 S.C. 361, 162 S.E. 329 (1932). Wyo.Tuttle v. Short, 42 Wyo. 1, 288 P. 524, 70 A.L.R. 106 (1930). [FN36] 153, 154. Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 136 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action C. Contract and Tort 1. In General Topic Summary References Correlation Table 137. Principles governing choice of remedy West's Key Number Digest West's Key Number Digest, Action 27(1) In determining whether an action to be brought should be in contract or in tort, the nature of the duty violated as arising out of agreement of the parties or as arising from law apart from any agreement governs. The same circumstances may constitute a breach of both of such duties, in which case the wronged party may bring his or her action in contract or tort. In determining the choice of remedy as between an action in contract and an action in tort the source of the duty violated must be ascertained.[1] As contractual duties proper have their origin in, and derive their vitality directly from, the assent of the parties, a mere breach of such duties does not constitute a tort, and hence if there is no liability except that arising out of a breach of a purely contractual duty, the action must be in contract, and an action in tort cannot be maintained,[2] even if the breach of contract be malicious.[3] Conversely, the commission of a tort does not necessarily give rise to any implied promise to compensate the injured party,[4] and for a breach of duty, where there is no contractual relation either express or implied, only an action of tort can be maintained.[5] It is not the character of the act constituting the breach which necessarily determines the remedy;[6] rather it is the character or nature of the duty or duties breached which determines the remedy or remedies available.[7] A cause of action founded upon a violation of public policy or a statute is a tort action.[8] The same act or transaction may, however, constitute both a breach of contract and a tort, in which case, but subject to the limitation that he or she cannot recover twice for the same wrong, the injured party may sue either in contract or in tort,[9] such as where the act complained of consists of the violation of some duty merely incident to, or arising out of, a contract.[10] There are also certain classes of contracts which create a relation out of which certain duties arise as implied by law independently of the express terms of the contract, a breach of which will constitute a tort, and in such cases an injured party may sue either for breach of the contract or in tort for breach of the duty imposed by law, the rule being that, where there is a breach of duty imposed by law, an action in tort is not precluded because
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such duty arises out of a contract relation.[11] However, in such a case, where the only relation between the parties is contractual, for one of them to proceed as in tort the liability must arise out of a positive duty which the law imposes because of the relationship, or because of the negligent manner in which some act provided for in the contract is done, a mere breach of an executory contract where there is no general duty not being the basis of such an action.[12] The rule also applies in the case of the contractual relation between insurance company and insured,[13] pledgor and pledgee,[14] and between public service corporations, or persons exercising such franchises, and their patrons,[15] such as gas and water companies.[16] There may be, of course, as between parties standing in such relations, positive wrongs for which an action in tort may be maintained independently of the contract relation;[17] and on the other hand, there may be contract obligations a breach of which will not constitute a breach of public duty, and for which the remedy is exclusively in contract.[18] There is another class of cases where, although there is no original contractual relation, the commission of a tort will give rise to an implied promise, and in such cases the injured party may sue either for the tort or in contract upon the implied promise, the tort, if the action is brought in contract, being waived.[19] This rule is most frequently applied in cases of conversion of personal property,[20] and has also been applied in certain cases of fraud,[21] and of trespass.[22] A party may not circumvent a barred tort action by pleading it as one for a breach of contract.[23] An incidental beneficiary of a contract may sue only in tort, but has the prerogative of using the contract to assist in establishing the measure of care due under the circumstances.[24] Economic losses; products liability. A plaintiff cannot recover in tort for purely economic losses against a party with whom it is in privity of contract,[25] and it is immaterial whether the theory involved is strict liability or negligence.[26] Two factors determine whether tort or contract law governs action involving a defective product: the nature of the defect, and the manner in which the injury occurred.[27] When the defect of a product is of a qualitative nature, and the alleged harm relates to a consumer's expectation that the product is of a particular quality resulting in solely economic injury, without personal injury or other property damage, the appropriate remedy lies in contract and not in tort.[28] In a product liability case, regardless of whether the liability is claimed on a breach of warranty or negligence theory, the action sounds in tort.[29] A purchaser of a defective product may proceed either in tort or contract as the manufacturer's act of delivering a defective thing gives rise to delictual, as well as contractual, liability.[30] CUMULATIVE SUPPLEMENT Cases: Baseball umpire, who was attacked by parent of high school baseball player after game, presented substantial evidence showing that board of education failed to perform its contractual duties and that, as a result of board's breach of contract, umpire was harmed, and, thus, umpire's complaint against board sounded in contract, not in tort; contract between board of education and high school athletic association stated that principals were to provide good game administration and supervision by providing adequate police protection, and parent testi-
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fied that, if police protection had been provided, he would not have attacked umpire. Locke v. Ozark City Bd. of Educ., 910 So. 2d 1247, 202 Ed. Law Rep. 431 (Ala. 2005). [END OF SUPPLEMENT]
[FN1] Ill. Schneider v. Fort Dearborn Casualty Underwriters, 258 Ill. App. 58, 1930 WL 3150 (4th Dist. 1930). [FN2] U.S.Wolfe v. Continental Cas. Co., 647 F.2d 705, 22 Ohio Op. 3d 144 (6th Cir. 1981); Hanson v. Aetna Life & Cas., 625 F.2d 573 (5th Cir. 1980); Coastal Plains Feeders, Inc. v. Hartford Fire Ins. Co., 545 F.2d 448 (5th Cir. 1977); Wood v. Citronelle-Mobile Gathering System Co., 409 F.2d 367 (5th Cir. 1968); Willey v. Alaska Packers' Ass'n, 9 F.2d 937 (N.D. Cal. 1925), aff'd, 18 F.2d 8 (C.C.A. 9th Cir. 1927); Towers Tenant Ass'n, Inc. v. Towers Ltd. Partnership, 563 F. Supp. 566 (D.D.C. 1983); Robbins v. Ogden Corp., 490 F. Supp. 801 (S.D. N.Y. 1980). Ala.C & C Products, Inc. v. Premier Indus. Corp., 290 Ala. 179, 275 So. 2d 124 (1972); Paul v. Escambia County Hospital Bd., 283 Ala. 488, 218 So. 2d 817 (1969); Hamner v. Mutual of Omaha Ins. Co., 49 Ala. App. 214, 270 So. 2d 87 (Civ. App. 1972). Cal.Nathan v. Locke, 108 Cal. App. 158, 287 P. 550 (1st Dist. 1930), aff'd on reh'g, 108 Cal. App. 158, 291 P. 286 (1st Dist. 1930). Colo.Frankfort Oil Co. v. Abrams, 159 Colo. 535, 413 P.2d 190 (1966). Del.Garber v. Whittaker, 36 Del. 272, 174 A. 34 (Super. Ct. 1934). Fla.Douglas v. Braman Porsche Audi, Inc., 451 So. 2d 1038 (Fla. Dist. Ct. App. 3d Dist. 1984). Ga. Commercial Bank & Trust Co. v. Buford, 145 Ga. App. 213, 243 S.E.2d 637 (1978); Wittke v. Horne's Enterprises, Inc., 118 Ga. App. 211, 162 S.E.2d 898 (1968). Ill. Schneider v. Fort Dearborn Casualty Underwriters, 258 Ill. App. 58, 1930 WL 3150 (4th Dist. 1930). Ind.Federal Life Ins. Co. v. Maxam, 70 Ind. App. 266, 117 N.E. 801 (1917). Neb.McNeel v. State, 120 Neb. 674, 234 N.W. 786 (1931). Nev.Walser v. Moran, 42 Nev. 111, 180 P. 492 (1919). N.H.Lawton v. Great Southwest Fire Ins. Co., 118 N.H. 607, 392 A.2d 576 (1978). N.M.Stern v. Farah Bros., 17 N.M. 516, 133 P. 400 (1913). N.Y.Schick v. Fleischhauer, 26 A.D. 210, 49 N.Y.S. 962 (1st Dep't 1898). Tenn.Harvest Corp. v. Ernst & Whinney, 610 S.W.2d 727 (Tenn. Ct. App. 1980).
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[FN3] U.S. Battista v. Lebanon Trotting Ass'n, 538 F.2d 111, 3 Ohio Op. 3d 230 (6th Cir. 1976); Felder v. Great Am. Ins. Co., 260 F. Supp. 575 (D.S.C. 1966). Minn.Wild v. Rarig, 302 Minn. 419, 234 N.W.2d 775 (1975). N.Y.Higgins v. Applebaum, 186 A.D. 682, 174 N.Y.S. 807 (1st Dep't 1919). [FN4] Ala.Sloss Iron & Steel Co. v. Harvey, 116 Ala. 656, 22 So. 994 (1898). Ill.Ingersoll v. Moss, 44 Ill. App. 72, 1891 WL 2343 (1st Dist. 1892). [FN5] Del.Garber v. Whittaker, 36 Del. 272, 174 A. 34 (Super. Ct. 1934). Mass.Gorham v. Gross, 117 Mass. 442, 1875 WL 9082 (1875). Or.Gearin v. Marion County, 110 Or. 390, 223 P. 929 (1924). [FN6] Ala. Green v. Hospital Bldg. Authority of City of Bessemer, 294 Ala. 467, 318 So. 2d 701 (1975). [FN7] Ala. Green v. Hospital Bldg. Authority of City of Bessemer, 294 Ala. 467, 318 So. 2d 701 (1975). [FN8] Cal.Newfield v. Insurance Co. of the West, 156 Cal. App. 3d 440, 203 Cal. Rptr. 9 (2d Dist. 1984) (disapproved of on other grounds by, Foley v. Interactive Data Corp., 47 Cal. 3d 654, 254 Cal. Rptr. 211, 765 P.2d 373 (1988)). [FN9] U.S.Dantagnan v. I. L. A. Local 1418, AFL-CIO, 496 F.2d 400 (5th Cir. 1974); General Dynamics Corp. v. Selb Mfg. Co., 481 F.2d 1204, 17 Fed. R. Serv. 2d 1221 (8th Cir. 1973), (stating Texas law); Barrow Development Co. v. Fulton Ins. Co., 418 F.2d 316, 12 A.L.R. Fed. 420 (9th Cir. 1969). Cal. Jones v. Kelly, 208 Cal. 251, 280 P. 942 (1929); Zurich Ins. Co. v. Kings Industries, Inc., 255 Cal. App. 2d 919, 63 Cal. Rptr. 585 (2d Dist. 1967). Del.Garber v. Whittaker, 36 Del. 272, 174 A. 34 (Super. Ct. 1934). Fla.Parrish v. Clark, 107 Fla. 598, 145 So. 848 (1933). Ga.Foster Wheeler Corp. v. Georgia Power Co., 140 Ga. App. 261, 230 S.E.2d 494 (1976). Ill.Knox College v. Celotex Corp., 88 Ill. 2d 407, 58 Ill. Dec. 725, 430 N.E.2d 976 (1981). Ind.Strong v. Commercial Carpet Co., Inc., 163 Ind. App. 145, 322 N.E.2d 387 (1st Dist. 1975). Iowa Randall v. M.M. Moen Co., 206 Iowa 1319, 221 N.W. 944 (1928); Matthys v. Donelson, 179 Iowa 1111, 160 N.W. 944 (1917). La. Succession of Dubos, 453 So. 2d 323 (La. Ct. App. 4th Cir. 1984); Franklin v. Able Moving & Storage Co., Inc., 439 So. 2d 489 (La. Ct. App. 1st Cir. 1983).
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Mich.Williams v. Polgar, 43 Mich. App. 95, 204 N.W.2d 57 (1972), judgment aff'd, 391 Mich. 6, 215 N.W.2d 149 (1974). Mo.Davidson v. Hess, 673 S.W.2d 111 (Mo. Ct. App. E.D. 1984). N.H.Holmes v. Schnoebelen, 87 N.H. 272, 178 A. 258 (1935). N.J.Commercial Ins. Co. of Newark v. Apgar, 111 N.J. Super. 108, 267 A.2d 559 (Law Div. 1970). N.D.Golly v. Northland Elevator Co., 53 N.D. 564, 207 N.W. 438 (1926). Okla.Owens v. State, 1928 OK 652, 133 Okla. 183, 271 P. 938 (1928). Tex.K.W.S. Mfg. Co., Inc. v. McMahon, 565 S.W.2d 368 (Tex. Civ. App. Waco 1978), writ refused n.r.e., (Sept. 20, 1978). [FN10] Cal.Fisher v. Pennington, 116 Cal. App. 248, 2 P.2d 518 (1st Dist. 1931). Ga.Swann v. Wright, 180 Ga. 323, 179 S.E. 86 (1935). Ill.Sabath v. Mansfield, 60 Ill. App. 3d 1008, 18 Ill. Dec. 8, 377 N.E.2d 161 (1st Dist. 1978). IowaChrischilles v. Griswold, 260 Iowa 453, 150 N.W.2d 94 (1967). N.H.J. Dunn & Sons, Inc. v. Paragon Homes of New England, Inc., 110 N.H. 215, 265 A.2d 5 (1970). Tex.Huizar v. Four Seasons Nursing Centers of San Antonio, 562 S.W.2d 264 (Tex. Civ. App. San Antonio 1978), writ refused, (May 24, 1978). [FN11] U.S.Equilease Corp. v. State Federal Sav. and Loan Ass'n, 647 F.2d 1069 (10th Cir. 1981); General Dynamics Corp. v. Selb Mfg. Co., 481 F.2d 1204, 17 Fed. R. Serv. 2d 1221 (8th Cir. 1973). Ala.Spanish Fort Mobile Homes, Inc. v. Sebrite Corp., 369 So. 2d 777 (Ala. 1979); C & C Products, Inc. v. Premier Indus. Corp., 290 Ala. 179, 275 So. 2d 124 (1972). Cal. Tameny v. Atlantic Richfield Co., 27 Cal. 3d 167, 164 Cal. Rptr. 839, 610 P.2d 1330, 9 A.L.R.4th 314 (1980). Ga.Travelers Ins. Co. v. King, 160 Ga. App. 473, 287 S.E.2d 381 (1981); Sam Finley, Inc. v. Barnes, 156 Ga. App. 802, 275 S.E.2d 380 (1980). IdahoGalbraith v. Vangas, Inc., 103 Idaho 912, 655 P.2d 119 (Ct. App. 1982). Kan.Brueck v. Krings, 230 Kan. 466, 638 P.2d 904 (1982). Mo.Davidson v. Hess, 673 S.W.2d 111 (Mo. Ct. App. E.D. 1984). N.H.Lawton v. Great Southwest Fire Ins. Co., 118 N.H. 607, 392 A.2d 576 (1978). N.Y. North Shore Bottling Co. v. C. Schmidt & Sons, Inc., 22 N.Y.2d 171, 292 N.Y.S.2d 86, 239
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N.E.2d 189 (1968); Bouquet Brands Div. of J & D Food Sales, Inc. v. Citibank (New York State), N.A., 97 A.D.2d 936, 470 N.Y.S.2d 733 (3d Dep't 1983). Okla.Hall Jones Oil Corp. v. Claro, 1969 OK 113, 459 P.2d 858 (Okla. 1969). Tex.K.W.S. Mfg. Co., Inc. v. McMahon, 565 S.W.2d 368 (Tex. Civ. App. Waco 1978), writ refused n.r.e., (Sept. 20, 1978). Wash.Flessher v. Carstens Packing Co., 93 Wash. 48, 160 P. 14 (1916). Wyo.Cline v. Sawyer, 600 P.2d 725 (Wyo. 1979). [FN12] U.S.Attleboro Mfg. Co. v. Frankfort Marine, Acc. & Plate Glass Ins. Co., 240 F. 573 (C.C.A. 1st Cir. 1917). Ga.Commercial Bank & Trust Co. v. Buford, 145 Ga. App. 213, 243 S.E.2d 637 (1978). [FN13] U.S.Davis v. State Farm Fire and Cas. Co., 545 F. Supp. 370 (D. Nev. 1982). Cal.Johansen v. California State Auto. Assn. Inter-Ins. Bureau, 15 Cal. 3d 9, 123 Cal. Rptr. 288, 538 P.2d 744 (1975). D.C.Zitelman v. Metropolitan Ins. Agency, 482 A.2d 426 (D.C. 1984). Ga.Thomas v. Phoenix Mut. Life Ins. Co., 142 Ga. App. 550, 236 S.E.2d 510 (1977). IowaAmsden v. Grinnell Mut. Reinsurance Co., 203 N.W.2d 252 (Iowa 1972). Mont.Gibson v. Western Fire Ins. Co., 210 Mont. 267, 682 P.2d 725, 57 A.L.R.4th 773 (1984). N.Y.Appel v. People's Surety Co. of New York, 66 Misc. 562, 121 N.Y.S. 1116 (City Ct. 1910). [FN14] N.Y.International Bank v. Monteath, 39 N.Y. 297, 1868 WL 6264 (1868). [FN15] N.C.Penn v. Western Union Tel. Co., 159 N.C. 306, 75 S.E. 16 (1912). [FN16] N.Y.Welch v. Jamaica Water Supply Co., 171 N.Y.S. 101 (App. Term 1918). [FN17] N.Y.Keeler v. Clark, 18 Abb. Pr. 154, 1864 WL 3810 (N.Y. Sup 1864). Pa.Dungan v. Read, 167 Pa. 393, 31 A. 639 (1895). [FN18] Mo.Wernick v. St. Louis & S.F.R. Co., 131 Mo. App. 37, 109 S.W. 1027 (1908). [FN19] La.Roney v. Peyton, 159 So. 469 (La. Ct. App. 2d Cir. 1935), amended on other grounds, 160 So. 131 (La. Ct. App. 2d Cir. 1935). As to waiver, see 160. [FN20] Cal.Fountain v. City of Sacramento, 1 Cal. App. 461, 82 P. 637 (3d Dist. 1905).
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Del.Jester v. Knotts, 30 Del. 350, 7 Boyce 350, 57 A. 1094 (Super. Ct. 1904). Mont.Yancey v. Northern Pac. Ry. Co., 42 Mont. 342, 112 P. 533 (1910). N.J.Hirsch v. C.W. Leatherbee Lumber Co., 69 N.J.L. 509, 55 A. 645 (N.J. Sup. Ct. 1903). N.C.White v. Eley, 145 N.C. 36, 58 S.E. 437 (1907). Va.Tidewater Quarry Co. v. Scott, 105 Va. 160, 52 S.E. 835 (1906). [FN21] Mo.Garnett & Allen Paper Co. v. Midland Pub. Co., 156 Mo. App. 187, 136 S.W. 736 (1911) . N.Y.Byxbie v. Wood, 24 N.Y. 607, 1862 WL 4727 (1862). [FN22] Wis.Norden v. Jones, 33 Wis. 600, 1873 WL 2991 (1873). [FN23] Cal.Austin v. Regents of University of California, 89 Cal. App. 3d 354, 152 Cal. Rptr. 420 (2d Dist. 1979). [FN24] Ala. Burgreen Contracting Co., Inc. v. Goodman, 55 Ala. App. 209, 314 So. 2d 284 (Civ. App. 1975). [FN25] U.S. Hart Engineering Co. v. FMC Corp., 593 F. Supp. 1471, 39 U.C.C. Rep. Serv. 1313 (D.R.I. 1984); Instituto Nacional De Comercializacion Agricola (Indeca) v. Continental Illinois Nat. Bank and Trust Co. of Chicago, 530 F. Supp. 279, 32 U.C.C. Rep. Serv. 1564 (N.D. Ill. 1982). Ill.Heat Exchangers, Inc. v. Aaron Friedman, Inc., 96 Ill. App. 3d 376, 51 Ill. Dec. 828, 421 N.E.2d 336, 32 U.C.C. Rep. Serv. 1388 (1st Dist. 1981). [FN26] Ariz.Arrow Leasing Corp. v. Cummins Arizona Diesel, Inc., 136 Ariz. 444, 666 P.2d 544 (Ct. App. Div. 1 1983). [FN27] Ill.Trans States Airlines v. Pratt & Whitney Canada, Inc., 177 Ill. 2d 21, 224 Ill. Dec. 484, 682 N.E.2d 45, 32 U.C.C. Rep. Serv. 2d 623 (1997). [FN28] U.S. Jaskey Finance and Leasing v. Display Data Corp., 564 F. Supp. 160, 36 U.C.C. Rep. Serv. 26 (E.D. Pa. 1983) (stating Maryland law). Ill. Palatine Nat. Bank v. Charles W. Greengard Associates, Inc., 119 Ill. App. 3d 376, 74 Ill. Dec. 914, 456 N.E.2d 635 (2d Dist. 1983). [FN29] Mich. Citizens Cas. Co. of New York, N. Y. v. Aeroquip Corp., 10 Mich. App. 244, 159 N.W.2d 223 (1968). [FN30] La.Quattlebaum v. Hy-Reach Equipment Inc., 453 So. 2d 578 (La. Ct. App. 1st Cir. 1984), writ denied, 458 So. 2d 474 (La. 1984) and writ denied, 458 So. 2d 483 (La. 1984). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action C. Contract and Tort 1. In General Topic Summary References Correlation Table 138. Effect of statutory provisions West's Key Number Digest West's Key Number Digest, Action 27(1) While the formal distinctions between actions ex contractu and ex delicto have been done away with by statutes, the substantial distinctions between them remain. Under the statutory provisions abolishing the forms of action and providing for a single form of civil action,[1] there is no distinction in respect of matters of form between actions of contract and those of tort;[2] but as these provisions relate to matters of form, and do not abolish distinctions of substance,[3] the essential and substantial distinctions between actions in contract and in tort, and the principles by which the two classes of cases are governed, remain unchanged.[4] In pleading, a plaintiff is not required to label the action as one ex contractu or as one in tort, the facts alleged controlling,[5] and, whether the cause of action be one or the other, nothing more is required than a statement in ordinary language of the facts relied on for recovery, it being sufficient for plaintiff to set out the facts constituting his or her cause of action, in which case plaintiff may have whatever relief the pleadings and proof show that he or she is entitled to, whether in contract or in tort.[6] The complaint may be so framed as not to be sufficient upon both theories, but so that it is distinctively the one or the other, in which case if it is purely in contract plaintiff must establish the contract relied on, and cannot recover in tort,[7] and if it is purely in tort plaintiff must establish the tort, and cannot recover in contract.[8]
[FN1] 132. [FN2] Cal.Jones v. Steamship Cortes, 17 Cal. 487, 1861 WL 796 (1861). N.C.Bitting v. Thaxton, 72 N.C. 541, 1875 WL 2741 (1875). [FN3] As discussed in 132.
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[FN4] Ind.Holt Ice & Cold-Storage Co. v. Arthur Jordan Co., 25 Ind. App. 314, 57 N.E. 575 (1900). Okla.Robinson v. Oklahoma Fire Ins. Co., 1916 OK 109, 55 Okla. 52, 155 P. 202 (1916). Pa.Corry v. Pennsylvania R. Co., 194 Pa. 516, 45 A. 341 (1900). Wis.Howland v. Needham, 10 Wis. 495, 1860 WL 2469 (1860). [FN5] Conn.E. & F. Const. Co. v. Town of Stamford, 114 Conn. 250, 158 A. 551 (1932). S.C.Patterson v. Orangeburg Fertilizer Co., 117 S.C. 140, 108 S.E. 401 (1921). Tex.Pecos & N.T. Ry. Co. v. Amarillo St. Ry. Co., 171 S.W. 1103 (Tex. Civ. App. Amarillo 1914). [FN6] Cal.Jones v. Steamship Cortes, 17 Cal. 487, 1861 WL 796 (1861). Conn.E. & F. Const. Co. v. Town of Stamford, 114 Conn. 250, 158 A. 551 (1932). IowaFreeby v. Town of Sibley, 183 Iowa 827, 167 N.W. 770 (1918). S.C.Patterson v. Orangeburg Fertilizer Co., 117 S.C. 140, 108 S.E. 401 (1921). Tex.Pecos & N.T. Ry. Co. v. Amarillo St. Ry. Co., 171 S.W. 1103 (Tex. Civ. App. Amarillo 1914). [FN7] Minn.Minneapolis Harvester Works v. Smith, 30 Minn. 399, 16 N.W. 462 (1883). N.Y.Postal v. Cohn, 83 A.D. 27, 81 N.Y.S. 1089 (2d Dep't 1903); Sanford v. American District Tel. Co., 13 Misc. 88, 34 N.Y.S. 144 (C.P. 1895). [FN8] Colo.Harogis v. Royal Fuel Co., 65 Colo. 416, 176 P. 473 (1918). N.Y.People v. Denison, 19 Hun 137 (N.Y. Gen. Term 1879), aff'd, 80 N.Y. 656, 1880 WL 12437 (1880). S.C.Williams v. Standard Oil Co., 127 S.C. 430, 121 S.E. 363 (1924). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 138 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action C. Contract and Tort 1. In General Topic Summary References Correlation Table 139. Waiver of contract and action in tort West's Key Number Digest West's Key Number Digest, Action 28 A contract may not be waived and an action in tort maintained where there is present only a mere breach of contract; the contract may be thus waived, however, where the breach thereof also constitutes a breach of duty imposed by law. A party acquires no right to sue in tort by the waiving of a contract in the case of a mere breach of contract.[ 1] Where, however, the same act or transaction constitutes both a breach of contract and a breach of duty imposed by law independent of contract, the injured party may, except where the consequences of the tort involved in the latter are specifically provided for in the contract,[2] waive the contract and maintain an action in tort,[3] the foregoing being true in cases where a relation is created by a contract out of which duties arise, a breach of which will constitute a tort,[4] such as the relation which exists between a bailor and bailee,[5] or a shipper and a common carrier.[6] Where there is doubt as to the nature of the action as brought, the bringing of the action in a court which would not have jurisdiction if the action were in contract will be construed as a waiver of the contract and an election to sue in tort.[7] While as against an infant, it is permissible for one to waive a tort and maintain an action on an implied contract where the cause of action arises out of a tort, it is ordinarily held, upon the ground that infants cannot be held liable for their contracts, that where the real gist of the liability is a breach of contract, although accompanied by a fraud or other tort, the contract may not be waived and an action ex delicto maintained against the infant.[8]
[FN1] N.C.Lenoir Realty & Ins. Co. v. Corpening, 147 N.C. 613, 61 S.E. 528 (1908).
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Waiver of tort and action in contract, see 160 et seq. [FN2] Ga.Monroe v. Guess, 41 Ga. App. 697, 154 S.E. 301 (1930); Perry v. Griffin, 39 Ga. App. 170, 146 S.E. 567 (1929). [FN3] U.S. Norman's Heritage Real Estate Co. v. Aetna Cas. and Sur. Co., 727 F.2d 911 (10th Cir. 1984). Ala.Knowles v. Dark & Boswell, 211 Ala. 59, 99 So. 312 (1924). Ga.Martin v. Newberry, 169 Ga. 676, 151 S.E. 380 (1930); Newton Mfg. Co. v. White, 53 Ga. 395, 1874 WL 3096 (1874); Warren v. Mitchell Motors, 52 Ga. App. 58, 182 S.E. 205 (1935). IowaRandall v. M.M. Moen Co., 206 Iowa 1319, 221 N.W. 944 (1928). La.Liles v. Barnhart, 152 La. 419, 93 So. 490 (1922). Miss.T. G. Blackwell Chevrolet Co. v. Eshee, 261 So. 2d 481 (Miss. 1972). N.Y.Dresser v. Mercantile Trust Co., 124 A.D. 891, 108 N.Y.S. 577 (2d Dep't 1908). Okla.Brand v. International Investors Ins. Co., 1974 OK CIV APP 4, 521 P.2d 423 (Ct. App. Div. 2 1974). S.C.Patterson v. Orangeburg Fertilizer Co., 117 S.C. 140, 108 S.E. 401 (1921). [FN4] Ga. McDonald v. Eagle and Phenix Mfg. Co., 68 Ga. 839, 1882 WL 3322 (1882); Warren v. Mitchell Motors, 52 Ga. App. 58, 182 S.E. 205 (1935). [FN5] Kan.Continental Ins. Co. v. Windle, 214 Kan. 468, 520 P.2d 1235 (1974). [FN6] IowaOwens Bros. v. Chicago, R.I. & P. Ry. Co., 139 Iowa 538, 117 N.W. 762 (1908). Miss.Waters v. Mobile & O.R. Co., 74 Miss. 534, 21 So. 240 (1897). [FN7] N.C.White v. Eley, 145 N.C. 36, 58 S.E. 437 (1907). [FN8] Vt.Elwell v. Martin, 32 Vt. 217, 1859 WL 5461 (1859); West v. Moore, 14 Vt. 447, 1842 WL 3144 (1842). As to against whom waiver is available, generally, see 173. Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 139 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action C. Contract and Tort 2. Particular Actions Topic Summary References Correlation Table 140. Fraud, misrepresentation, and deceit West's Key Number Digest West's Key Number Digest, Action 27(1), (2) Whether fraud or deceit gives rise to an action on the contract or in tort depends upon whether there is involved a breach of contract or a duty imposed by law. Circumstances constituting both permit of a choice of remedy, and whether one or the other form has been selected depends upon what is the gravamen of the action as revealed by the complaint. The mere nonperformance or breach of a contract does not constitute a fraud or misrepresentation which will support an action for fraud and deceit,[1] and, although there are cases where from the circumstances constituting the fraud the law will imply a contract, and authorize an action either in tort or on the implied contract,[ 2] the tort, in case the action is brought in contract, a fraud of itself does not necessarily give rise to an implied contract which will support an action in contract.[3] The same act or transaction, however, may constitute both a breach of contract and an actionable fraud, in which case either an action in contract or in tort will lie.[4] Whether in particular cases the action is in contract or tort must be determined by a construction of the complaint.[5] In determining whether a cause of action for fraud sounds in contract or tort, and the damages that will arise therefrom, the source of the duty to abstain from making the fraudulent representation must be ascertained.[6] If it appears that the action is based upon a promise, express or implied, it is by contract, even though there are allegations in the complaint appropriate to an action in tort based upon fraud, such allegations not affecting or changing the nature of the action.[7] Conversely, if it appears that the gravamen or gist of the complaint is the fraud and deceit, the action is in tort,[8] although the complaint contains allegations of a contract,[9] such as by way of inducement.[10] However, it has been held that a party induced to enter into a contract by fraud which gives rise to a breach of promise or warranty may elect to sue in contract or in tort.[11] Where the action is in tort based upon fraud and deceit, recovery therein may not be had as in contract.[12] While, under some authorities, breach of warranty actions are generally treated as contract actions,[13] under others, an implied warranty is considered to be a tort rather than a contract concept.[14] At any rate, it is generally recognized that a breach of warranty is not only a violation of the sales contract out of which the war-
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ranty arises but is a tortious wrong as well.[15] There is an essential difference between an action for a breach of warranty and one for false and fraudulent representations in the making of a contract, or the making of a sale, the former is founded on, and is in, contract, while the latter is founded on, and is in, tort.[16] For a breach of warranty which is also false and fraudulent either an action in contract or in tort will lie, the right of action in contract on the warranty not being precluded by the existence of the fraud, or the right of action in tort by the existence of the warranty,[17] either action being proper, under some decisions in the case of a breach of warranty or false warranty, even though actual fraud is not present.[18] There are authorities, however, which permit only an action in contract on the warranty where there are no circumstances of actual fraud.[19] Where the real grievance as set forth in the complaint is the failure of the property purchased to come up to the warranty, the action is in contract for breach of contract, even though there are allegations in the complaint regarding fraud,[20] and an action will be construed as in contract if the complaint is sufficient to sustain it, but lacks some essential allegation to the statement of a cause of action in tort for fraudulent representations.[21] An action for a breach of warranty involving personal injuries may give rise to two separate causes of action, one in tort and one on contract.[22] Where negligence on the part of a contractor results in a breach of an implied warranty, an action accrues both in tort and in contract and the contractee may proceed on either or both theories, although his or her pleading need not state whether the action is based on tort or in contract.[23] Misrepresentation in entering into contract may give rise to action in fraud,[24] even though the alleged misrepresentation arose out of a contractual relationship of the parties.[25]
[FN1] U.S.Fenwick v. Grimes, 5 D.C. 439, 8 F. Cas. 1142, No. 4733 (C.C.D. D.C. 1838). Tex.Crim Truck & Tractor Co. v. Navistar Intern. Transp. Corp., 823 S.W.2d 591, 52 A.L.R.5th 919 (Tex. 1992). [FN2] Mo.Garnett & Allen Paper Co. v. Midland Pub. Co., 156 Mo. App. 187, 136 S.W. 736 (1911). [FN3] N.J.Globe Indem. Co. v. Butler-Newark Bus Line, 111 N.J.L. 586, 168 A. 465 (N.J. Ct. Err. & App. 1933). [FN4] U.S.Missouri Savings & Loan Co. v. Rice, 84 F. 131 (C.C.A. 8th Cir. 1897). Ga.Symmes v. Rollins, 39 Ga. App. 53, 146 S.E. 42 (1928). Mo.Lambert v. Jones, 91 Mo. App. 288, 1902 WL 1478 (1902). [FN5] Mo.Hunter v. Sloan, 195 Mo. App. 69, 190 S.W. 57 (1916). N.J.Globe Indem. Co. v. Butler-Newark Bus Line, 111 N.J.L. 586, 168 A. 465 (N.J. Ct. Err. & App. 1933). N.Y. Churchill v. St. George Development Co. of Florida, 174 A.D. 1, 160 N.Y.S. 357 (4th Dep't 1916).
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Okla.Fix v. Rose, 1917 OK 325, 64 Okla. 113, 166 P. 145 (1917). Or.Multnomah County v. Standard American Dredging Co., 92 Or. 261, 180 P. 508 (1919). [FN6] Va.Yuzefovsky v. St. John's Wood Apartments, 261 Va. 97, 540 S.E.2d 134 (2001). [FN7] U.S.Dawkins v. National Liberty Life Ins. Co., 252 F. Supp. 800 (D.S.C. 1966). Ill.Arnold v. Dodson, 193 Ill. App. 62, 1915 WL 2048 (1st Dist. 1915), aff'd, 272 Ill. 377, 112 N.E. 70 (1916). Mich.Straus Land Corporation v. Dupuis, 207 Mich. 399, 174 N.W. 129 (1919). Mo.Frank Coluccio Const. Co. v. City of Springfield, 779 S.W.2d 550 (Mo. 1989). N.J.Globe Indem. Co. v. Butler-Newark Bus Line, 111 N.J.L. 586, 168 A. 465 (N.J. Ct. Err. & App. 1933). N.C.Copeland v. Fowler, 151 N.C. 353, 66 S.E. 215 (1909). S.C. Lawson v. Metropolitan Life Ins. Co., 169 S.C. 540, 169 S.E. 430 (1933); Wilkins v. Howe Grain & Mercantile Co., 111 S.C. 82, 96 S.E. 678 (1918). [FN8] U.S.General Dynamics Corp. v. Selb Mfg. Co., 481 F.2d 1204, 17 Fed. R. Serv. 2d 1221 (8th Cir. 1973). Ala.AT & T Information Systems, Inc. v. Cobb Pontiac-Cadillac, Inc., 553 So. 2d 529 (Ala. 1989). Ark.O'Bryant v. Horn, 297 Ark. 617, 764 S.W.2d 445 (1989). Colo.Thuringer v. Bonner, 74 Colo. 539, 222 P. 1118 (1924). N.Y.Bazak Intern. Corp. v. Mast Industries, Inc., 73 N.Y.2d 113, 538 N.Y.S.2d 503, 535 N.E.2d 633, 7 U.C.C. Rep. Serv. 2d 1380, 82 A.L.R.4th 689 (1989). N.D.State Bank of Kenmare v. Lindberg, 471 N.W.2d 470 (N.D. 1991). Wis.First Nat. Bank v. Hecht, 159 Wis. 113, 149 N.W. 703 (1914). [FN9] Colo.Thuringer v. Bonner, 74 Colo. 539, 222 P. 1118 (1924). Mo.Hunter v. Sloan, 195 Mo. App. 69, 190 S.W. 57 (1916). [FN10] U.S.Fernandina Shipbuilding & Dry Dock Co. v. Peters, 283 F. 621 (S.D. Fla. 1922). Ill.Rowe v. Phillips, 214 Ill. App. 582, 1919 WL 1666 (2d Dist. 1919). N.Y.Townsend v. Hendricks, 40 How. Pr. 143 (N.Y. App. Div. 1870). Wis.Francisco v. Hatch, 117 Wis. 242, 93 N.W. 1118 (1903).
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[FN11] S.C.Baeza v. Robert E. Lee Chrysler, Plymouth, Dodge, Inc., 279 S.C. 468, 309 S.E.2d 763 (Ct. App. 1983). [FN12] Ala.AT & T Information Systems, Inc. v. Cobb Pontiac-Cadillac, Inc., 553 So. 2d 529 (Ala. 1989). S.D.Bunkers v. Guernsey, 38 S.D. 174, 160 N.W. 732 (1916). [FN13] N.H.Kelley v. Volkswagenwerk Aktiengesellschaft, 110 N.H. 369, 268 A.2d 837 (1970). [FN14] Cal. Voth v. Wasco Public Util. Dist., 56 Cal. App. 3d 353, 128 Cal. Rptr. 608 (5th Dist. 1976). Tex.Humber v. Morton, 426 S.W.2d 554, 25 A.L.R.3d 372 (Tex. 1968). [FN15] U.S.Kellan v. Holster, 518 F. Supp. 175 (M.D. Fla. 1981); Marival, Inc. v. Planes, Inc., 302 F. Supp. 201 (N.D. Ga. 1969). N.Y.Naples v. City of New York, 34 A.D.2d 577, 309 N.Y.S.2d 663 (2d Dep't 1970). [FN16] Ala.Millsap v. Wolfe, 1 Ala. App. 599, 56 So. 22 (1911). Mo.Hess v. Appleton Mfg. Co., 164 Mo. App. 153, 148 S.W. 179 (1912). Okla.Pugh v. Hill, 1926 OK 133, 117 Okla. 22, 244 P. 1113 (1926). Wis.Pierce v. Carey, 37 Wis. 232, 1875 WL 3501 (1875). [FN17] Ky.Stanley v. Day, 185 Ky. 362, 215 S.W. 175 (1919). N.H.Mahurin v. Harding, 28 N.H. 128, 1853 WL 2514 (1853). [FN18] U.S.Schuchardt v. Allens, 68 U.S. 359, 17 L. Ed. 642 (1863). Mich.Arnold v. White, 153 Mich. 607, 117 N.W. 164 (1908). [FN19] Ga.Fried v. Freeman, 122 Ga. App. 153, 176 S.E.2d 458 (1970). Wis.Pierce v. Carey, 37 Wis. 232, 1875 WL 3501 (1875). [FN20] Del.Clendaniel v. Samuels, 18 Del. Ch. 120, 156 A. 198 (1931). [FN21] Mo.Hess v. Appleton Mfg. Co., 164 Mo. App. 153, 148 S.W. 179 (1912). N.Y.Lindsay v. Mulqueen, 26 Hun 485 (N.Y. Gen. Term 1882). [FN22] Va.Friedman v. Peoples Service Drug Stores, Inc., 208 Va. 700, 160 S.E.2d 563 (1968). [FN23] Kan. Oller v. Kincheloe's, Inc., 235 Kan. 440, 681 P.2d 630 (1984); McFeeters v. Renollet, 210 Kan. 158, 500 P.2d 47 (1972); Gilley v. Farmer, 207 Kan. 536, 485 P.2d 1284 (1971).
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[FN24] Tex. Crim Truck & Tractor Co. v. Navistar Intern. Transp. Corp., 823 S.W.2d 591, 52 A.L.R.5th 919 (Tex. 1992). UtahCulp Const. Co. v. Buildmart Mall, 795 P.2d 650 (Utah 1990). [FN25] UtahCulp Const. Co. v. Buildmart Mall, 795 P.2d 650 (Utah 1990). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 140 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action C. Contract and Tort 2. Particular Actions Topic Summary References Correlation Table 141. Negligent breach of contract West's Key Number Digest West's Key Number Digest, Action 27(1) The mere negligent breach of a contract permits only an action ex contractu; such a breach, however, consisting of active misfeasance will permit an action in tort if the breach of contract is at the same time a breach of a duty imposed by law. Contract actions, which arise from a breach of a duty imposed on one by an agreement, protect a plaintiff's interest in or right to performance of another's promises, whereas tort actions, which arise from a breach of a duty imposed by law, protect a plaintiff's interest or right to be free from another's conduct which causes damage or loss to the plaintiff's person or property.[1] The mere negligent breach or nonperformance of a contract will not sustain an action sounding in tort, in the absence of a liability imposed by law independent of that arising out of the contract itself.[2] One may sue in tort where there has been negligence in performance of contract,[3] whether the duty was express or implied,[4] because, accompanying every contract is a common-law duty to perform the thing agreed to be done with care, skill, reasonable expediency, and faithfulness, and negligent failure to observe any of these conditions is tort as well as breach of contract.[5] In addition, according to some authorities, an action in tort may be allowed where there is a failure to perform a contractual duty.[6] A wrongful act which is committed during course of a contractual relationship may give rise to both tort and contractual remedies.[7] A cause of action for defective workmanship is available against a contractor either as breach of contract or negligence or both.[8] Where a negligent breach of contract at the same time is also a violation of a duty imposed by law, the injured party has a choice of remedies and may maintain an action for breach of the contract, or in tort for a breach of the duty imposed by law.[9] However, active negligence or misfeasance is necessary to support an action in tort based on a breach of contract;[10] mere nonfeasance,[11] even if it amounts to a willful neglect to perform the contract is not sufficient.[12]
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An action for the negligent performance of a contract not involving a breach of duty imposed by law sounds in contract,[13] and, if the complaint clearly sounds in contract, the fact that negligence is also alleged will not affect or change the character of the action.[14]
[FN1] Neb.Henriksen v. Gleason, 263 Neb. 840, 643 N.W.2d 652 (2002). [FN2] N.D. Dakota Grain Co., Inc. v. Ehrmantrout, 502 N.W.2d 234, 23 U.C.C. Rep. Serv. 2d 402 (N.D. 1993). N.M.Cottonwood Enterprises v. McAlpin, 111 N.M. 793, 810 P.2d 812 (1991). [FN3] Neb. Thomas v. Countryside of Hastings, Inc., 246 Neb. 907, 524 N.W.2d 311 (1994); Getzschman v. Miller Chemical Co., Inc., 232 Neb. 885, 443 N.W.2d 260 (1989). N.M.Flores v. Baca, 117 N.M. 306, 871 P.2d 962 (1994). OhioLawyers Cooperative Publishing Co. v. Muething, 65 Ohio St. 3d 273, 603 N.E.2d 969 (1992). [FN4] Neb.Getzschman v. Miller Chemical Co., Inc., 232 Neb. 885, 443 N.W.2d 260 (1989). [FN5] Neb.Getzschman v. Miller Chemical Co., Inc., 232 Neb. 885, 443 N.W.2d 260 (1989). [FN6] Cal.Duff v. Harrah South Shore Corp., 52 Cal. App. 3d 803, 125 Cal. Rptr. 259 (3d Dist. 1975) . [FN7] Nev. Hilton Hotels Corp. v. Butch Lewis Productions, Inc., 109 Nev. 1043, 862 P.2d 1207 (1993). [FN8] Wyo.Alpine Climate Control, Inc. v. DJ's, Inc., 2003 WY 138, 78 P.3d 685 (Wyo. 2003). [FN9] Ala.Hamner v. Mutual of Omaha Ins. Co., 49 Ala. App. 214, 270 So. 2d 87 (Civ. App. 1972). Cal.Allen v. Jones, 104 Cal. App. 3d 207, 163 Cal. Rptr. 445 (4th Dist. 1980). IowaMid-Country Meats, Inc. v. Woodruff-Evans Const., 334 N.W.2d 332 (Iowa Ct. App. 1983). Wyo.Tate v. Mountain States Tel. and Tel. Co., 647 P.2d 58 (Wyo. 1982). [FN10] U.S.Willey v. Alaska Packers' Ass'n, 9 F.2d 937 (N.D. Cal. 1925), aff'd, 18 F.2d 8 (C.C.A. 9th Cir. 1927). IdahoTaylor v. Herbold, 94 Idaho 133, 483 P.2d 664 (1971). [FN11] U.S.Willey v. Alaska Packers' Ass'n, 9 F.2d 937 (N.D. Cal. 1925), aff'd, 18 F.2d 8 (C.C.A. 9th Cir. 1927). Ga. Bicknell v. Richard M. Hearn Roofing & Remodeling, Inc., 171 Ga. App. 128, 318 S.E.2d 729 (1984).
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Mich.Chase v. Clinton County, 241 Mich. 478, 217 N.W. 565 (1928). [FN12] U.S.Willey v. Alaska Packers' Ass'n, 9 F.2d 937 (N.D. Cal. 1925), aff'd, 18 F.2d 8 (C.C.A. 9th Cir. 1927). [FN13] Ariz.Long v. Buckley, 129 Ariz. 141, 629 P.2d 557 (Ct. App. Div. 1 1981). Mass.Cunningham v. Commissioner of Banks, 249 Mass. 401, 144 N.E. 447 (1924). [FN14] U.S.Genuine Panama Hat Works v. Webb, 36 F.2d 265 (S.D. N.Y. 1929). Ga.Dawson Cotton Oil Co. v. Kenan, McKay & Speir, 21 Ga. App. 688, 94 S.E. 1037 (1918). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 141 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action C. Contract and Tort 2. Particular Actions Topic Summary References Correlation Table 142. Covenant of good faith and fair dealing West's Key Number Digest West's Key Number Digest, Action 27(1), (2) In a great majority of ordinary contracts, a breach of covenant of good faith and fair dealing is only a breach of contract and only contract damages are due. In a great majority of ordinary contracts, a breach of covenant of good faith and fair dealing is only a breach of contract and only contract damages are due.[1] Although, a duty not to act in bad faith or deal unfairly becomes part of the contract and, as with any other element of the contract, the remedy for its breach generally is on the contract itself, under certain circumstances, a breach of contract, including a breach of the covenant of good faith and fair dealing, may provide a basis for tort claim.[2] Tort damages are available, for a contracting party's breach of implied covenant of good faith and fair dealing, if the contract involves a special relationship.[3] Tort-type damages are available for traditional contract-related torts such as fraud, fraudulent inducement, and tortious interference with contract.[4] Some authorities hold that a breach of the implied covenant of good faith and fair dealing is a tort in the insurance context,[5] or in a surety context.[6] However, others hold that in the case of first party insurers and their insured, the allegations of a breach of implied covenant of good faith and fair dealing owed sound in contract, rather than in tort.[7] In the case of ordinary commercial contract between sophisticated business entities, tort for breach of implied covenant of good faith and fair dealing arises only when party's conduct rises to level of traditionally recognized tort,[8] such as with gross recklessness or wanton negligence,[9] or tortious acts of conspiracy and interference.[10] Breach of warranty claims, including a breach of implied covenants of good faith and fair dealing, by an employee who was injured by a herbicide mixture upon the malfunction of a spray gun, sounded in tort, rather than in contract, absent a contract between the injured employee and the manufacturers.[11]
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A breach of the covenant of good faith and fair dealing in an at-will employment contract does not constitute tort.[12]
[FN1] Alaska State, Dept. of Natural Resources v. Transamerica Premier Ins. Co., 856 P.2d 766 (Alaska 1993). IdahoHoyle v. Utica Mut. Ins. Co., 137 Idaho 367, 48 P.3d 1256 (2002). Mont.Story v. City of Bozeman, 242 Mont. 436, 791 P.2d 767, 12 U.C.C. Rep. Serv. 2d 359 (1990). Nev.Hilton Hotels Corp. v. Butch Lewis Productions, Inc., 109 Nev. 1043, 862 P.2d 1207 (1993). Okla.First Nat. Bank and Trust Co. of Vinita v. Kissee, 1993 OK 96, 859 P.2d 502 (Okla. 1993). UtahCanyon Country Store v. Bracey, 781 P.2d 414 (Utah 1989). [FN2] AlaskaMunicipality of Anchorage v. Gentile, 922 P.2d 248 (Alaska 1996). Nev.Hilton Hotels Corp. v. Butch Lewis Productions, Inc., 109 Nev. 1043, 862 P.2d 1207 (1993). [FN3] Ariz.Rawlings v. Apodaca, 151 Ariz. 149, 726 P.2d 565 (1986). Mont. Mann Farms, Inc. v. Traders State Bank of Poplar, Montana, 245 Mont. 234, 801 P.2d 73 (1990); Story v. City of Bozeman, 242 Mont. 436, 791 P.2d 767, 12 U.C.C. Rep. Serv. 2d 359 (1990). [FN4] Mont.Story v. City of Bozeman, 242 Mont. 436, 791 P.2d 767, 12 U.C.C. Rep. Serv. 2d 359 (1990). [FN5] AlaskaMunicipality of Anchorage v. Gentile, 922 P.2d 248 (Alaska 1996). Okla.First Nat. Bank and Trust Co. of Vinita v. Kissee, 1993 OK 96, 859 P.2d 502 (Okla. 1993). [FN6] AlaskaMunicipality of Anchorage v. Gentile, 922 P.2d 248 (Alaska 1996). [FN7] UtahCanyon Country Store v. Bracey, 781 P.2d 414 (Utah 1989). [FN8] Alaska State, Dept. of Natural Resources v. Transamerica Premier Ins. Co., 856 P.2d 766 (Alaska 1993). [FN9] Okla. First Nat. Bank and Trust Co. of Vinita v. Kissee, 1993 OK 96, 859 P.2d 502 (Okla. 1993). [FN10] Nev. Hilton Hotels Corp. v. Butch Lewis Productions, Inc., 109 Nev. 1043, 862 P.2d 1207 (1993). [FN11] Mont.Bennett v. Dow Chemical Co., 220 Mont. 117, 713 P.2d 992 (1986). [FN12] Alaska State, Dept. of Natural Resources v. Transamerica Premier Ins. Co., 856 P.2d 766
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(Alaska 1993). IdahoHummer v. Evans, 129 Idaho 274, 923 P.2d 981, 113 Ed. Law Rep. 452 (1996). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 142 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action C. Contract and Tort 2. Particular Actions Topic Summary References Correlation Table 143. Injuries to realty West's Key Number Digest West's Key Number Digest, Action 27(1) Ordinarily, for damages caused by a trespass on land the action to be brought must ordinarily be in tort, an action on contract not being maintainable. If a builder performs construction in such a way that he or she violates a contractual duty only, the builder's liability is only contractual, while if he or she acts in such a way as to violate a legal duty, the liability is both in contract and in tort. Except where statute has provided otherwise, for damages caused by a trespass on land the action to be brought must ordinarily be in tort, an action on contract not being maintainable.[1] Where, however, a trespasser severs and removes anything constituting a part of the realty and converts it to his or her own use, an action in contract may be brought to recover its value.[2] Of course, if an injury to land involves both a tort and a breach of contract, the action may be brought either in contract or in tort.[3] In addition, where one acquires by contract the right to do a certain act upon the land of another and proceeds in so negligent a manner as to occasion an injury, he or she may be sued in tort, notwithstanding the contract requires him or her to pay all damages resulting from the act authorized.[4] Where one acquires by contract the right to do certain acts upon the land of another, acts unauthorized by the contract are of the same nature as though the contract had not been made, and actions to recover the damages resulting therefrom are ordinarily held to be in tort.[5] If a builder performs construction in such a way that he or she violates a contractual duty only, the builder's liability is only contractual, while if he or she acts in such a way as to violate a legal duty, the liability is both in contract and in tort.[6] Where the claim is for a breach of implied warranties of habitability and workmanlike construction, the claim is based on the contract not in tort.[7] A plaintiff's injury, that house they were promised and paid for was not house they received, could only be characterized as breach of contract, and such breach could not support recovery of exemplary damages.[8]
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[FN1] Ala.Weaver v. Jones, 24 Ala. 420, 1854 WL 413 (1854). Mo.McLaughlin v. Dunn, 45 Mo. App. 645, 1891 WL 1774 (1891). Mich.Lockwood v. Thunder Bay River Boom Co., 42 Mich. 536, 4 N.W. 292 (1880). Nev.Carson River Lumbering Co. v. Bassett, 2 Nev. 249, 1866 WL 1622 (1866). [FN2] IowaDevin v. Walsh, 108 Iowa 428, 79 N.W. 133 (1899). Miss.West v. McClure, 85 Miss. 296, 37 So. 752 (1905). [FN3] N.J.Paterson Extension R. Co. v. Rector, Etc., of Church of Holy Communion, 68 N.J.L. 399, 53 A. 449 (N.J. Ct. Err. & App. 1902). [FN4] Vt.Dean v. McLean, 48 Vt. 412, 1875 WL 6657 (1875). [FN5] Kan.Akin v. Davis, 11 Kan. 580, 1873 WL 682 (1873). N.Y.Litchfield v. Norwood Mfg. Co., 22 A.D. 569, 48 N.Y.S. 496 (3d Dep't 1897). [FN6] S.C.Kennedy v. Columbia Lumber and Mfg. Co., Inc., 299 S.C. 335, 384 S.E.2d 730 (1989). [FN7] Okla.Jaworsky v. Frolich, 1992 OK 157, 850 P.2d 1052 (Okla. 1992). Or.Cabal v. Donnelly, 302 Or. 115, 727 P.2d 111 (1986). R.I.Boghossian v. Ferland Corp., 600 A.2d 288 (R.I. 1991). [FN8] Tex.Jim Walter Homes, Inc. v. Reed, 711 S.W.2d 617 (Tex. 1986). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 143 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action C. Contract and Tort 2. Particular Actions Topic Summary References Correlation Table 144. Products liability West's Key Number Digest West's Key Number Digest, Action 27(1), (2) Whether a products liability action for breach of warranty is governed by tort or contract law depends upon the type of recovery sought, the legal basis upon which the desired recovery is grounded, and the applicable statute of limitations. Whether a products liability action for breach of warranty is governed by tort or contract law depends upon the type of recovery sought, the legal basis upon which the desired recovery is grounded, and the applicable statute of limitations.[1] Factors to be considered in determining whether a products liability claim sounds in tort or contract are the nature of the defect, the type of risk, and the manner in which the injury arose.[2] When a plaintiff brings a nonprivity breach of warranty action against a manufacturer or seller to recover for personal injuries allegedly sustained as a result of a defective product, the action is one for strict liability in tort, rather than the buyer and seller concepts of the Uniform Commercial Code,[3] even though the victim had made a warranty claim.[4] Where an employee of a purchaser of a boiler, as the agent of a purchaser, was the person to whom any warranties by the boiler's manufacturer were extended, a breach of the implied warranty of merchantability claim in which the employee sought to recover for injuries sustained while cleaning the boiler was governed by the Uniform Commercial Code, rather than a claim for strict liability in tort governed by a products liability statute.[5]
[FN1] Idaho Oats v. Nissan Motor Corp. in U.S.A., 126 Idaho 162, 879 P.2d 1095, 26 U.C.C. Rep. Serv. 2d 1080 (1994). [FN2] IowaAmerican Fire and Cas. Co. v. Ford Motor Co., 588 N.W.2d 437, 37 U.C.C. Rep. Serv. 2d
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601 (Iowa 1999) [FN3] Idaho Oats v. Nissan Motor Corp. in U.S.A., 126 Idaho 162, 879 P.2d 1095, 26 U.C.C. Rep. Serv. 2d 1080 (1994). [FN4] Idaho Oats v. Nissan Motor Corp. in U.S.A., 126 Idaho 162, 879 P.2d 1095, 26 U.C.C. Rep. Serv. 2d 1080 (1994). [FN5] IdahoPuckett v. Oakfabco, Inc., 132 Idaho 816, 979 P.2d 1174, 40 U.C.C. Rep. Serv. 2d 455 (1999). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 144 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action C. Contract and Tort 2. Particular Actions Topic Summary References Correlation Table 145. Medical malpractice West's Key Number Digest West's Key Number Digest, Action 27(1), (2) Medical malpractice claims have aspects both of tort and of contract law, but are often analyzed under tort law principles. Medical malpractice claims have aspects both of tort and of contract law.[1] A claim for medical malpractice is analyzed under tort law principles rather than contract law principles;[2] thus, a patient's claim of medical malpractice, asserted as breach of contract, was controlled by the two-year limitations period applicable to "injuries to the person not arising on contract," and not the six-year period for "all actions on a contract or liability" where the patient made no allegations of economic injury.[3]
[FN1] Mo.Goff v. St. Luke's Hosp. of Kansas City, 753 S.W.2d 557 (Mo. 1988). [FN2] AlaskaPedersen v. Flannery, 863 P.2d 856 (Alaska 1993). Me.Johnson v. Carleton, 2001 ME 12, 765 A.2d 571 (Me. 2001). [FN3] AlaskaPedersen v. Flannery, 863 P.2d 856 (Alaska 1993). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 145 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action C. Contract and Tort 2. Particular Actions Topic Summary References Correlation Table 146. Uninsured motorist West's Key Number Digest West's Key Number Digest, Action 27(1), (2) A suit to recover uninsured motorist benefits or to determine fault is an action in tort. A suit to recover uninsured motorist benefits or to determine fault is an action in tort.[1] An action to recover uninsured motorist benefits is functionally a tort case to establish the damages that the insurer is required to pay.[2] The action is not a contract action in the sense that any provisions of the insurance policy are at issue or that coverage is being denied based upon language in the insurance contract.[3]
[FN1] Neb.Kvamme v. State Farm Mut. Auto. Ins. Co., 267 Neb. 703, 677 N.W.2d 122 (2004). W.Va. Lee v. Saliga, 179 W. Va. 762, 373 S.E.2d 345 (1988); Perkins v. Doe, 177 W. Va. 84, 350 S.E.2d 711 (1986). [FN2] Neb.Kvamme v. State Farm Mut. Auto. Ins. Co., 267 Neb. 703, 677 N.W.2d 122 (2004). [FN3] Neb.Kvamme v. State Farm Mut. Auto. Ins. Co., 267 Neb. 703, 677 N.W.2d 122 (2004). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 146 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action C. Contract and Tort 2. Particular Actions Topic Summary References Correlation Table 147. Particular actions in contract West's Key Number Digest West's Key Number Digest, Action 27(1), (2) Various particular actions have been held to be actions in contract. Various particular actions have been held to be actions in contract,[1] such as an action for services rendered,[2] an action for uninsured motorist benefits,[3] an action for the amount due on a note,[4] and an action to rescind an agreement induced by fraud.[5] Similarly, various other particular actions have been considered to be actions in contract, such as an action by a homeowner against a contractor for the cost of repairing or replacing an allegedly defective roof,[6] an action by a foreign corporation against a former employee, alleging conspiracy and an act to induce the corporation's employees to breach noncompetition clauses,[7] an action on a judgment,[8] and an action for breach of contract of compromise and settlement.[9] Also, various other particular actions have been held to be actions in contract such as an action for money had and received,[10] an action to recover for the removal of timber by a purchaser at a foreclosure sale, pending a disaffirmance of the sale and redemption thereunder,[11] and an action under a statute providing that purchasers under conditional sales can sue for the return of money paid, if the property, when retaken, is not disposed of in a specified manner.[12] Other particular actions which have been held to be actions in contract include an action by a foreign corporation against the state to recover overpayments of taxes made under protest,[ 13] an action by one rightfully entitled to an office, to recover fees and emoluments thereof which have been collected by an intruder,[14] and an action against a stockholder to enforce a statutory liability for a debt of the corporation.[15] A tort action does not lie for a noninsurance contract breach, in the absence of a violation of an independent duty arising from principles of tort law other than the bad faith denial of the existence of, or liability under, the breached contract.[16] An action on a bond is an action in contract,[17] although it requires the commission of a tort to constitute a
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breach of the bond,[18] although the breach of the bond amounts to a tort,[19] and even though the bond was given in a tort action.[20] An action for breach of promise to marry is an action in contract.[21] CUMULATIVE SUPPLEMENT Cases: Baseball umpire, who was attacked by parent of high school baseball player after game, presented substantial evidence showing that board of education failed to perform its contractual duties and that, as a result of board's breach of contract, umpire was harmed, and, thus, umpire's complaint against board sounded in contract, not in tort; contract between board of education and high school athletic association stated that principals were to provide good game administration and supervision by providing adequate police protection, and parent testified that, if police protection had been provided, he would not have attacked umpire. Locke v. Ozark City Bd. of Educ., 910 So. 2d 1247, 202 Ed. Law Rep. 431 (Ala. 2005). [END OF SUPPLEMENT]
[FN1] U.S. Lincoln Carpet Mills, Inc. v. Singer Co., 549 F.2d 80 (8th Cir. 1977); Chicago Heights Venture v. Dynamit Nobel of America, Inc., 575 F. Supp. 214, 37 U.C.C. Rep. Serv. 1109 (N.D. Ill. 1983), judgment aff'd, 782 F.2d 723 (7th Cir. 1986). Ark.L.L. Cole & Son, Inc. v. Hickman, 282 Ark. 6, 665 S.W.2d 278 (1984). Fla.Davis v. Williams, 239 So. 2d 593 (Fla. Dist. Ct. App. 1st Dist. 1970). Mass.Laurin v. DeCarolis Const. Co., Inc., 372 Mass. 688, 363 N.E.2d 675, 97 A.L.R.3d 1214 (1977) . Mich.Huhtala v. Travelers Ins. Co., 401 Mich. 118, 257 N.W.2d 640 (1977). Mo.Miller v. American Ins. Co., 439 S.W.2d 238 (Mo. Ct. App. 1969). Neb.Farmers Mut. Home Ins. Co. v. Roberts & Dybdahl, Inc., 206 Neb. 651, 294 N.W.2d 369 (1980). N.C. O. G. Thompson & Sons, Inc. v. Koury Hosiery Mills, Inc., 1 N.C. App. 347, 161 S.E.2d 655 (1968). OhioTibbs v. National Homes Const. Corp., 52 Ohio App. 2d 281, 6 Ohio Op. 3d 300, 369 N.E.2d 1218 (1st Dist. Warren County 1977). Wash.City of Algona v. City of Pacific, 35 Wash. App. 517, 667 P.2d 1124 (Div. 1 1983). [FN2] S.C.Owens v. Zippy Mart of South Carolina, Inc., 268 S.C. 383, 234 S.E.2d 217 (1977). [FN3] Fla.Andrews v. Continental Ins. Co., 444 So. 2d 479 (Fla. Dist. Ct. App. 5th Dist. 1984).
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La.Powell v. Allstate Ins. Co., 233 So. 2d 38 (La. Ct. App. 2d Cir. 1970). [FN4] Colo.Poertner v. Razor, 500 P.2d 989 (Colo. Ct. App. 1972). [FN5] R.I.Halpert v. Rosenthal, 107 R.I. 406, 267 A.2d 730 (1970). [FN6] Ga.McClain v. Harveston, 152 Ga. App. 422, 263 S.E.2d 228 (1979). [FN7] Ala.C & C Products, Inc. v. Premier Indus. Corp., 290 Ala. 179, 275 So. 2d 124 (1972). [FN8] N.Y.Gutta-Percha & Rubber Mfg. Co. v. City of Houston, 108 N.Y. 276, 15 N.E. 402 (1888). [FN9] Okla.Wray v. Sumerset Oil Co., 1923 OK 32, 89 Okla. 71, 213 P. 836 (1923). [FN10] Ala.Johnson v. Collier, 161 Ala. 204, 49 So. 761 (1909), aff'd, 222 U.S. 538, 32 S. Ct. 104, 56 L. Ed. 306 (1912). [FN11] Ala.Richardson v. McCreary & Co., 158 Ala. 65, 48 So. 341 (1908). [FN12] N.Y.Petze v. Horace Waters & Co., 166 N.Y.S. 1000 (App. Term 1917). [FN13] Ind.State v. Mutual Life Ins. Co. of New York, 175 Ind. 59, 93 N.E. 213 (1910). [FN14] Va.Booker v. Donohoe, 95 Va. 359, 28 S.E. 584 (1897). [FN15] Cal.Kennedy v. California Sav. Bank, 97 Cal. 93, 31 P. 846 (1892). [FN16] Cal.Freeman & Mills, Inc. v. Belcher Oil Co., 11 Cal. 4th 85, 44 Cal. Rptr. 2d 420, 900 P.2d 669 (1995). [FN17] Mo.State ex rel. Myers v. Mathieson, 207 Mo. App. 676, 232 S.W. 181 (1921). Okla.Rourke v. Bozarth, 1924 OK 617, 103 Okla. 133, 229 P. 495 (1924). [FN18] Mo.State ex rel. Myers v. Mathieson, 207 Mo. App. 676, 232 S.W. 181 (1921); State ex rel. Waggoner v. Lichtman, 184 Mo. App. 225, 168 S.W. 367 (1914). [FN19] Okla.Rourke v. Bozarth, 1924 OK 617, 103 Okla. 133, 229 P. 495 (1924). [FN20] La.Buras v. Machella, 172 La. 580, 134 So. 751 (1931). [FN21] Wis.Slawek v. Stroh, 62 Wis. 2d 295, 215 N.W.2d 9 (1974). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 147 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action C. Contract and Tort 2. Particular Actions Topic Summary References Correlation Table 148. Particular actions in tort West's Key Number Digest West's Key Number Digest, Action 27(1), (2) Various particular actions have been held to be actions in tort. Applying the principles governing mode of determination[1] and those governing choice of remedy,[2] various particular actions have been held to be actions in tort,[3] such as an action to recover value of property wrongfully taken,[4] an action to recover damages for a conversion,[5] and for a personal injury.[6] Likewise, various other particular actions have been held to be actions in tort, such as an action to recover damages for malicious abuse of legal process,[7] for maliciously inducing a breach of contract,[8] for the infringement of a patent,[9] and for trespass to personal property.[10] Also, various other particular actions have been considered to be actions in tort, such as an action by the tow against the tug[11] for injury to a tow caused by a collision,[12] an action against a municipality for wrongfully appropriating plaintiff's land for a public street,[13] an action against an irrigation district for failing to supply water to a landowner within the district,[14] a statutory action against a town for injury to person or property caused by defects in a bridge or highway,[15] and an action against a trustee of a corporation to enforce a statutory liability for debts of the corporation, for failure of the trustee to file reports as required by law.[16] Other actions which have been held to be actions in tort include an action for misappropriation of trade secrets,[17] an action against an abstractor on account of an omission in the abstract,[18] an action by a public officer for damages on account of his or her dismissal without proceedings in accordance with due process of law,[19] an action based on false representations of refund of a purchase price,[20] an action against an airplane manufacturer for damage to an airplane due to malfunction of the landing gear,[21] and an action involving a claim that the government carelessly performed a duty to operate and supervise an investment company in a prudent and responsible manner.[22] CUMULATIVE SUPPLEMENT Cases:
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If, in performing the contract, it is alleged that the defendant negligently caused personal injury or property damage to plaintiff, the remedy is in tort, for it is not the breach of a contract, express or implied, but the breach of an implied duty to exercise due care not to injure plaintiff or her property which is the gravamen of the action. Locke v. Ozark City Bd. of Educ., 910 So. 2d 1247, 202 Ed. Law Rep. 431 (Ala. 2005). [END OF SUPPLEMENT]
[FN1] 136. [FN2] 137. [FN3] U.S.Metadure Corp. v. U.S., 569 F. Supp. 1496 (E.D. N.Y. 1983); Jackson v. U. S., 216 Ct. Cl. 25, 573 F.2d 1189 (1978). Mich.Nicholson v. Han, 12 Mich. App. 35, 162 N.W.2d 313, 33 A.L.R.3d 1386 (1968). Mont. State ex rel. Dimler v. District Court of Eleventh Judicial Dist. In and For Flathead County, 170 Mont. 77, 550 P.2d 917 (1976). N.H.J. Dunn & Sons, Inc. v. Paragon Homes of New England, Inc., 110 N.H. 215, 265 A.2d 5 (1970). N.J.Fiore v. Sears, Roebuck & Co., 144 N.J. Super. 74, 364 A.2d 572 (Law Div. 1976). Tex.American Quarter Horse Ass'n v. Rose, 525 S.W.2d 227 (Tex. Civ. App. Fort Worth 1975). [FN4] Ga.Parker v. Lee, 19 Ga. App. 499, 91 S.E. 912 (1917). La.Hodges v. General Motors Acceptance Corp., 141 So. 783 (La. Ct. App. 2d Cir. 1932). [FN5] La. Northern Assur. Co. of America v. Waguespack, 304 So. 2d 865 (La. Ct. App. 4th Cir. 1974). Mo.Commercial Credit Corp. v. Joplin Auto. Auction Co., 430 S.W.2d 440, 5 U.C.C. Rep. Serv. 899 (Mo. Ct. App. 1968). Vt.Redd Distributing Co. v. Bruckner, 128 Vt. 635, 270 A.2d 580 (1970). [FN6] Mo.Miller v. Municipal Theatre Ass'n of St. Louis, 540 S.W.2d 899 (Mo. Ct. App. 1976). Mich.Clark v. Dalman, 379 Mich. 251, 150 N.W.2d 755 (1967). [FN7] Ga.Herring v. Smith, 141 Ga. 825, 82 S.E. 132 (1914). [FN8] U.S.Sklarsky v. Great Atlantic & Pacific Tea Co., 47 F.2d 662 (S.D. N.Y. 1931). [FN9] Miss.B.F. Avery & Sons v. McClure, 94 Miss. 172, 47 So. 901 (1909). [FN10] Ga.Malone & Grant Co. v. Hammond, 6 Ga. App. 114, 64 S.E. 666 (1909).
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[FN11] U.S.Offshore Co. v. G & H Offshore Towing Co., 262 F. Supp. 282 (S.D. Tex. 1966). [FN12] U.S.Stevens v. The White City, 285 U.S. 195, 52 S. Ct. 347, 76 L. Ed. 699 (1932). [FN13] Ind.City of Ft. Wayne v. Hamilton, 132 Ind. 487, 32 N.E. 324 (1892). [FN14] IdahoSnake River Valley Irr. Dist. v. Stevens, 18 Idaho 541, 110 P. 1033 (1910). [FN15] U.S.Dodge v. Town of North Hudson, 177 F. 986 (C.C.N.D. N.Y. 1910). [FN16] U.S.Chase v. Curtis, 113 U.S. 452, 5 S. Ct. 554, 28 L. Ed. 1038 (1885). [FN17] U.S. Midland-Ross Corp. v. Sunbeam Equipment Corp., 316 F. Supp. 171 (W.D. Pa. 1970), order aff'd, 435 F.2d 159 (3d Cir. 1970). [FN18] Mich. Williams v. Polgar, 43 Mich. App. 95, 204 N.W.2d 57 (1972), judgment aff'd, 391 Mich. 6, 215 N.W.2d 149 (1974). [FN19] Ala.Limbaugh v. Johnston, 393 So. 2d 963 (Ala. 1981). [FN20] Mont.Purington v. Sound West, 173 Mont. 106, 566 P.2d 795 (1977). [FN21] U.S.Forsyth v. Cessna Aircraft Co., 520 F.2d 608 (9th Cir. 1975). [FN22] U.S.Adams v. U.S., 20 Cl. Ct. 132, 1990 WL 42978 (1990). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 148 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action C. Contract and Tort 3. Particular Contract Relations Topic Summary References Correlation Table 149. Agent, broker, or factor West's Key Number Digest West's Key Number Digest, Action 27(5) For tortious conduct of an agent, broker, or factor in respect of duties undertaken by agreement, either an action in contract or tort lies, the gist of the action brought as revealed by the complaint determining its nature. For negligence or other tortious conduct on the part of an agent in respect of duties which he or she has undertaken, the principal has the right to maintain an action in contract or in tort, an action in tort not being precluded by reason of the contractual nature of the relation.[1] An action, the gist of which is the breach of the express or implied agreement of the agent, is ex contractu,[2 ] although tortious conduct on the part of the agent is alleged.[3] On the other hand, an action based upon the tortious breach of duty is in tort.[4] The same principles apply in actions by and against factors and brokers,[5] both as to the right of the principal or factor or broker to maintain an action in contract or in tort,[6] and as to the determination of the nature or form of the action in particular cases.[7] So, where the gravamen of a count of a purchaser's complaint against a broker alleging the existence of an implied contract was fraud and negligence, the claim was subject to the fraud and negligence statutes of limitation, rather than the statute of limitations for unwritten contracts, although the purchaser alleged that the implied contract existed and that the broker breached certain duties arising from the implied contractual relationship, the duties allegedly breached were identical to those alleged in the fraud and negligence counts.[8] Although essentially contractual because a tort is derived from the contractual relation, a claim against an insurance agent for the failure to procure requested coverage is a hybrid of both tort and contract principles.[9] For example, where an insured's action against an insurance agent for a failure to procure requested coverage was a claim for alleged misfeasance of duty which set forth the cause of action in tort and, thus, the one-year prescriptive period applicable to tort actions, rather than the ten-year prescriptive period for contract actions, applied.[10]
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[FN1] Colo.Ferguson v. Turner, 69 Colo. 504, 194 P. 1103 (1921). Ill.Fidelity Trust Co. v. Poole, 136 Ill. App. 266, 1907 WL 2184 (1st Dist. 1907). [FN2] AlaskaLee Houston & Associates, Ltd. v. Racine, 806 P.2d 848 (Alaska 1991). Ariz.McClellan v. Brown, 276 Ark. 28, 632 S.W.2d 406 (1982). IdahoKeller Lorenz Co., Inc. v. Insurance Associates Corp., 98 Idaho 678, 570 P.2d 1366 (1977). N.C.Leggett v. Cotton, 29 N.C. App. 331, 224 S.E.2d 235 (1976). Wash. Sanwick v. Puget Sound Title Ins. Co., 70 Wash. 2d 438, 423 P.2d 624, 38 A.L.R.3d 315 (1967). [FN3] Ariz.Sandoval v. Randolph, 11 Ariz. 371, 95 P. 119 (1908), aff'd, 222 U.S. 161, 32 S. Ct. 48, 56 L. Ed. 142 (1911). [FN4] Ill. Duhl v. Nash Realty Inc., 102 Ill. App. 3d 483, 57 Ill. Dec. 904, 429 N.E.2d 1267, 33 A.L.R.4th 928 (1st Dist. 1981). [FN5] Pa.Shreeve v. Adams, 6 Phila. 260 (Pa. Dist. Ct. 1867). [FN6] Colo.Ferguson v. Turner, 69 Colo. 504, 194 P. 1103 (1921). N.Y.Barber v. Ellingwood, 137 A.D. 704, 122 N.Y.S. 369 (1st Dep't 1910). Tex.Sandoval v. Eagle Pass Lumber Co., 248 S.W. 132 (Tex. Civ. App. San Antonio 1923). [FN7] Mo.Harris v. A. P. Nichols Inv. Co., 25 S.W.2d 484 (Mo. Ct. App. 1930). N.Y.Carns v. Bassick, 187 A.D. 280, 175 N.Y.S. 670 (1st Dep't 1919). [FN8] Mont.Erickson v. Croft, 233 Mont. 146, 760 P.2d 706 (1988). [FN9] Md. University Nursing Home, Inc. v. R.B. Brown & Associates, Inc., 67 Md. App. 48, 506 A.2d 268 (1986). [FN10] La.Roger v. Dufrene, 613 So. 2d 947 (La. 1993). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 149 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action C. Contract and Tort 3. Particular Contract Relations Topic Summary References Correlation Table 150. Attorney and client West's Key Number Digest West's Key Number Digest, Action 27(2), (5) Because of the nature of the relationship between them, a client may ordinarily sue his or her attorney in either contract or tort for the latter's negligence or misconduct. Because of the nature of the relationship between an attorney and his or her client, the client ordinarily has a choice of remedies in the case of negligence or misconduct upon the part of the attorney, to sue either in contract or in tort.[1] Whether the action is the one or the other must be determined by a construction of the complaint.[2 ] Where an act of an attorney complained of is a breach of the specific terms of an attorney-client contract, the action is in contract,[3] but where the gravamen of the action is a breach of a legal duty, the action is in tort.[ 4] Legal malpractice. Although some authorities have considered that an action against an attorney for malpractice sounds in contract,[5] others have held that an action for legal malpractice normally states a cause of action in tort.[6] In this connection, it has been considered that an action against an attorney for legal malpractice is in contract only where the attorney warrants a specific result and fails to obtain that result,[7] or agrees to perform a certain work and does nothing whatsoever.[8] However, some decisions hold that a malpractice action against an attorney may sound in tort as well as contract, giving plaintiff an option as to remedies.[9]
[FN1] Cal.Commercial Standard Title Co. v. Superior Court, 92 Cal. App. 3d 934, 155 Cal. Rptr. 393 (4th Dist. 1979). Conn.Pratt v. Brewster, 52 Conn. 65, 1884 WL 1067 (1884).
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[FN2] U.S.In re Investors Funding Corp. of New York Securities Litigation, 566 F. Supp. 193 (S.D. N.Y. 1983), judgment aff'd, 754 F.2d 57 (2d Cir. 1985). Conn.Pratt v. Brewster, 52 Conn. 65, 1884 WL 1067 (1884). N.Y.Segelken v. Meyer, 94 N.Y. 473, 1884 WL 12242 (1884). [FN3] AlaskaJones v. Wadsworth, 791 P.2d 1013 (Alaska 1990). Kan.Chavez v. Saums, 1 Kan. App. 2d 564, 571 P.2d 62 (1977). S.D.Morgan v. Baldwin, 450 N.W.2d 783 (S.D. 1990). [FN4] Kan.Chavez v. Saums, 1 Kan. App. 2d 564, 571 P.2d 62 (1977). [FN5] N.C.Chicago Title Ins. Co. v. Holt, 36 N.C. App. 284, 244 S.E.2d 177 (1978). [FN6] IdahoFuller v. Wolters, 119 Idaho 415, 807 P.2d 633 (1991). Ind.Keystone Distribution Park v. Kennerk, Dumas, Burke, Backs, Long, and Salin, 461 N.E.2d 749 (Ind. Ct. App. 4th Dist. 1984). La.Knighten v. Knighten, 447 So. 2d 534 (La. Ct. App. 2d Cir. 1984), writ denied, 448 So. 2d 1303 (La. 1984). [FN7] La.Knighten v. Knighten, 447 So. 2d 534 (La. Ct. App. 2d Cir. 1984), writ denied, 448 So. 2d 1303 (La. 1984). [FN8] La.Knighten v. Knighten, 447 So. 2d 534 (La. Ct. App. 2d Cir. 1984), writ denied, 448 So. 2d 1303 (La. 1984). [FN9] U.S.Hendrickson v. Sears, 359 F. Supp. 1031 (D. Mass. 1973), order rev'd on other grounds, 495 F.2d 513 (1st Cir. 1974). Ark.Lemon v. Laws, 313 Ark. 11, 852 S.W.2d 127 (1993). Wis.Boehm v. Wheeler, 65 Wis. 2d 668, 223 N.W.2d 536 (1974). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 150 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action C. Contract and Tort 3. Particular Contract Relations Topic Summary References Correlation Table 151. Bailee and bailor West's Key Number Digest West's Key Number Digest, Action 27(6) A bailor ordinarily has a choice of action, in contract or in tort, for a breach of duty by his or her bailee, the gist of the action brought as gathered from the complaint as a whole determining its nature. In view of the nature of the relations between bailor and bailee, the bailor, in case of a breach of duty by the bailee, ordinarily has a choice of remedies, and may maintain either an action in contract on the express or implied undertaking of the bailee, or one in tort for his or her wrongful act or breach of duty.[1] There may be, of course, positive wrongful acts on the part of the bailee, for which an action in tort may be maintained independently of the contractual relation between the parties.[2] Where both the bailee and the surety are sought to be held liable in the same action on a bond furnished by the bailee, only an action in contract can be maintained.[3] If it appears from a construction of the complaint, as a whole, that the action is based on a breach of the express or implied undertaking of the bailee, the action is in contract,[4] although the complaint also alleges negligence or other tortious conduct on his or her part.[5] On the other hand, if it appears that the action is based on some positive tortious act or breach of a general duty imposed by the relation between the parties, it is in tort,[6] although the complaint refers to the contract of bailment.[7]
[FN1] Ala.Higdon v. Warrant Warehouse Co., 10 Ala. App. 496, 63 So. 938 (1913). Ga.Warren v. Mitchell Motors, 52 Ga. App. 58, 182 S.E. 205 (1935). Kan.Continental Ins. Co. v. Windle, 214 Kan. 468, 520 P.2d 1235 (1974). Mich.Costello v. Ten Eyck, 86 Mich. 348, 49 N.W. 152 (1891).
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[FN2] Pa.Dungan v. Read, 167 Pa. 393, 31 A. 639 (1895). [FN3] N.D.Hanson v. Menoken Farmers' Co-op. Ass'n, 52 N.D. 126, 202 N.W. 135 (1924). [FN4] Ga.A. A. A. Parking, Inc. v. Bigger, 113 Ga. App. 578, 149 S.E.2d 255, 3 U.C.C. Rep. Serv. 618 (1966). Tenn.Smith v. Noe, 159 Tenn. 498, 19 S.W.2d 245 (1929). [FN5] IowaMcGinn v. Butler, 31 Iowa 160, 1871 WL 681 (1871). Mo.Kansas City Stockyards Co. of Maine v. Federal Grain Co., 279 S.W. 771 (Mo. Ct. App. 1926). N.Y.Austin v. Rawdon, 44 N.Y. 63, 1870 WL 7787 (1870). [FN6] Ga.Bates v. Madison County, 32 Ga. App. 370, 123 S.E. 158 (1924). Tenn.Smith v. Noe, 159 Tenn. 498, 19 S.W.2d 245 (1929). [FN7] Ga.Warren v. Mitchell Motors, 52 Ga. App. 58, 182 S.E. 205 (1935). Mo.Springfield Crystallized Egg Co. v. Springfield Ice & Refrigerating Co., 259 Mo. 664, 168 S.W. 772 (1914). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 151 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action C. Contract and Tort 3. Particular Contract Relations Topic Summary References Correlation Table 152. Bank and customer West's Key Number Digest West's Key Number Digest, Action 27(5) For acts involving both a breach of contract and a breach of duty arising from the relationship of banker and customer, the latter has a choice of bringing his or her action in contract or tort, the gist of the action as revealed by the complaint determining its nature. As between a bank and its customer, the same act or set of facts may constitute a breach of a contractual duty, either express or implied, and a breach of duty imposed by law, permitting the maintenance of either an action ex contractu or an action ex delicto,[1] the form or nature of the particular action brought depending upon whether it is based upon the breach of agreement, either express or implied, in which case the action is in contract,[2] or whether it is based upon a breach of duty imposed by law, in which event it is in tort.[3] Of course, where the transaction involves merely a breach of contract, as distinguished from a duty imposed by law, only an action in contract may be brought.[4] On the other hand, if it involves merely a breach of duty imposed by law, as distinguished from a breach of contract, only an action in tort may be maintained.[5] It has been considered that where a bank acts as collecting agent, the customer may, for a breach of duty in regard to making the collection, sue either in contract or in tort,[6] but that after collection is made and the amount credited to the customer's account, the relation between the parties is one of debtor and creditor, and that for a refusal to pay over the amount the action must be in contract.[7] Since a debtor-creditor relationship exists between a bank and a depositor, the proper action to challenge a setoff of funds by the bank is one in contract, rather than conversion.[8] Because a depositor's contract with a bank is with the corporation, a depositor's right of action against the directors individually for a loss of his or her deposit, caused by their neglect and mismanagement, is necessarily in tort, and not in contract.[9] If a depositor's account is overdrawn by means of the unauthorized use of checks which the depositor has signed in blank, the bank may recover from the depositor the amount of the overdraft in an action of contract, although the right of action arises by reason of the negligence of defendant.[10]
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Failure to honor checks. An action against a bank for failure to pay checks is one for breach of contract and not one in tort.[11] However, the refusal to honor a check of a depositor who has sufficient funds to meet it is not merely a breach of contract, but a wrong for which an action in tort will lie,[12] particularly where the drawer is a merchant or trader.[13]
[FN1] Cal.Siminoff v. Jas. H. Goodman & Co. Bank, 18 Cal. App. 5, 121 P. 939 (3d Dist. 1912). Mo.York v. Farmers' Bank, 105 Mo. App. 127, 79 S.W. 968 (1904). [FN2] Ark.Morrow v. First Nat. Bank of Hot Springs, 261 Ark. 568, 550 S.W.2d 429, 21 U.C.C. Rep. Serv. 1060 (1977). Kan.Howard v. Citizens' Nat. Bank, 107 Kan. 489, 192 P. 746 (1920). La.Lilliedahl & Mitchel, Inc. v. Avoyelles Trust and Sav. Bank, 352 So. 2d 781 (La. Ct. App. 3d Cir. 1977). Tenn. Farabee-Treadwell Co. v. Union & Planters' Bank & Trust Co., 135 Tenn. 208, 186 S.W. 92 (1916). [FN3] Ala.Jefferson County Sav. Bank v. Hendrix, 147 Ala. 670, 39 So. 295 (1905). N.C.Solomon v. Bates, 118 N.C. 311, 24 S.E. 478 (1896). Tex. Washington County State Bank v. Central Bank & Trust Co. of Houston, 168 S.W. 456 (Tex. Civ. App. El Paso 1914). [FN4] Ill.E.I. Tinkham & Co. v. Heyworth, 31 Ill. 519, 1863 WL 3139 (1863). [FN5] U.S.Modern Woodmen of America v. Union Nat. Bank of Omaha, 108 F. 753 (C.C.A. 8th Cir. 1901). [FN6] Ala.Jefferson County Sav. Bank v. Hendrix, 147 Ala. 670, 39 So. 295 (1905). Mo.Landa v. Traders' Bank of Kansas City, 118 Mo. App. 356, 94 S.W. 770 (1906). [FN7] Ill.E.I. Tinkham & Co. v. Heyworth, 31 Ill. 519, 1863 WL 3139 (1863). [FN8] Kan.Moore v. State Bank of Burden, 240 Kan. 382, 729 P.2d 1205 (1986). [FN9] N.C.Solomon v. Bates, 118 N.C. 311, 24 S.E. 478 (1896); Tate v. Bates, 118 N.C. 287, 24 S.E. 482 (1896). [FN10] N.Y.Trust Co. of America v. Conklin, 65 Misc. 1, 119 N.Y.S. 367 (App. Term 1909). [FN11] OhioStockyards Bank v. Seal, 27 Ohio App. 179, 6 Ohio L. Abs. 404, 161 N.E. 35 (1st Dist. Hamilton County 1927).
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[FN12] Cal.Siminoff v. Jas. H. Goodman & Co. Bank, 18 Cal. App. 5, 121 P. 939 (3d Dist. 1912). [FN13] Minn.Svendsen v. State Bank of Duluth, 64 Minn. 40, 65 N.W. 1086 (1896). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 152 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action C. Contract and Tort 3. Particular Contract Relations Topic Summary References Correlation Table 153. Carrier of goods and shipper West's Key Number Digest West's Key Number Digest, Action 27(3) Either a tort or contract action may be brought by a shipper against a carrier of goods for a breach of duty by the latter which the law implies from the relationship, and the gist of the action as gathered from the complaint determines the nature of the action as brought. The relation between a common carrier of goods and a shipper gives rise to duties implied in law in addition to the contractual duties between them, a breach of which by the carrier ordinarily giving to the shipper the choice of bringing an action in contract upon the contract of shipment, express or implied, or in tort for breach of the public duty imposed by law.[1] However, even as against a common carrier, the right to elect as between contract and tort does not exist under all circumstances, so that, for a breach of contract which does not involve any breach of public duty, the remedy is exclusively in contract,[2] and for a breach of public duty, where there is no contractual relation between the parties, the proper remedy is in tort.[3] It has sometimes been held that, if there is a special contract varying the carrier's common-law liability, the action must be on the contract,[4] or that, where the action is brought for a breach of the common-law duty of the carrier, no recovery may be had therein if it appears that a valid contract limiting or altering the carrier's common-law liability has been entered into between the parties.[5] However, other decisions have ruled that notwithstanding such contract the shipper may sue in tort for breach of the public duty,[6] and that any variation or limitation of liability by special contract is a matter of defense to be shown by a defendant,[7] and that a plaintiff by suing in tort cannot preclude a defendant from making such defense.[8] The question as to whether in particular cases a plaintiff has brought his or her action in contract or in tort must be determined by a construction of the complaint, as a whole,[9] and depends upon whether the action is based upon a breach of the contract or a breach of duty arising out of it.[10] Notwithstanding the general rule,[ 11] in case of doubt the action will ordinarily be construed as in tort, rather than in contract.[12]
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If the complaint shows that it is based upon the contract of shipment, the action is in contract,[13] provided the allegations in regard to the agreement include an averment of consideration,[14] and its character as such is not changed or affected by the fact there are also allegations of negligence.[15] On the other hand, if it appears that the complaint is based upon the breach of legal duty as distinguished from the contractual duty, the action is in tort.[16]
[FN1] Ga.Atlantic Coast Line R. Co. v. Tifton Produce Co., 179 Ga. 624, 176 S.E. 624, 96 A.L.R. 772 (1934). Ind.Vandalia R. Co. v. La Rosa, 77 Ind. App. 58, 133 N.E. 152 (Div. 2 1921). IowaMcCoy v. Wabash Ry. Co., 210 Iowa 1075, 231 N.W. 353 (1930). Mo.McNeill v. Wabash Ry. Co., 207 Mo. App. 161, 231 S.W. 649 (1921). S.C.Reaves v. Western Union Telegraph Co., 110 S.C. 233, 96 S.E. 295 (1918). [FN2] Ind.Parrill v. Cleveland, C., C. & St. L. R. Co., 23 Ind. App. 638, 55 N.E. 1026 (1900). Mo.Wernick v. St. Louis & S.F.R. Co., 131 Mo. App. 37, 109 S.W. 1027 (1908). [FN3] Minn.Richey & Gilbert Co. v. Northern Pac. Ry. Co., 110 Minn. 347, 125 N.W. 897 (1910). [FN4] Ind.Parrill v. Cleveland, C., C. & St. L. R. Co., 23 Ind. App. 638, 55 N.E. 1026 (1900). Vt.Kimball v. Rutland & B.R. Co., 26 Vt. 247, 1854 WL 3621 (1854). [FN5] N.D.Cooke v. Northern Pac. Ry. Co., 22 N.D. 266, 133 N.W. 303 (1911). [FN6] U.S.Empire State Cattle Co. v. Atchison, T. & S.F. Ry. Co., 129 F. 480 (C.C.D. Kan. 1904), aff'd, 147 F. 457 (C.C.A. 8th Cir. 1906), aff'd, 210 U.S. 1, 28 S. Ct. 607, 52 L. Ed. 931 (1908) and aff'd, 147 F. 463 (C.C.A. 8th Cir. 1906), aff'd, 210 U.S. 1, 28 S. Ct. 607, 52 L. Ed. 931 (1908). Mo.Libby v. St. Louis, I.M. & S. Ry. Co., 137 Mo. App. 276, 117 S.W. 659 (1909). Wash.Bartelt v. Oregon R. & Nav. Co., 57 Wash. 16, 106 P. 487 (1910). [FN7] U.S.Empire State Cattle Co. v. Atchison, T. & S.F. Ry. Co., 129 F. 480 (C.C.D. Kan. 1904), aff'd, 147 F. 457 (C.C.A. 8th Cir. 1906), aff'd, 210 U.S. 1, 28 S. Ct. 607, 52 L. Ed. 931 (1908) and aff'd, 147 F. 463 (C.C.A. 8th Cir. 1906), aff'd, 210 U.S. 1, 28 S. Ct. 607, 52 L. Ed. 931 (1908). Wash.Bartelt v. Oregon R. & Nav. Co., 57 Wash. 16, 106 P. 487 (1910). [FN8] Ga.Boaz v. Central R.R. & Banking Co., 87 Ga. 463, 13 S.E. 711 (1891). IowaOwens Bros. v. Chicago, R.I. & P. Ry. Co., 139 Iowa 538, 117 N.W. 762 (1908). [FN9] Ga.Lamb v. McHan, 17 Ga. App. 5, 86 S.E. 252 (1915).
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Ill. John A. Eck Co., for Use of Commerce Trust & Savings Bank v. Pennsylvania R. Co., 261 Ill. App. 43, 1931 WL 2976 (1st Dist. 1931). Mo.Bratton v. Chicago, R.I. & P. Ry. Co., 167 Mo. App. 75, 150 S.W. 1124 (1912). [FN10] Ala.Southern Ry. Co. v. Northwestern Fruit Exch., 210 Ala. 519, 98 So. 382 (1923). [FN11] 136. [FN12] Mo.Meade v. Missouri, K. & T. Ry. Co., 183 Mo. App. 353, 166 S.W. 1116 (1914). [FN13] Ala.Southern Ry. Co. v. Northwestern Fruit Exch., 210 Ala. 519, 98 So. 382 (1923). Ariz.Wenk v. Horizon Moving & Storage Co., 131 Ariz. 131, 639 P.2d 321 (1982). Ill.American Fruit Growers of Illinois v. San Antonio & A.P. Ry. Co., 239 Ill. App. 151, 1925 WL 4586 (1st Dist. 1925). Mo.Buschow Lumber Co. v. Union Pac. R. Co., 220 Mo. App. 743, 276 S.W. 409 (1925). [FN14] Ala.Western Ry. of Alabama v. Hart, 160 Ala. 599, 49 So. 371 (1909). Mo.J.A. Lamy Mfg. Co. v. Missouri Pac. Ry. Co., 182 S.W. 131 (Mo. Ct. App. 1916). [FN15] Ill. American Fruit Growers of Illinois v. San Antonio & A.P. Ry. Co., 239 Ill. App. 151, 1925 WL 4586 (1st Dist. 1925). IowaMcCoy v. Wabash Ry. Co., 210 Iowa 1075, 231 N.W. 353 (1930). N.Y.Finkelstein v. Barrett, 178 A.D. 233, 164 N.Y.S. 1021 (3d Dep't 1917). [FN16] La.Dejean v. Louisiana Western R. Co., 167 La. 111, 118 So. 822 (1928). Mo.McNeill v. Wabash Ry. Co., 207 Mo. App. 161, 231 S.W. 649 (1921). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 153 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action C. Contract and Tort 3. Particular Contract Relations Topic Summary References Correlation Table 154. Carrier and passenger West's Key Number Digest West's Key Number Digest, Action 27(4) The relation created between public carriers and the passengers carried by them gives rise to duties implied in law in addition to contract duties, and a passenger ordinarily has a choice between contract and tort in suing for a breach of such duties, the gist of the complaint determining the nature of the action as brought. The relation between a passenger and a carrier gives rise to duties implied in law as well as to contractual duties, for a breach of which by the carrier the passenger ordinarily has a choice of maintaining an action in contract upon the contract of transportation, express or implied, or in tort for breach of the public duty imposed by law.[1] A mere breach of a contract, however, which does not involve a breach of public duty on the part of the company as a common carrier cannot be made the basis of an action in tort;[2] and it has been ruled that, where by reason of some prior negligence, mistake, or misinformation, on the part of the carrier's agent a passenger is without a proper ticket or other evidence of his or her right to be or continue as a passenger and is on this account ejected by a conductor, the action must be in contract, and not in tort,[3] except where his or her ejection is accompanied with some unreasonable and unnecessary force or insult.[4] However, under other authorities, an action in tort may be maintained where a passenger is ejected under such circumstances.[5] Of course, where there is no contract of carriage with defendant carrier, the action against such carrier must be in tort and not in contract,[6] and it has been held that, where the baggage of a passenger, which has been damaged by the negligence of the carrier, is accepted and retained by the passenger, the action for the damages should be in tort and not in contract.[7] Whether in particular cases the action has been brought in contract or in tort must be determined by a construction of the complaint as a whole,[8] and, in case of doubt it will ordinarily be construed as in tort, rather than in contract.[9] If the complaint shows that the gravamen of the action is based upon the breach of the contract of transportation, the action is construed as in contract,[10] and its character as such is not affected or changed by the fact that there are also allegations of tortious conduct.[11]
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On the other hand, if it appears from the complaint that the gist of the action is a breach of public duty, the action is construed as in tort,[12] and its character as such is not affected or changed by the fact that the complaint alleges a contract of transportation, the purchase of a ticket, or the payment of fare,[13] the action certainly being ex delicto if no contract is specifically pleaded.[14] A cause of action against an insurance company for injury caused by a common carrier is not on the tort but on the contract, even though the tort constitutes the real cause of action.[15]
[FN1] Fla.Heredia v. Safeway Trails, Inc., 369 So. 2d 418 (Fla. Dist. Ct. App. 3d Dist. 1979). Mass.Tefft v. Boston Elevated Ry. Co., 285 Mass. 121, 188 N.E. 507 (1934). N.Y.Gillespie v. Brooklyn Heights R. Co., 178 N.Y. 347, 70 N.E. 857 (1904). N.C.Causey v. Davis, 185 N.C. 155, 116 S.E. 401 (1923). [FN2] Ga.Louisville & N.R. Co. v. Spinks, 104 Ga. 692, 30 S.E. 968 (1898). [FN3] Va.Virginia & S.W. Ry. Co. v. Hill, 105 Va. 729, 54 S.E. 872 (1906). W.Va.MacKay v. Ohio River R. Co., 34 W. Va. 65, 11 S.E. 737 (1890). [FN4] Ark.Little Rock Ry. & Elec. Co. v. Goerner, 80 Ark. 158, 95 S.W. 1007 (1906). Va.Virginia & S.W. Ry. Co. v. Hill, 105 Va. 729, 54 S.E. 872 (1906). [FN5] U.S.Baltimore & O.R. Co. v. Thornton, 188 F. 868 (C.C.A. 4th Cir. 1911). OhioCleveland City Ry. Co. v. Conner, 74 Ohio St. 225, 78 N.E. 376 (1906). [FN6] Ill.Wabash, St. L. & P. Ry. Co. v. Shacklet, 105 Ill. 364, 1883 WL 10142 (1883). La.Stephenson v. New Orleans Ry. & Light Co., 165 La. 132, 115 So. 412 (1927). Mich.Flint & P.M. Ry. Co. v. Wier, 37 Mich. 111, 1877 WL 3788 (1877). N.Y.Block v. Nassau Electric R. Co., 68 Misc. 320, 123 N.Y.S. 949 (App. Term 1910). [FN7] Kan.Atchison, T. & S. F. R. Co. v. Wilkinson, 55 Kan. 83, 39 P. 1043 (1895). [FN8] Ga.Rushin v. Central of Georgia Ry. Co., 128 Ga. 726, 58 S.E. 357 (1907). N.Y. Lynch v. Syracuse Rapid Transit Ry. Co., 66 Misc. 573, 124 N.Y.S. 169 (County Ct. 1910), aff'd, 139 A.D. 925, 124 N.Y.S. 1120 (4th Dep't 1910). [FN9] Okla.Ft. Smith & W.R. Co. v. Ford, 1912 OK 585, 34 Okla. 575, 126 P. 745 (1912). [FN10] Fla.Jacksonville St. Ry. Co. v. Chappell, 22 Fla. 616, 1 So. 10 (1886) (overruled in part on other grounds by, State ex rel. H. E. Wolfe Const. Co. v. Parks, 129 Fla. 50, 175 So. 786 (1937)).
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[FN11] Kan.Kansas Pac. Ry. Co. v. Kunkel, 17 Kan. 145, 1876 WL 937 (1876). N.Y.Busch v. Interborough Rapid Transit Co., 187 N.Y. 388, 80 N.E. 197 (1907). [FN12] Cal.Basler v. Sacramento Elec. Gas & Ry. Co., 166 Cal. 33, 134 P. 993 (1913). N.Y.Dietrich v. Palisades Interstate Park Commission, 114 Misc. 429, 187 N.Y.S. 457 (Sup 1921). Okla.Martin v. Chicago, R. I. & P. Ry. Co., 1915 OK 216, 46 Okla. 169, 148 P. 711 (1915). [FN13] Cal.Basler v. Sacramento Elec. Gas & Ry. Co., 166 Cal. 33, 134 P. 993 (1913). Okla.Martin v. Chicago, R. I. & P. Ry. Co., 1915 OK 216, 46 Okla. 169, 148 P. 711 (1915). [FN14] N.Y.Dietrich v. Palisades Interstate Park Commission, 114 Misc. 429, 187 N.Y.S. 457 (Sup 1921); Dietrich v. Palisades Interstate Park Commission, 114 Misc. 425, 187 N.Y.S. 454 (Sup 1921). [FN15] Ga.Addington v. Ohio Southern Exp., Inc., 118 Ga. App. 770, 165 S.E.2d 658 (1968). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 154 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action C. Contract and Tort 3. Particular Contract Relations Topic Summary References Correlation Table 155. Innkeeper and guest West's Key Number Digest West's Key Number Digest, Action 27(2) Notwithstanding the relation between an innkeeper and his or her guest is contractual, it gives rise to duties implied in law for a breach of which an action in tort may lie. The relation between innkeeper and guest originates in contract, but gives rise to duties imposed by law, for a breach of which duties the guest may maintain an action in tort.[1] An action, the gravamen of which is a breach of the innkeeper's public duty, is in tort and not in contract, notwithstanding allegations of the contract by way of inducement to show the relation between the parties.[2] If the loss or injury for which recovery is sought is charged to have resulted from some specified want of care, negligence, or carelessness, the action is said to be grounded in tort,[3] but if the loss is charged to have been the consequences of defendant's failure to perform in accordance with the undertaking, the action is one on the contract.[4]
[FN1] Mo.Stanley v. Bircher's Ex'r, 78 Mo. 245, 1883 WL 9428 (1883). Pa.Wood v. Virginia Hot Springs Co., 202 Pa. 40, 51 A. 586 (1902). [FN2] Mo.Stanley v. Bircher's Ex'r, 78 Mo. 245, 1883 WL 9428 (1883). [FN3] Tenn.Smith v. Noe, 159 Tenn. 498, 19 S.W.2d 245 (1929). [FN4] Tenn.Smith v. Noe, 159 Tenn. 498, 19 S.W.2d 245 (1929). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 155
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END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action C. Contract and Tort 3. Particular Contract Relations Topic Summary References Correlation Table 156. Landlord and tenant West's Key Number Digest West's Key Number Digest, Action 27(2) As between landlord and tenant the question as to whether an action in contract or one in tort lies depends on the nature of the duty breached as being purely contractual or purely tortious, or whether the duty breached is one arising from contract as well as one imposed by law on the relation, in the last instance an action either in contract or in tort being permissible. For the mere breach of a purely contractual duty by a landlord, the tenant ordinarily may maintain only an action ex contractu, no action in tort being permissible by a tenant.[1] Similarly, a landlord's breach of a covenant for quiet title permits, ordinarily, of but an action on the contract, particularly if the damage to the tenant results but from the landlord's failure to perform such covenant and not from any trespass or other overt act.[2] In the case of an agreement to make repairs, however, an action in tort may be maintained if the repairs are made, but in so negligent and unskillful a manner as to occasion the injury complained of.[3] Of course, the essentially contractual nature of the relation between a landlord and tenant does not necessarily preclude an action in tort, for the same act may be both a breach of covenant and also tortious.[4] Hence, if the breach of the lease is not merely the neglect of a duty expressly provided therein, the complainant has a choice of remedy either in contract or in tort,[5] such as a wrongful eviction by the landlord for which the tenant may bring an action in contract for the breach of his or her lease, or the tenant may treat the eviction as an unlawful invasion of his or her rights and sue in tort.[6] The determination of whether a particular action between a landlord and his or her tenant is in contract or in tort depends upon whether the gravamen of the suit is a mere breach of duty under the lease or tortious conduct arising out of such lease or irrespective thereof; and if the acts complained of are actionable only because of the contract and not because of any breach of duty distinct from the breach of promise under the lease, the action is ex contractu,[7] notwithstanding allegations in the complaint sounding in tort.[8] In this category is an action by the landlord to recover rent,[9] an action by a landlord to recover money obtained by the tenant from a sale of property on the premises belonging to the landlord[10] and an action by a
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landlord for double rent, under a statute, against a tenant holding over.[11] Also, an action by the landlord against the tenant for failing to return the premises in good repair, according to the conditions of the lease, is in contract, which is not affected or changed into an action ex delicto by evidence on the part of defendant showing negligence on the part of its agents in the care of the leased premises.[12] On the other hand, if the basis of the action as set out in the complaint is unlawful or wrongful conduct on the part of the landlord, the action is in tort rather than contract,[13] notwithstanding allegations as to the contract.[14] Hence, an action brought against a tenant wrongfully holding over, to recover possession of the premises or damages for the wrongful occupancy, is in tort,[15] as is an action by a tenant for a wrongful interference with his or her occupancy and injury to his or her business on the part of the landlord in making repairs.[ 16] An action by a lessor against a third person who has fraudulently purchased leased property from the lessee, and which seeks merely a judgment for damages, is in tort.[17]
[FN1] IowaWillis v. Snyder, 190 Iowa 248, 180 N.W. 290 (1920). Mass.Wierzbicki v. Thacher, 273 Mass. 346, 173 N.E. 512 (1930). S.C.Timmons v. Williams Wood Products Corp., 164 S.C. 361, 162 S.E. 329 (1932). [FN2] Cal.Nathan v. Locke, 108 Cal. App. 158, 287 P. 550 (1st Dist. 1930), aff'd on reh'g, 108 Cal. App. 158, 291 P. 286 (1st Dist. 1930). Mass.Tuttle v. George H. Gilbert Mfg. Co., 145 Mass. 169, 13 N.E. 465 (1887). [FN3] Mass.Tuttle v. George H. Gilbert Mfg. Co., 145 Mass. 169, 13 N.E. 465 (1887). [FN4] U.S.Mosby v. Manhattan Oil Co., 52 F.2d 364, 77 A.L.R. 1099 (C.C.A. 8th Cir. 1931). Cal.Jones v. Kelly, 208 Cal. 251, 280 P. 942 (1929). La.McCrory Corp. v. Latter, 331 So. 2d 577 (La. Ct. App. 1st Cir. 1976), writ denied, 334 So. 2d 229 (La. 1976). Mass.Winchester v. O'Brien, 266 Mass. 33, 164 N.E. 807, 64 A.L.R. 895 (1929). [FN5] Cal.Jones v. Kelly, 208 Cal. 251, 280 P. 942 (1929). Ga.Republic Iron & Steel Co. v. Norris, 25 Ga. App. 809, 104 S.E. 921 (1920). [FN6] Mass.Mitsakos v. Morrill, 237 Mass. 29, 129 N.E. 294 (1921). [FN7] Cal.Nathan v. Locke, 108 Cal. App. 158, 287 P. 550 (1st Dist. 1930), aff'd on reh'g, 108 Cal. App. 158, 291 P. 286 (1st Dist. 1930). Ky.O'Neil v. Brown, 158 Ky. 118, 164 S.W. 315 (1914).
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S.C.Timmons v. Williams Wood Products Corp., 164 S.C. 361, 162 S.E. 329 (1932). [FN8] Cal.Stanford Hotel Co. v. M. Schwind Co., 180 Cal. 348, 181 P. 780 (1919). OhioKetcham v. Miller, 104 Ohio St. 372, 136 N.E. 145 (1922). [FN9] Cal.Stanford Hotel Co. v. M. Schwind Co., 180 Cal. 348, 181 P. 780 (1919). [FN10] Cal. Corey v. Struve, 170 Cal. 170, 149 P. 48 (1915) (disapproved of on other grounds by, Maben v. Rankin, 55 Cal. 2d 139, 10 Cal. Rptr. 353, 358 P.2d 681 (1961)). [FN11] Wis.State ex rel. Alliance Elevator Co. v. Helms, 101 Wis. 280, 77 N.W. 194 (1898). [FN12] N.Y.Marcy v. City of Syracuse, 199 A.D. 246, 192 N.Y.S. 674 (4th Dep't 1921). [FN13] Mass.Winchester v. O'Brien, 266 Mass. 33, 164 N.E. 807, 64 A.L.R. 895 (1929). Tex.Robinson v. Street, 220 S.W. 648 (Tex. Civ. App. Beaumont 1920), writ refused, (Jan. 26, 1921). [FN14] S.C.Winthrop v. Allen, 116 S.C. 388, 108 S.E. 153 (1921). [FN15] Ind.Holland v. Hummell, 43 Ind. App. 358, 87 N.E. 662 (Div. 2 1909). [FN16] Mich.Ives v. Williams, 53 Mich. 636, 19 N.W. 562 (1884). [FN17] La.Seelig v. Dumas, 48 La. Ann. 1494, 21 So. 91 (1896). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 156 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action C. Contract and Tort 3. Particular Contract Relations Topic Summary References Correlation Table 157. Employer and employee West's Key Number Digest West's Key Number Digest, Action 27(2) While the relation of employer and employee gives rise to duties imposed by law and for a breach of which an action either in contract or in tort may be maintained, for a breach of a purely contractual duty, only an action on the contract is permissible. From the relation of employer and employee arise duties imposed by law independent of the express terms of the contract between them, for a breach of which on the part of the employer the employee has a choice of suing either in contract or in tort.[1] The employee has the right to sue in tort in such cases,[2] and such a right exists, although the particular liability is also covered by an express provision in the contract.[3] On the other hand, for any liability imposed by the contract alone and not involving any breach of duty imposed by law, either independently of or arising out of the contract, the action available is in contract and not in tort.[4] Within this latter rule is an action by an employee for a wrongful discharge from his or her employment, for which an action in tort will not lie,[5] unless the discharge was accompanied by other wrongful conduct of the employer amounting to a tort, in which case an action ex delicto will lie.[6] The determination of whether a particular action between an employer and an employee is in contract or in tort depends on whether the gravamen of the action is a breach of a purely contractual duty or a duty imposed by law.[7] Hence, an action by an employee for compensation as fixed in his or her contract of employment is in contract, notwithstanding allegations of fraud on the part of the employer in respect of statements furnished by him or her of the amounts due to the employee;[8] so also is an action by an employee for a wrongful discharge from his or her employment,[9] notwithstanding allegations sounding in tort.[10] However, an action for an injury due to the unsafe condition of the place where a servant is required to work will be construed as in tort,[11] even though it is alleged that the employer had agreed to repair the defect which caused the injury[12] or it is alleged that the employer had agreed to take certain precautions for the employee's protection, which, if taken, would have prevented the injury.[13]
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[FN1] Mich.Porth v. Cadillac Motor Car Co., 209 Mich. 89, 176 N.W. 554 (1920). Tex.State v. Elliott, 212 S.W. 695 (Tex. Civ. App. Galveston 1919), writ refused, (Oct. 13, 1920). [FN2] Ga.Brown v. Rome Mach. & Foundry Co., 5 Ga. App. 142, 62 S.E. 720 (1908). Tex.Galveston, H. & S.A. Ry. Co. v. Hennigan, 33 Tex. Civ. App. 314, 76 S.W. 452 (1903). [FN3] N.Y.Obanhein v. Arbuckle, 80 A.D. 465, 81 N.Y.S. 133 (2d Dep't 1903). [FN4] Tex.Galveston, H. & S.A. Ry. Co. v. Hennigan, 33 Tex. Civ. App. 314, 76 S.W. 452 (1903). [FN5] Ala.Slovensky v. Birmingham News Co., Inc., 358 So. 2d 474 (Ala. Civ. App. 1978). Cal.Westwater v. Rector, etc., of Grace Church, 140 Cal. 339, 73 P. 1055 (1903). [FN6] N.J.Wilson v. Wilderness Poultry Farm, 82 N.J.L. 352, 82 A. 517 (N.J. Sup. Ct. 1912). [FN7] IowaCross v. Lightolier Inc., 395 N.W.2d 844 (Iowa 1986). La.Northern Assur. Co. of America v. Waguespack, 304 So. 2d 865 (La. Ct. App. 4th Cir. 1974). N.C.Williams v. Southern Ry. Co., 128 N.C. 286, 38 S.E. 893 (1901). S.D.French v. Dell Rapids Community Hosp., Inc., 432 N.W.2d 285 (S.D. 1988). [FN8] N.Y.Koerner v. Apple, 198 A.D. 540, 190 N.Y.S. 619 (1st Dep't 1921). [FN9] HawaiiBraham v. Honolulu Amusement Co., 21 Haw. 583, 1913 WL 1656 (1913). Ind.Pennsylvania Co. v. Dolan, 6 Ind. App. 109, 32 N.E. 802 (1892). [FN10] S.C.Youmans v. Charleston & W. C. Ry. Co., 175 S.C. 99, 178 S.E. 671 (1935). [FN11] Colo.Harogis v. Royal Fuel Co., 65 Colo. 416, 176 P. 473 (1918). [FN12] Ky.Louisville Hotel Co. v. Kaltenbrun, 26 Ky. L. Rptr. 208, 80 S.W. 1163 (Ky. 1904). [FN13] Vt.Blanchard v. Vermont Shade Roller Co., 84 Vt. 442, 79 A. 911 (1911). As to an employer's liability for injuries to an employee, see C.J.S., Employers' Liability for Injuries to Employees 2, 3. Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 157 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action C. Contract and Tort 3. Particular Contract Relations Topic Summary References Correlation Table 158. Physician and patient West's Key Number Digest West's Key Number Digest, Action 27(2) The relation between a physician and a patient gives rise to duty implied in law for a breach of which an action either in contract or in tort lies. If the duty breached is purely contractual, however, only an action in contract lies. The nature of the relation between a physician and a patient is such as gives rise to duties imposed by law as distinct from the duty imposed by any contract between them, for a breach of which by the physician the patient has a choice of proceeding by action on the contract or in tort.[1] Accordingly, in the case of malpractice by a physician, the patient ordinarily has a choice of remedies, and may sue the physician either in contract or in tort;[2] and since the action need not be based upon contract, it is immaterial, where the action is in tort, by whom the physician is employed.[3] Nevertheless, in some jurisdictions, an action against a physician for negligent diagnosis or treatment sounds in tort,[4] and the basis of the action for malpractice is in tort rather than breach of contract, but where the breach of an express promise by a physician is alleged, the action may be in contract.[5] The mere refusal of a physician to treat a patient in violation of his or her agreement so to do, however, permits of but an action in contract.[6] Having undertaken to recover by an action in tort, the patient must recover, if at all, in tort.[7] Whether the particular action brought is in contract or in tort depends upon whether it appears from a construction of the complaint that the gravamen of the action is a breach of the contract,[8] or a breach of the duty imposed by law by reason of a defendant's profession and the relation between the parties.[9] If the gravamen of the action is a breach of duty imposed by law rendering the action one in tort, any allegation as to the contract will be treated as matter of inducement to show the relationship between the parties.[10] Any cause of action for a psychiatrist's unauthorized release of a patient's medical records was a tort cause of action, even though the duty violated arose from contract.[11]
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[FN1] Mo.Hales v. Raines, 162 Mo. App. 46, 141 S.W. 917 (1911); Hales v. Raines, 146 Mo. App. 232, 130 S.W. 425 (1910). [FN2] Ala.Knowles v. Dark & Boswell, 211 Ala. 59, 99 So. 312 (1924). Ky.Randolph's Adm'r v. Snyder, 139 Ky. 159, 129 S.W. 562 (1910). [FN3] Ala.Carpenter v. Walker, 170 Ala. 659, 54 So. 60 (1910). [FN4] Tenn.Darby v. Union Planters Nat. Bank of Memphis, 222 Tenn. 417, 436 S.W.2d 439 (1969). [FN5] Ill.Allen v. Komajda, 130 Ill. App. 2d 1018, 266 N.E.2d 456 (1st Dist. 1970). [FN6] Ky.Randolph's Adm'r v. Snyder, 139 Ky. 159, 129 S.W. 562 (1910). [FN7] Ky.Randolph's Adm'r v. Snyder, 139 Ky. 159, 129 S.W. 562 (1910). [FN8] Ala.Horton v. Northeast Alabama Regional Medical Center, Inc., 334 So. 2d 885 (Ala. 1976). Ind.Reinhardt v. Friederich, 58 Ind. App. 421, 108 N.E. 258 (1915). Minn.Finch v. Bursheim, 122 Minn. 152, 142 N.W. 143 (1913). [FN9] Cal.Wetzel v. Pius, 78 Cal. App. 104, 248 P. 288 (3d Dist. 1926). Ill.Keirsey v. McNeemer, 197 Ill. App. 173, 1915 WL 2669 (4th Dist. 1915). Kan.Ericson v. Charles, 108 Kan. 205, 194 P. 652 (1921). N.Y.Frankel v. Wolper, 181 A.D. 485, 169 N.Y.S. 15 (2d Dep't 1918), aff'd, 228 N.Y. 582, 127 N.E. 913 (1920). [FN10] Ala.Carpenter v. Walker, 170 Ala. 659, 54 So. 60 (1910). Mo.Hales v. Raines, 162 Mo. App. 46, 141 S.W. 917 (1911). Wis.Nelson v. Harrington, 72 Wis. 591, 40 N.W. 228 (1888). [FN11] W.Va.Allen v. Smith, 179 W. Va. 360, 368 S.E.2d 924 (1988) (rejected on other grounds by, Martin v. Baehler, 1993 WL 258843 (Del. Super. Ct. 1993)). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 158 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action C. Contract and Tort 3. Particular Contract Relations Topic Summary References Correlation Table 159. Trustee West's Key Number Digest West's Key Number Digest, Action 27(5) For a breach of duty by a trustee which constitutes a tort as well as a breach of contract, express or implied, the trustee may be sued in tort or contract. A breach of duty by a trustee may constitute a breach of contract, express or implied, for which an action ex contractu lies notwithstanding such breach may also constitute a tort;[1] for such tort an action ex delicto lies at the election of the injured party.[2] An action based on a complaint declaring in contract is not affected by allegations of tortious conduct.[3]
[FN1] Mo.Wallrath v. Bohnenkamp, 97 Mo. App. 242, 70 S.W. 1112 (1902). OhioMartin v. Gunnison, 17 Ohio C.D. 113, 1903 WL 649 (Ohio Cir. Ct. 1903), aff'd, 71 Ohio St. 480, 74 N.E. 1136 (1904). [FN2] U.S.Federal Deposit Ins. Corp. v. Citizens Bank & Trust Co. of Park Ridge, Ill., 592 F.2d 364 (7th Cir. 1979). Pa.Bell v. Title Trust & Guarantee Co. of Johnstown, 292 Pa. 228, 140 A. 900, 57 A.L.R. 463 (1928). [FN3] Mo.Wallrath v. Bohnenkamp, 97 Mo. App. 242, 70 S.W. 1112 (1902). OhioMartin v. Gunnison, 17 Ohio C.D. 113, 1903 WL 649 (Ohio Cir. Ct. 1903), aff'd, 71 Ohio St. 480, 74 N.E. 1136 (1904). Wis.Harrigan v. Gilchrist, 121 Wis. 127, 99 N.W. 909 (1904).
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action C. Contract and Tort 4. Waiver of Tort and Action on Contract Topic Summary References Correlation Table 160. Generally West's Key Number Digest West's Key Number Digest, Action 28 Where the same transaction constitutes a breach of contract, express or implied, and a tort, the tort may be waived and an action in contract maintained. In order for a party to be enabled to waive a tort and maintain an action of contract with regard to the same subject matter, there must be some contract either express or implied.[1] Where the matter out of which the cause of action arises has in it elements of both contract and tort, complainant may waive the tort and sue in contract.[2] So, if there is an express contract, and the same act or transaction constitutes both a tort and a breach of the contract, the injured party may waive the tort and sue on the contract.[3] This rule obtains where a contract creates a relation out of which certain duties arise, a breach of which will constitute a tort,[4] as in the case of the relation between attorney and client,[5] between bailor and bailee,[6] between a common carrier and a shipper[7] or passenger,[8] between landlord and tenant,[9] between patient and physician,[10] and between principal and agent.[11] A tort may arise from a violation of some private obligation, and if the breach complained of is not a mere neglect of a duty expressly provided for by the terms of the contract itself, the complaining party may rely upon his or her right under the contract or proceed for damages as for a tort.[12] It has been stated that one cannot waive tort and sue on a quasi contract unless there is a tort in the first place.[13]
[FN1] Del.Hutton v. Wetherald, 5 Del. 38, 5 Harr. 38, 1848 WL 802 (Super. Ct. 1848). Mont.Kyle v. Chester, 42 Mont. 522, 113 P. 749 (1911). Pa.Boyer v. Bullard, 102 Pa. 555, 1883 WL 13342 (1883).
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[FN2] Cal. Gold v. Los Angeles Democratic League, 49 Cal. App. 3d 365, 122 Cal. Rptr. 732 (2d Dist. 1975). N.J.Commercial Ins. Co. of Newark v. Apgar, 111 N.J. Super. 108, 267 A.2d 559 (Law Div. 1970). N.Y. Hechter v. New York Life Ins. Co., 46 N.Y.2d 34, 412 N.Y.S.2d 812, 385 N.E.2d 551, 25 U.C.C. Rep. Serv. 537 (1978). [FN3] Ariz.Glaspie v. Williams, 46 Ariz. 381, 51 P.2d 254 (1935). Cal.Singley v. Bigelow, 108 Cal. App. 436, 291 P. 899 (3d Dist. 1930). Ga.Monroe v. Guess, 41 Ga. App. 697, 154 S.E. 301 (1930). Pa.Wessel v. Montgomery, 106 Pa. Super. 341, 163 A. 347 (1932). [FN4] Mich.Kristoffy v. Iwanski, 255 Mich. 25, 237 N.W. 33 (1931). [FN5] Me.Stimpson v. Sprague, 6 Me. 470, 1830 WL 480 (1830). [FN6] Kan.Continental Ins. Co. v. Windle, 214 Kan. 468, 520 P.2d 1235 (1974). [FN7] Ga.Atlantic Coast Line R. Co. v. Tifton Produce Co., 50 Ga. App. 614, 179 S.E. 125 (1935). Or.Sevier v. Mitchell, 72 Or. 483, 142 P. 780 (1914). [FN8] Kan.Union Pac. Ry. Co. v. Shook, 3 Kan. App. 710, 44 P. 685 (1896). [FN9] N.Y.Marcy v. City of Syracuse, 199 A.D. 246, 192 N.Y.S. 674 (4th Dep't 1921). [FN10] La.Creighton v. Karlin, 225 So. 2d 288 (La. Ct. App. 4th Cir. 1969). [FN11] Ind.Holthouse v. Poling, 52 Ind. App. 568, 99 N.E. 810 (Div. 2 1912). [FN12] Ga.Rawls Bros. Co. v. Paul, 115 Ga. App. 731, 155 S.E.2d 819 (1967). [FN13] Ill.Consolidated Const. Co. v. Great Lakes Plumbing & Heating Co., 90 Ill. App. 2d 196, 234 N.E.2d 378 (1st Dist. 1967). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 160 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action C. Contract and Tort 4. Waiver of Tort and Action on Contract Topic Summary References Correlation Table 161. Implied contract West's Key Number Digest West's Key Number Digest, Action 28 Where the law implies a promise on the part of a tortfeasor to reimburse the injured party, the latter may waive the tort and maintain an action ex contractu. Even where there is no express contract, and the cause of action arises out of tort, the tort may be waived and an action of contract brought in all cases where the law will imply a promise on the part of the wrongdoer to reimburse the party injured by his or her act;[1] but this can be done only where such a contract can be implied without abolishing the distinction between tort and contract,[2] so that in cases of this character the question resolves itself into one of when and under what circumstances the law will imply such an agreement.[3] In this connection, it is to be observed that the duty to pay damages for a tort does not necessarily imply any promise to pay them, and, consequently, that a party cannot create a cause of action in contract merely by waiving a tort;[4] but, under some authorities, such an agreement will be implied.[5] The right to waive the tort and to sue on an implied contract has been extended to include a large variety of cases.[6] The rule has been stated that for this purpose an agreement should be implied wherever one person commits a tort against the estate of another with the intention of benefiting his or her own estate,[7] or wherever justice requires it in consideration of benefits received;[8] but that no such agreement will be implied where no benefit to the wrongdoer was received[9] or expected.[10] Under such authorities, whenever a party has derived a pecuniary advantage from a wrong done by him or her, the person wronged may waive the tort and maintain an action in contract,[11] but only an action in tort may be maintained where no enrichment to the tortfeasor has resulted.[12] Some authorities state the rule with the qualification that a plaintiff may waive the tort and sue in contract, provided no prejudice to the defendant will result,[13] but they also observe that waiving the tort and suing in contract must ordinarily be beneficial, rather than prejudicial, to the defendant.[14] Another qualification has been stated to the effect that where the gravamen of the transaction sounds in tort, the plaintiff will not be indulged in this fiction of an implied contract if the result will be to give jurisdiction over the subject matter to a
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court which otherwise would not possess it,[15] or so as to bring the case within the terms of a statute which otherwise would not include it.[16] In all cases where there is a choice of remedies, as between contract and tort, the right of election is with the plaintiff,[17] and while the plaintiff has a right to sue in tort, if he or she chooses to waive the tort and sue in contract he or she has a right to do so,[18] and the defendant cannot object that he or she should have been sued in tort.[19]
[FN1] U.S.Jones v. Alton & S.R. Co., 6 F. Supp. 807 (E.D. Ill. 1934). Mich.Kristoffy v. Iwanski, 255 Mich. 25, 237 N.W. 33 (1931). Or.Kerns v. Couch, 141 Or. 147, 12 P.2d 1011 (1932), on reh'g, 141 Or. 147, 17 P.2d 323 (1932). Vt.Nelson & Wallace v. Gibson, 90 Vt. 423, 98 A. 1006 (1916). [FN2] U.S.Stamp v. Union Stevedoring Corporation, 11 F.2d 172 (E.D. Pa. 1925). Miss.B.F. Avery & Sons v. McClure, 94 Miss. 172, 47 So. 901 (1909). [FN3] Kan.Tightmeyer v. Mongold, 20 Kan. 90, 1878 WL 842 (1878). Mont.Kyle v. Chester, 42 Mont. 522, 113 P. 749 (1911). Wis.Norden v. Jones, 33 Wis. 600, 1873 WL 2991 (1873). [FN4] U.S.North Platte Canal & Colonization Co. v. U.S., 48 Ct. Cl. 281, 1912 WL 1193 (1913). Mich.Kristoffy v. Iwanski, 255 Mich. 25, 237 N.W. 33 (1931). [FN5] Va.Tidewater Quarry Co. v. Scott, 105 Va. 160, 52 S.E. 835 (1906). [FN6] Ala.E.T. Gray & Sons v. Ralston Purina Co., 24 Ala. App. 475, 136 So. 861 (1931). Minn.McArthur v. Murphy, 74 Minn. 53, 76 N.W. 955 (1898). [FN7] Okla.Weems v. Melton, 47 Okla. 706, 150 P. 720 (1915). [FN8] Wis.Norden v. Jones, 33 Wis. 600, 1873 WL 2991 (1873). [FN9] Kan.Scherger v. Union Nat. Bank, 138 Kan. 239, 25 P.2d 588 (1933). Minn.Erickson v. Borchardt, 177 Minn. 381, 225 N.W. 145 (1929). W.Va.Parkersburg & Marietta Sand Co. v. Smith, 76 W. Va. 246, 85 S.E. 516 (1915). [FN10] Kan.Scherger v. Union Nat. Bank, 138 Kan. 239, 25 P.2d 588 (1933). Mont.Kyle v. Chester, 42 Mont. 522, 113 P. 749 (1911).
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[FN11] IowaJewell v. Nuhn, 173 Iowa 112, 155 N.W. 174 (1915). Kan.Scherger v. Union Nat. Bank, 138 Kan. 239, 25 P.2d 588 (1933). [FN12] Ill.Howard v. Swift, 356 Ill. 80, 190 N.E. 102 (1934). Kan.Scherger v. Union Nat. Bank, 138 Kan. 239, 25 P.2d 588 (1933). [FN13] Miss.Isaacs v. Hermann, 49 Miss. 449, 1873 WL 6057 (1873). [FN14] N.Y.Roth v. Palmer, 27 Barb. 652, 1858 WL 7087 (N.Y. Gen. Term 1858). [FN15] U.S.Curved Electrotype Plate Co. of N.Y. v. U.S., 50 Ct. Cl. 258, 1915 WL 1119 (1915). [FN16] Mo.Finlay v. Bryson, 84 Mo. 664, 1884 WL 9114 (1884). [FN17] La.Morgan's Louisiana & T.R. & S.S. Co. v. Stewart, 119 La. 392, 44 So. 138 (1907). OhioIsaac Harter Co. v. Pearson, 16 Ohio C.D. 601, 1904 WL 657 (Ohio Cir. Ct. 1904). Or.Hornefius v. Wilkinson, 51 Or. 45, 93 P. 474 (1908). [FN18] N.Y.People v. Wood, 121 N.Y. 522, 24 N.E. 952 (1890). Or.La Grande Nat. Bank v. Oliver, 84 Or. 582, 165 P. 682 (1917). [FN19] Or.La Grande Nat. Bank v. Oliver, 84 Or. 582, 165 P. 682 (1917). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 161 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action C. Contract and Tort 4. Waiver of Tort and Action on Contract Topic Summary References Correlation Table 162. Conversion West's Key Number Digest West's Key Number Digest, Action 28 For a conversion of money or of other personalty which has been converted into money, the owner may waive the tort and bring an action ex contractu. As a general rule, where personal property has been wrongfully taken and converted into money or money's worth, the owner may waive the tort and sue the wrongdoer in contract for money had and received,[1] upon the theory that the owner ratifies the sale as made for his or her benefit, and sues to recover the proceeds as money had and received to his or her use.[2] So, also, the owner may ignore the taker's subsequent sale and maintain an action as for goods sold and delivered,[3] or upon an implied contract for the value of the property.[4] If that which is taken or converted is already in the form of money, the owner may waive the tort and sue in contract to recover it.[5] Realty. The unauthorized sale of realty does not accord the real owner of the property the right to waive the tort and sue for the purchase price obtained by the wrongdoer;[6] but where one having the right of eminent domain wrongfully takes another's land without compensation, the owner may waive the tort and sue on an implied promise to pay for such property.[7]
[FN1] Ala.Connecticut General Life Ins. Co. v. Smith, 226 Ala. 142, 145 So. 651 (1932). Ariz.Andersen v. Thude, 42 Ariz. 271, 25 P.2d 272 (1933). Mich.Nelson & Witt v. Texas Co., 256 Mich. 65, 239 N.W. 289 (1931). [FN2] Del.In re Baker, 35 Del. 198, 162 A. 356 (Super. Ct. 1932).
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UtahTaylor Motor Car Co. v. Hansen, 75 Utah 80, 282 P. 1040 (1929). [FN3] U.S.Felder v. Reeth, 34 F.2d 744, 97 A.L.R. 244, 5 Alaska Fed. 432 (C.C.A. 9th Cir. 1929). [FN4] U.S.U.S. v. Haushalter, 320 F. Supp. 169 (W.D. Pa. 1970). HawaiiOsorio v. Henry Waterhouse Trust Co., 29 Haw. 376, 1926 WL 3037 (1926). [FN5] U.S.U.S. v. Haushalter, 320 F. Supp. 169 (W.D. Pa. 1970). Ala.Connecticut General Life Ins. Co. v. Smith, 226 Ala. 142, 145 So. 651 (1932). Minn.Kubat v. Zika, 186 Minn. 122, 242 N.W. 477 (1932). Or.La Grande Nat. Bank v. Oliver, 84 Or. 582, 165 P. 682 (1917). [FN6] Ga.Copelin v. Williams, 152 Ga. 692, 111 S.E. 186 (1922). Mass.Brigham v. Winchester, 47 Mass. 460, 6 Met. 460, 1843 WL 4254 (1843). [FN7] Va.Nelson County v. Coleman, 126 Va. 275, 101 S.E. 413 (1919). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 162 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action C. Contract and Tort 4. Waiver of Tort and Action on Contract Topic Summary References Correlation Table 163. ConversionAs affected by disposition of property West's Key Number Digest West's Key Number Digest, Action 28 There is a conflict of authority on the question of whether the tort may be waived in the case of a conversion of personalty not disposed of for money or its equivalent. According to some decisions, the owner of the property cannot waive the tort and sue in contract unless the property has been converted into money or money's worth, upon the theory that there is no implied sale to the wrongdoer which will sustain an action for goods sold and delivered, and that there can be no action for money had and received unless there has been an actual receipt of money or its equivalent.[1] So, no action on an implied promise can be maintained against a wrongdoer not enriched by the conversion.[2] Other authorities, however, either expressly repudiate this doctrine,[3] and rule that no conversion of the property into money or money's worth is necessary,[4] or set down the rule generally, without express reference to the disposition made of the property, that in cases of conversion, the owner of the property may waive the tort and sue for money had and received,[5] or in contract for its value,[6] as for goods sold and delivered,[7] upon the theory of an implied sale to the wrongdoer[8] or upon an implied promise to pay the value therefor.[9] Liens. A distinction has been made in the case where complainant has but a lien on the converted property in which case the tort may be waived and an action ex contractu maintained only when the lien has been destroyed by a disposal of the property for money or its equivalent,[10] its consumption,[11] or by intermingling so as to destroy its identity,[12] or otherwise putting it beyond the reach of the lienor.[13]
[FN1] Ala.Albertville Trading Co. v. Critcher, 216 Ala. 252, 112 So. 907 (1927). Ga.Hilton v. Rogers, 152 Ga. 658, 111 S.E. 33 (1922).
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Pa.Honeywell v. Miller, 29 Pa. C.C. 173, 13 Pa. Dist. 726, 1904 WL 2540 (Pa. C.P. 1904). [FN2] Minn.Burleson v. Langdon, 174 Minn. 264, 219 N.W. 155 (1928). [FN3] Cal.Armstrong v. Kubo & Co., 88 Cal. App. 331, 263 P. 365 (3d Dist. 1928). Del.Conaway v. Pepper, 30 Del. 511, 7 Boyce 511, 108 A. 676 (Super. Ct. 1919). [FN4] Cal.Armstrong v. Kubo & Co., 88 Cal. App. 331, 263 P. 365 (3d Dist. 1928). Del.Conaway v. Pepper, 30 Del. 511, 7 Boyce 511, 108 A. 676 (Super. Ct. 1919). Or.Daniels v. Foster & Kleiser, 95 Or. 502, 187 P. 627 (1920). [FN5] N.J.Colton v. Gross, 3 N.J. Misc. 170, 127 A. 574 (Sup. Ct. 1925). S.D.State v. Interstate Surety Co., 48 S.D. 57, 201 N.W. 717 (1924). [FN6] Cal.Philpott v. Superior Court in and for Los Angeles County, 1 Cal. 2d 512, 36 P.2d 635, 95 A.L.R. 990 (1934). Minn.Kubat v. Zika, 186 Minn. 122, 242 N.W. 477 (1932). Mont.Stagg v. Stagg, 90 Mont. 180, 300 P. 539 (1931). Va.Nelson County v. Coleman, 126 Va. 275, 101 S.E. 413 (1919). [FN7] U.S.Felder v. Reeth, 34 F.2d 744, 97 A.L.R. 244, 5 Alaska Fed. 432 (C.C.A. 9th Cir. 1929). N.Y.Goldman v. Karger, 174 N.Y.S. 715 (App. Term 1919). [FN8] Cal.Miller v. Murphy, 186 Cal. 344, 199 P. 525 (1921). IdahoDavidson Grocery Co. v. Johnston, 24 Idaho 336, 133 P. 929 (1913). Mont.Young v. Bray, 54 Mont. 415, 170 P. 1044 (1918). [FN9] Colo.Haynie v. Sites, 56 Colo. 115, 138 P. 42 (1913). Kan.Ireland v. Waymire, 107 Kan. 384, 191 P. 304 (1920). N.Y. Manhattan Egg Co. v. Seaboard Terminal & Refrigeration Co., 137 Misc. 14, 242 N.Y.S. 189 (City Ct. 1929). N.D.Olson v. Baker, 45 N.D. 396, 178 N.W. 126 (1920). Wash.Wylde v. Schoening, 96 Wash. 86, 164 P. 752 (1917). [FN10] Ala.Connecticut General Life Ins. Co. v. Smith, 226 Ala. 142, 145 So. 651 (1932). [FN11] Ala.Armstrong v. Blackwood, 227 Ala. 545, 151 So. 602 (1933).
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[FN12] Ala.Armstrong v. Blackwood, 227 Ala. 545, 151 So. 602 (1933). [FN13] Ala.Armstrong v. Blackwood, 227 Ala. 545, 151 So. 602 (1933). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 163 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action C. Contract and Tort 4. Waiver of Tort and Action on Contract Topic Summary References Correlation Table 164. ConversionProperty benefiting tortfeasor's estate West's Key Number Digest West's Key Number Digest, Action 28 In effect, a limitation of the rule requiring a conversion into money before the tort may be waived is the rule that permits the maintenance of an action ex contractu if the converted property has enhanced the estate of the tortfeasor. In effect, a limitation on the rule requiring a conversion of the property into money or its equivalent before the tort may be waived and an action on the contract maintained, is the rule that where the property converted has enhanced or benefited the estate of the tortfeasor the tort may be waived and an action maintained on an implied contract to pay for the property,[1] even though the property has not been converted into money or money's worth,[2] particularly where the property has been consumed or its identity destroyed so that it could not be recovered in specie.[3] However, under authorities declaring that the tort may be waived only if the property has been converted into money, there can be no waiver of the tort where there has been merely a wrongful taking and detention which does not enhance the estate of the tortfeasor.[4]
[FN1] U.S.Derk P. Yonkerman Co. v. Charles H. Fuller's Advertising Agency, 135 F. 613 (C.C.N.D. Ill. 1905). Ga.Atlanta Finance Co. v. Lunsford, 32 Ga. App. 787, 124 S.E. 813 (1924). Okla.Hartzell v. Choctaw Lumber Co. of Delaware, 1933 OK 254, 163 Okla. 240, 22 P.2d 387 (1933) . W.Va.Walker v. Norfolk & W. Ry. Co., 67 W. Va. 273, 67 S.E. 722 (1910). [FN2] U.S.Florida Cent. & P.R. Co. v. Scarlett, 91 F. 349 (C.C.A. 5th Cir. 1899).
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Or.Daniels v. Foster & Kleiser, 95 Or. 502, 187 P. 627 (1920). [FN3] U.S.Florida Cent. & P.R. Co. v. Scarlett, 91 F. 349 (C.C.A. 5th Cir. 1899). [FN4] Ga.Woodruff v. D. Zaban & Son, 133 Ga. 24, 65 S.E. 123 (1909). Ill.Landis v. Wolfe, 106 Ill. App. 533, 1903 WL 3453 (4th Dist. 1903). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 164 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action C. Contract and Tort 4. Waiver of Tort and Action on Contract Topic Summary References Correlation Table 165. ConversionProperty rightfully acquired West's Key Number Digest West's Key Number Digest, Action 28 The rule recognizing a conversion into money or its equivalent before the tort may be waived may not apply where the property converted has come rightly into the possession of the tortfeasor. A further distinction is made under some authorities requiring a conversion of the property into money or its equivalent before the tort may be waived and an action in contract brought, between cases where the property converted was tortiously taken and where it was acquired rightfully or by virtue of some contract relation between the parties, it being held that in cases where the property converted has been rightfully acquired,[1] as where the property is acquired by virtue of a contract relation, the owner may waive the tort and sue in contract, although the property has not been converted into money or money's worth;[2] and the same principle seems to have been applied in other decisions where this distinction is not expressly adverted to.[3] Other decisions, however, have not recognized any distinction with regard to the necessity for a conversion of the property into money in cases of this character.[4]
[FN1] Ga.A.G. Rhodes & Son Furniture Co. v. Freeman, 2 Ga. App. 473, 58 S.E. 696 (1907). Mich.St. John v. Antrim Iron Co., 122 Mich. 68, 80 N.W. 998 (1899). [FN2] Ala.First Nat. Bank v. Henry, 159 Ala. 367, 49 So. 97 (1905). Ga.Kirkpatrick Hardware Co. v. Hamlet, 20 Ga. App. 719, 93 S.E. 226 (1917). Mich. Brewster Loud Lumber Co. v. General Builders' Supply Co., 228 Mich. 559, 200 N.W. 283 (1924). Minn.Great Lakes Varnish Works v. Borgen, 184 Minn. 25, 237 N.W. 609 (1931).
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[FN3] Ala.E.T. Gray & Sons v. Ralston Purina Co., 24 Ala. App. 475, 136 So. 861 (1931). [FN4] N.H.Mann v. Locke, 11 N.H. 246, 1840 WL 1691 (1840). Pa.Satterlee v. Melich, 76 Pa. 62, 1874 WL 13190 (1874). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 165 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action C. Contract and Tort 4. Waiver of Tort and Action on Contract Topic Summary References Correlation Table 166. ConversionBy bailee, agent, or other fiduciary West's Key Number Digest West's Key Number Digest, Action 28 The owner of personalty may waive the tort in the conversion of property in the possession of another as agent, bailee, broker, factor, pledgee, or other fiduciary, and maintain an action ex contractu. The owner of property which is the subject of a bailment may waive the tort and sue in contract if the bailee wrongfully converts the property,[1] as where he or she sells it and converts it into money,[2] or appropriates it to his or her own use,[3] or wrongfully refuses to return it on demand.[4] The tort may also be waived and an action in contract brought in case of a conversion of plaintiff's property by an agent,[5] broker,[6] factor,[7] pledgee,[8] or other fiduciary.[9] Some decisions, hold that as the property in such cases is acquired by virtue of a contract relation, the tort may be waived and an action in contract brought, although defendant has not converted the property into money.[10] However, other decisions do not recognize this distinction, and conclude that the property must have been converted into money.[11]
[FN1] Mich.Brown v. Foster, 137 Mich. 35, 100 N.W. 167 (1904). N.Y.Doherty v. Shields, 33 N.Y.S. 497 (Gen. Term 1895). [FN2] Ill.Ives v. Hartley, 51 Ill. 520, 1869 WL 5376 (1869). [FN3] Ill.Ives v. Hartley, 51 Ill. 520, 1869 WL 5376 (1869). [FN4] N.Y.Spitzer v. Porto Rican Express Co., 112 Misc. 453, 183 N.Y.S. 19 (App. Term 1920). [FN5] N.Y.Sage v. Shepard & Morse Lumber Co., 4 A.D. 290, 39 N.Y.S. 449 (3d Dep't 1896), aff'd, 158 N.Y. 672, 52 N.E. 1126 (1899).
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N.J.Colton v. Gross, 3 N.J. Misc. 170, 127 A. 574 (Sup. Ct. 1925). [FN6] N.Y.In re Dickinson, 171 A.D. 486, 157 N.Y.S. 248 (1st Dep't 1916). [FN7] Tenn.Campbell & Co. v. Reeves, 40 Tenn. 226, 3 Head 226, 1859 WL 3438 (1859). [FN8] U.S.National Bank of Commerce in St. Louis v. Equitable Trust Co. of New York, 227 F. 526 (C.C.A. 8th Cir. 1915). Ala.Stanley v. People's Sav. Bank, 229 Ala. 446, 157 So. 844 (1934). [FN9] N.Y.State of Yucatan v. Argumedo, 92 Misc. 547, 157 N.Y.S. 219 (Sup 1915). [FN10] Mich.Newman v. Olney, 118 Mich. 545, 77 N.W. 9 (1898). [FN11] Pa.Satterlee v. Melich, 76 Pa. 62, 1874 WL 13190 (1874). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 166 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action C. Contract and Tort 4. Waiver of Tort and Action on Contract Topic Summary References Correlation Table 167. Trespass West's Key Number Digest West's Key Number Digest, Action 28 Ordinarily, the tort involved in a trespass may not be waived and an action ex contractu brought. Upon the ground that no promise can be implied, ordinarily in cases of trespass the injured party cannot waive the tort and maintain an action based on contract,[1] particularly where the trespass is committed in direct defiance of plaintiff's rights or under an adverse claim of right.[2] However, there may be circumstances under which, by reason of benefits received, a promise may be implied even as against a trespasser.[3]
[FN1] Minn.Downs v. Finnegan, 58 Minn. 112, 59 N.W. 981 (1894). Nev.Carson River Lumbering Co. v. Bassett, 2 Nev. 249, 1866 WL 1622 (1866). [FN2] Nev.Carson River Lumbering Co. v. Bassett, 2 Nev. 249, 1866 WL 1622 (1866). [FN3] Wis.Norden v. Jones, 33 Wis. 600, 1873 WL 2991 (1873). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 167 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action C. Contract and Tort 4. Waiver of Tort and Action on Contract Topic Summary References Correlation Table 168. TrespassUse and occupation West's Key Number Digest West's Key Number Digest, Action 28 Except as statutes sometimes permit, and except as it is permitted in some jurisdictions where the original entry was rightful, a trespass on realty may not be waived and an action for use and occupation brought. Since no promise to pay can ordinarily be implied as against a mere trespasser, and since an action for use and occupation ordinarily lies only where the relation of landlord and tenant exists, that where one enters upon the land of another as a mere trespasser, the owner cannot waive the tort and sue in contract for use and occupation.[1] The rightfulness of an entry upon land of another may limit the foregoing rule, so that where one goes into possession rightfully, but subsequent events entitle the owner of the land to treat him or her as a trespasser, the owner may waive the tort and sue on implied contract for use and occupation,[2] as in the case of one holding over after the expiration of his or her term,[3] or in the case of one who goes into possession under an agreement to purchase, with which he or she fails to comply.[4]
[FN1] HawaiiFountain v. Mackenzie, 32 Haw. 45, 1931 WL 3433 (1931). Mich.Lockwood v. Thunder Bay River Boom Co., 42 Mich. 536, 4 N.W. 292 (1880). [FN2] N.H.Clough v. Hosford, 6 N.H. 231, 1833 WL 2715 (1833). Pa.National Oil Refining Co. v. Bush, 88 Pa. 335, 1879 WL 11362 (1879). Vt.Nelson & Wallace v. Gibson, 90 Vt. 423, 98 A. 1006 (1916). [FN3] Vt.Nelson & Wallace v. Gibson, 90 Vt. 423, 98 A. 1006 (1916).
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[FN4] N.H.Woodbury v. Woodbury, 47 N.H. 11, 1866 WL 1960 (1866); Clough v. Hosford, 6 N.H. 231, 1833 WL 2715 (1833). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 168 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action C. Contract and Tort 4. Waiver of Tort and Action on Contract Topic Summary References Correlation Table 169. TrespassProperty severed and removed from realty West's Key Number Digest West's Key Number Digest, Action 28 Subject to the requirement of the particular jurisdiction as to the necessity for conversion into money, where a part of the realty has wrongfully been severed and removed, the owner may waive the conversion and sue ex contractu. In case of the wrongful severance of anything constituting a part of realty, the owner cannot waive the trespass involved and sue in contract for the damage caused thereby.[1] Such severance, however, converts the severed property into personalty, although without changing title thereto,[2] and permits the owner to waive the tort and sue in contract for the value or proceeds of the property converted as in the case of any other conversion of personal property,[3] governed, of course, by the rule of the particular jurisdiction as to what is required over and above the mere conversion of personalty generally, if anything, to permit of such waiver.[4] Thus, according to some decisions, the owner may waive the tort and sue in contract for the value of the property severed and removed,[5] where it has benefited the tortfeasor or enriched his or her estate,[6] or where it has been so used by the tortfeasor to his or her benefit that it cannot be reclaimed.[7] According to other authorities, the owner may sue in contract for its proceeds if it has been sold and converted into money.[8] In any event, the right to waive the tort and sue in contract does not apply if the title to the land is in dispute, as title to land cannot be tried in such an action.[9]
[FN1] Mich.Nelson v. Kilbride, 113 Mich. 637, 71 N.W. 1089 (1897). Minn.Downs v. Finnegan, 58 Minn. 112, 59 N.W. 981 (1894). [FN2] Cal.Halleck v. Mixer, 16 Cal. 574, 1860 WL 990 (1860).
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Tenn.Whitaker v. Poston, 120 Tenn. 207, 110 S.W. 1019 (1908). [FN3] U.S.Tabor v. Big Pittsburg Consol. Silver Mining Co., 14 F. 636 (C.C.D. Colo. 1883). Ky.Ward v. Guthrie, 193 Ky. 76, 234 S.W. 955 (1921). W.Va.Wilson v. Shrader, 73 W. Va. 105, 79 S.E. 1083 (1913). [FN4] 162. [FN5] Ind.Board of Com'rs of Rush County v. Trees, 12 Ind. App. 479, 40 N.E. 535 (1895). [FN6] Miss.Evans v. Miller, 58 Miss. 120, 1880 WL 6889 (1880). Okla.Hartzell v. Choctaw Lumber Co. of Delaware, 1933 OK 254, 163 Okla. 240, 22 P.2d 387 (1933) . [FN7] U.S.Phelps v. Church of Our Lady Help of Christians, 99 F. 683 (C.C.A. 3d Cir. 1900). [FN8] Mass. Arizona Commercial Mining Co. v. Iron Cap Copper Co., 236 Mass. 185, 128 N.E. 4 (1920). W.Va.Wilson v. Shrader, 73 W. Va. 105, 79 S.E. 1083 (1913). [FN9] Mass. Arizona Commercial Mining Co. v. Iron Cap Copper Co., 236 Mass. 185, 128 N.E. 4 (1920). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 169 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action C. Contract and Tort 4. Waiver of Tort and Action on Contract Topic Summary References Correlation Table 170. Fraud West's Key Number Digest West's Key Number Digest, Action 28 The tort involved in a fraud which is also a breach of an express contract may be waived and an action on the contract maintained. Where the same act or transaction constitutes both a breach of an express contract and a fraud, the injured party may waive the tort and sue on the contract.[1] So, where one is induced by fraud to enter into a contract, he or she may waive the fraud, affirm the transaction, and sue upon the contract.[2] Under some authorities, where no express contract exists between the parties, or where one does exist without regard thereto, where one procures money or other property of another through fraud, the defrauded party may waive the tort and sue as upon an implied contract,[3] in the case of money, for money had and received.[4] Under some decisions, where one has been induced by fraud to enter into a contract pursuant to which he or she has parted with money or property, the right to waive the tort and sue upon an implied contract in such cases is denied upon the theory that plaintiff cannot first turn a contract into a tort and then shift it back into another contract different from the original.[5] Under others, upon the theory that where there is a subsisting express contract no other will be implied, the right to waive the tort and sue on an implied contract is denied only where there has been no rescission of the original contract,[6] particularly if the defrauded party has received something in exchange for the property with which he or she has parted;[7] but upon rescission of the original contract for the fraud, the defrauded party may waive the tort and sue upon an implied contract for the return of the money or property with which he or she has parted,[8] it also being ruled that if the defrauded party has received nothing of value under the express contract the institution of the action on an implied contract constitutes a sufficient rescission of the original contract to justify the waiver.[9] Under another rule, based upon the theory that defendant's possession under the contract fraudulently in-
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duced is wrongful,[10] and that a waiver of the tort is not an affirmance of such contract,[11] the defrauded party may waive the tort and sue on an implied contract,[12] without any formal rescission.[13]
[FN1] Ga.Perdue v. Harwell, 80 Ga. 150, 4 S.E. 877 (1888). Md.Slacum v. Eastern Shore Trust Co., 163 Md. 350, 163 A. 119 (1932). Mich.Straus Land Corporation v. Dupuis, 207 Mich. 399, 174 N.W. 129 (1919). [FN2] N.Y.Sage v. Shepard & Morse Lumber Co., 4 A.D. 290, 39 N.Y.S. 449 (3d Dep't 1896), aff'd, 158 N.Y. 672, 52 N.E. 1126 (1899). Or.Smith v. Jackson, 97 Or. 479, 192 P. 412 (1920). [FN3] Cal.Philpott v. Superior Court in and for Los Angeles County, 1 Cal. 2d 512, 36 P.2d 635, 95 A.L.R. 990 (1934). Ky.Mason v. Moore, 221 Ky. 481, 298 S.W. 1100 (1927). N.C.Sanders v. Ragan, 172 N.C. 612, 90 S.E. 777 (1916). [FN4] U.S.Tabor v. Universal Exploration Co., 48 F.2d 1047 (C.C.A. 8th Cir. 1931). Ala.Bates v. Turney, 26 Ala. App. 98, 153 So. 782 (1934). Cal.Philpott v. Superior Court in and for Los Angeles County, 1 Cal. 2d 512, 36 P.2d 635, 95 A.L.R. 990 (1934). Tenn.Interstate Life & Acc. Co. v. Cook, 19 Tenn. App. 290, 86 S.W.2d 887 (1935). [FN5] Mich.Emerson v. Detroit Steel & Spring Co., 100 Mich. 127, 58 N.W. 659 (1894). [FN6] N.J.Byard v. Holmes, 33 N.J.L. 119, 1868 WL 4247 (N.J. Sup. Ct. 1868). [FN7] Cal.Bullard v. Rosenberg, 130 Cal. App. 542, 20 P.2d 104 (4th Dist. 1933). [FN8] Cal. McCall v. Superior Court in and for Imperial County, 1 Cal. 2d 527, 36 P.2d 642, 95 A.L.R. 1019 (1934). Wis.Scheuer v. Regal Oil-Gas Burner Co., 170 Wis. 630, 176 N.W. 75 (1920). [FN9] Cal.Philpott v. Superior Court in and for Los Angeles County, 1 Cal. 2d 512, 36 P.2d 635, 95 A.L.R. 990 (1934). [FN10] N.Y.Camp v. Pulver, 5 Barb. 91, 1848 WL 5131 (N.Y. Gen. Term 1848). [FN11] U.S.Gibson v. Stevens, 10 F. Cas. 323, No. 5401 (C.C.D. Ind. 1845), rev'd on other grounds, 49 U.S. 384, 8 How. 384, 12 L. Ed. 1123 (1850).
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[FN12] Mo.Gash v. Mansfield, 28 S.W.2d 127 (Mo. Ct. App. 1930). OhioBaird v. Howard, 51 Ohio St. 57, 36 N.E. 732 (1894). Or.Crown Cycle Co. v. Brown, 39 Or. 285, 64 P. 451 (1901). [FN13] Or.Crown Cycle Co. v. Brown, 39 Or. 285, 64 P. 451 (1901). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 170 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action C. Contract and Tort 4. Waiver of Tort and Action on Contract Topic Summary References Correlation Table 171. Negligent injury, loss, or destruction of property West's Key Number Digest West's Key Number Digest, Action 28 The tort involved in the negligent destruction or loss of, or injury to, property may not be waived and a contract action maintained, except where the property involved was held under a contract providing against such injury, in which case an action on such contract is proper, and in jurisdictions where no conversion into money is required therefor, an action on an implied contract on the theory of conversion may be maintained. Where one's negligence results in the injury, loss, or destruction of another's property, the owner of such property may not, ordinarily, waive the tort and sue in contract for the damage sustained.[1] If, however, the property is held by virtue of a contract relation which imposes a duty to protect and preserve it, the tort may be waived and an action brought for breach of such contract.[2] Under some authorities, the action may be brought on implied contract upon the theory of a conversion,[3] but not where the rule obtains that in order to maintain such an action defendant must have converted the property into money.[4]
[FN1] Miss.Gulf & Ship Island R. Co. v. Wells Lumber Co., 111 Miss. 768, 72 So. 194 (1916). Mont.Kyle v. Chester, 42 Mont. 522, 113 P. 749 (1911). [FN2] Mo.Redel v. Missouri Valley Stone Co., 126 Mo. App. 163, 103 S.W. 568 (1907). S.C.Farmers' Union Mercantile Co. v. Anderson, 108 S.C. 66, 93 S.E. 422 (1917). [FN3] Ind.Jones v. Gregg, 17 Ind. 84, 1861 WL 2791 (1861). [FN4] N.H.Mann v. Locke, 11 N.H. 246, 1840 WL 1691 (1840).
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Pa.Satterlee v. Melich, 76 Pa. 62, 1874 WL 13190 (1874). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 171 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action C. Contract and Tort 4. Waiver of Tort and Action on Contract Topic Summary References Correlation Table 172. Who may waive West's Key Number Digest West's Key Number Digest, Action 28 Only the person injured or his or her legal representatives may waive the tort and sue in contract. It is primarily the person injured who may waive a tort and maintain an action in contract,[1] and such right cannot be exercised by his or her creditors.[2] The right may, however, be exercised by one who legally represents and stands in the place of the injured party, such as an executor or administrator,[3] or a trustee,[4] or trustee in bankruptcy.[5] Approached from the angle of the title or right required of the injured person in order for him or her to have the right to waive the tort and maintain assumpsit, only one having a cause of action in tort,[6] or rather one who has such title or right the injury to which gives him or her such cause of action in tort as may be waived,[7] may waive the tort and maintain an action in contract.[8] If property belonging to several tenants in common is converted, they may all waive the tort and join in an action of contract.[9] While all the cotenants must join in an action to recover for an entire injury to the common property where the tort is waived,[10] where the injury is but to the interest of one of the cotenants he or she may waive the tort and maintain assumpsit with respect to his or her interest without joining the others.[11] Certainly, if the property is converted by one of the cotenants the other may waive the tort and maintain assumpsit against the wrongdoer.[12]
[FN1] Ala.Blackshear v. Burke, 74 Ala. 239, 1883 WL 1011 (1883). N.Y.Dob & Dob v. Halsey, 16 Johns. 34, 1819 WL 1526 (N.Y. Sup 1819). [FN2] Ala.Blackshear v. Burke, 74 Ala. 239, 1883 WL 1011 (1883); Lewis v. Dubose, 29 Ala. 219, 1856 WL 354 (1856).
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[FN3] Ala.Upchurch v. Norsworthy, 15 Ala. 705, 1849 WL 334 (1849). Wis.In re Heber's Will, 139 Wis. 472, 121 N.W. 328 (1909). [FN4] N.J.Budd v. Hiler, 27 N.J.L. 43, 1858 WL 5013 (N.J. Sup. Ct. 1858). [FN5] IdahoDittemore v. Cable Milling Co., 16 Idaho 298, 101 P. 593 (1909). [FN6] Mont.Stagg v. Stagg, 90 Mont. 180, 300 P. 539 (1931). [FN7] As discussed in 160, 161. [FN8] Ala.Steverson v. W.C. Agee & Co., 9 Ala. App. 389, 63 So. 794 (1913). Mich.Carpenter v. Graham, 46 Mich. 531, 9 N.W. 841 (1881). Mont.Stagg v. Stagg, 90 Mont. 180, 300 P. 539 (1931). [FN9] Ala.Lufkin v. Daves, 220 Ala. 443, 125 So. 811 (1930). [FN10] Mass.Gilmore v. Wilbur, 29 Mass. 120, 12 Pick. 120, 1831 WL 2767 (1831). [FN11] Ala.Tankersley v. Childers, 23 Ala. 781, 1853 WL 321 (1853). N.H.White v. Brooks, 43 N.H. 402, 1861 WL 2132 (1861). [FN12] Ala.Daves v. Lufkin, 222 Ala. 171, 131 So. 438 (1930). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 172 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action C. Contract and Tort 4. Waiver of Tort and Action on Contract Topic Summary References Correlation Table 173. Against whom waiver available West's Key Number Digest West's Key Number Digest, Action 28 Under circumstances which permit waiver of the tort in a conversion and the maintenance of an action in contract, the person into whose hands the converted property has passed may be sued. Where waiver of the tort is permitted, the personal representative of a deceased tortfeasor may be sued, as may be infants. The owner of property wrongfully converted or disposed of may waive the tort and maintain an action in contract against the person into whose hands the property has passed,[1] provided, where a conversion of the property into money or its equivalent is required,[2] the receiver of the property has himself or herself in turn converted the property into money,[3] but not otherwise.[4] Where the person who committed the tort is dead, the tort may be waived and an action of contract brought against his or her personal representative, an objection that the tort died with the wrongdoer not being available.[ 5] Infants. Notwithstanding an infant is ordinarily not held liable on his or her contracts,[6] while the infant is held liable for torts,[7] it has been held that where a cause of action arises out of a tort, the infant may be held liable where the plaintiff waives the tort and sues on implied contract.[8]
[FN1] N.Y.Manhattan Egg Co. v. Seaboard Terminal & Refrigeration Co., 137 Misc. 14, 242 N.Y.S. 189 (City Ct. 1929). [FN2] As discussed in 140 et seq. [FN3] Ala.Albertville Trading Co. v. Critcher, 216 Ala. 252, 112 So. 907 (1927). [FN4] Ala.Moody v. Walker, 89 Ala. 619, 7 So. 246 (1890).
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[FN5] Tenn.Vance v. Mottley, 92 Tenn. 310, 21 S.W. 593 (1893). [FN6] As discussed in C.J.S., Infants 209. [FN7] As treated in C.J.S., Infants 276. [FN8] Vt.Elwell v. Martin, 32 Vt. 217, 1859 WL 5461 (1859). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 173 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action C. Contract and Tort 4. Waiver of Tort and Action on Contract Topic Summary References Correlation Table 174. What constitutes waiver West's Key Number Digest West's Key Number Digest, Action 28 To constitute a waiver of the tort, the action as instituted must be in contract as determined from the allegations of the complaint, such institution being sufficient even though there is no express allegation of waiver. While the waiver of the tort may be, and sometimes is, made in express terms,[1] and while for the complaint to be effective as a waiver it is, of course, necessary for the complaint to at least sound in contract and not tort,[2] ordinarily, to constitute a waiver, the complaint need not contain an express allegation to this effect.[3] However, where the cause of action arises out of the tort, the waiver should clearly appear either by express allegation or by the manner of stating the cause of action.[4] The institution of the action as in contract, ordinarily, constitutes a sufficient waiver of the tort,[5] although it will not have such effect, at least insofar as binding the plaintiff is concerned, if at the time of the institution of the action as in contract the plaintiff had no knowledge that a cause of action in tort existed.[6] The determination whether the action as instituted is in contract or tort is accomplished by a construction of the allegations of the complaint,[7] and in this connection, the prayer for relief may properly be considered.[8] If it is doubtful whether the action as brought is in tort or contract, every intendment is in favor of construing the complaint as setting forth an action in contract, on the theory that the tort has been waived.[9] Taking a note for a cause of action on which a tort action could be maintained is a waiver of the tort;[10] but a receipt of money on a claim arising out of a tort is not a waiver of the tort, unless such an intention clearly appears;[11] and one whose property has been converted and sold does not waive the right to sue in tort merely by requesting the wrongdoer to pay over the amount received.[12]
[FN1] Ga.Woodruff v. D. Zaban & Son, 133 Ga. 24, 65 S.E. 123 (1909). Kan.Bolinger v. Giles, 125 Kan. 53, 262 P. 1022 (1928).
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N.D.Braithwaite v. Aiken, 3 N.D. 365, 56 N.W. 133 (1893). [FN2] Ill.Clements v. Second Nat. Bank, 266 Ill. App. 225, 1932 WL 2809 (3d Dist. 1932). N.Y.Dessar v. Gunther, 98 Misc. 319, 162 N.Y.S. 794 (Sup 1917). [FN3] Vt.Elwell v. Martin, 32 Vt. 217, 1859 WL 5461 (1859). [FN4] N.D.Braithwaite v. Aiken, 3 N.D. 365, 56 N.W. 133 (1893). [FN5] U.S. Community Nat. Bank v. Fidelity & Deposit Co. of Maryland, 563 F.2d 1319 (9th Cir. 1977). Fla.Ness v. Cowdery, 110 Fla. 427, 149 So. 33 (1933). Ga.Royal v. Byrd, 51 Ga. App. 397, 180 S.E. 520 (1935). Minn.Kubat v. Zika, 186 Minn. 122, 242 N.W. 477 (1932). [FN6] Mich.Hogue v. Wells, 180 Mich. 19, 146 N.W. 369 (1914). [FN7] Ga.Royal v. Byrd, 51 Ga. App. 397, 180 S.E. 520 (1935). Ky.Ward v. Guthrie, 193 Ky. 76, 234 S.W. 955 (1921). N.Y. Marie Antoinette Realty Co. v. Yorkville Bank, 123 Misc. 522, 205 N.Y.S. 395 (App. Term 1924). [FN8] Ga.Martin v. Newberry, 169 Ga. 676, 151 S.E. 380 (1930). Ky.Ward v. Guthrie, 193 Ky. 76, 234 S.W. 955 (1921). N.Y. Chambers v. Lewis, 10 Abb. Pr. 206, 1860 WL 7126 (N.Y.C.P. 1860), aff'd, 28 N.Y. 454, 16 Abb. Pr. 433, 1863 WL 4347 (1863). [FN9] N.Y.Hartenstein v. Bindseil, 164 N.Y.S. 102 (App. Term 1917). [FN10] Pa.Reynolds v. Fenton, 2 Phila. 298 (Pa. Dist. Ct. 1857). [FN11] N.Y.Jones v. Smith, 65 Misc. 528, 120 N.Y.S. 865 (App. Term 1910). [FN12] Ala.Baker v. Hutchinson, 147 Ala. 636, 41 So. 809 (1906). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 174 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action C. Contract and Tort 4. Waiver of Tort and Action on Contract Topic Summary References Correlation Table 175. Operation and effect of waiver West's Key Number Digest West's Key Number Digest, Action 28 After waiving the tort and instituting an action in contract, the injured party is foreclosed from subsequently proceeding in tort, and the rules governing contract actions are made applicable to the action as brought. While the mere waiver of a tort is neither a ratification of it nor an admission of its nonexistence,[1] one waiving a tort and suing in contract makes such a binding election of remedy as cannot be reconsidered,[2] even if no injury has been done by the choice or would result from setting it aside.[3] A plaintiff cannot thereafter treat the action brought as if it were a tort action,[4] or bring an action of tort with regard to the same cause of action,[5] notwithstanding he or she was unsuccessful in the action of contract.[ 6] For the waiver of the tort to have such effect, a plaintiff must have had an actual choice of remedies,[7] so that an attempt to waive a tort and sue in contract, made in a case where such a proceeding is not permissible, will not preclude a subsequent action in tort.[8] By waiving the tort and suing in contract, a party necessarily waives the entire tort, and cannot recover part of his or her damages in contract and afterward maintain an action in tort for the balance,[9] and it is not only with regard to defendant in the action brought that the waiver operates, but as regards others as well,[10] a waiver of the tort and an action in contract brought against one of several tortfeasors precluding a subsequent action in tort against the others who were not parties to the first action.[11] An action brought in contract, after waiver of a tort, is governed by the rules and principles applicable to such form of action,[12] as with regard to the question of jurisdiction,[13] the venue of the action,[14] the statute of limitations applicable,[15] the effect of the death of a party,[16] the form of the judgment,[17] and the measure and amount of damages.[18] The tort feature of the case, however, is not entirely eliminated by the waiver,[19] it being necessary where the cause arises out of a tort for the evidence to establish the tort even though the action is in contract,[20] in such a case the proof of the tort not constituting a variance.[21] In such cases the defendant may rely on all de-
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fenses which can be legitimately made to his or her liability in contract,[22] and the defendant is not deprived of such defenses as might have been made if he or she had been sued in tort.[23]
[FN1] N.Y.Sage v. Shepard & Morse Lumber Co., 4 A.D. 290, 39 N.Y.S. 449 (3d Dep't 1896), aff'd, 158 N.Y. 672, 52 N.E. 1126 (1899). Va.Standard Products Co., Inc. v. Wooldridge & Co., Ltd., 214 Va. 476, 201 S.E.2d 801 (1974). [FN2] N.Y.Terry v. Munger, 121 N.Y. 161, 24 N.E. 272 (1890). [FN3] N.Y.Terry v. Munger, 121 N.Y. 161, 24 N.E. 272 (1890). [FN4] Ill.Tolman v. Steele, 209 Ill. App. 554, 1918 WL 1518 (1st Dist. 1918). Mo.Finlay v. Bryson, 84 Mo. 664, 1884 WL 9114 (1884). [FN5] Ga.Stokes v. Wright, 20 Ga. App. 325, 93 S.E. 27 (1917). Kan.Ireland v. Waymire, 107 Kan. 384, 191 P. 304 (1920). Md.Slacum v. Eastern Shore Trust Co., 163 Md. 350, 163 A. 119 (1932). [FN6] Mich.Thompson v. Howard, 31 Mich. 309, 1875 WL 3648 (1875). [FN7] Kan.Jameson v. Beeler & Campbell Supply Co., 118 Kan. 760, 236 P. 647 (1925). [FN8] Ala.Calhoun County v. Art Metal Const. Co., 152 Ala. 607, 44 So. 876 (1907). R.I.Whipple v. Stephens, 25 R.I. 563, 57 A. 375 (1904). [FN9] Ky.Roberts v. Moss, 127 Ky. 657, 32 Ky. L. Rptr. 525, 106 S.W. 297 (1907). Me.Ware v. Percival, 61 Me. 391, 1873 WL 11365 (1873). [FN10] Kan.Jameson v. Beeler & Campbell Supply Co., 118 Kan. 760, 236 P. 647 (1925); Ireland v. Waymire, 107 Kan. 384, 191 P. 304 (1920). [FN11] N.Y.Terry v. Munger, 121 N.Y. 161, 24 N.E. 272 (1890). [FN12] U.S.Felder v. Reeth, 34 F.2d 744, 97 A.L.R. 244, 5 Alaska Fed. 432 (C.C.A. 9th Cir. 1929). Kan.Jameson v. Beeler & Campbell Supply Co., 118 Kan. 760, 236 P. 647 (1925). Mich.Chandler Motor Sales Co. v. Dertien, 229 Mich. 630, 201 N.W. 954 (1925). UtahTaylor Motor Car Co. v. Hansen, 75 Utah 80, 282 P. 1040 (1929). [FN13] Mich.Chandler Motor Sales Co. v. Dertien, 229 Mich. 630, 201 N.W. 954 (1925).
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[FN14] Ky.Asher v. Cornett, 113 S.W. 131 (Ky. 1908). [FN15] Me.Penobscot R. Co. v. Mayo, 67 Me. 470, 1878 WL 3619 (1878). Tenn.Whitaker v. Poston, 120 Tenn. 207, 110 S.W. 1019 (1908). [FN16] Tenn.Rhodes v. Crutchfield, 75 Tenn. 518, 1881 WL 4379 (1881). [FN17] Ind.Furry v. O'Connor, 1 Ind. App. 573, 28 N.E. 103 (1891). [FN18] U.S.Felder v. Reeth, 34 F.2d 744, 97 A.L.R. 244, 5 Alaska Fed. 432 (C.C.A. 9th Cir. 1929). Mo.Dougherty v. Chapman, 29 Mo. App. 233, 1888 WL 1435 (1888). N.D.Olson v. Baker, 45 N.D. 396, 178 N.W. 126 (1920). UtahTaylor Motor Car Co. v. Hansen, 75 Utah 80, 282 P. 1040 (1929). Wis.Huganir v. Cotter, 102 Wis. 323, 78 N.W. 423 (1899). [FN19] Ind.Furry v. O'Connor, 1 Ind. App. 573, 28 N.E. 103 (1891). [FN20] Ala.McLeod Lumber Co. v. Neighbors, 22 Ala. App. 204, 114 So. 176 (1927). Mo.Horine v. Bone, 69 Mo. App. 481, 1897 WL 1802 (1897). [FN21] Ind.Rittenhouse v. Knoop, 9 Ind. App. 126, 36 N.E. 384 (1894). [FN22] Tenn.Baker v. Huddleston, 62 Tenn. 1, 1873 WL 3893 (1873). [FN23] U.S.Phelps v. Church of Our Lady, Help of Christians, 115 F. 882 (C.C.A. 3d Cir. 1902). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 175 END OF DOCUMENT
CJS ACTIONS VI D REF 1A C.J.S. Actions VI D Refs.
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action D. Actions at Law and Suits in Equity Topic Summary Correlation Table Research References A.L.R. Library West's A.L.R. Digest, Action A.L.R. Index: Equity Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS VI D REF END OF DOCUMENT 21 to 25
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action D. Actions at Law and Suits in Equity Topic Summary References Correlation Table 176. Generally West's Key Number Digest West's Key Number Digest, Action 21 The distinction between an action at law and a suit in equity rests in the distinction between the two systems of jurisprudence under which each falls, and is basically one of relief. The difference between actions at law and suits in equity rests in the distinction between the separate systems of jurisprudence under which each falls, each of which systems is administered by separate and distinct courts, or, as in some jurisdictions, by the same courts exercising these separate and distinct functions, each having different methods of procedure, and affording different kinds of relief.[1] The distinction between these types of actions is historical and inheres in the fundamental nature of the causes, the difference being one of substance, not of form.[2] The distinction is still preserved in some state courts, in regard to substance, even in those states where statutes have professed to abolish the distinction.[3] The differentiation of characteristics pertaining to actions at law and suits in equity is grounded, in a general sense, upon the nature of the relief desired.[4] In its remedial aspect, a suit in equity is distinguishable from a legal action in that the latter is designed to afford redress for injuries already inflicted and rights of person or property actually invaded, whereas an equitable action, is not only remedial in its nature but may also be brought for the purpose of restraining the infliction of contemplated wrongs or injuries and the prevention of threatened illegal action, which may be the occasion of serious injury to others.[5] In actions at law, relief is almost invariably administered in the form of pecuniary compensation for the injury received, while in an equitable action, the court has the discretionary power to adopt the relief to the circumstances of the case.[6] Where distinctions between law and equity are preserved, a party cannot sue in equity where he or she has an adequate remedy at law, but a party who sues at law, and states a legal cause of action, cannot be barred from the court of law because he or she has an adequate remedy in equity, even though the latter may be the better remedy.[7] In common-law jurisdictions, courts of law may be permitted to exercise certain equitable powers.[8] Indeed, both legal and equitable principles may be enforced in the same proceeding according to the facts.[9]
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A right created by statute without any prescribed remedy may be enforced by any appropriate remedy, legal or equitable.[10] Condemnation proceedings do not involve a tort and are not civil actions at law or suits in equity.[11]
[FN1] U.S.Armstrong Cork Co. v. Merchants' Refrigerating Co., 184 F. 199 (C.C.A. 8th Cir. 1910). Ind.Miller v. Rapp, 7 Ind. App. 89, 34 N.E. 125 (1893). N.C.John L. Roper Lumber Co. v. Wallace, 93 N.C. 22, 1885 WL 1623 (1885). Or.Van de Wiele v. Garbade, 60 Or. 585, 120 P. 752 (1912). [FN2] U.S.Armstrong Cork Co. v. Merchants' Refrigerating Co., 184 F. 199 (C.C.A. 8th Cir. 1910); McNary v. Guaranty Trust Co., 6 F. Supp. 616 (N.D. Ohio 1933). [FN3] Ala.Barbour v. Poncelor, 203 Ala. 386, 83 So. 130 (1919). Mich.Otto v. Village of Highland Park, 204 Mich. 74, 169 N.W. 904 (1918). As to states that have abolished the distinction, see 182. [FN4] N.Y.In re Bruns, 156 Misc. 873, 282 N.Y.S. 617 (Sup 1935); Troster v. Dann, 83 Misc. 399, 145 N.Y.S. 56 (App. Term 1913). Or.Van de Wiele v. Garbade, 60 Or. 585, 120 P. 752 (1912). [FN5] N.Y.Thomas v. Musical Mut. Protective Union, 121 N.Y. 45, 24 N.E. 24 (1890). Or.Van de Wiele v. Garbade, 60 Or. 585, 120 P. 752 (1912). [FN6] N.Y. Mandel v. Mandel, 109 Misc. 2d 1, 439 N.Y.S.2d 576 (Sup 1981); Troster v. Dann, 83 Misc. 399, 145 N.Y.S. 56 (App. Term 1913). [FN7] U.S.Blalock v. Equitable Life Assur. Soc. of the U.S., 75 F. 43 (C.C.A. 5th Cir. 1896). For the prohibition against suing at equity when there is an adequate remedy at law, see C.J.S., Equity 24, 25. [FN8] N.J.Kronson v. Lipschitz, 68 N.J. Eq. 367, 60 A. 819 (Ch. 1904). [FN9] Neb.Nebraska Engineering Co. v. Gerstner, 212 Neb. 440, 323 N.W.2d 84 (1982). [FN10] Cal.Friends of "B" Street v. City of Hayward, 106 Cal. App. 3d 988, 165 Cal. Rptr. 514 (1st Dist. 1980). [FN11] Okla.City of Tahlequah v. Lake Region Elec., Co-op., Inc., 2002 OK 2, 47 P.3d 467 (Okla. 2002).
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action D. Actions at Law and Suits in Equity Topic Summary References Correlation Table 177. Necessity of determination of nature of actions West's Key Number Digest West's Key Number Digest, Action 22 For various reasons, the nature of an action as legal or equitable must frequently be determined. For a variety of reasons, it frequently is important to determine the nature of a particular action as legal or equitable[1] and the same necessity may exist for determining the legal or equitable character of a particular defense.[2] While this is particularly true where the original distinctions between actions at law and suits in equity are still preserved,[3] owing to the distinctions which still remain unchanged, the question is also important where the formal distinctions between actions at law and suits in equity have been abolished.[4] The question may be important in determining whether legal or equitable principles or rules should be applied,[5] whether a court has jurisdiction of a particular action,[6] whether the proper venue for the action has been laid,[7] whether the action is brought by or against the proper party or parties,[8] and whether there is a defect of parties[9] or an improper joinder of parties.[10] Similarly, the question may be important in determining whether the maintenance of the action is precluded by reason of the relations between the parties,[11] as in the case of an action between husband and wife,[12] or between different executors,[13] whether the allegations of the complaint are sufficient to state a cause of action,[14] whether allegations warranting equitable relief may be rejected as surplusage,[15] whether the action is barred by the statute of limitations[16] or laches,[17] and whether proof of allegations of actual fraud is essential to a recovery.[18] Also, the question may be important in determining whether the issues are triable by the court or by a jury,[ 19] whether a reference may be ordered,[20] whether it is incumbent upon the court to give instructions to the jury,[21] what is the proper measure of damages,[22] and whether costs may be awarded in the discretion of the court, or only to the successful party.[23] Other reasons which may be important in determining the question are whether there is a right of appeal,[24] what is the method of review,[25] as whether the case is reviewable by appeal or by a writ of error,[26] to determine the limits of the review of evidence on appeal,[27] and what effect must be given in the appellate court to findings of fact made by the trial court.[28]
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CUMULATIVE SUPPLEMENT Cases: In order to determine whether a claim for restitution requests legal or equitable relief, courts look to the basis for the plaintiff's claim and the nature of the underlying remedies sought. Cristino v. Ohio Bur. of Workers' Comp., 118 Ohio St. 3d 151, 2008-Ohio-2013, 886 N.E.2d 857 (2008). [END OF SUPPLEMENT]
[FN1] Mass.Worthington v. Waring, 157 Mass. 421, 32 N.E. 744 (1892) (overruled in part on other grounds by, Cornellier v. Haverhill Shoe Mfrs.' Ass'n, 221 Mass. 554, 109 N.E. 643 (1915)). S.C.Calvert v. Nickles, 26 S.C. 304, 2 S.E. 116 (1887). [FN2] Cal.Carpentier v. City of Oakland, 30 Cal. 439, 1866 WL 766 (1866). Equitable defense in legal action, see 185. [FN3] U.S.Armstrong Cork Co. v. Merchants' Refrigerating Co., 184 F. 199 (C.C.A. 8th Cir. 1910). [FN4] Ind.Miller v. Rapp, 7 Ind. App. 89, 34 N.E. 125 (1893). Kan.Carbondale Inv. Co. v. Burdick, 67 Kan. 329, 72 P. 781 (1903). S.D.Sykes v. First Nat. Bank, 2 S.D. 242, 49 N.W. 1058 (1891). As to distinctions between law and equity which remain unchanged see, 182. [FN5] Okla.Dobbins v. Texas Co., 1928 OK 696, 136 Okla. 40, 275 P. 643 (1929); Cloud v. Young, 1924 OK 793, 103 Okla. 65, 229 P. 604 (1924). Tex.Billups v. Gallant, 37 S.W.2d 770 (Tex. Civ. App. Austin 1931), writ refused, (July 8, 1931). [FN6] Cal.Harry H. Culver & Co. v. Superior Court in and for Los Angeles County, 129 Cal. App. 589, 19 P.2d 43 (2d Dist. 1933); Massachusetts Bonding & Ins. Co. v. San Fransico- Oakland Terminal Rys., 39 Cal. App. 388, 178 P. 974 (1st Dist. 1919). Ga.Cooper v. Coral Gables, 45 Ga. App. 290, 164 S.E. 227 (1932). N.Y.Feit v. Holzapfel, 104 Misc. 73, 171 N.Y.S. 277 (App. Term 1918). Okla.Newbern v. Farris, 1931 OK 121, 149 Okla. 74, 299 P. 192 (1931). [FN7] Colo.People v. District Court of Eighth Judicial Dist. for Larimer County, 70 Colo. 500, 202 P. 714 (1921). [FN8] Conn.Baxter v. Camp, 71 Conn. 245, 41 A. 803 (1898).
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[FN9] N.Y.Mitchell v. Village of White Plains, 36 N.Y.S. 935 (Gen. Term 1895). [FN10] N.Y.Voorhis v. Childs' Ex'r, 17 N.Y. 354, 1858 WL 7403 (1858). [FN11] IowaDoyle v. Burns, 123 Iowa 488, 99 N.W. 195 (1904). [FN12] Conn.Muller v. Witte, 78 Conn. 495, 62 A. 756 (1906). [FN13] N.Y.Rogers v. Maguire, 27 N.Y.S. 276 (Gen. Term 1894). [FN14] N.Y.Moore v. Bonbright & Co., 202 A.D. 281, 195 N.Y.S. 854 (2d Dep't 1922); Smith v. Salomon, 184 A.D. 544, 172 N.Y.S. 515 (1st Dep't 1918). [FN15] U.S.Blalock v. Equitable Life Assur. Soc. of the U.S., 75 F. 43 (C.C.A. 5th Cir. 1896). N.Y. Hackett v. Equitable Life Assur. Soc. of the United States, 50 A.D. 266, 63 N.Y.S. 1092 (1st Dep't 1900). [FN16] IowaTilton v. Bader, 181 Iowa 473, 164 N.W. 871 (1917). N.Y.East River Nat. Bank v. Columbia Trust Co., 171 N.Y.S. 384 (Sup 1918), aff'd, 187 A.D. 889, 174 N.Y.S. 901 (1st Dep't 1919); Smith v. Staten Island Land Co., 175 A.D. 588, 162 N.Y.S. 681 (1st Dep't 1916). Tex.Clark v. Texas Co-op. Inv. Co., 231 S.W. 381 (Tex. Comm'n App. 1921). [FN17] Tex.Wood v. Humble Oil & Refining Co., 268 S.W. 981 (Tex. Civ. App. Fort Worth 1924). [FN18] S.D.Luscombe v. Grigsby, 11 S.D. 408, 78 N.W. 357 (1899). [FN19] IdahoJohansen v. Looney, 30 Idaho 123, 163 P. 303 (1917). Ind.Baker v. Bundy, 55 Ind. App. 272, 103 N.E. 668 (Div. 2 1913). Minn.Swanson v. Alworth, 168 Minn. 84, 209 N.W. 907 (1926); Morton Brick & Tile Co. v. Sodergren, 130 Minn. 252, 153 N.W. 527 (1915). Mo.Wolfersberger v. Hoppenjon, 334 Mo. 817, 68 S.W.2d 814 (1933); Ebbs v. Neff, 325 Mo. 1182, 30 S.W.2d 616 (1930). Mont.Solberg v. Sunburst Oil & Gas Co., 70 Mont. 177, 225 P. 612 (1924). Neb.Van Horn v. Lincoln Sales Outlet Co., 127 Neb. 301, 255 N.W. 36 (1934). Okla.Moschos v. Bayless, 1927 OK 198, 126 Okla. 25, 258 P. 263 (1927); Benn v. Trobert, 1919 OK 292, 76 Okla. 184, 184 P. 595 (1919). S.C.McKellar v. Stanton, 104 S.C. 248, 88 S.E. 527 (1916). Wash.Faben v. Muir, 77 Wash. 460, 137 P. 1042 (1914).
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Wis.Royal Indemnity Co. v. Sangor, 166 Wis. 148, 164 N.W. 821, 9 A.L.R. 397 (1917). [FN20] Wis.Druse v. Horter, 57 Wis. 644, 16 N.W. 14 (1883). [FN21] Mo.Shaffer v. Detie, 191 Mo. 377, 90 S.W. 131 (1905). [FN22] N.Y. Van Veghten v. Hudson River Power Transmission Co., 103 A.D. 130, 92 N.Y.S. 956 (3d Dep't 1905). [FN23] Ga.Lavender v. Shackelford, 152 Ga. 363, 110 S.E. 1 (1921). [FN24] OhioHummer v. Parsons, 111 Ohio St. 595, 2 Ohio L. Abs. 407, 3 Ohio L. Abs. 11, 146 N.E. 62 (1924). [FN25] Mo.Ebbs v. Neff, 325 Mo. 1182, 30 S.W.2d 616 (1930). OhioWall v. Dayton Federation Co., 121 Ohio St. 334, 7 Ohio L. Abs. 703, 168 N.E. 847 (1929). [FN26] Wis.Delaplaine v. City of Madison, 7 Wis. 407, 1859 WL 7010 (1859). [FN27] Mo.Slagle v. Callaway, 333 Mo. 1055, 64 S.W.2d 923, 90 A.L.R. 1366 (1933). [FN28] IowaFord v. City of Manchester, 136 Iowa 213, 113 N.W. 846 (1907). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 177 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action D. Actions at Law and Suits in Equity Topic Summary References Correlation Table 178. Mode of determination of nature of actions West's Key Number Digest West's Key Number Digest, Action 22, 25(2) The character of an action as legal or equitable is determined from its nature and the relief sought as gathered from essential allegations of the complaint, or insofar as legal and equitable relief may be accorded in the same action, from the nature of the issues as raised by the pleadings and the relief sought thereunder. Although certain classes of actions or proceedings are generally recognized and classed as legal, and others as equitable, it is said to be difficult, and perhaps impossible, to state any general rule which would determine in all cases whether a particular action should be classed as at law or in equity.[1] Generally, however, it may be said that the essential character of the cause of action and the remedy or relief it seeks,[2] as shown by the allegations of the complaint, determine whether a particular action is at law or in equity,[3] unaffected by the conclusions of the pleader[4] or by what the pleader calls it,[5] or the prayer for relief,[6] or the nature of the defense interposed,[7] or new matter stated in the reply,[8] or whether the action is statutory or otherwise.[9] In addition, to determine whether an action is legal or equitable, the court will look at: (1) the pleadings;[10] (2) the underlying substantive nature of the claim;[11] (3) the rights and interests involved;[12] (4) and, if appropriate, the issues arising out of discovery.[13]
[FN1] U.S.Whitehead v. Shattuck, 138 U.S. 146, 11 S. Ct. 276, 34 L. Ed. 873 (1891). OhioLevenson v. Wolfson, 42 Ohio App. 318, 12 Ohio L. Abs. 501, 182 N.E. 111 (1st Dist. Hamilton County 1931). [FN2] AlaskaState, Dept. of Revenue, Child Support Enforcement Div. ex rel. Valdez v. Valdez, 941 P.2d 144 (Alaska 1997). IowaCollins Trust v. Allamakee County Bd. of Sup'rs of Allamakee County, 599 N.W.2d 460 (Iowa 1999).
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Md.Ver Brycke v. Ver Brycke, 379 Md. 669, 843 A.2d 758 (2004). Neb. Buell, Winter, Mousel & Associates, Inc. v. Olmsted & Perry Consulting Engineers, Inc., 227 Neb. 770, 420 N.W.2d 280 (1988). Or.Thompson v. Coughlin, 329 Or. 630, 997 P.2d 191 (2000). [FN3] U.S.Armstrong Cork Co. v. Merchants' Refrigerating Co., 184 F. 199 (C.C.A. 8th Cir. 1910); Duncan v. Greenwalt, 10 F. 800 (C.C.E.D. Mo. 1882). Ark.Murdock v. Sure Oil Corp., 171 Ark. 61, 283 S.W. 4 (1926). Cal. Raedeke v. Gibraltar Sav. & Loan Assn., 10 Cal. 3d 665, 111 Cal. Rptr. 693, 517 P.2d 1157 (1974); Richardson v. Callahan, 213 Cal. 683, 3 P.2d 927 (1931). Colo.Burke v. South Boulder Canon Ditch Co., 76 Colo. 354, 231 P. 674 (1924). Ga.Avant v. Hartridge, 174 Ga. 278, 162 S.E. 524 (1932); Columbus Bank & Trust Co. v. Dempsey, 120 Ga. App. 5, 169 S.E.2d 349 (1969). IdahoJohansen v. Looney, 30 Idaho 123, 163 P. 303 (1917). Iowa Mosebach v. Blythe, 282 N.W.2d 755 (Iowa Ct. App. 1979); Bjork v. Dairyland Ins. Co., 174 N.W.2d 379 (Iowa 1970). Minn.Swanson v. Alworth, 168 Minn. 84, 209 N.W. 907 (1926); Morton Brick & Tile Co. v. Sodergren, 130 Minn. 252, 153 N.W. 527 (1915). Mo. Boehme v. Roth, 280 S.W. 730 (Mo. Ct. App. 1926); Pickel v. Pickel, 291 Mo. 180, 236 S.W. 287 (1921). Neb.Nebraska Engineering Co. v. Gerstner, 212 Neb. 440, 323 N.W.2d 84 (1982); In re Buder's Estate, 117 Neb. 52, 219 N.W. 808 (1928). N.Y.Cohen v. Handelman, 62 Misc. 2d 801, 312 N.Y.S.2d 866 (N.Y. City Civ. Ct. 1970). N.D.Interior Lumber Co. v. Kunert, 61 N.D. 322, 237 N.W. 780 (1931). OhioUnion Salt Co. v. Miller, 32 Ohio C.D. 310, 42 Ohio C.C. 310, 17 Ohio C.C.(N.S.) 591, 1910 WL 1242 (Ohio Cir. 1910). Okla. Mackey v. Lefeber, 1935 OK 494, 172 Okla. 99, 45 P.2d 148 (1935); Dobbins v. Texas Co., 1928 OK 696, 136 Okla. 40, 275 P. 643 (1929). Or.Lieuallen Land & Livestock Corp. v. Heidenrich, 259 Or. 333, 485 P.2d 1230 (1971); McClory v. Gay, 45 Or. App. 561, 608 P.2d 1213 (1980). S.D.Burleigh v. Hecht, 22 S.D. 301, 117 N.W. 367 (1908). Tex.City of San Antonio v. Uvalde Rock Asphalt Co., 11 S.W.2d 829 (Tex. Civ. App. San Antonio
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1928), writ dismissed w.o.j., (Feb. 27, 1929). Wash.Main v. Western Loan & Bldg. Co., 167 Wash. 1, 8 P.2d 281 (1932); Harpster v. Knight, 155 Wash. 647, 285 P. 666 (1930). [FN4] Ga.Lavender v. Shackelford, 152 Ga. 363, 110 S.E. 1 (1921). Neb.Nebraska Engineering Co. v. Gerstner, 212 Neb. 440, 323 N.W.2d 84 (1982). OhioFelton v. Commercial Nat. Bank, 39 Ohio App. 24, 10 Ohio L. Abs. 446, 177 N.E. 52 (5th Dist. Coshocton County 1930). [FN5] U.S.Machcinski v. Lehigh Valley R. Co., 272 F. 920 (C.C.A. 2d Cir. 1921); Armstrong Cork Co. v. Merchants' Refrigerating Co., 184 F. 199 (C.C.A. 8th Cir. 1910). Cal. Massachusetts Bonding & Ins. Co. v. San Fransico- Oakland Terminal Rys., 39 Cal. App. 388, 178 P. 974 (1st Dist. 1919). Ga.Avant v. Hartridge, 174 Ga. 278, 162 S.E. 524 (1932); Lavender v. Shackelford, 152 Ga. 363, 110 S.E. 1 (1921). Ky.Arrington v. Sizemore, 241 Ky. 171, 43 S.W.2d 699 (1931); Wood's Guardian v. Inter Southern Life Ins. Co., 224 Ky. 579, 6 S.W.2d 712 (1928). Minn.Morton Brick & Tile Co. v. Sodergren, 130 Minn. 252, 153 N.W. 527 (1915). Neb.Nebraska Engineering Co. v. Gerstner, 212 Neb. 440, 323 N.W.2d 84 (1982). N.Y.East River Nat. Bank v. Columbia Trust Co., 171 N.Y.S. 384 (Sup 1918), aff'd, 187 A.D. 889, 174 N.Y.S. 901 (1st Dep't 1919). Or.Lieuallen Land & Livestock Corp. v. Heidenrich, 259 Or. 333, 485 P.2d 1230 (1971); McClory v. Gay, 45 Or. App. 561, 608 P.2d 1213 (1980); Capper v. Tarlow, 6 Or. App. 235, 486 P.2d 1298 (1971). [FN6] Minn.Morton Brick & Tile Co. v. Sodergren, 130 Minn. 252, 153 N.W. 527 (1915). Neb.Nebraska Engineering Co. v. Gerstner, 212 Neb. 440, 323 N.W.2d 84 (1982). OhioFelton v. Commercial Nat. Bank, 39 Ohio App. 24, 10 Ohio L. Abs. 446, 177 N.E. 52 (5th Dist. Coshocton County 1930). Okla.Newbern v. Farris, 1931 OK 121, 149 Okla. 74, 299 P. 192 (1931). Or.Johnson v. Curl, 147 Or. 530, 34 P.2d 975 (1934). Wash.Main v. Western Loan & Bldg. Co., 167 Wash. 1, 8 P.2d 281 (1932). [FN7] Okla.Newbern v. Farris, 1931 OK 121, 149 Okla. 74, 299 P. 192 (1931). [FN8] OhioRaymond v. Toledo, St. L. & K.C.R. Co., 57 Ohio St. 271, 48 N.E. 1093 (1897).
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[FN9] U.S.Duncan v. Greenwalt, 10 F. 800 (C.C.E.D. Mo. 1882). [FN10] IowaCarstens v. Central Nat. Bank & Trust Co. of Des Moines, 461 N.W.2d 331 (Iowa 1990) . Neb. Buell, Winter, Mousel & Associates, Inc. v. Olmsted & Perry Consulting Engineers, Inc., 227 Neb. 770, 420 N.W.2d 280 (1988). S.D.Durkee v. Van Well, 2002 SD 150, 654 N.W.2d 807 (2002). [FN11] Ind.Songer v. Civitas Bank, 771 N.E.2d 61 (Ind. 2002). IowaCarstens v. Central Nat. Bank & Trust Co. of Des Moines, 461 N.W.2d 331 (Iowa 1990). Miss. Copiah Medical Associates v. Mississippi Baptist Health Systems, 2004 WL 964328 (Miss. 2004). Neb. Buell, Winter, Mousel & Associates, Inc. v. Olmsted & Perry Consulting Engineers, Inc., 227 Neb. 770, 420 N.W.2d 280 (1988). [FN12] Ind.Songer v. Civitas Bank, 771 N.E.2d 61 (Ind. 2002). [FN13] Ind.Songer v. Civitas Bank, 771 N.E.2d 61 (Ind. 2002). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 178 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action D. Actions at Law and Suits in Equity Topic Summary References Correlation Table 179. Particular actions legal in nature West's Key Number Digest West's Key Number Digest, Action 22, 25(2) Various particular actions or proceedings have been considered legal in nature. Based on the rules pertaining to the determination of the nature of an action,[1] various particular actions or proceedings have been determined to be legal in nature,[2] such as an action for the recovery of a money judgment,[3] as on a contract, express or implied,[4] an action for the recovery of specific real or personal property,[ 5] or for ejectment,[6] including cases where damages are also claimed for its detention,[7] an action to recover for breach of a contract,[8] or to recover damages resulting from a conspiracy on the part of defendants to prevent the performance of a contract,[9] and an action arising in the field of quasi contracts.[10] Similarly, various particular actions or proceedings have been considered to be legal in nature, such as an action to recover a statutory penalty for usury[11] or damages for allegedly tortious conduct in conspiring to exact usurious charges,[12] a petition for the construction of an insurance policy,[13] an action to try title to land,[ 14] and an action for mandamus[15] or certiorari.[16] Also, various particular actions or proceedings have been deemed to be legal in nature, such as an action for money had and received,[17] such as for recovery of money paid under contract,[18] an action for the conversion of personal property,[19] an action for damages for a trespass[20] where no injunctive relief is demanded,[ 21] and an action for damages for fraud.[22] Other actions or proceedings which have been considered to be legal in nature include; negligence,[23] fraudulent misrepresentation,[24] probate claims,[25] remedies sought pursuant to the statute governing payment of wages to employees working on public works projects, including lost wages and benefits, multiple damages, costs, and attorney's fees,[26] an action under the Uniform Commercial Code,[27] deed construction,[28] and an action alleging lack of mental capacity to effect a change in ownership of a jointly held certificate of deposit.[29]
[FN1] 178.
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[FN2] U.S.Arnold v. U.S. for use of W.B. Guimarin & Co., 263 U.S. 427, 44 S. Ct. 144, 68 L. Ed. 371 (1923); Illinois Sur. Co. v. U.S. to Use of Peeler, 240 U.S. 214, 36 S. Ct. 321, 60 L. Ed. 609 (1916) ; Dykes v. Widdows, 31 F.2d 745 (C.C.A. 8th Cir. 1928). Ala.United States Fidelity & Guaranty Co. v. Yeilding Bros. Co. Department Stores, 225 Ala. 307, 143 So. 176 (1932). Ga.McKenzie v. McKenzie, 23 Ga. App. 27, 97 S.E. 410 (1918). IowaVerschoor v. Miller, 259 Iowa 170, 143 N.W.2d 385 (1966). Me.Sargent v. Coolidge, 399 A.2d 1333 (Me. 1979). Mo.Wahl v. Cunningham, 332 Mo. 21, 56 S.W.2d 1052 (1932). Mont.Berthelote v. Loy Oil Co., 95 Mont. 434, 28 P.2d 187 (1933); Solberg v. Sunburst Oil & Gas Co., 70 Mont. 177, 225 P. 612 (1924). N.Y.Barker v. Dairymen's League Co-op. Ass'n, 222 A.D. 341, 226 N.Y.S. 226 (4th Dep't 1927). Okla.National Foundation Life Ins. Co. v. Loftis, 1966 OK 237, 425 P.2d 946 (Okla. 1966). Or.Wakeman v. Paulson, 264 Or. 524, 506 P.2d 683 (1973); McClory v. Gay, 45 Or. App. 561, 608 P.2d 1213 (1980). Wash.W.J. Jahn & Co. v. Yakima Produce & Trading Co., 120 Wash. 164, 206 P. 944 (1922). Wyo.Rogers v. Buck Creek Oil Co., 32 Wyo. 283, 231 P. 410 (1924). [FN3] U.S.American Cyanamid Co. v. Wilson & Toomer Fertilizer Co., 51 F.2d 665 (C.C.A. 5th Cir. 1931). Ark.Rinehart & Gore v. Rowland, 139 Ark. 90, 213 S.W. 17 (1919). Cal. Massachusetts Bonding & Ins. Co. v. San Fransico- Oakland Terminal Rys., 39 Cal. App. 388, 178 P. 974 (1st Dist. 1919). Ga.Georgia Power Co. v. Parker, 48 Ga. App. 807, 173 S.E. 730 (1934). Ind.Field v. Brown, 146 Ind. 293, 45 N.E. 464 (1896). IowaHicks v. Northwestern Mut. Life Ins. Co. of Milwaukee, 166 Iowa 532, 147 N.W. 883 (1914); Mayo v. Halley, 124 Iowa 675, 100 N.W. 529 (1904). Kan.Koerner v. Custom Components, Inc., 4 Kan. App. 2d 113, 603 P.2d 628 (1979). Mich.City of Iron Mountain v. Iron Mountain Waterworks, 206 Mich. 537, 173 N.W. 612 (1919). Mo.Attebery v. Attebery, 507 S.W.2d 87 (Mo. Ct. App. 1974).
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N.Y.Sloane v. United Feature Syndicate, 135 Misc. 365, 238 N.Y.S. 91 (City Ct. 1929). OhioLa Bounty v. Brumback, 126 Ohio St. 96, 184 N.E. 5 (1933). Okla. Antrim Lumber Co. v. Bowline, 1969 OK 161, 460 P.2d 914 (Okla. 1969); Dobbins v. Texas Co., 1928 OK 696, 136 Okla. 40, 275 P. 643 (1929). Or.Capper v. Tarlow, 6 Or. App. 235, 486 P.2d 1298 (1971). Tex.Wood v. Humble Oil & Refining Co., 268 S.W. 981 (Tex. Civ. App. Fort Worth 1924). UtahBennett v. Bowen, 65 Utah 444, 238 P. 240 (1925). Wis.Royal Indemnity Co. v. Sangor, 166 Wis. 148, 164 N.W. 821, 9 A.L.R. 397 (1917). [FN4] UtahBennett v. Bowen, 65 Utah 444, 238 P. 240 (1925). [FN5] Colo. State Savings & Trust Co. v. Matz, 26 Colo. App. 511, 143 P. 1039 (1914), aff'd, 61 Colo. 222, 156 P. 1198 (1916). Ga.City of Barnesville v. Stafford, 161 Ga. 588, 131 S.E. 487, 43 A.L.R. 1045 (1926). S.C.Jordan v. Jordan, 130 S.C. 330, 125 S.E. 910 (1924). Wash.W.J. Jahn & Co. v. Yakima Produce & Trading Co., 120 Wash. 164, 206 P. 944 (1922); Newsome v. Allen, 86 Wash. 678, 151 P. 111 (1915). [FN6] Wis.Beduhn v. Kolar, 39 Wis. 2d 148, 158 N.W.2d 346 (1968). [FN7] U.S.Whitehead v. Shattuck, 138 U.S. 146, 11 S. Ct. 276, 34 L. Ed. 873 (1891). [FN8] U.S.Hyde v. Blaxter, 299 F. 167 (C.C.A. 8th Cir. 1924). Ark.Meeks v. Arkansas Light & Power Co., 147 Ark. 232, 227 S.W. 405 (1921). IowaAtlantic Veneer Corp. v. Sears, 232 N.W.2d 499 (Iowa 1975); Brammer v. Allied Mut. Ins. Co., 182 N.W.2d 169 (Iowa 1970). Ky.Clark v. Cooper, 197 Ky. 530, 247 S.W. 929 (1922). Mo.Wahl v. Cunningham, 332 Mo. 21, 56 S.W.2d 1052 (1932). Neb.White v. Medico Life Ins. Co., 212 Neb. 901, 327 N.W.2d 606 (1982). N.Y.Sayer v. Wilstrop, 200 A.D. 364, 193 N.Y.S. 4 (3d Dep't 1922); Beaty v. Bacon, 187 A.D. 447, 176 N.Y.S. 136 (1st Dep't 1919). Tex. American Ins. Co. v. First Sav. & Loan Ass'n, 434 S.W.2d 170 (Tex. Civ. App. Fort Worth 1968), writ refused n.r.e., (Feb. 12, 1969).
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Wash.Colvin v. Clark, 83 Wash. 376, 145 P. 419 (1915), aff'd, 96 Wash. 282, 165 P. 101 (1917). [FN9] U.S.Motley, Green & Co. v. Detroit Steel & Spring Co., 161 F. 389 (C.C.S.D. N.Y. 1908). [FN10] Wis.Dunnebacke Co. v. Pittman, 216 Wis. 305, 257 N.W. 30 (1934). [FN11] S.C.Jones v. Barco, Inc., 250 S.C. 522, 159 S.E.2d 279 (1968). [FN12] S.C.Jones v. Barco, Inc., 250 S.C. 522, 159 S.E.2d 279 (1968). [FN13] Ga.Lumbermens Mut. Cas. Co. v. Moody, 116 Ga. App. 2, 156 S.E.2d 117 (1967). [FN14] Pa.Carelli v. Lyter, 430 Pa. 543, 244 A.2d 6 (1968). [FN15] Ark.Nethercutt v. Pulaski County Special School Dist., 248 Ark. 143, 450 S.W.2d 777 (1970) . Pa.Hosler v. Bellefonte Area School Dist., 16 Pa. Commw. 610, 330 A.2d 275 (1975). [FN16] IowaSmith v. City of Fort Dodge, 160 N.W.2d 492 (Iowa 1968); Staads v. Board of Trustees of Fireman's Retirement Pension Fund of Sioux City, 159 N.W.2d 485 (Iowa 1968). [FN17] Cal.Harry H. Culver & Co. v. Superior Court in and for Los Angeles County, 129 Cal. App. 589, 19 P.2d 43 (2d Dist. 1933). Or.Haggerty v. Nobles, 244 Or. 428, 419 P.2d 9 (1966). [FN18] U.S.Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 122 S. Ct. 708, 151 L. Ed. 2d 635 (2002). Cal.Harry H. Culver & Co. v. Superior Court in and for Los Angeles County, 129 Cal. App. 589, 19 P.2d 43 (2d Dist. 1933). N.Y.Youngman v. Smadbeck, 64 Misc. 60, 117 N.Y.S. 1030 (App. Term 1909). Wis.Gavahan v. Village of Shorewood, 200 Wis. 429, 228 N.W. 497 (1930). [FN19] Okla.Dobbins v. Texas Co., 1928 OK 696, 136 Okla. 40, 275 P. 643 (1929). [FN20] Neb.Gilbert v. Rothe, 106 Neb. 549, 184 N.W. 119 (1921). [FN21] N.Y.Mitchell v. Village of White Plains, 36 N.Y.S. 935 (Gen. Term 1895). [FN22] U.S.Murphy v. Mitchell, 245 F. 219 (N.D. N.Y. 1917). N.Y.Moore v. Bonbright & Co., 202 A.D. 281, 195 N.Y.S. 854 (2d Dep't 1922). [FN23] IowaWeltzin v. Nail, 618 N.W.2d 293 (Iowa 2000). [FN24] IowaWeltzin v. Nail, 618 N.W.2d 293 (Iowa 2000).
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[FN25] IowaStewart v. DeMoss, 590 N.W.2d 545 (Iowa 1999). [FN26] Mass.Rosati v. Boston Pipe Covering, Inc., 434 Mass. 349, 749 N.E.2d 143 (2001). [FN27] Neb. Ford Motor Credit Co. v. All Ways, Inc., 249 Neb. 923, 546 N.W.2d 807, 29 U.C.C. Rep. Serv. 2d 869 (1996); FirsTier Bank, N.A. v. Triplett, 242 Neb. 614, 497 N.W.2d 339, 20 U.C.C. Rep. Serv. 2d 549 (1993). [FN28] UtahRHN Corp. v. Veibell, 2004 UT 60, 96 P.3d 935 (Utah 2004). [FN29] Neb.Cotton v. Ostroski, 250 Neb. 911, 554 N.W.2d 130 (1996). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 179 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action D. Actions at Law and Suits in Equity Topic Summary References Correlation Table 180. Particular actions equitable in nature West's Key Number Digest West's Key Number Digest, Action 22, 25(2) Various particular actions or proceedings have been determined to be equitable in nature. Based on the rules pertaining to the determination of the nature of an action,[1] various particular actions or proceedings have been considered to be equitable in nature,[2] such as an action for the cancellation of an instrument,[3] or rescission of a contract,[4] an action for an injunction,[5] an action for specific performance of a contract,[6] and an action for unjust enrichment.[7] Similarly, various particular actions or proceedings have been considered to be equitable in nature, such as an action for partition,[8] an action to foreclose a mortgage[9] or lien,[10] and an action to determine adverse claims.[11] Also, various particular actions or proceedings have been determined to be equitable in nature, such as an action to determine ownership of joint tenancy accounts,[12] an action to quiet title,[13] an action to enforce a lien[14] and an action to establish or enforce a trust.[15] Other actions or proceedings equitable in nature include an action by a stockholder to compel a corporation to do something which it ought to do, but cannot because it is controlled by persons adversely interested,[16] an action by a stockholder against the directors of a corporation to compel them to make good losses occasioned by misconduct in office,[17] an action by a creditor of a corporation against its officers to enforce their statutory liability,[18] an action for an accounting,[19] especially where the accounts are complicated and long continued,[ 20] or for an accounting and specific performance of a contract[21] and an action for the cancellation of a deed and an accounting.[22] Additionally, an unfair competition law action is one in equity,[23] and, traditionally, controversies surrounding the taxation of real property have sounded in equity, not law.[24] Also, a breach of a fiduciary duty is an equitable claim, rather than a legal claim.[25] Finally, a dispute over the propriety of a project labor agreement,[26] and proceedings seeking the disregard of the corporate entity, that is, seeking to pierce the corporate veil to impose liability on a shareholder for a corporation's debt or other obligations, are equitable actions.[27]
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[FN1] 178. [FN2] U.S.Empire City Fire Ins Co v. American Cent Ins Co, 218 F. 774 (C.C.A. 3d Cir. 1915). Ga.Ingraham v. Reynolds, 47 Ga. App. 67, 169 S.E. 679 (1933). Kan.Spena v. Goffe, 119 Kan. 831, 241 P. 257 (1925). N.Y.Circulation Associates, Inc. v. Mother's Manual, Inc., 53 Misc. 2d 225, 278 N.Y.S.2d 137 (N.Y. City Civ. Ct. 1967). N.D.Fowler v. Wallace, 131 Ind. 347, 31 N.E. 53 (1892). Pa.Virginia Manor Land Co. v. Virginia Manor Apartments, Inc., 444 Pa. 351, 282 A.2d 684 (1971). S.C.Dana v. Peurifoy, 142 S.C. 46, 140 S.E. 247 (1927). UtahSimper v. Brown, 74 Utah 178, 278 P. 529 (1929). Wash. Puget Sound Telephone Co. v. Telechronometer Co. of America, 130 Wash. 468, 227 P. 867 (1924). [FN3] Ariz.Gallegos v. Garcia, 14 Ariz. App. 85, 480 P.2d 1002 (Div. 1 1971). Ark.Tandy v. Smith, 173 Ark. 828, 293 S.W. 735 (1927). Ohio Clark v. Owensville Building & Loan Co., 46 Ohio App. 301, 16 Ohio L. Abs. 125, 187 N.E. 370 (1st Dist. Clermont County 1933). Okla.Cloud v. Young, 1924 OK 793, 103 Okla. 65, 229 P. 604 (1924). Wis.Woelfel v. New England Mut. Life Ins. Co., 182 Wis. 45, 195 N.W. 871 (1923). [FN4] Ariz.Horne v. Timbanard, 6 Ariz. App. 518, 434 P.2d 520 (1967). Colo.People v. District Court of Eighth Judicial Dist. for Larimer County, 70 Colo. 500, 202 P. 714 (1921). Mont.Mason v. Madson, 90 Mont. 489, 4 P.2d 475 (1931). N.Y.Smith v. Salomon, 184 A.D. 544, 172 N.Y.S. 515 (1st Dep't 1918). Okla.Simmons v. Harris, 1924 OK 1137, 108 Okla. 189, 235 P. 508 (1924). Tex. Billups v. Gallant, 37 S.W.2d 770 (Tex. Civ. App. Austin 1931), writ refused, (July 8, 1931); Clark v. Texas Co-op. Inv. Co., 231 S.W. 381 (Tex. Comm'n App. 1921). Wash.Main v. Western Loan & Bldg. Co., 167 Wash. 1, 8 P.2d 281 (1932). [FN5] Colo.Burke v. South Boulder Canon Ditch Co., 76 Colo. 354, 231 P. 674 (1924).
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Ky.Arrington v. Sizemore, 241 Ky. 171, 43 S.W.2d 699 (1931). [FN6] Cal.Smith v. Tristram, 130 Cal. App. 750, 20 P.2d 770 (2d Dist. 1933). Colo.Grimes v. Barndollar, 58 Colo. 421, 148 P. 256 (1914). Ind.Ryan v. Summers, 81 Ind. App. 225, 142 N.E. 879 (Div. 2 1924). IowaDuhme v. Duhme, 260 N.W.2d 415 (Iowa 1977). Wash.Lindholm v. Patrick, 107 Wash. 243, 181 P. 876 (1919). [FN7] Mich.Dean v. Michigan Dept. of Natural Resources, 399 Mich. 84, 247 N.W.2d 876 (1976). Neb.Schmeckpeper v. Koertje, 222 Neb. 800, 388 N.W.2d 51 (1986). S.D.Action Mechanical, Inc. v. Deadwood Historic Preservation Com'n, 2002 SD 121, 652 N.W.2d 742 (2002). UtahRHN Corp. v. Veibell, 2004 UT 60, 96 P.3d 935 (Utah 2004). [FN8] U.S.Look v. Government of Guam, 497 F.2d 699 (9th Cir. 1974). Cal. Penasquitos, Inc. v. Holladay, 27 Cal. App. 3d 356, 103 Cal. Rptr. 717 (4th Dist. 1972); Romanchek v. Romanchek, 248 Cal. App. 2d 337, 56 Cal. Rptr. 360 (2d Dist. 1967). Conn.Lovejoy v. Lovejoy, 28 Conn. Supp. 230, 256 A.2d 843 (Super. Ct. 1969). Mich.Anderson v. Richter, 54 Mich. App. 532, 221 N.W.2d 251 (1974). Okla.Mauch v. Mauch, 1966 OK 145, 418 P.2d 941 (Okla. 1966). [FN9] Ind.Farmers Bank and Trust Co. v. Ross, 401 N.E.2d 74 (Ind. Ct. App. 1st Dist. 1980). [FN10] Ind.Farmers Bank and Trust Co. v. Ross, 401 N.E.2d 74 (Ind. Ct. App. 1st Dist. 1980). [FN11] N.D.Robar v. Ellingson, 301 N.W.2d 653 (N.D. 1981). [FN12] Okla.City Nat. Bank & Trust Co. v. Conrad, 1966 OK 132, 416 P.2d 942 (Okla. 1966). [FN13] U.S.Look v. Government of Guam, 497 F.2d 699 (9th Cir. 1974). Cal.Roman v. Ries, 259 Cal. App. 2d 65, 66 Cal. Rptr. 120 (1st Dist. 1968). IowaJeffrey v. Grosvenor, 261 Iowa 1052, 157 N.W.2d 114 (1968). Mich.Anderson v. Richter, 54 Mich. App. 532, 221 N.W.2d 251 (1974). OhioLumbermen's Mortg. Co. v. Stevens, 46 Ohio App. 5, 12 Ohio L. Abs. 553, 187 N.E. 641 (6th Dist. Ottawa County 1932).
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S.C.Van Every v. Chinquapin Hollow, Inc., 265 S.C. 474, 219 S.E.2d 909 (1975); Bryan v. Freeman, 253 S.C. 50, 168 S.E.2d 793 (1969); Gantt v. Van der Hoek, 251 S.C. 307, 162 S.E.2d 267 (1968). [FN14] U.S.Machcinski v. Lehigh Valley R. Co., 272 F. 920 (C.C.A. 2d Cir. 1921); In re Baxter & Co., 154 F. 22 (C.C.A. 2d Cir. 1907). Ky.Reynolds Bros. v. Moody, 195 Ky. 510, 243 S.W. 35 (1922). Ohio Hummer v. Parsons, 111 Ohio St. 595, 2 Ohio L. Abs. 407, 3 Ohio L. Abs. 11, 146 N.E. 62 (1924); Clark v. Owensville Building & Loan Co., 46 Ohio App. 301, 16 Ohio L. Abs. 125, 187 N.E. 370 (1st Dist. Clermont County 1933). Okla. Jones v. Ralls, 1931 OK 588, 152 Okla. 95, 3 P.2d 665 (1931); Simpson v. Baker, 1926 OK 957, 123 Okla. 118, 252 P. 834 (1926); Benn v. Trobert, 1919 OK 292, 76 Okla. 184, 184 P. 595 (1919) . [FN15] U.S.Williams v. Stone, 25 F.2d 588 (C.C.A. 4th Cir. 1928). N.Y.Smith v. Staten Island Land Co., 175 A.D. 588, 162 N.Y.S. 681 (1st Dep't 1916). Wash.Allard v. Pacific Nat. Bank, 99 Wash. 2d 394, 663 P.2d 104 (1983). [FN16] N.Y.Callanan v. Powers, 199 N.Y. 268, 92 N.E. 747 (1910). [FN17] N.Y.Brinckerhoff v. Bostwick, 105 N.Y. 567, 12 N.E. 58 (1887). [FN18] Mass.McRae v. Locke, 114 Mass. 96, 1873 WL 9182 (1873). [FN19] Cal.Estate of Peebles, 27 Cal. App. 3d 163, 103 Cal. Rptr. 560 (2d Dist. 1972). IowaAtlantic Veneer Corp. v. Sears, 232 N.W.2d 499 (Iowa 1975). Kan.Spena v. Goffe, 119 Kan. 831, 241 P. 257 (1925). Minn.Morton Brick & Tile Co. v. Sodergren, 130 Minn. 252, 153 N.W. 527 (1915). Mont.Steiner v. McMillan, 59 Mont. 30, 195 P. 836 (1921). Okla. Kethley v. Finn, 1970 OK 29, 465 P.2d 752 (Okla. 1970); Rose v. First Nat. Bank, 1923 OK 561, 93 Okla. 120, 219 P. 715 (1923). S.C.McKellar v. Stanton, 104 S.C. 248, 88 S.E. 527 (1916). [FN20] Tex.Palmetto Lumber Co. v. Gibbs, 124 Tex. 615, 80 S.W.2d 742, 102 A.L.R. 474 (Comm'n App. 1935). [FN21] Cal.Prince v. Lamb, 128 Cal. 120, 60 P. 689 (1900). [FN22] U.S.Barnett v. Mayes, 43 F.2d 521 (C.C.A. 10th Cir. 1930).
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[FN23] Cal.Kraus v. Trinity Management Services, Inc., 23 Cal. 4th 116, 96 Cal. Rptr. 2d 485, 999 P.2d 718 (2000). [FN24] Fla.Section 3 Property Corp. v. Robbins, 632 So. 2d 596 (Fla. 1993). [FN25] IowaWeltzin v. Nail, 618 N.W.2d 293 (Iowa 2000). [FN26] IowaMaster Builders of Iowa, Inc. v. Polk County, 653 N.W.2d 382 (Iowa 2002), as corrected, (Nov. 22, 2002). [FN27] Neb.Southern Lumber & Coal Co. v. M.P. Olson Real Estate and Const. Co., Inc., 229 Neb. 249, 426 N.W.2d 504 (1988). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 180 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action D. Actions at Law and Suits in Equity Topic Summary References Correlation Table 181. Actions demanding or warranting both legal and equitable relief West's Key Number Digest West's Key Number Digest, Action 22, 25(2) Where both legal and equitable relief are demanded, or are essential to a complete determination of the controversy, the action is ordinarily classified according to what appears to be its primary purpose. In actions praying for both money damages and equitable relief, characterization of the action as equitable or legal depends on the plaintiff's main purpose in bringing the action.[1] For example, where enjoining the Medical Malpractice Liability Joint Underwriting Association from charging any part of a settlement to the insured's policy was the main purpose of the insured's action, and, thus, the action was equitable in nature, even though the insured sought damages.[2] Similarly, the parents' claims to recover a conditional gift of $200,000 from a son and former daughter-in-law sounded in law for the repayment of the money, although the parents relied on unjust enrichment and promissory estoppel, two traditionally equitable doctrines, and requested the remedy of restitution, an equitable remedy.[3] So, where both legal and equitable issues are involved in a case, it will be classified in accord with what appears to be the paramount or controlling issue.[4] Thus, an action to recover a money judgment has been classified as of a legal character, although equitable relief, purely ancillary to the main relief, is also sought, or is necessary to the final disposition of the action, such as an injunction,[5] receiver,[6] or accounting,[7] as in the case of an action for services under an agreement to pay therefor a certain per cent of the net profits of a business.[8] Also, other actions have been classified as of a legal character, such as an action to recover damages sustained by reason of a nuisance, although injunctive relief is also sought against its continuance or repetition,[9] and an action for the recovery of specific real property, although injunctive relief is also sought.[10] Conversely, if the primary cause of action is equitable, the case is of an equitable nature, although incidental issues are of a legal nature.[11] Hence, as of an equitable character, have been classified an action to establish and enforce a trust, although a money judgment is also demanded which is dependent upon the establishment of the trust,[12] an action to enjoin a trespass or private nuisance, although damages are also claimed for the injury already sustained,[13] an action which, although ultimately for the recovery of a money judgment, makes such
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recovery dependent upon the cancellation or reformation of an instrument which is also sought,[14] an action by a mortgagor against a mortgagee in possession, for an accounting and for the recovery of possession of the mortgaged premises upon payment of what shall be found due,[15] and an action to quiet title, although damages are also sought.[16]
[FN1] Fla.de Lara v. Confederation Life Ass'n, 257 So. 2d 42 (Fla. 1971). IdahoJohansen v. Looney, 30 Idaho 123, 163 P. 303 (1917). IowaMosebach v. Blythe, 282 N.W.2d 755 (Iowa Ct. App. 1979). Mont.Berthelote v. Loy Oil Co., 95 Mont. 434, 28 P.2d 187 (1933); Solberg v. Sunburst Oil & Gas Co., 70 Mont. 177, 225 P. 612 (1924). N.Y.Wood v. Hill, 214 A.D. 417, 212 N.Y.S. 550 (1st Dep't 1925). Okla. Mid-Continent Life Ins. Co. v. Sharrock, 1933 OK 94, 162 Okla. 127, 20 P.2d 154 (1933); Warner v. Coleman, 1924 OK 56, 107 Okla. 292, 231 P. 1053 (1924). S.C. Doe v. South Carolina Medical Malpractice Liability Joint Underwriting Ass'n, 347 S.C. 642, 557 S.E.2d 670 (2001). [FN2] S.C.Doe v. South Carolina Medical Malpractice Liability Joint Underwriting Ass'n, 347 S.C. 642, 557 S.E.2d 670 (2001). [FN3] Md.Ver Brycke v. Ver Brycke, 379 Md. 669, 843 A.2d 758 (2004). [FN4] U.S.Arkansas Anthracite Coal & Land Co. v. Stokes, 277 F. 629 (C.C.A. 8th Cir. 1922). IowaMosebach v. Blythe, 282 N.W.2d 755 (Iowa Ct. App. 1979). Okla.Moschos v. Bayless, 1927 OK 198, 126 Okla. 25, 258 P. 263 (1927). S.D.Dakota Life Ins. Co. v. Morgan, 47 S.D. 361, 199 N.W. 43 (1924). [FN5] Fla.Acquafredda v. Messina, 408 So. 2d 828 (Fla. Dist. Ct. App. 5th Dist. 1982); Squaw Island Freight & Terminal Co. v. City of Buffalo, 133 Misc. 64, 231 N.Y.S. 139 (Sup 1928). N.Y.Carolan v. O'Donnell, 105 A.D. 577, 94 N.Y.S. 171 (1st Dep't 1905). OhioWall v. Dayton Federation Co., 121 Ohio St. 334, 7 Ohio L. Abs. 703, 168 N.E. 847 (1929). [FN6] Ohio Wall v. Dayton Federation Co., 121 Ohio St. 334, 7 Ohio L. Abs. 703, 168 N.E. 847 (1929). [FN7] OhioLa Bounty v. Brumback, 126 Ohio St. 96, 184 N.E. 5 (1933); Wall v. Dayton Federation Co., 121 Ohio St. 334, 7 Ohio L. Abs. 703, 168 N.E. 847 (1929).
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[FN8] N.Y.Lindner v. Starin, 128 A.D. 664, 113 N.Y.S. 201 (3d Dep't 1908). [FN9] Ga.Fuller v. Georgia Ry. & Power Co., 147 Ga. 334, 94 S.E. 249 (1917). [FN10] Cal.Haggin v. Kelly, 136 Cal. 481, 69 P. 140 (1902). [FN11] Kan.Spena v. Goffe, 119 Kan. 831, 241 P. 257 (1925). Me.Sowles v. Beaumier, 227 A.2d 473 (Me. 1967). Nev.Martin v. Dixon, 49 Nev. 161, 241 P. 213 (1925). N.Y.Wood v. Hill, 214 A.D. 417, 212 N.Y.S. 550 (1st Dep't 1925). Okla. Mid-Continent Life Ins. Co. v. Sharrock, 1933 OK 94, 162 Okla. 127, 20 P.2d 154 (1933); Moschos v. Bayless, 1927 OK 198, 126 Okla. 25, 258 P. 263 (1927); Cloud v. Young, 1924 OK 793, 103 Okla. 65, 229 P. 604 (1924). S.C.Lee v. Lee, 251 S.C. 533, 164 S.E.2d 308 (1968). Wash.Peabody v. Pioneer Sand & Gravel Co., 164 Wash. 26, 2 P.2d 714 (1931). [FN12] Okla.Rose v. First Nat. Bank, 1923 OK 561, 93 Okla. 120, 219 P. 715 (1923). [FN13] Colo.Burke v. South Boulder Canon Ditch Co., 76 Colo. 354, 231 P. 674 (1924). OhioJ. P. Loomis Coal & Supply Co. v. Garchev, 123 Ohio St. 316, 9 Ohio L. Abs. 382, 175 N.E. 456 (1931). [FN14] Okla.Moschos v. Bayless, 1927 OK 198, 126 Okla. 25, 258 P. 263 (1927). S.D.Dakota Life Ins. Co. v. Morgan, 47 S.D. 361, 199 N.W. 43 (1924). Wis.Woelfel v. New England Mut. Life Ins. Co., 182 Wis. 45, 195 N.W. 871 (1923). [FN15] N.Y.Hubbell v. Sibley, 50 N.Y. 468, 1872 WL 10036 (1872). [FN16] IowaMullen v. Callanan, 167 Iowa 367, 149 N.W. 516 (1914). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 181 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action D. Actions at Law and Suits in Equity Topic Summary References Correlation Table 182. Effect of statutory provisions West's Key Number Digest West's Key Number Digest, Action 25, 25(1) Statutes, while doing away with the formal distinctions between actions at law and suits in equity, have not affected the substantial distinction between them. The constitutional or statutory or regulatory provisions abolishing forms of action and providing for a single form of civil action, either expressly or by implication abolish the distinction between actions at law and suits in equity.[1] The mere formal distinctions have been abolished,[2] but this seems to be practically all that has been effected.[3] The inherent distinctions between legal and equitable principles, causes, and forms of relief, are not affected,[4] the only change effected being in the method of their administration and in some degree the extent of their application.[5] Thus, provisions abolishing the distinctions between law and equity do not abolish substantive differences or principles.[6] The rights of the parties, and the principles by which they are to be determined, are not affected,[7] and the various remedies for their enforcement, although administered in a different form, and under a different name, through the medium of a single civil action, still remain.[8] On the other hand, the change does not create any new causes of action,[9] or make available remedies not theretofore available or applicable,[10] or extend the jurisdiction of the courts to matters not previously of either legal or equitable judicial cognizance,[11] or entitle a party to recover in a case where previously he or she could not have recovered either at law or in equity.[12] Equitable rights and remedies are not destroyed or merged.[13] If an action is of a purely legal nature it must be determined according to legal principles,[14] and if of a purely equitable nature it must be determined upon equitable principles,[15] and if partly legal and partly equitable both legal and equitable principles must be applied.[16] However, it has been stated that equitable principles may be applied in a law action.[17] It was not the intention to curtail the essential powers of courts of general jurisdiction,[18] but whether the rights involved are such as were formerly cognizable at law or in equity, they may now be enforced in the same court,[19] and by the same form of action.[20] Under the statutory provisions changing the distinctions between law and equity, whether the nature of the
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action be legal or equitable, the form of the pleadings is the same,[21] it being only necessary to state in plain and concise language the material facts constituting the cause of action or defense,[22] and the relief demanded,[ 23] without expressly designating the action as either legal or equitable.[24] It is only necessary that the complaint show a state of facts entitling plaintiff to some relief since the court looks to the substantial rights of the parties to determine the remedy irrespective of the form of the complaint.[25] If the complaint states facts sufficient to constitute a cause of action, legal or equitable, it is not demurrable,[26] but the same essential facts to constitute a particular cause of action or to entitle a party to particular relief, whether legal or equitable, must be alleged[27] and proved.[28] Also, the allegations and the proofs must correspond,[29] and the judgment must follow the pleadings.[30] Since the distinctions between legal and equitable rights and remedies still remain, and legal and equitable principles are still applied with regard to their enforcement, the pleadings, although in the form prescribed by statute, should be drawn with reference to these distinctions,[31] and should show the legal or equitable nature of the cause of action,[32] or defense,[33] and relief sought,[34] so as to enable the court to see what principles apply and how they must be administered.[35] Under the statutory provisions, the distinction is still recognized between the methods of trying legal and equitable actions and issues,[36] the former being triable by a jury, and the latter by the court,[37] even where both classes of issues are involved in the same action.[38] Regardless of the form the action may take under the pleading, if the complaint states a cause of action either legal or equitable the court must try the case stated in accord with its essential nature and give relief accordingly.[39]
[FN1] Ala.Du Boise v. Brewer, 349 So. 2d 1086 (Ala. 1977). Ariz.Starkovich v. Noye, 111 Ariz. 347, 529 P.2d 698 (1974). Cal.IFS Industries, Inc. v. Stephens, 159 Cal. App. 3d 740, 205 Cal. Rptr. 915 (4th Dist. 1984). Fla.de Lara v. Confederation Life Ass'n, 257 So. 2d 42 (Fla. 1971). Me.Desfosses v. Notis, 333 A.2d 83 (Me. 1975). N.Y. Robischon v. Genesee Valley Medical Care, Inc., 92 Misc. 2d 854, 401 N.Y.S.2d 379 (Sup 1977), aff'd, 65 A.D.2d 681, 411 N.Y.S.2d 480 (4th Dep't 1978). Wis.Nixon v. Nixon, 39 Wis. 2d 391, 158 N.W.2d 919 (1968). As to provisions creating a single form of civil action, generally, see, 132. [FN2] Colo.Pomponio v. Larsen, 80 Colo. 318, 251 P. 534 (1926); Ahart v. Sutton, 79 Colo. 145, 244 P. 306 (1926). Mo.Palmer v. Marshall, 24 S.W.2d 229 (Mo. Ct. App. 1930).
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Mont.State v. District Court of First Judicial Dist. in and for Lewis and Clark County, 90 Mont. 213, 300 P. 544 (1931). N.Y.Hearn v. Leary, 125 Misc. 446, 211 N.Y.S. 668 (Sup 1925), aff'd, 215 A.D. 735, 212 N.Y.S. 828 (3d Dep't 1925). N.C.Foster v. Allison Corp., 191 N.C. 166, 131 S.E. 648, 44 A.L.R. 610 (1926); Page Trust Co. v. Godwin, 190 N.C. 512, 130 S.E. 323 (1925). N.D.Burrows v. Paulson, 64 N.D. 557, 254 N.W. 471 (1934). Okla.Mathews v. Sniggs, 1919 OK 196, 75 Okla. 108, 182 P. 703 (1919). Wash.Pletcher v. Porter, 177 Wash. 560, 33 P.2d 109 (1934); City of Montesano v. Carr, 80 Wash. 384, 141 P. 894, 7 A.L.R. 95 (1914). Wis.McLennan v. Church, 163 Wis. 411, 158 N.W. 73 (1916). Wyo.Alaska Development Co. v. Brannan, 40 Wyo. 106, 275 P. 115 (1929). [FN3] Mo.Magwire v. Tyler, 47 Mo. 115, 1870 WL 96 (1870), rev'd on other grounds, 84 U.S. 253, 21 L. Ed. 576 (1872). N.Y.John D. Park & Sons Co. v. Hubbard, 134 A.D. 468, 119 N.Y.S. 347 (1st Dep't 1909), aff'd, 198 N.Y. 136, 91 N.E. 261 (1910). [FN4] Cal.Freeman v. Donohoe, 65 Cal. App. 65, 223 P. 431 (3d Dist. 1923) (disapproved of on other grounds by, Jefferson v. J. E. French Co., 54 Cal. 2d 717, 7 Cal. Rptr. 899, 355 P.2d 643 (1960)). Fla.Rodriguez v. Dicoa Corp., 318 So. 2d 442 (Fla. Dist. Ct. App. 3d Dist. 1975). Mo.Sandwich Mfg. Co. v. Bogie, 317 Mo. 972, 298 S.W. 56 (1927). Mont.State v. District Court of First Judicial Dist. in and for Lewis and Clark County, 90 Mont. 213, 300 P. 544 (1931). N.Y.Cox v. City of New York, 265 N.Y. 411, 193 N.E. 251, 105 A.L.R. 1378 (1934). N.C.Scales v. Wachovia Bank & Trust Co., 195 N.C. 772, 143 S.E. 868 (1928); Furst & Thomas v. Merritt, 190 N.C. 397, 130 S.E. 40 (1925). Okla.Mathews v. Sniggs, 1919 OK 196, 75 Okla. 108, 182 P. 703 (1919). Wash.City of Montesano v. Carr, 80 Wash. 384, 141 P. 894, 7 A.L.R. 95 (1914). [FN5] N.C.Furst & Thomas v. Merritt, 190 N.C. 397, 130 S.E. 40 (1925). Tex. City of Dallas v. McElroy, 254 S.W. 599 (Tex. Civ. App. Dallas 1923), writ dismissed w.o.j., (Nov. 21, 1923).
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[FN6] Fla.Adams v. Citizens Bank of Brevard, 248 So. 2d 682 (Fla. Dist. Ct. App. 4th Dist. 1971). HawaiiLau v. Valu-Bilt Homes, Ltd., 59 Haw. 283, 582 P.2d 195 (1978). Mich.Cusumano v. City of Detroit, 30 Mich. App. 603, 186 N.W.2d 740 (1971). [FN7] N.C.Sears v. Braswell, 197 N.C. 515, 149 S.E. 846 (1929). N.D.Burrows v. Paulson, 64 N.D. 557, 254 N.W. 471 (1934). Okla.Mathews v. Sniggs, 1919 OK 196, 75 Okla. 108, 182 P. 703 (1919). [FN8] Colo.Ahart v. Sutton, 79 Colo. 145, 244 P. 306 (1926). N.Y.Hearn v. Leary, 125 Misc. 446, 211 N.Y.S. 668 (Sup 1925), aff'd, 215 A.D. 735, 212 N.Y.S. 828 (3d Dep't 1925). N.D.Burrows v. Paulson, 64 N.D. 557, 254 N.W. 471 (1934). [FN9] Ga.Penn Mut. Life Ins. Co. v. Taggart, 38 Ga. App. 509, 144 S.E. 400 (1928). [FN10] Ga.Dekle v. Carter, 156 Ga. 760, 120 S.E. 9 (1923). [FN11] N.Y. Cropsey v. Sweeney, 7 Abb. Pr. 129, 27 Barb. 310, 1858 WL 7062 (N.Y. Gen. Term 1858). [FN12] Ind.Woodford v. Leavenworth, 14 Ind. 311, 1860 WL 4097 (1860). N.Y.Peck v. Newton, 46 Barb. 173, 1862 WL 4623 (N.Y. Gen. Term 1862). [FN13] N.C.Foster v. Allison Corp., 191 N.C. 166, 131 S.E. 648, 44 A.L.R. 610 (1926); Page Trust Co. v. Godwin, 190 N.C. 512, 130 S.E. 323 (1925). [FN14] Mo.Slovensky v. O'Reilly, 233 S.W. 478 (Mo. 1921). Tex. City of Dallas v. McElroy, 254 S.W. 599 (Tex. Civ. App. Dallas 1923), writ dismissed w.o.j., (Nov. 21, 1923). Wis.McLennan v. Church, 163 Wis. 411, 158 N.W. 73 (1916). [FN15] N.M.Rutherford v. Buhler, 89 N.M. 594, 555 P.2d 715 (Ct. App. 1976). Okla.Mackey v. Lefeber, 1935 OK 494, 172 Okla. 99, 45 P.2d 148 (1935). S.C.Kickbusch v. Ruggles, 105 S.C. 525, 90 S.E. 163 (1916). Tenn.Metropolitan Life Ins. Co. v. Humphrey, 167 Tenn. 421, 70 S.W.2d 361 (1934). Tex. City of Dallas v. McElroy, 254 S.W. 599 (Tex. Civ. App. Dallas 1923), writ dismissed w.o.j., (Nov. 21, 1923).
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Wis.McLennan v. Church, 163 Wis. 411, 158 N.W. 73 (1916). [FN16] Ala.First Nat. Bank v. Murphree, 218 Ala. 221, 118 So. 404 (1928); McDonald v. McDonald, 212 Ala. 137, 102 So. 38, 36 A.L.R. 761 (1924). [FN17] UtahWilliamson v. Wanlass, 545 P.2d 1145, 18 U.C.C. Rep. Serv. 1116 (Utah 1976); Marlowe Inv. Corp. v. Radmall, 26 Utah 2d 124, 485 P.2d 1402 (1971). [FN18] Kan.Minch v. Winters, 122 Kan. 533, 253 P. 578 (1927). [FN19] Cal.Kingsbury v. Tevco, Inc., 79 Cal. App. 3d 314, 144 Cal. Rptr. 773 (3d Dist. 1978). Fla.Emery v. International Glass & Mfg., Inc., 249 So. 2d 496 (Fla. Dist. Ct. App. 2d Dist. 1971). Kan.Minch v. Winters, 122 Kan. 533, 253 P. 578 (1927). Mo.Sandwich Mfg. Co. v. Bogie, 317 Mo. 972, 298 S.W. 56 (1927). Mont.McKinney v. Mires, 95 Mont. 191, 26 P.2d 169 (1933). N.Y.Fedoryszyn v. Weiss, 62 Misc. 2d 889, 310 N.Y.S.2d 55 (Sup 1970). Wis.McLennan v. Church, 163 Wis. 411, 158 N.W. 73 (1916). [FN20] Ind.Royal Ins. Co., Ltd., of Liverpool v. Stewart, 190 Ind. 444, 129 N.E. 853 (1921). UtahKuttes v. Luke, 59 Utah 324, 203 P. 347 (1921). Wis.McLennan v. Church, 163 Wis. 411, 158 N.W. 73 (1916). [FN21] N.Y.McGinnis v. Bankers Life Co., Des Moines, Iowa, 39 A.D.2d 393, 334 N.Y.S.2d 270 (2d Dep't 1972). Wash.Pletcher v. Porter, 177 Wash. 560, 33 P.2d 109 (1934). Wis.Kollock v. Kaiser, 98 Wis. 104, 73 N.W. 776 (1897). [FN22] Colo.Pomponio v. Larsen, 80 Colo. 318, 251 P. 534 (1926). N.Y.McGinnis v. Bankers Life Co., Des Moines, Iowa, 39 A.D.2d 393, 334 N.Y.S.2d 270 (2d Dep't 1972). UtahO'Neill v. Mutual Life Ins. Co. of New York, 51 Utah 592, 172 P. 306 (1918). [FN23] UtahO'Neill v. Mutual Life Ins. Co. of New York, 51 Utah 592, 172 P. 306 (1918). [FN24] U.S.Tyler v. Magwire, 84 U.S. 253, 21 L. Ed. 576 (1872). N.Y.Stevens v. New York, 84 N.Y. 296, 1881 WL 12808 (1881). [FN25] Cal.Hansen v. Hevener, 69 Cal. App. 337, 231 P. 361 (2d Dist. 1924).
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N.Y.McGinnis v. Bankers Life Co., Des Moines, Iowa, 39 A.D.2d 393, 334 N.Y.S.2d 270 (2d Dep't 1972). [FN26] Cal.Whitehead v. Sweet, 126 Cal. 67, 58 P. 376 (1899); Grain v. Aldrich, 38 Cal. 514, 1869 WL 789 (1869). S.C.Kickbusch v. Ruggles, 105 S.C. 525, 90 S.E. 163 (1916). [FN27] Or.Simpson v. First Nat. Bank of Roseburg, 94 Or. 147, 185 P. 913 (1919). Wyo.Alaska Development Co. v. Brannan, 40 Wyo. 106, 275 P. 115 (1929). [FN28] Ind.Emmons v. Kiger, 23 Ind. 483, 1864 WL 2033 (1864). N.Y.Stevens v. New York, 84 N.Y. 296, 1881 WL 12808 (1881). [FN29] Colo.Exchange Bank of Denver v. Ford, 7 Colo. 314, 3 P. 449 (1884). [FN30] Colo.Exchange Bank of Denver v. Ford, 7 Colo. 314, 3 P. 449 (1884). N.Y.Stevens v. New York, 84 N.Y. 296, 1881 WL 12808 (1881). [FN31] Mo.Lackland v. Garesche, 56 Mo. 267, 1874 WL 8440 (1874); Meyers v. Field, 37 Mo. 434, 1866 WL 4094 (1866). [FN32] Kan.Carbondale Inv. Co. v. Burdick, 67 Kan. 329, 72 P. 781 (1903). N.C.John L. Roper Lumber Co. v. Wallace, 93 N.C. 22, 1885 WL 1623 (1885). [FN33] N.C.John L. Roper Lumber Co. v. Wallace, 93 N.C. 22, 1885 WL 1623 (1885). [FN34] Mo.Meyers v. Field, 37 Mo. 434, 1866 WL 4094 (1866). N.C.John L. Roper Lumber Co. v. Wallace, 93 N.C. 22, 1885 WL 1623 (1885). [FN35] Kan.Carbondale Inv. Co. v. Burdick, 67 Kan. 329, 72 P. 781 (1903). N.C.John L. Roper Lumber Co. v. Wallace, 93 N.C. 22, 1885 WL 1623 (1885). [FN36] Mo.Palmer v. Marshall, 24 S.W.2d 229 (Mo. Ct. App. 1930). Wash.Distler v. Dabney, 7 Wash. 431, 35 P. 138 (1893). [FN37] Mo.Palmer v. Marshall, 24 S.W.2d 229 (Mo. Ct. App. 1930). [FN38] Cal.Estudillo v. Security Loan & Trust Co. of Southern California, 158 Cal. 66, 109 P. 884 (1910). IowaDay v. Dyer, 171 Iowa 437, 152 N.W. 53 (1915). [FN39] Cal.Philpott v. Superior Court in and for Los Angeles County, 1 Cal. 2d 512, 36 P.2d 635, 95
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A.L.R. 990 (1934). S.C.Kickbusch v. Ruggles, 105 S.C. 525, 90 S.E. 163 (1916). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 182 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action D. Actions at Law and Suits in Equity Topic Summary References Correlation Table 183. Change of character West's Key Number Digest West's Key Number Digest, Action 22 Although ordinarily, an action at law cannot be changed into a suit in equity, or vice versa, an action begun as an equitable one may be changed into one in law by reason of subsequent pleadings, or the loss of the equitable issues. An action at law may be converted into one in equity by an answer setting up an equitable defense and seeking affirmative equitable relief. Ordinarily, an action at law cannot be changed into a suit in equity, or vice versa.[1] An action begun as an equitable action may be changed in nature to one at law by reason of subsequent pleadings[2] or the fact that equitable issues drop out of the case.[3] It has been said, however, that an action for damages, being one at law, does not become an equitable action simply by virtue of a request for an injunction.[ 4] Where both a plaintiff and a defendant in an action instituted at law seek the aid of equity, jurisdiction is thereby conferred on the court to dispose of the entire case as a suit in equity.[5] In no event, however, can a purely legal action be converted into one in equity by the raising of equities existing between the defendants and in no way affecting the rights of plaintiff.[6] An action at law may be converted into one in equity by an answer setting up an equitable defense and seeking affirmative equitable relief.[7] Where the essential features of a suit sound in equity, such that the equitable relief asked for is not separate and apart from the legal relief sought, the entire action is drawn into equity.[8] However, the mere interposition of an equitable defense does not convert an action otherwise at law into one in equity.[9] An action at law between many parties with conflicting interests is not necessarily changed into one in equity because of the voluntary consolidation of the issues by the parties.[10] Where an action is begun at law to recover money, and a defendant interpleads an adverse claimant and pays the money in suit into court, the action becomes one in equity,[11] but if the defendant does not do this the legal character of the action is not changed by the fact that adverse claimants are permitted to intervene.[12]
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The character of an action at law is not changed by the fact that a plaintiff also seeks relief by injunction, merely as an ancillary remedy,[13] or also seeks reformation of a part of the contract involved in the action,[14] or that the judgment for damages attempts to charge property with a lien.[15] Also, the character of an action is not changed by the fact that a temporary restraining order was issued therein,[16] or that an auditor as referee has been appointed in the case,[17] or that it may become necessary to take an account in the action,[18] or by the mere addition of allegations in the complaint of an equitable nature.[19] A claim for damages is not changed into an equitable one by praying for an order for payment of money,[20] and difficulty in proving damages is not sufficient to transform an action at law into one at equity.[21] The mere assertion in the pleading that equitable grounds exist, and that there is no adequate remedy or defense at law, is a mere conclusion of the pleader, and cannot change the suit at law to one in equity.[22] The mere prosecution of an action at law as one in equity does not change its nature insofar as the character of a decision on the merits therein is concerned.[23] In the absence of an amendment to the pleading by way of a motion to the court or stipulation of the parties, a purely legal action cannot be converted into an equitable one.[24] The mere stipulation of the parties that an action is in equity does not convert a legal action into an equitable one if the pleadings do not support such conversion.[25]
[FN1] U.S.Summit Timber Co. v. U. S., 230 Ct. Cl. 434, 677 F.2d 852 (1982). Fla.Miami Herald Pub. Co. v. Payne, 358 So. 2d 541 (Fla. 1978), opinion adopted, 360 So. 2d 122 (Fla. Dist. Ct. App. 3d Dist. 1978). IowaBraverman v. Eicher, 238 N.W.2d 331 (Iowa 1976). [FN2] N.D.Hart v. Village of Wyndmere, 21 N.D. 383, 131 N.W. 271 (1911). [FN3] Nev.Building Trades Council of Reno v. Thompson, 68 Nev. 384, 234 P.2d 581, 32 A.L.R.2d 324 (1951). [FN4] Fla. Supreme Service Station Corp. v. Telecredit Service Center, Inc., 424 So. 2d 844 (Fla. Dist. Ct. App. 3d Dist. 1982). [FN5] Or.Friedenthal v. Thompson, 146 Or. 640, 31 P.2d 643 (1934). [FN6] Mo.Cohen v. Daily, 52 S.W.2d 199 (Mo. Ct. App. 1932). OhioClark v. Clark, 110 Ohio St. 644, 2 Ohio L. Abs. 407, 144 N.E. 743 (1924). [FN7] Mo.Koehler v. Rowland, 275 Mo. 573, 205 S.W. 217, 9 A.L.R. 107 (1918). Wash.Thiel v. Miller, 122 Wash. 52, 209 P. 1081, 26 A.L.R. 523 (1922). [FN8] Ind.Songer v. Civitas Bank, 771 N.E.2d 61 (Ind. 2002). [FN9] Mont.Smith v. Barnes, 51 Mont. 202, 149 P. 963 (1915). Neb.White v. Medico Life Ins. Co., 212 Neb. 901, 327 N.W.2d 606 (1982).
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N.Y.Manufacturers Trust Co. v. Gray, 278 N.Y. 380, 16 N.E.2d 373, 117 A.L.R. 1176 (1938). [FN10] N.D.Hart v. Village of Wyndmere, 21 N.D. 383, 131 N.W. 271 (1911). [FN11] U.S.Liberty Oil Co. v. Condon Nat. Bank, 260 U.S. 235, 43 S. Ct. 118, 67 L. Ed. 232 (1922). N.Y.White v. White, 194 N.Y.S. 114 (Sup 1922). [FN12] U.S.Hewitt v. Equitable Life Assur. Soc. of the U.S., 8 F.2d 706 (C.C.A. 9th Cir. 1925). N.D.Couch v. State, 14 N.D. 361, 103 N.W. 942 (1905). [FN13] U.S. U.S. v. Price, 523 F. Supp. 1055 (D.N.J. 1981), judgment aff'd, 688 F.2d 204 (3d Cir. 1982); University of Maryland v. Cleland, 516 F.Supp. 448 (D.C.Md. 1981). Cal.Haggin v. Kelly, 136 Cal. 481, 69 P. 140 (1902). Fla.St. Lawrence Co., N.V. v. Alkow Realty, Inc., 453 So. 2d 514 (Fla. Dist. Ct. App. 4th Dist. 1984) ; Supreme Service Station Corp. v. Telecredit Service Center, Inc., 424 So. 2d 844 (Fla. Dist. Ct. App. 3d Dist. 1982); Acquafredda v. Messina, 408 So. 2d 828 (Fla. Dist. Ct. App. 5th Dist. 1982). Or.White v. Reger, 49 Or. App. 43, 618 P.2d 1304 (1980). [FN14] Wash. Pacific Commercial Co. v. Northwestern Fisheries Co., 115 Wash. 608, 197 P. 930 (1921). [FN15] Cal.Westervelt v. McCullough, 68 Cal. App. 198, 228 P. 734 (2d Dist. 1924). [FN16] Or.Reckard v. Ryan, 133 Or. 108, 288 P. 1053 (1930). [FN17] Ga.Ingraham v. Reynolds, 176 Ga. 722, 168 S.E. 875 (1933). [FN18] U.S.Travel Consultants, Inc. v. Travel Management Corp., 367 F.2d 334 (D.C. Cir. 1966). N.Y.Sloane v. United Feature Syndicate, 135 Misc. 365, 238 N.Y.S. 91 (City Ct. 1929). Wash.S. P. C. S., Inc. v. Lockheed Shipbuilding and Const. Co., 29 Wash. App. 930, 631 P.2d 999 (Div. 1 1981). [FN19] Cal.Massachusetts Bonding & Ins. Co. v. San Fransico- Oakland Terminal Rys., 39 Cal. App. 388, 178 P. 974 (1st Dist. 1919). Or.Johnson v. Curl, 147 Or. 530, 34 P.2d 975 (1934). [FN20] U.S.Elledge v. City of Hannibal, 573 F. Supp. 1040 (E.D. Mo. 1983). [FN21] S.C.Van Robinson Ins. Agency, Inc. v. Harleysville Mut. Ins. Co., 272 S.C. 127, 249 S.E.2d 744 (1978). [FN22] Mo.Wolf v. Hartford Fire Ins. Co., 219 Mo. App. 307, 269 S.W. 701 (1925).
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[FN23] Ky.Choate v. Farrar Lumber Co., 189 Ky. 271, 224 S.W. 1045 (1920). [FN24] N.Y.G. Goldberg & Sons v. Gilet Bldg. Corp., 135 Misc. 158, 237 N.Y.S. 258 (Sup 1929). [FN25] Mo.Dahlberg v. Fisse, 328 Mo. 213, 40 S.W.2d 606 (1931). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 183 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action D. Actions at Law and Suits in Equity Topic Summary References Correlation Table 184. Effect of error West's Key Number Digest West's Key Number Digest, Action 22 Relief is not denied a party for an error in maintaining his or her action as at law or in equity, the cause being determined in accord with its real nature. A party entitled to relief is not to be denied because of a mistake in the form of the remedy pursued; where it is brought at law instead of in equity or vice versa, such relief as is warranted to be given nevertheless.[1] Where separate dockets are maintained for legal and equitable proceedings, if an action is improperly brought the error may be remedied merely by transferring the case to the proper docket, on appropriate motion or objection,[2] a dismissal of the suit not being justified in such instances;[3] and if no application for a transfer is made the objection may be regarded as waived.[4] Notwithstanding the case is tried on the wrong side of the court because of a failure to have it transferred, the rules applicable in the court where it should have been tried govern its trial and disposition.[5]
[FN1] U.S.Moon Motor Car Co. v. Moon, 58 F.2d 90 (C.C.A. 8th Cir. 1932). Cal.Hillwig v. Boyer, 81 Cal. App. 763, 254 P. 662 (1st Dist. 1927). Or.Thorp v. Rutherford, 150 Or. 157, 43 P.2d 907 (1935). [FN2] U.S.A.G. Wineman & Sons v. Reeves, 245 F. 254 (C.C.A. 5th Cir. 1917). Ark.Sledge-Norfleet Co. v. Matkins, 154 Ark. 509, 243 S.W. 289 (1922); Rowe v. Allison, 87 Ark. 206, 112 S.W. 395 (1908). IowaJohnson v. Home Mut. Ins. Ass'n, 191 Iowa 535, 181 N.W. 244 (1921). Ky.Clark v. Cooper, 197 Ky. 530, 247 S.W. 929 (1922).
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N.Y.Dalton v. Vanderveer, 8 Misc. 484, 29 N.Y.S. 342 (Sup 1894). [FN3] U.S.A.G. Wineman & Sons v. Reeves, 245 F. 254 (C.C.A. 5th Cir. 1917). Ark.Sledge-Norfleet Co. v. Matkins, 154 Ark. 509, 243 S.W. 289 (1922); Meeks v. Arkansas Light & Power Co., 147 Ark. 232, 227 S.W. 405 (1921). N.Y.Brooklyn Trust Co. v. City of New York, 109 Misc. 593, 179 N.Y.S. 441 (Sup 1919). [FN4] U.S. Henderson Tire & Rubber Co. v. Reeves, 14 F.2d 903 (C.C.A. 8th Cir. 1926); Southern Cotton Oil Co. v. Shelton, 220 F. 247 (C.C.A. 4th Cir. 1914). Ark.Sledge-Norfleet Co. v. Matkins, 154 Ark. 509, 243 S.W. 289 (1922); Little Rock Granite Co. v. Shall, 59 Ark. 405, 27 S.W. 562 (1894). IowaCitizens' Nat. Bank of Knoxville v. Liddell, 175 N.W. 18 (Iowa 1919); Johnson v. Home Mut. Ins. Ass'n, 191 Iowa 535, 181 N.W. 244 (1921). Ky.Clark v. Cooper, 197 Ky. 530, 247 S.W. 929 (1922). [FN5] Ark.Hill v. Kavanaugh, 118 Ark. 134, 176 S.W. 336, 4 A.L.R. 1 (1915). Ky.Weikel v. Alt, 234 Ky. 91, 27 S.W.2d 684 (1930). Tenn.Metropolitan Life Ins. Co. v. Humphrey, 167 Tenn. 421, 70 S.W.2d 361 (1934). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 184 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action D. Actions at Law and Suits in Equity Topic Summary References Correlation Table 185. Legal or equitable relief in same form of action West's Key Number Digest West's Key Number Digest, Action 23, 25(3) At common law a court may not enforce equitable rights or grant equitable relief in an action at law. Under statutory provisions both legal and equitable relief may be afforded the parties in the same action. Although a court of equity which has obtained jurisdiction of a controversy may retain such jurisdiction for the purpose of administering complete relief, the common-law rule prohibits a court of law from enforcing equitable rights or affording equitable relief in an action at law, courts of law, thereunder, dealing only with legal rights.[1] Since under statutory provisions and the construction put upon such provisions, the courts may apply equitable principles and administer equity in an action at law,[2] generally legal and equitable rights of the parties may be enforced and protected in one action,[3] and both legal and equitable issues may be determined in the same action.[4] The statutory provisions permit a complete determination of a controversy to be made in a single civil action, in which the court may grant such relief, whether legal or equitable, as the pleadings and proof show to be proper,[5] and not only to plaintiff, but to defendant as well.[6] It follows that, as plaintiff may properly assert both legal and equitable rights, and demand both legal and equitable relief,[7] both legal and equitable relief may be, and frequently are, afforded in the same action.[8] It is not, however, to be understood that the court will administer both law and equity in the same action upon the mere suggestion of the parties.[9] The nature of the cause of action or defense and relief demanded must be developed by the pleadings, and only such relief can be granted, whether legal or equitable, as is warranted by the pleadings and the proof.[10] So, if according to the pleadings the action is a purely legal one, no equitable relief can be granted.[11] Conversely, if it is purely equitable, plaintiff must maintain it upon equitable grounds or fail,[12] and the court cannot treat it as an action at law and grant legal relief,[13] although it may appear from the evidence that plaintiff has a legal cause of action.[14]
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[FN1] U.S.Schurmeier v. Connecticut Mut. Life Ins. Co., 137 F. 42 (C.C.A. 8th Cir. 1905). Ark.Carleton v. Neal, 19 Ark. 292, 1858 WL 575 (1858). [FN2] Cal. McCall v. Superior Court in and for Imperial County, 1 Cal. 2d 527, 36 P.2d 642, 95 A.L.R. 1019 (1934). Colo.Gillett v. Cheairs, 79 Colo. 20, 243 P. 1112 (1926). Mont.Mason v. Madson, 90 Mont. 489, 4 P.2d 475 (1931). Pa.Preis v. Mulholland & Gotwals, 96 Pa. Super. 104, 1929 WL 3713 (1929). Wyo.Brewer v. Folsom Bros. Co., 43 Wyo. 433, 5 P.2d 283 (1931). [FN3] Conn.Beach v. Beach Hotel Corp., 117 Conn. 445, 168 A. 785 (1933). Ga.Penn Mut. Life Ins. Co. v. Taggart, 38 Ga. App. 509, 144 S.E. 400 (1928). N.C.Reynolds v. Reynolds, 208 N.C. 578, 182 S.E. 341 (1935). UtahWilliamson v. Wanlass, 545 P.2d 1145, 18 U.C.C. Rep. Serv. 1116 (Utah 1976). [FN4] Ala.Conley v. Beaver, 437 So. 2d 1267 (Ala. 1983). Iowa Fort Madison Sav. & Loan v. Marion County Sav. & Loan, 310 N.W.2d 545 (Iowa Ct. App. 1981). [FN5] U.S.Moon Motor Car Co. v. Moon, 58 F.2d 90 (C.C.A. 8th Cir. 1932). Ark.City Nat. Bank v. Riggs, 188 Ark. 420, 66 S.W.2d 293 (1933). Cal.Richardson v. Callahan, 213 Cal. 683, 3 P.2d 927 (1931). Colo.Pomponio v. Larsen, 80 Colo. 318, 251 P. 534 (1926). Okla.Bynum v. Strain, 1923 OK 596, 95 Okla. 45, 218 P. 883 (1923). Or.Pedro v. Vey, 150 Or. 415, 46 P.2d 582 (1935). UtahWeyant v. Utah Savings & Trust Co., 54 Utah 181, 182 P. 189, 9 A.L.R. 1119 (1919). Wis.McLennan v. Church, 163 Wis. 411, 158 N.W. 73 (1916). [FN6] Conn.Beach v. Beach Hotel Corp., 117 Conn. 445, 168 A. 785 (1933). Ky.Edwards-Pickering Co. v. Rodes, 203 Ky. 95, 261 S.W. 884 (1924). S.C.Kickbusch v. Ruggles, 105 S.C. 525, 90 S.E. 163 (1916). [FN7] Ariz.Bank of Arizona v. Superior Court of Yavapai County, 30 Ariz. 72, 245 P. 366 (1926).
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Colo.Pomponio v. Larsen, 80 Colo. 318, 251 P. 534 (1926). Ga.English v. Little, 164 Ga. 805, 139 S.E. 678 (1927). Mo.Wolfersberger v. Hoppenjon, 334 Mo. 817, 68 S.W.2d 814 (1933). UtahNorback v. Board of Directors of Church Extension Soc., 84 Utah 506, 37 P.2d 339 (1934). [FN8] Cal.Hillwig v. Boyer, 81 Cal. App. 763, 254 P. 662 (1st Dist. 1927). Conn.Chandler v. Hale, 173 Conn. 276, 377 A.2d 318 (1977). Ga.Miller v. Jennings, 168 Ga. 101, 147 S.E. 32 (1929). Mont.McKinney v. Mires, 95 Mont. 191, 26 P.2d 169 (1933). [FN9] N.C.John L. Roper Lumber Co. v. Wallace, 93 N.C. 22, 1885 WL 1623 (1885). [FN10] Colo.Exchange Bank of Denver v. Ford, 7 Colo. 314, 3 P. 449 (1884). N.Y.Stevens v. New York, 84 N.Y. 296, 1881 WL 12808 (1881). N.C.John L. Roper Lumber Co. v. Wallace, 93 N.C. 22, 1885 WL 1623 (1885). [FN11] Mo.Moore v. Mansfield, 286 S.W. 353 (Mo. 1926). Or.Maxson v. Ashland Iron Works, 85 Or. 345, 167 P. 271 (1917). Va.Dobie v. Sears, Roebuck & Co., 164 Va. 464, 180 S.E. 289, 107 A.L.R. 1026 (1935). Wash.Sanger Lumber Co. v. Western Lumber Exchange, 128 Wash. 335, 222 P. 609 (1924). [FN12] N.Y.Loeb v. Supreme Lodge of Royal Arcanum, 198 N.Y. 180, 91 N.E. 547 (1910). [FN13] N.Y.Fitzsimons v. Drought, 16 A.D. 454, 45 N.Y.S. 44 (1st Dep't 1897). [FN14] N.Y.Loeb v. Supreme Lodge of Royal Arcanum, 198 N.Y. 180, 91 N.E. 547 (1910). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 185 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VI. Nature and Form of Action D. Actions at Law and Suits in Equity Topic Summary References Correlation Table 186. Legal or equitable defenses in same form of action West's Key Number Digest West's Key Number Digest, Action 24, 25(4) At common law, an equitable defense may not be interposed in an action at law, and an equitable reply cannot be interposed to a legal defense. At common law, with its strict division of law and equity, an equitable defense cannot be interposed in an action at law,[1] the defendant having an equitable right against a plaintiff being required thereunder to assert such right in a separate suit in equity.[2] In like manner, at common law, an equitable reply cannot be interposed to a legal defense.[3] Under modern practice, with a resultant easing of the formal distinctions between actions at law and suits in equity generally permit a defense of an equitable nature to be set up in an action of a legal nature,[4] the general rule being, sometimes by express statutory provision, that in a civil action defendant may set up whatever defenses he or she may have, whether legal or equitable, or both.[5] The availability of an equitable defense such as laches depends on the nature of the action in which it is raised.[6] Nevertheless, equitable defenses are not available in legal actions.[7] If an action is brought at law, the assertion of an equitable defense does not automatically invoke equity jurisdiction.[8] The terms of some statutes conferring the right to interpose equitable defenses in an action at law directly or indirectly restrict the nature of the equitable defenses which may be so set up.[9] These statutes, being in derogation of the common law, are to be strictly construed,[10] and do not confer upon courts of law the jurisdiction of courts of equity,[11] or create any new equitable defenses,[12] or permit, as equitable defenses, any matters not properly of equitable cognizance.[13] These statutes have been variously construed as not permitting as equitable defenses matters which would be available as a legal defense,[14] or which raise issues with which a court of law may deal,[15] and as requir-
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ing defenses so interposed to present purely defensive matters,[16] not matters of set-off,[17] and not matters which call for the granting of affirmative relief.[18] The permissible defenses have been held to be essentially pleas in confession and avoidance[19] so that only such matters are available as, in the event of a judgment at law in favor of plaintiff, would entitle defendant to equitable relief against it[20] absolutely and unconditionally.[21] Independently of statute, an equitable defense may be interposed in a legal action.[22] Affirmative defenses. Where affirmative matter has been set up as a defense, plaintiff may set up in reply matter which, if true, will avoid such defense, whether legal or equitable,[23] as in the case of a counterclaim,[24] it being sufficient to defeat such defense if it establishes facts entitling the party interposing the same to equitable relief.[25] There is no uniformity of practice with respect to the necessity for interposing available equitable defenses to an action at law and some authorities rule that while defendant may set up an equitable defense in a legal action, he or she is not obliged to do so,[26] particularly where the matter involved is not purely defensive, but calls for affirmative relief.[27] Under other authorities, however, the same rule applies to equitable as to legal defenses, defendant being required therein to plead in his or her answer all of the available defenses both legal and equitable, matters of equitable defense which may be set up in an action being available only in this manner,[28] unless there is some good and sufficient reason for failing to do so, as where the parties necessary for a complete adjudication of the matter are not before the court.[29] Upon the interposition of an equitable defense to an action at law, the legal issue is ordinarily triable as at law and the equitable issue as in equity.[30] The equitable defense may be tried in the law court where no application is made for a transfer of the cause to the chancery court,[31] and a failure to move for a transfer does not require the equitable defense to be disregarded.[32] It has been said that defendant is entitled to a trial in equity of the defenses pleaded to the action at law only when the trial and judgment at law will not conclude all possible claims under such defenses.[33] Ordinarily, the equitable issues should be tried first,[34] although it has been said to be a matter for the discretion of the court.[35]
[FN1] Miss.Wright v. Lott, 155 Miss. 185, 124 So. 270 (1929). [FN2] U.S. Wilcox & Gibbs Guano Co. v. Phoenix Ins. Co. of Brooklyn, 61 F. 199 (C.C.D. S.C. 1894), aff'd, 65 F. 724 (C.C.A. 4th Cir. 1895). Ky.Griffith v. Adams, 7 Ky. L. Rptr. 365, 13 Ky. Op. 751, 1885 WL 5697 (Ky. 1885). [FN3] U.S.Frick v. Clements, 31 F. 542 (C.C.S.D. Ga. 1887). [FN4] U.S.Thorpe v. Wm. Filene's Sons Co., 40 F.2d 269 (D. Mass. 1930). Conn.Kerin v. Udolf, 165 Conn. 264, 334 A.2d 434 (1973).
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Mich.Grigg v. Robinson Furniture Co., 78 Mich. App. 712, 260 N.W.2d 898 (1977). Neb.Nebraska Engineering Co. v. Gerstner, 212 Neb. 440, 323 N.W.2d 84 (1982). N.H.Scontsas v. Citizens Ins. Co. of N. J., 112 N.H. 47, 289 A.2d 64 (1972). UtahWilliamson v. Wanlass, 545 P.2d 1145, 18 U.C.C. Rep. Serv. 1116 (Utah 1976). [FN5] Ky.Edwards-Pickering Co. v. Rodes, 203 Ky. 95, 261 S.W. 884 (1924). Mo.Pitts v. Pitts, 201 Mo. 356, 100 S.W. 1047 (1907). Neb.Kelly v. Kannarr, 118 Neb. 472, 225 N.W. 230 (1929). [FN6] AlaskaState, Dept. of Revenue, Child Support Enforcement Div. ex rel. Valdez v. Valdez, 941 P.2d 144 (Alaska 1997). [FN7] AlaskaState, Dept. of Revenue, Child Support Enforcement Div. ex rel. Valdez v. Valdez, 941 P.2d 144 (Alaska 1997). [FN8] IowaWeltzin v. Nail, 618 N.W.2d 293 (Iowa 2000). [FN9] Ala.John Hancock Mut. Life Ins. Co. v. Johnson, 230 Ala. 627, 162 So. 283 (1935). Mass.George Woods Co. v. Storer, 144 Mass. 399, 11 N.E. 662 (1887). Or.Hughes v. Pratt, 37 Or. 45, 60 P. 707 (1900). [FN10] Me.Turner v. Burnell, 126 Me. 192, 137 A. 56 (1927). [FN11] Md.Nydegger v. Gitt, 125 Md. 572, 94 A. 157 (1915). [FN12] Mass.Barton v. Radcliffe, 149 Mass. 275, 21 N.E. 374 (1889). R.I.Newport Hospital v. Carter, 15 R.I. 285, 3 A. 412 (1886). [FN13] Mass.Isenburger v. Hotel Reynolds Co., 177 Mass. 455, 59 N.E. 120 (1901); Barton v. Radcliffe, 149 Mass. 275, 21 N.E. 374 (1889). [FN14] Fla.Garrett v. Phillips, 103 Fla. 1227, 137 So. 794 (1931). Md.Harper v. Farmers' & Merchants' Nat. Bank of Cambridge, 155 Md. 693, 142 A. 590 (1928). [FN15] Fla.Realty Bond & Share Co. v. Englar, 104 Fla. 329, 143 So. 152 (1932); Harper v. Bronson, 104 Fla. 75, 139 So. 203 (1932). [FN16] Fla.Bond v. Hewitt, 111 Fla. 180, 149 So. 606 (1933); Realty Bond & Share Co. v. Englar, 104 Fla. 329, 143 So. 152 (1932). [FN17] Fla.Roth v. Bowman, 103 Fla. 923, 138 So. 774 (1931).
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[FN18] Fla.Pepple v. Rogers, 104 Fla. 462, 140 So. 205 (1932). [FN19] Fla.Roxton v. Jabaly, 103 Fla. 1109, 139 So. 151 (1932); Ulsch v. Mountain City Mill Co., 103 Fla. 932, 138 So. 483 (1931). [FN20] Fla. Meyer v. Florida Discount Corp., 112 Fla. 412, 150 So. 601 (1933); Roxton v. Jabaly, 103 Fla. 1109, 139 So. 151 (1932). Md. Nelson v. Chesapeake Const. Co., 159 Md. 20, 149 A. 442 (1930); Jamesson v. Citizens' Nat. Bank of Westernport, 130 Md. 75, 99 A. 994 (1917). [FN21] Mass.Bancroft Trust Co. v. Canane, 271 Mass. 191, 171 N.E. 281 (1930); Pelonsky v. Wattendorf, 255 Mass. 558, 152 N.E. 337 (1926). [FN22] Pa.Highlands v. Philadelphia & R. R. Co., 209 Pa. 286, 58 A. 560 (1904). [FN23] U.S.Plews v. Burrage, 274 F. 881 (C.C.A. 1st Cir. 1921). IowaTurner v. Hartford Fire Ins. Co., 185 Iowa 1363, 172 N.W. 166 (1919). [FN24] N.Y.Jacoby v. Duncan, 138 Misc. 777, 247 N.Y.S. 318 (Sup 1931). [FN25] N.Y.Jacoby v. Duncan, 138 Misc. 777, 247 N.Y.S. 318 (Sup 1931). [FN26] Or.Churchill v. Meade, 92 Or. 626, 182 P. 368 (1919). [FN27] Cal.Ayres v. Bensley, 32 Cal. 620, 1867 WL 915 (1867). [FN28] Mo.Kelly v. Hurt, 74 Mo. 561, 1881 WL 10285 (1881). S.C. Frederick v. Chapman, 144 S.C. 137, 142 S.E. 247 (1928); Fidelity Fire Ins. Co. v. Windham, 134 S.C. 373, 133 S.E. 35 (1926). [FN29] Ga.Radcliffe & Lamb v. Varner & Ellington, 56 Ga. 222, 1876 WL 2972 (1876). N.Y.Auburn City Bank v. Leonard, 20 How. Pr. 193 (N.Y. Sup 1860). [FN30] Ark.American Soda Fountain Co. v. Futrall, 73 Ark. 464, 84 S.W. 505 (1905). Ill.Sample v. Farson, 174 Ill. App. 334, 1912 WL 2790 (1st Dist. 1912). Or.Cody Lumber Co. v. Coach, 76 Or. 106, 146 P. 973 (1915). [FN31] Ark.Marsh v. Erwin, 155 Ark. 371, 244 S.W. 441 (1922). [FN32] Ky.Petty v. Malier, 15 B.Mon. 591, 54 Ky. 591, 1855 WL 4180 (1855). [FN33] IowaDille v. Longwell, 169 Iowa 686, 148 N.W. 637 (1914). [FN34] IowaHackett v. High, 28 Iowa 539, 1870 WL 166 (1870).
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OhioFelton v. Commercial Nat. Bank, 39 Ohio App. 24, 10 Ohio L. Abs. 446, 177 N.E. 52 (5th Dist. Coshocton County 1930). [FN35] Minn.Crosby v. Scott-Graff Lumber Co., 93 Minn. 475, 101 N.W. 610 (1904). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 186 END OF DOCUMENT
CJS ACTIONS VII REF 1A C.J.S. Actions VII Refs.
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VII. Joinder of Causes of Action Topic Summary Correlation Table Research References A.L.R. Library West's A.L.R. Digest, Action A.L.R. Index: Joinder of Actions Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS VII REF END OF DOCUMENT 38 to 52
CJS ACTIONS VII A REF 1A C.J.S. Actions VII A Refs.
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VII. Joinder of Causes of Action A. Definitions Topic Summary Correlation Table Research References A.L.R. Library West's A.L.R. Digest, Action A.L.R. Index: Joinder of Actions Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS VII A REF END OF DOCUMENT 38(1) , 43.1
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VII. Joinder of Causes of Action A. Definitions Topic Summary References Correlation Table 187. Joinder and misjoinder West's Key Number Digest West's Key Number Digest, Action 38(1), 43.1 A joinder of causes of action is the uniting of two or more demands or rights of action into one action; misjoinder is the joinder in one complaint of plural causes that may not be joined. Joinder is the uniting of parties or claims in a single lawsuit.[1] A joinder of causes of action is the uniting of two or more demands or rights of action into one action,[2] and a misjoinder of causes of action is the joinder in a complaint of plural causes of action that may not be properly joined.[3] Misjoinder of causes of action is forbidden as a matter of convenience and expediency,[4] rather than one of jurisdiction or lack of jurisdiction, and rests upon the consideration that misjoinder would consume too much time, confuse the jury, and hinder rather than promote the proper administration of the law.[5] However, under modern rules of civil procedure, there is no misjoinder of claims if the parties are properly joined.[6] CUMULATIVE SUPPLEMENT Cases: The same course of conduct may support both a claim of assault and battery or other intentional tort, and a claim of negligence, provided that it is established that the defendant, in the process of engaging in the conduct that included the intentional tort, was also breaching another recognized duty owed to the plaintiff. Stewart-Veal v. District of Columbia, 896 A.2d 232 (D.C. 2006). The statute governing joinder of claims is permissive in nature and does not alter the pre-existing common law that governs the trial court's discretionary power over consolidation requests. State v. One Thousand Two Hundred Sixty-Seven Dollars, 2006 OK 15, 131 P.3d 116 (Okla. 2006). [END OF SUPPLEMENT]
[FN1] Ga.State Farm Mut. Auto. Ins. Co. v. Wright, 245 Ga. App. 493, 538 S.E.2d 147 (2000).
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[FN2] Neb.Sickler v. City of Broken Bow, 143 Neb. 542, 10 N.W.2d 462 (1943). [FN3] Wash.Lloyd v. Fidelity Nat. Bank of Spokane, 169 Wash. 107, 13 P.2d 504 (1932). [FN4] Tex.Barton v. Farmers' State Bank, 276 S.W. 177 (Tex. Comm'n App. 1925). [FN5] Tex.Fall v. Weber, 47 S.W.2d 365 (Tex. Civ. App. Dallas 1932), writ refused, (June 20, 1932). [FN6] 197, 218. Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 187 END OF DOCUMENT
CJS ACTIONS VII B REF 1A C.J.S. Actions VII B Refs.
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VII. Joinder of Causes of Action B. Determination Whether Multiple Causes of Action Are Stated Topic Summary Correlation Table Research References A.L.R. Library West's A.L.R. Digest, Action A.L.R. Index: Joinder of Actions Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS VII B REF END OF DOCUMENT 38
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VII. Joinder of Causes of Action B. Determination Whether Multiple Causes of Action Are Stated Topic Summary References Correlation Table 188. Generally West's Key Number Digest West's Key Number Digest, Action 38(1) The issue of joinder or misjoinder first depends on whether more than one cause of action is stated. The question of the joinder of causes of action involves a preliminary inquiry into whether two or more causes of action are stated, for obviously there can be no question of joinder or misjoinder of causes if the complaint states a single cause of action[1] or no cause of action at all.[2] If it is determined that two or more distinct causes of action are stated, it then becomes necessary to determine whether they are of such a character as may properly be joined in the same action.[3] The commonly cited test of whether more than one cause of action is stated is whether more than one distinct primary right or subject of controversy is presented,[4] and not whether different kinds of relief are demanded.[5] A single cause of action exists if a claim for damages arises from one occurrence or transaction.[6] Furthermore, if separate actions could not be maintained to obtain separate relief, only one cause of action is stated.[7] Another test for determining whether a plaintiff has asserted one cause of action or more is based on whether substantially the same facts are necessary to prove each claim.[8] Some courts have recognized a combination of tests, such as whether the claim arises out of the same act, contract, or transaction, or whether the parties, subject matter, and evidence necessary to sustain the claim are the same,[9] or whether more than one primary right or subject of controversy is presented, recovery on one ground would bar recovery on the other, the same evidence would support the different counts, and whether separate causes of action could be maintained for separate relief.[10] However, the fact that there may be some overlap among the relevant facts does prevent a conclusion that various causes of action are based on distinct factual occurrences.[11]
[FN1] Cal.California Trust Co. v. Cohn, 214 Cal. 619, 7 P.2d 297 (1932). Kan.Jones v. Pepper, 162 Kan. 353, 176 P.2d 855 (1947).
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Minn.Aichele Bros. v. Skoglund, 194 Minn. 291, 260 N.W. 290 (1935). Nev.Walser v. Moran, 42 Nev. 111, 180 P. 492 (1919). N.Y.Bush v. Murray, 209 A.D. 563, 205 N.Y.S. 21 (1st Dep't 1924). Okla.McGhee v. Milburn, 1922 OK 26, 85 Okla. 17, 204 P. 279 (1922). UtahPurcell v. Hickman, 51 Utah 350, 170 P. 784 (1918). Wis.Ewing v. General Motors Corp., 70 Wis. 2d 962, 236 N.W.2d 200 (1975). Continuing conspiracy A complaint, which alleged continuing conspiracy among contractors to violate antitrust laws, and which requested separate remedies of the recovery of payments made to the contractors under the construction contracts and the recovery of treble damages stated only one cause of action; thus, there was no misjoinder of causes of action. Wis.City of Madison v. Hyland, Hall & Co., 73 Wis. 2d 364, 243 N.W.2d 422 (1976). [FN2] Kan.Jones v. Pepper, 162 Kan. 353, 176 P.2d 855 (1947). [FN3] Wis.Hasbrouck v. Armour & Co., 139 Wis. 357, 121 N.W. 157 (1909). [FN4] 189. [FN5] 194. [FN6] Okla.Fleet v. Sanguine, Ltd., 1993 OK 76, 854 P.2d 892 (Okla. 1993). Wholly separate transaction To be separate, each claim must be generated by a wholly separate and distinct transaction. Me.Maltais v. Childers, 571 A.2d 822 (Me. 1990). [FN7] N.Y. Park & Tilford v. Realty Advertising & Supply Co., 160 A.D. 21, 144 N.Y.S. 907 (1st Dep't 1913). Neb.Saunders County v. City of Lincoln, 263 Neb. 170, 638 N.W.2d 824 (2002). N.MArmijo v. National Surety Corporation, 58 N.M. 166, 268 P.2d 339 (1954). [FN8] Fla.Bacardi v. Lindzon, 845 So. 2d 33 (Fla. 2002). Ga.Stagl v. Assurance Co. of America, 245 Ga. App. 8, 539 S.E.2d 173 (2000). Okla. Green Bay Packaging, Inc. v. Preferred Packaging, Inc., 1996 OK 121, 932 P.2d 1091 (Okla. 1996).
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Single group of operative facts Ill. Torcasso v. Standard Outdoor Sales, Inc., 157 Ill. 2d 484, 193 Ill. Dec. 192, 626 N.E.2d 225 (1993). [FN9] Mo.Bagsby v. Gehres, 139 S.W.3d 611 (Mo. Ct. App. E.D. 2004). [FN10] Neb.Saunders County v. City of Lincoln, 263 Neb. 170, 638 N.W.2d 824 (2002). [FN11] Neb.Larson By and Through Larson v. Demuth, 252 Neb. 668, 564 N.W.2d 606 (1997). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 188 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VII. Joinder of Causes of Action B. Determination Whether Multiple Causes of Action Are Stated Topic Summary References Correlation Table 189. One or more primary rights or wrongs West's Key Number Digest West's Key Number Digest, Action 38(1) Only one cause of action is stated if only one primary right and one wrong is alleged. As a general rule, only one cause of action is stated if one distinct primary right and one wrong with regard to that right is alleged.[1] It has been said that the most salient characteristic of a primary right is that it is indivisible: the violation of a single primary right gives rise to a single cause of action.[2] This is true even though incidental matters are alleged in connection with the primary right, which render other parties than the main defendant proper or necessary to the litigation,[3] or although facts are stated that, while germane or essential to the primary purpose of the action, might constitute independent grounds of relief.[4] Conversely, a plaintiff who alleges that the defendant's single wrongful act invaded two different primary rights has stated two causes of action.[5] A significant factor in determining whether there has been an invasion of one primary right is the harm suffered.[6] Separate causes of action seek different relief for different harms.[7] A claim is entirely distinct, where it involves a different duty allegedly arising from different circumstances, and is based on different circumstances constituting the breach of duty.[8] For instance, a direct right of action for negligence and a derivative action for indemnity are independent.[9] For there to be but one cause of action, it is unnecessary that the wrong consist of a single act[10] or omission,[11] at least where the acts are closely connected and contribute to the accomplishment of a common purpose,[12] or that the resulting injuries consist of a single element.[13] One cause of action may likewise exist where the amount sought to be recovered consists of several items.[14]
[FN1] U.S.Seaboard Coast Line R. Co. v. Gulf Oil Corp., 409 F.2d 879 (5th Cir. 1969). Cal. Hindin v. Rust, 118 Cal. App. 4th 1247, 13 Cal. Rptr. 3d 668 (2d Dist. 2004), review denied, (Sept. 15, 2004).
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Colo.Ellis v. Colorado Nat. Bank of Denver, 84 Colo. 266, 269 P. 997 (1928). IdahoMarshall-Wells Co. v. Kramlich, 46 Idaho 355, 267 P. 611 (1928). Minn.Oehler v. City of St. Paul, 174 Minn. 410, 219 N.W. 760 (1928). Mont.Lennon v. City of Butte, 67 Mont. 101, 214 P. 1101 (1923). Neb.Saunders County v. City of Lincoln, 263 Neb. 170, 638 N.W.2d 824 (2002). N.Y.Covey v. England & McCaffrey, 233 A.D. 332, 253 N.Y.S. 340 (4th Dep't 1931). Okla.Retherford v. Halliburton Co., 1977 OK 178, 572 P.2d 966 (Okla. 1977). S.C.Harth v. United Ins. Co. of America, 266 S.C. 1, 221 S.E.2d 102 (1975). Wis.Usow v. Usow, 213 Wis. 395, 251 N.W. 458 (1933). Single wrong Only one cause of action can arise from a single wrong. Ga. Flagg Energy Development Corp. v. General Motors Corp., 235 Ga. App. 540, 509 S.E.2d 399 (1998). [FN2] Cal.Rancho Viejo LLC v. Tres Amigos Viejos LLC, 100 Cal. App. 4th 550, 123 Cal. Rptr. 2d 479 (4th Dist. 2002). [FN3] N.Y. Meyer, Connor & Co. v. United Founders' Corp., 238 A.D. 642, 265 N.Y.S. 289 (1st Dep't 1933). Subrogation Since an owner has only one cause of action on account of a fire loss, execution of a subrogation agreement does not create a new cause of action in favor of the insurer. OhioErvin v. Garner, 25 Ohio St. 2d 231, 54 Ohio Op. 2d 361, 267 N.E.2d 769 (1971). [FN4] Ark.Paragould Trust Co. v. Willcockson, 121 Ark. 261, 180 S.W. 986 (1915). Cal.Lichtenthaler v. Samson Iron Works, 32 Cal. App. 220, 162 P. 441 (2d Dist. 1916). Colo.Western Acceptance Co. v. Simmons Co., 71 Colo. 127, 203 P. 1096 (1922). Neb.Phelps v. Shuck, 107 Neb. 490, 186 N.W. 313 (1922). N.Y.Deyo v. Hudson, 191 A.D. 655, 181 N.Y.S. 846 (3d Dep't 1920). S.D.Crawford State Bank v. Danks, 60 S.D. 91, 243 N.W. 735 (1932). Wash.Headrick v. Martin, 158 Wash. 238, 290 P. 994 (1930).
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Wis.State v. P. Lorillard Co., 181 Wis. 347, 193 N.W. 613 (1923). [FN5] Cal. Hindin v. Rust, 118 Cal. App. 4th 1247, 13 Cal. Rptr. 3d 668 (2d Dist. 2004), review denied, (Sept. 15, 2004). [FN6] Cal.Swartzendruber v. City of San Diego, 3 Cal. App. 4th 896, 5 Cal. Rptr. 2d 64 (4th Dist. 1992) (disapproved of on other grounds by, Johnson v. City of Loma Linda, 24 Cal. 4th 61, 99 Cal. Rptr. 2d 316, 5 P.3d 874 (2000)). [FN7] Pa.Stempo v. Com., Dept. of Transp., 159 Pa. Commw. 31, 632 A.2d 971 (1993). [FN8] U.S.Doe v. Hartz, 52 F. Supp. 2d 1027 (N.D. Iowa 1999). [FN9] Cal. Regan Roofing Co. v. Superior Court, 21 Cal. App. 4th 1685, 27 Cal. Rptr. 2d 62 (4th Dist. 1994). [FN10] U.S.Bankers' Trust Co v. City of Raton, 258 U.S. 328, 42 S. Ct. 340, 66 L. Ed. 642 (1922). Ala.Alabama Power Co. v. Cornelius, 211 Ala. 245, 100 So. 207 (1924). Colo.Ellis v. Colorado Nat. Bank of Denver, 84 Colo. 266, 269 P. 997 (1928). Kan.Farmers' State Bank of Cunningham v. Crow, 126 Kan. 395, 267 P. 1100 (1928). Nev.Walser v. Moran, 42 Nev. 111, 180 P. 492 (1919). N.Y.Bush v. Murray, 209 A.D. 563, 205 N.Y.S. 21 (1st Dep't 1924). Successive premium collections S.C.Harth v. United Ins. Co. of America, 266 S.C. 1, 221 S.E.2d 102 (1975). [FN11] Conn.Bischoff v. Cheney, 89 Conn. 1, 92 A. 660 (1914). S.C.Brice v. Glenn, 165 S.C. 509, 164 S.E. 302 (1932). S.D.Glover v. Manila Gold Min. & Mill. Co., 19 S.D. 559, 104 N.W. 261 (1905). [FN12] Wis.Iverson v. Union Free High School Dist. of Towns of Springfield and Curran, 186 Wis. 342, 202 N.W. 788 (1925). Malpractice Even though a client may have sustained damages in two successive years as a result of an attorney's alleged malpractice in dealing with tax matters, the client was not required to assert separate causes of action for each of the two tax years where the conduct concerned a particular transaction spanning the two years. N.Y. Congregation Anshe Dorshe Emes v. Mishkin, 64 A.D.2d 620, 406 N.Y.S.2d 555 (2d Dep't 1978).
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Antitrust violation Although both conspiracy to violate antitrust laws and wrongful and damaging acts must be proved, where these acts arise out of a continuing conspiracy, only one cause of action is alleged. Wis.City of Madison v. Hyland, Hall & Co., 73 Wis. 2d 364, 243 N.W.2d 422 (1976). [FN13] Ind.Indiana Pipe Line Co. v. Christensen, 195 Ind. 106, 143 N.E. 596 (1924). UtahEgelhoff v. Ogden City, 71 Utah 511, 267 P. 1011 (1928). [FN14] Mo.Bowman v. Shelton, 175 Mo. App. 696, 158 S.W. 404 (1913). S.C.Brice v. Glenn, 165 S.C. 509, 164 S.E. 302 (1932). S.D.Starr v. Baldwin Piano Co., 59 S.D. 174, 238 N.W. 877 (1931). Tex.Reed v. State, 55 S.W.2d 232 (Tex. Civ. App. El Paso 1932). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 189 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VII. Joinder of Causes of Action B. Determination Whether Multiple Causes of Action Are Stated Topic Summary References Correlation Table 190. Different theories of recovery West's Key Number Digest West's Key Number Digest, Action 38(1) The fact that several grounds of relief, such as breach of contract and tort, are alleged, does not mean that there are separate causes of action, and if there is only one harm arising out of a common state of facts, there can be only one recovery. A complaint may, without stating more than one cause of action, set forth different grounds or theories upon which a plaintiff is entitled to the same relief.[1] Pleading several different theories does not transform a single injury into multiple ones.[2] The distinction is that alternate theories of recovery are different means of obtaining the same relief for the same harm caused by the same party, while separate causes of action request relief for different harms.[3] Thus, where the claim arises out of a single transaction, a complaint does not necessarily state two causes of action because the facts alleged show a liability both in contract and in tort,[4] where the alleged negligent conduct was the same conduct that allegedly constituted the breach of contract.[5] This rule also applies to complaints alleging breach of contract and tortious inducement of the breach,[6] malpractice and breach of fiduciary duty,[7] invasion of privacy and a bank's breach of a separate duty to protect the confidentiality of customer records,[8] negligence and breach of warranty,[9] and negligence and nuisance.[10] Conversely, distinct causes of action exist where the various theories of recovery require different elements to establish a proper claim or involve differing standards of conduct.[11] Thus, contract and tort claims may constitute separate causes of action under certain circumstances,[12] as may claims for breach of contract and breach of fiduciary duty, such as where, in addition to damages resulting from the breach of fiduciary duty in failing to collect accounts, the plaintiff also paid for products and services to which he or she was entitled under a contract, but never received.[13] Strict liability and breach of implied warranty claims are separate, where the strict liability claim requires proof of a design defect, and the implied warranty claim does not.[14] In any event, there may be only one recovery for a loss or injury, even if the plaintiff pleads multiple theories,[15] such as express and implied contract,[16] breach of implied warranty and interference with quiet enjoyment in a landlord-tenant case,[17] false arrest, assault and battery, and a civil rights violation arising out of one arrest,[18] or negligence and unseaworthiness.[19] There may be only one recovery even where the defendant may be liable in both contract and tort,[20] or for two different torts,[21] such as malicious prosecution and ab-
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use of process,[22] defamation and invasion of privacy,[23] or two different forms of invasion of privacy.[24] It has generally been held that a complaint alleging both common law and a statutory liability, arising out of the same matter or transaction, does not necessarily state more than one cause of action.[25] This rule has been applied where violations of a consumer protection statute and other common law and statutory claims, such as breach of warranty, are alleged based on the same facts.[26]
[FN1] U.S.Alexander v. Chicago Park Dist., 773 F.2d 850 (7th Cir. 1985). Cal.Slater v. Blackwood, 15 Cal. 3d 791, 126 Cal. Rptr. 225, 543 P.2d 593 (1975). Ga.Spivey v. Lovett & Brinson, 48 Ga. App. 335, 172 S.E. 658 (1934). La.CLK Co., L.L.C. v. CXY Energy Inc., 719 So. 2d 1098 (La. Ct. App. 4th Cir. 1998), writ denied, 738 So. 2d 573 (La. 1999). Ill. Torcasso v. Standard Outdoor Sales, Inc., 157 Ill. 2d 484, 193 Ill. Dec. 192, 626 N.E.2d 225 (1993). Mich.Kollenberg v. Ramirez, 127 Mich. App. 345, 339 N.W.2d 176 (1983). Neb.Saunders County v. City of Lincoln, 263 Neb. 170, 638 N.W.2d 824 (2002). Okla. Green Bay Packaging, Inc. v. Preferred Packaging, Inc., 1996 OK 121, 932 P.2d 1091 (Okla. 1996). S.C.Tommy L. Griffin Plumbing & Heating Co. v. Jordan, Jones & Goulding, Inc., 351 S.C. 459, 570 S.E.2d 197 (Ct. App. 2002), cert. denied, (Mar. 19, 2003). Contract and quantum meruit Where the facts arise out of the same transaction, an action on an express contract and an action for quantum meruit constitute a single cause of action seeking recovery under alternate theories. Neb.Byrne v. Hauptman, O'Brien, Wolf & Lathrop, P.C., 9 Neb. App. 77, 608 N.W.2d 208 (2000). Money had and received and unjust enrichment Claims for money had and received and for unjust enrichment are not separate causes of action, since the former is merely one form of unjust enrichment. Ga.National City Bank of Rome v. Busbin, 175 Ga. App. 103, 332 S.E.2d 678 (1985). Three theories in custody matter A complaint against government officials that defendants had wrongfully interfered with plaintiff parents' family relationship by deprivation of custody, failure to exercise due diligence in returning custody, and alienation of affections constituted one "claim for relief," even though three theories were
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pleaded. Wash.Snyder v. State, 19 Wash. App. 631, 577 P.2d 160 (Div. 1 1978). Four theories in mineral rights dispute A divorced wife, who sought to have the divorce decree construed and enforced with respect to her interest in mineral rights granted in the decree and to receive an accounting of proceeds, by requesting declaratory relief, quiet title, reformation of the mineral deed, and an accounting, stated one cause of action supported by four theories of recovery. Neb.Olsen v. Olsen, 248 Neb. 393, 534 N.W.2d 762 (1995). [FN2] U.S.U.S. v. Rachel, 289 F. Supp. 2d 688 (D. Md. 2003). [FN3] Pa. Trackers Raceway, Inc. v. Comstock Agency, Inc., 400 Pa. Super. 432, 583 A.2d 1193 (1990). [FN4] U.S.Tabor v. Universal Exploration Co., 48 F.2d 1047 (C.C.A. 8th Cir. 1931). Ariz.Glaspie v. Williams, 46 Ariz. 381, 51 P.2d 254 (1935). Ga.O'Connell v. Stoddard, 27 Ga. App. 452, 108 S.E. 622 (1921). Okla.Taylor v. State Farm Fire and Cas. Co., 1999 OK 44, 981 P.2d 1253 (Okla. 1999), as corrected, (June 9, 1999). [FN5] U.S.Furr Marketing, Inc. v. Orval Kent Food Co., Inc., 682 F. Supp. 884 (S.D. Miss. 1988). Negligent evaluation of employee A demoted employee may not bring a tort action, separate from a breach of contract claim, for superiors' alleged negligent performance of employee evaluations. Mich.Dahlman v. Oakland University, 172 Mich. App. 502, 432 N.W.2d 304, 50 Ed. Law Rep. 895 (1988). Negligent repair A negligent repair complaint could not be maintained independently of a breach of warranty claim, where no independent injury was alleged to have resulted from the unsuccessful repair attempts. Ga. Bicknell v. Richard M. Hearn Roofing & Remodeling, Inc., 171 Ga. App. 128, 318 S.E.2d 729 (1984). [FN6] U.S.Mattioni, Mattioni & Mattioni, Ltd. v. Ecological Shipping Corp., 484 F. Supp. 814 (E.D. Pa. 1980). [FN7]
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Failure to order test due to financial incentive A cause of action for breach of fiduciary duty asserted by a patient's estate against a physician for his failure to disclose his alleged financial interest in a medical incentive fund controlled by the patient's health maintenance organization was duplicative of the medical negligence claim, since the operative fact in both counts was the physician's failure to order an angiogram, which allegedly resulted in the patient's death, and the damages alleged under both claims were identical. Ill.Neade v. Portes, 193 Ill. 2d 433, 250 Ill. Dec. 733, 739 N.E.2d 496 (2000). [FN8] Neb.Schoneweis v. Dando, 231 Neb. 180, 435 N.W.2d 666, 81 A.L.R.4th 363 (1989). [FN9] IowaTice v. Wilmington Chemical Corp., 259 Iowa 27, 141 N.W.2d 616 (1966), opinion supplemented, 259 Iowa 27, 143 N.W.2d 86 (1966). Or.McGrath v. White Motor Corp., 258 Or. 583, 484 P.2d 838, 9 U.C.C. Rep. Serv. 238 (1971). S.C.Imperial Die Casting Co. v. Covil Insulation Co., 264 S.C. 604, 216 S.E.2d 532, 17 U.C.C. Rep. Serv. 728 (1975). [FN10] Cal.Van Zyl v. Spiegelberg, 2 Cal. App. 3d 367, 82 Cal. Rptr. 689 (1st Dist. 1969). Attractive nuisance; gross negligence or willful and wanton misconduct Mich.Graham v. Gratiot County, 126 Mich. App. 385, 337 N.W.2d 73 (1983). [FN11] Ill.Krivitskie v. Cramlett, 301 Ill. App. 3d 705, 235 Ill. Dec. 384, 704 N.E.2d 957 (2d Dist. 1998). [FN12] U.S.Morrill v. Becton, Dickinson and Co., 747 F.2d 1217 (8th Cir. 1984). La.Wong v. East Baton Rouge Parish Sheriff's Office, 522 So. 2d 1134 (La. Ct. App. 1st Cir. 1988), writ denied, 523 So. 2d 863 (La. 1988). Wis.Anderson v. Continental Ins. Co., 85 Wis. 2d 675, 271 N.W.2d 368 (1978). Trespass An action for trespass did not merge with an action for breach of contract, where the alleged trespass did not arise out of the contract and occurred subsequent to the conveyance of the property. N.Y. Modulars by Design, Inc. v. DBJ Development Corp., 174 A.D.2d 885, 571 N.Y.S.2d 168 (3d Dep't 1991). [FN13] Cal.Michelson v. Hamada, 29 Cal. App. 4th 1566, 36 Cal. Rptr. 2d 343 (2d Dist. 1994), as modified, (Nov. 14, 1994) and as modified on denial of reh'g, (Nov. 17, 1994) and as modified, (Nov. 22, 1994). [FN14] U.S. Silivanch v. Celebrity Cruises, Inc., 171 F. Supp. 2d 241, 57 Fed. R. Evid. Serv. 592
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(S.D. N.Y. 2001). [FN15] U.S. ACLI Intern. Commodity Services, Inc. v. Banque Populaire Suisse, 609 F. Supp. 434 (S.D. N.Y. 1984); Garner v. Wyeth Laboratories, Inc., 585 F. Supp. 189 (D.S.C. 1984). Conn.Jonap v. Silver, 1 Conn. App. 550, 474 A.2d 800 (1984). Fla.Safeco Title Ins. Co. v. Reynolds, 452 So. 2d 45 (Fla. Dist. Ct. App. 2d Dist. 1984). Ill.Galyean v. Duncan, 125 Ill. App. 3d 464, 80 Ill. Dec. 812, 466 N.E.2d 264 (5th Dist. 1984). Md.Kramer v. Emche, 64 Md. App. 27, 494 A.2d 225 (1985). Mich.Kollenberg v. Ramirez, 127 Mich. App. 345, 339 N.W.2d 176 (1983). Miss.Gardner v. Jones, 464 So. 2d 1144 (Miss. 1985). S.C.McGee v. Bruce Hosp. System, 344 S.C. 466, 545 S.E.2d 286 (2001). [FN16] Ga.Beacon Industries, Inc. v. Vanderbunt Concrete, Ltd., 172 Ga. App. 573, 323 S.E.2d 871 (1984). [FN17] Mass.Darmetko v. Boston Housing Authority, 378 Mass. 758, 393 N.E.2d 395 (1979). [FN18] Mo.Linkogel v. Baker Protective Services, Inc., 626 S.W.2d 380 (Mo. Ct. App. E.D. 1981). [FN19] U.S.Kopczynski v. The Jacqueline, 742 F.2d 555 (9th Cir. 1984). [FN20] Fla.Safeco Title Ins. Co. v. Reynolds, 452 So. 2d 45 (Fla. Dist. Ct. App. 2d Dist. 1984). [FN21] Mich.Kollenberg v. Ramirez, 127 Mich. App. 345, 339 N.W.2d 176 (1983). [FN22] Mo.Stafford v. Muster, 582 S.W.2d 670 (Mo. 1979). [FN23] Ark.Dodrill v. Arkansas Democrat Co., 265 Ark. 628, 590 S.W.2d 840 (1979). Ky.McCall v. Courier-Journal and Louisville Times Co., 623 S.W.2d 882 (Ky. 1981). [FN24] Conn.Jonap v. Silver, 1 Conn. App. 550, 474 A.2d 800 (1984). [FN25] Conn.Burgess v. Vanguard Ins. Co., 192 Conn. 124, 470 A.2d 244 (1984). Minn.Mayberry v. Northern Pac. Ry. Co., 100 Minn. 79, 110 N.W. 356 (1907). [FN26] Mass.Calimlim v. Foreign Car Center, Inc., 392 Mass. 228, 467 N.E.2d 443 (1984). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 190 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VII. Joinder of Causes of Action B. Determination Whether Multiple Causes of Action Are Stated Topic Summary References Correlation Table 191. Separate contracts or instruments West's Key Number Digest West's Key Number Digest, Action 38(5) Only one cause of action is stated if it is brought on an indivisible contract, but divisible contracts or multiple instruments may give rise to several causes of action. Only a single cause of action is stated in a complaint seeking the enforcement of a single, indivisible contract.[1] Conversely, different causes of action are stated when recovery is sought on separate and distinct contracts,[2] or a divisible[3] or installment[4] contract. Each of a number of checks issued in a course of transactions gives rise to a separate cause of action,[5] even if the plaintiff aggregated the amounts.[6] Each promissory note similarly constitutes a separate cause of action.[7] Claims for breach of a covenant not to compete, wrongful disclosure and use of confidential information in violation of an employment contract, and breach of a covenant not to interfere with employment contracts may be separately maintained under the same or distinct provisions of an employment agreement.[8] Contract claims may exist independently of a claim based on a covenant in a deed.[9]
[FN1] U.S.Minar v. Sheehy, 13 F.2d 290 (App. D.C. 1926); Alyeska Pipeline Service Co. v. U. S., 231 Ct. Cl. 540, 688 F.2d 765 (1982). Ala.Columbia Motors Co. v. Williams, 209 Ala. 640, 96 So. 900 (1923). Cal.Southern Surety Co. v. Bank of Lassen County, 118 Cal. App. 149, 4 P.2d 952 (3d Dist. 1931). Ga.Fetzer v. American Sur. Co. of New York, 46 Ga. App. 267, 167 S.E. 338 (1933). Ill.Reynolds Metals Co. v. V.J. Mattson Co., 125 Ill. App. 3d 554, 80 Ill. Dec. 905, 466 N.E.2d 357
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(3d Dist. 1984). Pa.Walker v. Mason, 272 Pa. 315, 116 A. 305 (1922). [FN2] U.S.U. S. v. Louisville & N. R. Co., 221 F.2d 698 (6th Cir. 1955). Mo.Rounds v. Strang, 192 Mo. App. 568, 180 S.W. 1069 (1915). Mont.Cohen v. Clark, 44 Mont. 151, 119 P. 775 (1911). Settlement and original contract A contractor's suit to enforce payment under a settlement agreement was completely separate from the original construction contract. R.I.Homar, Inc. v. North Farm Associates, 445 A.2d 288 (R.I. 1982). [FN3] Tex. Atlantic Richfield Co. v. Trull, 559 S.W.2d 676 (Tex. Civ. App. Corpus Christi 1977), dismissed, (Mar. 29, 1978). [FN4] Colo. Interbank Investments, L.L.C. v. Vail Valley Consolidated Water Dist., 12 P.3d 1224 (Colo. Ct. App. 2000). Ill.Brown v. Charlestowne Group, Ltd., 221 Ill. App. 3d 44, 163 Ill. Dec. 677, 581 N.E.2d 831 (2d Dist. 1991). Periodic billing Where an agreement calls for periodic billings and payments, each failure to pay creates a separate cause of action. U.S.Citizens & Southern Nat. Bank v. Bruce, 562 F.2d 590 (8th Cir. 1977). [FN5] Ga.Leiter v. Arnold, 114 Ga. App. 323, 151 S.E.2d 175 (1966). [FN6] Cal.Edward Fineman Co. v. Superior Court, 66 Cal. App. 4th 1110, 78 Cal. Rptr. 2d 478, 36 U.C.C. Rep. Serv. 2d 1124 (2d Dist. 1998), as modified on denial of reh'g, (Oct. 2, 1998). [FN7] Mo.Bank of Houston v. Milam, 839 S.W.2d 705 (Mo. Ct. App. S.D. 1992). [FN8] Ga.Kem Mfg. Corp. v. Sant, 182 Ga. App. 135, 355 S.E.2d 437 (1987) (disapproved of on other grounds by, A.L. Williams & Associates v. Faircloth, 259 Ga. 767, 386 S.E.2d 151 (1989)). [FN9] Mass.Asian American Civic Ass'n v. Chinese Consol. Benev. Ass'n of New England, Inc., 43 Mass. App. Ct. 145, 681 N.E.2d 882 (1997). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 191
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END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VII. Joinder of Causes of Action B. Determination Whether Multiple Causes of Action Are Stated Topic Summary References Correlation Table 192. Separate torts or wrongful acts West's Key Number Digest West's Key Number Digest, Action 38(4) Torts constitute one cause of action, if they arise from the same wrong, although certain continuous or successive torts are separate causes of action. The general rule is that a tortious act gives rise to a single cause of action.[1] One cause of action exists even though different means or methods employed in accomplishing the same wrong are alleged,[2] and thus acts of negligence may not be fragmented into two causes of action in negligence for the same injury.[3] A separate cause of action does not exist for damage to character and reputation, since a claim for defamation is for damage to character and reputation.[4] Similarly, battery and outrageous infliction of emotional distress arising from that battery are not separate claims.[5] On the other hand, the repetition of a wrongful act may be a new act supporting a new cause of action.[6] Furthermore, separate and distinct torts constitute different causes of action,[7] as in the cases of continuing trespass[8] or nuisance,[9] personal defamation and business disparagement,[10] negligent entrustment of a vehicle and a direct action against the insurer in an automobile accident case,[11] or fraud and negligence,[12] as well as claims arising out of successive surgical operations,[13] separate libels,[14] slanders,[15] or frauds.[16] Under some circumstances, defamation and invasion of privacy claims are separate,[17] but not where both are based on the same facts and same publication.[18] An allegation that the separate torts were all done in furtherance of a common purpose does not make them one cause of action.[19]
[FN1] U.S.Kemp v. G.D. Searle & Co., 103 F.3d 405 (5th Cir. 1997). [FN2] U.S.Tabor v. Universal Exploration Co., 48 F.2d 1047 (C.C.A. 8th Cir. 1931). Ala.Louisville & N. R. Co. v. Benton Mercantile Co., 219 Ala. 223, 121 So. 716 (1929). Mass.Willett v. Herrick, 242 Mass. 471, 136 N.E. 366 (1922).
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Okla.Mangum Elec. Co. v. Border, 1923 OK 547, 101 Okla. 64, 222 P. 1002 (1923). [FN3] Wis.Schwartz v. City of Milwaukee, 43 Wis. 2d 119, 168 N.W.2d 107 (1969). [FN4] Wis.Posyniak v. School Sisters of St. Francis of St. Joseph's Convent, 180 Wis. 2d 619, 511 N.W.2d 300 (Ct. App. 1993). [FN5] W.Va.Criss v. Criss, 177 W. Va. 749, 356 S.E.2d 620 (1987). [FN6] U.S.Kotev v. First Colony Life Ins. Co., 927 F. Supp. 1316, 16 A.D.D. 553 (C.D. Cal. 1996). [FN7] Colo.Dorr v. C.B. Johnson, Inc., 660 P.2d 517 (Colo. Ct. App. 1983). IowaProducers' Livestock Marketing Ass'n v. Livingston, 216 Iowa 1257, 250 N.W. 602 (1933). Mich.Kollenberg v. Ramirez, 127 Mich. App. 345, 339 N.W.2d 176 (1983). Mo.Stiffelman v. Abrams, 655 S.W.2d 522 (Mo. 1983). N.Y.Moskin v. Paine, 200 A.D. 304, 191 N.Y.S. 36 (1st Dep't 1921). S.D.Maiden v. Boyd, 36 S.D. 451, 155 N.W. 187 (1915). Wis.Denil by Hanaway v. Coppersmith, 117 Wis. 2d 90, 343 N.W.2d 136 (Ct. App. 1983). [FN8] Mo.Cacioppo v. Southwestern Bell Tel. Co., 550 S.W.2d 919 (Mo. Ct. App. 1977). [FN9] Cal. Baker v. Burbank-Glendale-Pasadena Airport Authority, 39 Cal. 3d 862, 218 Cal. Rptr. 293, 705 P.2d 866 (1985). Mo.Schwartz v. Mills, 685 S.W.2d 956 (Mo. Ct. App. E.D. 1985). [FN10] Tex. Dwyer v. Sabine Min. Co., 890 S.W.2d 140 (Tex. App. Texarkana 1994), writ denied, (May 11, 1995). [FN11] Mo.State ex rel. Farrell v. Sanders, 897 S.W.2d 125 (Mo. Ct. App. E.D. 1995). [FN12] S.C.Pittman v. Galloway, 281 S.C. 70, 313 S.E.2d 632 (Ct. App. 1984). Fraud and malpractice Fraud and malpractice are separate causes of action. N.J.Mazza v. Winters, 95 N.J. Super. 71, 230 A.2d 139 (App. Div. 1967). [FN13] Wis.Voight v. Aetna Cas. & Sur. Co., 80 Wis. 2d 376, 259 N.W.2d 85 (1977). [FN14] Mo.Merriam v. Star-Chronicle Pub. Co., 29 S.W.2d 201 (Mo. Ct. App. 1930). N.Y.Pignatelli v. Press Pub. Co., 197 A.D. 275, 189 N.Y.S. 524 (2d Dep't 1921).
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[FN15] Injurious falsehood and defamation Mich.Kollenberg v. Ramirez, 127 Mich. App. 345, 339 N.W.2d 176 (1983). [FN16] Ariz.Miller v. Arizona Bank, 45 Ariz. 297, 43 P.2d 518 (1935). [FN17] S.C.Gantt v. Universal C. I. T. Credit Corp., 254 S.C. 112, 173 S.E.2d 658 (1970). [FN18] U.S.Ortega Trujillo v. Banco Central Del Ecuador, 17 F. Supp. 2d 1334 (S.D. Fla. 1998). [FN19] N.Y.Bob v. Hecksher, 235 A.D. 82, 256 N.Y.S. 126 (1st Dep't 1932). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 192 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VII. Joinder of Causes of Action B. Determination Whether Multiple Causes of Action Are Stated Topic Summary References Correlation Table 193. Distinct items or elements of damage West's Key Number Digest West's Key Number Digest, Action 38(1) to (4) A complaint does not state different causes of action, even though distinct items of damage are alleged to result from the same wrongful act. A complaint is not to be regarded as stating different causes of action merely because it states distinct items or elements of damage that result from the same wrongful act or course of conduct,[1] where there is an identity of subject matter and of parties,[2] and generally all damages must be recovered in one action.[3] The "single-action rule" rests upon the notion that only one cause of action exists for each breach of a legal duty, and thus bars multiple causes of action seeking separate types of damages stemming from one breach.[4] For instance, counts charging malicious interference with business and libel resulting from a series of newspaper articles are not separate causes of action, where the claims were nothing more than separate elements of damage flowing from the alleged wrongful publications.[5] Personal distress suffered as a result of defamation is a matter that may be taken into account in determining the amount of damages, but it does not give rise to an independent cause of action on the theory of a separate tort.[6] A separate cause of action does not arise for each separate item of property damaged as a result of one tortious act.[7] In the application of this rule, there is a conflict of authority as to whether different causes of action are stated when injury to both the person and property are alleged to have been caused by the same wrongful act,[8] with some cases holding that distinct rights are infringed,[9] and others holding that there is only one cause of action, with different elements of damage.[10] In accordance with the latter view, joining claims for personal injury and property damage arising out of the same occurrence is clearly proper,[11] while the view that the causes of action are separate is based, at least in one state, on a civil practice act allowing permissive joinder of claims that arise out of injuries to the person or to property.[12] The "separate disease rule" may afford separate causes of action for distinct diseases caused by one exposure,[13] although there is also authority that different diseases resulting from one exposure only give rise to one cause of action.[14] It has similarly been held that there is a single cause of action for both inflammation caused by an intrauterine device and subsequent infertility.[15]
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A claim for punitive damages does not constitute a separate cause of action,[16] for punitive damages are only recoverable in addition to compensatory damages.[17] Thus, punitive damages may not be alleged as a separate cause of action in a complaint, but should be claimed in the ad damnum clause in the count where the actual cause of action is pleaded.[18]
[FN1] U.S.Ortega Trujillo v. Banco Central Del Ecuador, 17 F. Supp. 2d 1334 (S.D. Fla. 1998); Helinski v. Appleton Papers, 952 F. Supp. 266 (D. Md. 1997), aff'd, 139 F.3d 891 (4th Cir. 1998). Fla.Orlando Sports Stadium, Inc. v. Sentinel Star Co., 316 So. 2d 607 (Fla. Dist. Ct. App. 4th Dist. 1975). Ga.Cooper v. Public Finance Corp., 146 Ga. App. 250, 246 S.E.2d 684 (1978). La.Thomas v. Matthews Lumber Co. of Mansfield, 253 La. 1, 215 So. 2d 832 (1968). Mo.Chuning v. Calvert, 452 S.W.2d 580 (Mo. Ct. App. 1970). Nev.Hallicrafters Co. v. Moore, 102 Nev. 526, 728 P.2d 441 (1986). N.Y.Bresler v. New York Am., 227 A.D. 575, 238 N.Y.S. 296 (1st Dep't 1930). N.D.Jones v. Grady, 62 N.D. 312, 243 N.W. 743 (1932). Okla.Taylor v. State Farm Fire and Cas. Co., 1999 OK 44, 981 P.2d 1253 (Okla. 1999), as corrected, (June 9, 1999). [FN2] Ga.Cooper v. Public Finance Corp., 146 Ga. App. 250, 246 S.E.2d 684 (1978). [FN3] N.C. Chrisalis Properties, Inc. v. Separate Quarters, Inc., 101 N.C. App. 81, 398 S.E.2d 628 (1990). [FN4] Tex.Roberts v. Lain, 32 S.W.3d 264 (Tex. App. San Antonio 2000). [FN5] Fla.Orlando Sports Stadium, Inc. v. Sentinel Star Co., 316 So. 2d 607 (Fla. Dist. Ct. App. 4th Dist. 1975). [FN6] Cal.Grimes v. Carter, 241 Cal. App. 2d 694, 50 Cal. Rptr. 808, 19 A.L.R.3d 1310 (5th Dist. 1966). [FN7] Cal.Allstate Ins. Co. v. Mel Rapton, Inc., 77 Cal. App. 4th 901, 92 Cal. Rptr. 2d 151 (3d Dist. 2000). [FN8] U.S.Henderson v. U.S. Radiator Corp., 78 F.2d 674 (C.C.A. 10th Cir. 1935). [FN9] U.S.Barnes v. Sears, Roebuck & Co., 406 F.2d 859 (4th Cir. 1969). Cal.Holmes v. David H. Bricker, Inc., 70 Cal. 2d 786, 76 Cal. Rptr. 431, 452 P.2d 647 (1969).
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Mont.Lennon v. City of Butte, 67 Mont. 101, 214 P. 1101 (1923). N.J.Humble Oil & Refining Co. v. Church, 100 N.J. Super. 495, 242 A.2d 652 (App. Div. 1968). A.L.R. Library Simultaneous injury to person and property as giving rise to single cause of actionmodern cases, 24 A.L.R. 4th 646 8[a]. [FN10] Del. Levitt v. Simco Sales Service of Penna., Inc., 50 Del. 557, 135 A.2d 910 (Super. Ct. 1957). Fla.Edelman v. Kolker, 194 So. 2d 683 (Fla. Dist. Ct. App. 3d Dist. 1967). Ga.Leggett v. Benton Bros. Drayage & Storage Co., 138 Ga. App. 761, 227 S.E.2d 397 (1976). Kan.Pretz v. Lamont, 6 Kan. App. 2d 31, 626 P.2d 806, 24 A.L.R.4th 638 (1981). Mass.Parrell v. Keenan, 389 Mass. 809, 452 N.E.2d 506 (1983). Mich.Kollenberg v. Ramirez, 127 Mich. App. 345, 339 N.W.2d 176 (1983). Mo.Long v. Walters, 833 S.W.2d 38 (Mo. Ct. App. E.D. 1992). Nev.Smith v. Hutchins, 93 Nev. 431, 566 P.2d 1136 (1977). N.M.U. S. Fidelity & Guaranty Co. v. Raton Natural Gas Co., 86 N.M. 160, 521 P.2d 122 (1974). OhioNationwide Mut. Ins. Co. v. DeJane, 42 Ohio App. 2d 11, 71 Ohio Op. 2d 92, 326 N.E.2d 701 (7th Dist. Mahoning County 1974). Okla.Lowder v. Oklahoma Farm Bureau Mut. Ins. Co., 1967 OK 245, 436 P.2d 654 (Okla. 1967). Or.Peterson v. Temple, 323 Or. 322, 918 P.2d 413 (1996). Pa.Spinelli v. Maxwell, 430 Pa. 478, 243 A.2d 425 (1968). R.I.Lemieux v. American Universal Ins. Co., 116 R.I. 685, 360 A.2d 540 (1976). Tex.Southern Pac. Transport Co. v. State Farm Mut. Ins. Co., 480 S.W.2d 59 (Tex. Civ. App. Corpus Christi 1972). UtahRaymer v. Hi-Line Transport, Inc., 15 Utah 2d 427, 394 P.2d 383 (1964). Wash.Landry v. Luscher, 95 Wash. App. 779, 976 P.2d 1274 (Div. 3 1999). W.Va.Toler v. Shelton, 157 W. Va. 778, 204 S.E.2d 85 (1974). Wis.Borde v. Hake, 44 Wis. 2d 22, 170 N.W.2d 768 (1969) (abrogated on other grounds by, Heifetz v. Johnson, 61 Wis. 2d 111, 211 N.W.2d 834 (1973)).
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A.L.R. Library Simultaneous injury to person and property as giving rise to single cause of actionmodern cases, 24 A.L.R. 4th 646 3[a]. [FN11] Ga.Phillips v. State Farm Mut. Auto. Ins. Co., 121 Ga. App. 342, 173 S.E.2d 723 (1970). Mich.Coniglio v. Wyoming Valley Fire Ins. Co., 337 Mich. 38, 59 N.W.2d 74 (1953). Minn.Hayward v. State Farm Mut. Auto. Ins. Co., 212 Minn. 500, 4 N.W.2d 316, 140 A.L.R. 1236 (1942). Mo.Lee v. Guettler, 391 S.W.2d 311 (Mo. 1965). Okla.Stanley v. Sweet, 202 Okla. 448, 214 P.2d 906 (1950). Tenn.Globe & Rutgers Fire Ins. Co. v. Cleveland, 162 Tenn. 83, 34 S.W.2d 1059 (1931). UtahSmith v. Lenzi, 74 Utah 362, 279 P. 893 (1929). W.Va.Larzo v. Swift & Co., 129 W. Va. 436, 40 S.E.2d 811 (1946). [FN12] Cal.Holmes v. David H. Bricker, Inc., 70 Cal. 2d 786, 76 Cal. Rptr. 431, 452 P.2d 647 (1969) . [FN13] U.S.In re Breast Implant Cases, 942 F. Supp. 958, 46 Fed. R. Evid. Serv. 68 (E.D. N.Y. 1996) . Pa.Zieber v. Bogert, 565 Pa. 376, 773 A.2d 758 (2001). [FN14] U.S.Matter of Celotex Corp., 175 B.R. 98 (Bankr. M.D. Fla. 1994) (applying Texas law). [FN15] U.S.Kemp v. G.D. Searle & Co., 103 F.3d 405 (5th Cir. 1997). [FN16] U.S.Dr. Franklin Perkins School v. Freeman, 741 F.2d 1503, 19 Ed. Law Rep. 881 (7th Cir. 1984); Merner v. Deere & Co., 176 F. Supp. 2d 882 (E.D. Wis. 2001). Colo.Adams v. Paine, Webber, Jackson & Curtis, Inc., 686 P.2d 797 (Colo. Ct. App. 1983), judgment aff'd, 718 P.2d 508 (Colo. 1986). Mo.Birdsong v. Bydalek, 905 S.W.2d 896 (Mo. Ct. App. S.D. 1995). N.Y.Weir Metro Ambu-Service, Inc. v. Turner, 57 N.Y.2d 911, 456 N.Y.S.2d 757, 442 N.E.2d 1268 (1982). N.C.Paris v. Michael Kreitz, Jr., P.A., 75 N.C. App. 365, 331 S.E.2d 234 (1985). S.C.Still v. Hampton and Branchville R. R., 253 S.C. 72, 169 S.E.2d 97 (1969). Statutory exemplary damages
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A statute providing for the recovery of exemplary damages does not create a separate legal right; therefore, where a complaint prays for both actual and exemplary damages, a single claim for relief is stated. Colo.Adams v. Paine, Webber, Jackson & Curtis, Inc., 686 P.2d 797 (Colo. Ct. App. 1983), judgment aff'd, 718 P.2d 508 (Colo. 1986). [FN17] Colo.Palmer v. A.H. Robins Co., Inc., 684 P.2d 187, 38 U.C.C. Rep. Serv. 1150 (Colo. 1984) . IowaCampbell v. Van Roekel, 347 N.W.2d 406 (Iowa 1984). Mo.Klein v. General Elec. Co., 728 S.W.2d 670 (Mo. Ct. App. E.D. 1987). Okla.Armbruster v. Thetis Energy Corp., 1983 OK CIV APP 62, 675 P.2d 476 (Ct. App. Div. 4 1983) . [FN18] N.Y.Halpern v. Selkow, 80 A.D.2d 528, 436 N.Y.S.2d 10 (1st Dep't 1981). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 193 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VII. Joinder of Causes of Action B. Determination Whether Multiple Causes of Action Are Stated Topic Summary References Correlation Table 194. Claims for different types of relief West's Key Number Digest West's Key Number Digest, Action 38(2) Since the remedy is distinguishable from the cause of action, a pleading based on a single primary right states one cause of action, even though it requests different forms of relief. Since causes of action are distinguishable from the remedial rights to which they give rise,[1] and since the relief demanded[2] and the remedy sought[3] are not part of the cause of action, and the same cause of action may give rise to several remedies,[4] the question whether one or more causes of action is stated is not determined from whether different kinds of relief are requested or different objects are sought.[5] Under the primary right theory for defining a cause of action,[6] although the violation of a primary right may result in the injured party being entitled to many forms of relief, the relief is not to be confused with the cause of action.[7] A complaint demanding different forms of relief will, therefore, be regarded as stating one cause of action, where the demands are all germane to the vindication or enforcement of a single primary right.[8] A complaint may also, without stating more than one independent cause of action, require the determination of various matters as incidental to the principal relief demanded,[9] particularly in actions of an equitable nature.[10] Accordingly, a complaint does not state more than one cause of action where it has one main object or demands one main form of relief and the other forms of relief or remedy demanded are merely incidental[11] or ancillary,[12] or where it contains a prayer for alternative relief,[13] or for more relief than to which the plaintiff is entitled,[14] or for unnecessary,[15] inconsistent,[16] or improper[17] relief. A complaint may state a single cause of action where it seeks both legal and equitable relief,[18] including ancillary equitable relief.[19] Accordingly, a complaint may state a single cause of action, where the plaintiff seeks to recover damages resulting from a nuisance, and to enjoin or abate the nuisance,[20] to reform a contract and enforce it as reformed,[21] or to recover on an insurance policy and to reform it, but only with respect to simple errors.[22] Moreover, only one cause of action is stated in a complaint seeking to recover a debt and to foreclose a lien[23] or mortgage[24] securing it.
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[FN1] Cal.California Trust Co. v. Cohn, 214 Cal. 619, 7 P.2d 297 (1932). IdahoDahlquist v. Mattson, 40 Idaho 378, 233 P. 883 (1925). UtahFelt City Townsite Co. v. Felt Inv. Co., 50 Utah 364, 167 P. 835 (1917). [FN2] Cal.Lamb v. Ward, 101 Cal. App. 2d 338, 225 P.2d 317 (2d Dist. 1950). IdahoDahlquist v. Mattson, 40 Idaho 378, 233 P. 883 (1925). Minn.Oehler v. City of St. Paul, 174 Minn. 410, 219 N.W. 760 (1928). S.C.Holcombe v. Garland & Denwiddie, 162 S.C. 379, 160 S.E. 881 (1931). UtahFelt City Townsite Co. v. Felt Inv. Co., 50 Utah 364, 167 P. 835 (1917). [FN3] IdahoDahlquist v. Mattson, 40 Idaho 378, 233 P. 883 (1925). Okla.Howard v. Brown, 1935 OK 357, 172 Okla. 308, 44 P.2d 959 (1935). UtahFelt City Townsite Co. v. Felt Inv. Co., 50 Utah 364, 167 P. 835 (1917). [FN4] Cal.Sawyer v. First City Financial Corp., 124 Cal. App. 3d 390, 177 Cal. Rptr. 398 (4th Dist. 1981). Conn.Wade's Dairy, Inc. v. Town of Fairfield, 181 Conn. 556, 436 A.2d 24 (1980). Ill. Torcasso v. Standard Outdoor Sales, Inc., 157 Ill. 2d 484, 193 Ill. Dec. 192, 626 N.E.2d 225 (1993). IdahoDahlquist v. Mattson, 40 Idaho 378, 233 P. 883 (1925). Okla. Green Bay Packaging, Inc. v. Preferred Packaging, Inc., 1996 OK 121, 932 P.2d 1091 (Okla. 1996). Wis.State v. P. Lorillard Co., 181 Wis. 347, 193 N.W. 613 (1923). [FN5] U.S.Tabor v. Universal Exploration Co., 48 F.2d 1047 (C.C.A. 8th Cir. 1931). IdahoDahlquist v. Mattson, 40 Idaho 378, 233 P. 883 (1925). Okla.Howard v. Brown, 1935 OK 357, 172 Okla. 308, 44 P.2d 959 (1935). S.C.Holcombe v. Garland & Denwiddie, 162 S.C. 379, 160 S.E. 881 (1931). UtahFelt City Townsite Co. v. Felt Inv. Co., 50 Utah 364, 167 P. 835 (1917). Wis.Usow v. Usow, 213 Wis. 395, 251 N.W. 458 (1933). [FN6] 189.
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[FN7] Cal.Nicholson v. Fazeli, 113 Cal. App. 4th 1091, 6 Cal. Rptr. 3d 881 (6th Dist. 2003), review denied, (Feb. 18, 2004). [FN8] Ariz.Neil v. Chrisman, 26 Ariz. 566, 229 P. 92 (1924). Cal.Kaufman & Broad Bldg. Co. v. City & Suburban Mortg. Co., 10 Cal. App. 3d 206, 88 Cal. Rptr. 858 (2d Dist. 1970). Colo.Ellis v. Colorado Nat. Bank of Denver, 84 Colo. 266, 269 P. 997 (1928). Nev.Walser v. Moran, 42 Nev. 111, 180 P. 492 (1919). N.Y.Meyer, Connor & Co. v. United Founders' Corp., 238 A.D. 642, 265 N.Y.S. 289 (1st Dep't 1933) . Wis.Fondtosa Highlands v. Paramount Development Co., 212 Wis. 163, 248 N.W. 131 (1933). Declaratory relief A cause of action for declaratory relief may properly embrace in a single cause of action claims for further consequential relief that might otherwise be regarded as a separate cause of action, including equitable relief and damages. Wis.City of Milwaukee v. Firemen's Relief Ass'n of City of Milwaukee, 34 Wis. 2d 350, 149 N.W.2d 589 (1967). [FN9] Cal.Martin v. Burris, 57 Cal. App. 739, 208 P. 174 (3d Dist. 1922). [FN10] Cal.Martin v. Burris, 57 Cal. App. 739, 208 P. 174 (3d Dist. 1922). Wis.Carthew v. City of Platteville, 157 Wis. 322, 147 N.W. 375 (1914). [FN11] N.Y.Whalen v. Strong, 230 A.D. 617, 246 N.Y.S. 40 (4th Dep't 1930). Wis.State v. P. Lorillard Co., 181 Wis. 347, 193 N.W. 613 (1923). [FN12] Wis.McCartney v. Boyd, 161 Wis. 146, 152 N.W. 820 (1915). [FN13] Cal.Messer v. Hibernia Sav. & Loan Soc., 149 Cal. 122, 84 P. 835 (1906). Colo.McKeown v. Lawrence, 56 Colo. 106, 136 P. 1014 (1913). IowaFirestone Tire & Rubber Co. v. Anderson, 190 Iowa 439, 180 N.W. 273 (1920). S.D.Starr v. Baldwin Piano Co., 59 S.D. 174, 238 N.W. 877 (1931). [FN14] Minn.Oehler v. City of St. Paul, 174 Minn. 410, 219 N.W. 760 (1928). Wis.Fondtosa Highlands v. Paramount Development Co., 212 Wis. 163, 248 N.W. 131 (1933).
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[FN15] Wis. Fondtosa Highlands v. Paramount Development Co., 212 Wis. 163, 248 N.W. 131 (1933). [FN16] IowaTice v. Wilmington Chemical Corp., 259 Iowa 27, 141 N.W.2d 616 (1966), opinion supplemented, 259 Iowa 27, 143 N.W.2d 86 (1966). [FN17] Minn.Oehler v. City of St. Paul, 174 Minn. 410, 219 N.W. 760 (1928). Wis.Fondtosa Highlands v. Paramount Development Co., 212 Wis. 163, 248 N.W. 131 (1933). [FN18] Me.Lane v. Derocher, 360 A.2d 141 (Me. 1976). OhioMories v. Hendy, 1 Ohio App. 2d 349, 30 Ohio Op. 2d 352, 204 N.E.2d 699 (3d Dist. Marion County 1965). Okla.West v. Madansky, 1920 OK 297, 80 Okla. 161, 194 P. 439 (1920). [FN19] Kan.Delgarno v. Middle West Portland Cement Co., 93 Kan. 654, 145 P. 823 (1915). [FN20] Tex.Hunt v. McCain, 73 S.W.2d 564 (Tex. Civ. App. Waco 1934), writ dismissed. Wis.Carthew v. City of Platteville, 157 Wis. 322, 147 N.W. 375 (1914). [FN21] Cal.Buxton v. International Indem. Co., 47 Cal. App. 583, 191 P. 84 (1st Dist. 1920). Ga.Georgia Farm Bureau Mut. Ins. Co. v. Wall, 242 Ga. 176, 249 S.E.2d 588 (1978). [FN22] Mo.Russell v. Reliance Ins. Co., 645 S.W.2d 166 (Mo. Ct. App. S.D. 1982). [FN23] Wis.Uecke v. Held, 144 Wis. 416, 129 N.W. 599 (1911). [FN24] Ariz.Neil v. Chrisman, 26 Ariz. 566, 229 P. 92 (1924). Okla.Howard v. Brown, 1935 OK 357, 172 Okla. 308, 44 P.2d 959 (1935). S.D.Crawford State Bank v. Danks, 60 S.D. 91, 243 N.W. 735 (1932). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 194 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VII. Joinder of Causes of Action B. Determination Whether Multiple Causes of Action Are Stated Topic Summary References Correlation Table 195. Form of allegations West's Key Number Digest West's Key Number Digest, Action 38(1) The substance of the complaint governs whether multiple causes of action have been stated, regardless of the manner in which the plaintiff organizes the claims. In determining whether more than one cause of action is stated, regard should be had to the substance, rather than to the form, of the complaint.[1] The manner in which a plaintiff elects to organize or number his or her claims within the body of the complaint is irrelevant when determining the number of causes of action alleged,[2 ] and the designation by a plaintiff of one item as involving a different wrong than the others is not controlling.[ 3] Thus, a complaint may state a single cause of action, even though it is stated in the form of several.[4] Even if a variety of facts are alleged, there is still one cause of action, so long as only one wrong is shown, and a single wrong will not be made plural by alleging that it is composed of a number of constituent parts.[5]
[FN1] U.S.Tabor v. Universal Exploration Co., 48 F.2d 1047 (C.C.A. 8th Cir. 1931). IdahoDahlquist v. Mattson, 40 Idaho 378, 233 P. 883 (1925). Minn.Bacich v. Northland Transp. Co., 173 Minn. 538, 217 N.W. 930 (1928). Mo.Rosen v. Kroger Grocery & Baking Co., 5 S.W.2d 649 (Mo. Ct. App. 1928). Wis.Usow v. Usow, 213 Wis. 395, 251 N.W. 458 (1933). [FN2] Cal. Hindin v. Rust, 118 Cal. App. 4th 1247, 13 Cal. Rptr. 3d 668 (2d Dist. 2004), review denied, (Sept. 15, 2004). Neb.Ravenna Bank v. Custom Unlimited, 223 Neb. 540, 391 N.W.2d 557 (1986). Multiple counts
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Where there was only one set of operative facts pleaded, in that first count pleaded one primary right and primary duty, while second count merely alleged additional circumstances out of which primary right and obligation arose, so-called "second cause of action" was, in reality, based on same obligation, and thus the same cause of action as the first count. Cal.Kaufman & Broad Bldg. Co. v. City & Suburban Mortg. Co., 10 Cal. App. 3d 206, 88 Cal. Rptr. 858 (2d Dist. 1970). As to requirements that claims or causes of action be stated separately, see C.J.S., Federal Civil Procedure 320; C.J.S., Pleading 147 to 158. [FN3] Neb.Workman v. Workman, 174 Neb. 471, 118 N.W.2d 764 (1962). Tex.Daily v. Brown, 26 S.W.2d 400 (Tex. Civ. App. Austin 1930). Nuisance and negligence Counts seeking damages on the basis of nuisance and negligence stated the same cause of action. U.S.Wagner v. Burlington Industries, Inc., 288 F. Supp. 176 (E.D. Tenn. 1968). [FN4] Idaho W.G. Jenkins & Co., Bankers, v. Greene, 44 Idaho 306, 256 P. 950, 52 A.L.R. 1386 (1927). IowaTice v. Wilmington Chemical Corp., 259 Iowa 27, 141 N.W.2d 616 (1966), opinion supplemented, 259 Iowa 27, 143 N.W.2d 86 (1966). Neb.Kohler v. Ford Motor Co., 187 Neb. 428, 191 N.W.2d 601 (1971). Wis.Ewing v. General Motors Corp., 70 Wis. 2d 962, 236 N.W.2d 200 (1975). Same tortious acts Where a complaint claims damages in two counts based upon the same tortious acts, only one cause of action is alleged, despite the fact that a second count charges civil conspiracy to commit the tortious acts; thus, only one recovery is permissible. Fla.Fish v. Adams, 401 So. 2d 843 (Fla. Dist. Ct. App. 5th Dist. 1981). [FN5] Ga.Wilson v. Bonner, 166 Ga. App. 9, 303 S.E.2d 134 (1983). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 195 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VII. Joinder of Causes of Action B. Determination Whether Multiple Causes of Action Are Stated Topic Summary References Correlation Table 196. Parties and interests involved West's Key Number Digest West's Key Number Digest, Action 38(6) A complaint may state one cause of action, even though it affects or involves several persons, unless those persons have distinct rights or liabilities. A complaint may state a single cause of action, even though it affects a number of plaintiffs[1] or their rights are derived from the rights of others.[2] Similarly, a single cause of action may be alleged against joint tortfeasors[3] or an insurer and insured.[4] A complaint may also state a single cause of action, even though it affects the same person or persons in different capacities.[5] When a complaint states one cause of action that affects several parties, the question is of joinder of parties,[6] and not of joinder of causes of action.[7] On the other hand, a complaint states different causes of action where it seeks to enforce distinct and separate rights of different plaintiffs,[8] or distinct and separate liabilities of different defendants.[9] Minors. Generally, two distinct causes of action arise out of injuries sustained by a minor; one cause of action in favor of the minor for his or her injuries, and another cause of action in favor of the minor's parent for expenses, including medical expenses, incurred and to be incurred by the parent on account of the injury to the child.[10] However, a parent's right to recover under a no-fault act has been considered derivative of the child's, and not an independent cause of action.[11]
[FN1] IdahoDoggett v. Boiler Engineering & Supply Co., 93 Idaho 888, 477 P.2d 511 (1970). N.C.Security Fire & Indem. Co. v. Barnhardt, 267 N.C. 302, 148 S.E.2d 117 (1966). [FN2] Attorney's fees
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A suit for attorney's fees is not ordinarily maintainable as a separate cause of action, for whatever rights the attorney has are derived from those of the clients. Tex.Rocha v. Ahmad, 676 S.W.2d 149 (Tex. App. San Antonio 1984), dismissed, (Nov. 28, 1984). Injured party and subrogee U.S.Sheldon v. West Bend Equipment Corp., 718 F.2d 603, 38 Fed. R. Serv. 2d 184 (3d Cir. 1983). [FN3] U.S.Howard v. General Motors Corp., 287 F. Supp. 646 (N.D. Miss. 1968). N.C.Ottinger v. Chronister, 13 N.C. App. 91, 185 S.E.2d 292 (1971). [FN4] U.S.Gann v. Transamerican Freight Line, Inc., 377 F. Supp. 198 (N.D. Okla. 1973). [FN5] Neb.Workman v. Workman, 174 Neb. 471, 118 N.W.2d 764 (1962). [FN6] C.J.S., Parties 41 to 53, 56 to 73. [FN7] Minn.Burns v. Van Buskirk, 163 Minn. 48, 203 N.W. 608 (1925). Nev.Walser v. Moran, 42 Nev. 111, 180 P. 492 (1919). [FN8] U.S.Varady v. Margolis, 303 F. Supp. 23 (S.D. N.Y. 1968). Mo.Hampton v. Cantrell, 464 S.W.2d 744 (Mo. Ct. App. 1971). S.C.Stewart v. Ficken, 151 S.C. 424, 149 S.E. 164 (1929). Tenn.Rooney v. Callins, 62 Tenn. App. 105, 459 S.W.2d 430 (1970). Wyo.State v. Laramie Rivers Co., 59 Wyo. 9, 136 P.2d 487 (1943). Insurance based on separate employment contracts Each member of a class, which consisted of all retired, nonunion, salaried employees of the defendant, had a separate cause of action for respective claims arising out of the defendant's reduction of life insurance benefits, in view of an allegation that the insurance benefits were based on each separate employment contract, and thus the claims could not be joined under a statute on uniting of causes of action that affect all parties to an action. Wis.Schlosser v. Allis-Chalmers Corp., 65 Wis. 2d 153, 222 N.W.2d 156 (1974). Obstetric malpractice harming both mother and child Malpractice resulting in the stillbirth of one twin and the death of the other after birth gives rise to distinct claims, in that the mother had a cause of action for personal injuries stemming from the stillbirth of the fetus, as living tissue of her body, and the personal representatives of the estate of the child who was born alive had a statutory cause of action for wrongful death, even though it was the identical tortious acts of the physician that caused the patient's injury and the child's wrongful death.
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Fla.Bombalier v. Lifemark Hosp. of Florida, 661 So. 2d 849 (Fla. Dist. Ct. App. 3d Dist. 1995). [FN9] U.S.Bartels v. New York Lithographers' and Photo-Engravers' Union No. One-P, 306 F. Supp. 1266 (S.D. N.Y. 1969), judgment aff'd, 431 F.2d 1205 (2d Cir. 1970). IowaProducers' Livestock Marketing Ass'n v. Livingston, 216 Iowa 1257, 250 N.W. 602 (1933). Md.Iula v. Grampa, 257 Md. 370, 263 A.2d 548 (1970). Tenn.Rooney v. Callins, 62 Tenn. App. 105, 459 S.W.2d 430 (1970). UtahFelt City Townsite Co. v. Felt Inv. Co., 50 Utah 364, 167 P. 835 (1917). [FN10] Ark.Parrott v. Mallett, 262 Ark. 525, 558 S.W.2d 152 (1977). OhioTravelers Indem. Co. v. Godfrey, 12 Ohio Misc. 143, 41 Ohio Op. 2d 166, 230 N.E.2d 560 (C.P. 1967). [FN11] Mich. Geiger v. Detroit Auto Inter-Insurance Exchange, 114 Mich. App. 283, 318 N.W.2d 833 (1982). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 196 END OF DOCUMENT
CJS ACTIONS VII C REF 1A C.J.S. Actions VII C Refs.
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VII. Joinder of Causes of Action C. Joinder Under Statutes and Rules of Civil Procedure Topic Summary Correlation Table Research References A.L.R. Library West's A.L.R. Digest, Action A.L.R. Index: Joinder of Actions Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS VII C REF END OF DOCUMENT 43 to 52
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VII. Joinder of Causes of Action C. Joinder Under Statutes and Rules of Civil Procedure 1. Overview Topic Summary References Correlation Table 197. Generally West's Key Number Digest West's Key Number Digest, Action 43.1, 45(1) Rules based on the Federal Rules of Civil Procedure, as well as similar statutory provisions, allow broad joinder of claims. Rules of civil procedure, including Rule 18 of the Federal Rules,[1] generally allow the joinder of as many claims, whether legal or equitable, as a party has against an opposing party, either as independent or as alternate claims.[2] These rules followed developments, both in code and common law states, toward the unlimited joinder of actions, and are patterned on equity practice.[3] Joinder of claims under such rules is unfettered once a person is properly made a party,[4] and if there is only one plaintiff and one defendant, misjoinder is not an issue.[5] Similarly, a civil practice statute may provide that plaintiffs may join any causes of action against any defendant.[6] Other statutes may limit joinder to claims that arise out of the same transaction or occurrence.[7] Statutory authorization to unite particular causes of action subtracts nothing from the rights previously possessed under either separate cause, their independent characteristics being retained.[8] Similarly, a rule governing joinder of claims is one of procedure, allowing joinder of claims, each of which might be an independent cause of action, but the rule does not create any new causes of action.[9] A legislature may provide that certain claims and proceedings must be kept separate, and, when it does so, expressly or by implication, the otherwise broadly effective provisions of rules relating to joinder of claims do not apply.[10] CUMULATIVE SUPPLEMENT Statutes: Fed. R. Civ. P. 18(a) was amended in 2007 to eliminate the reference to "legal, equitable, or maritime claims", and now provides that "A party asserting a claim, counterclaim, crossclaim, or third-party claim may join, as independent or alternative claims, as many claims as it has against an opposing party."
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[END OF SUPPLEMENT]
[FN1] Fed. R. Civ.P. Rule 18(a), generally, discussed in C.J.S., Federal Civil Procedure 39 et seq. [FN2] Fed. R. Civ. P. Rule 18(a). [FN3] Advisory Committee Notes to Fed. R. Civ. P. Rule 18. [FN4] Ind.Jones v. Jones, 641 N.E.2d 98 (Ind. Ct. App. 1st Dist. 1994). [FN5] Ala.Hill v. Hill, 523 So. 2d 425 (Ala. Civ. App. 1987). As to joinder of claims in multiparty cases, see 218. [FN6] Ill.Stykel v. City of Freeport, 318 Ill. App. 3d 839, 252 Ill. Dec. 368, 742 N.E.2d 906 (2d Dist. 2001). [FN7] 217. [FN8] OhioSimon v. Union Trust Co., 126 Ohio St. 346, 185 N.E. 425 (1933). [FN9] Mont.Libra v. Libra, 157 Mont. 252, 484 P.2d 748 (1971). Retrospective application Retrospective application of a rule of civil procedure governing joinder of claims did not impair a vested right, even though the repeal of a statute governing joinder of claims deprived a defendant of a defense of improper joinder that had already been raised. S.C.McGann v. Mungo, 287 S.C. 561, 340 S.E.2d 154 (Ct. App. 1986). [FN10] Ariz.Anonymous Wife v. Anonymous Husband, 153 Ariz. 570, 739 P.2d 791 (Ct. App. Div. 1 1986), judgment aff'd in part, rev'd in part on other grounds, 153 Ariz. 573, 739 P.2d 794 (1987). As to when eviction statutes come within this rule, see 210. Mandamus statute an exception to joinder rule U.S.Holman v. City of Warrenton, 242 F. Supp. 2d 791 (D. Or. 2002) (Oregon statute and rule). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 197 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VII. Joinder of Causes of Action C. Joinder Under Statutes and Rules of Civil Procedure 1. Overview Topic Summary References Correlation Table 198. Joinder under civil law West's Key Number Digest West's Key Number Digest, Action 52 The civil law concept comparable to joinder is cumulation of actions. Under civil law provisions governing joinder, two or more actions may be cumulated, although based on different grounds, where each is within the jurisdiction of the court and is of proper venue, and if the demands are mutually consistent and employ the same form of procedure.[1] The requirement that actions employ the same form of procedure refers to whether the action is enforceable by ordinary, executory, or summary proceedings.[2] For instance, claims for injunctive relief and damages may be cumulated, because both are triable by ordinary process and employ the same form of procedure.[3] On the other hand, actions for worker's compensation and to recover wages may not be cumulated, since they do not employ the same form of procedure.[4] Cumulation of separate actions is optional.[5] There is a prohibition on cumulation in petitory and possessory actions, petitory actions being to declare title, while possessory actions are to maintain or recover possession, and where there is an attempt to cumulate these actions, the possessory action is waived.[6] A petitory action may be cumulated with a suit for partition,[7] or with an action of nullity of a judgment, the outcome of which is a prerequisite to recovery under the petitory action.[8] Also, a plaintiff who brings an action for injunctive relief may prove ownership as well as possession without creating an improper cumulation of petitory and possessory actions.[9] A reconventional demand (counterclaim) does not constitute a cumulation of actions, where each party asserts only one action against the other.[10]
[FN1] La.Texas Gas Transmission Corp. v. Gagnard, 223 So. 2d 233 (La. Ct. App. 3d Cir. 1969). [FN2] La.Johnson v. Marvin Cutrer Contractor, 348 So. 2d 1256 (La. Ct. App. 2d Cir. 1977).
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[FN3] La.Abadie v. Cassidy, 581 So. 2d 657 (La. 1991). [FN4] La.Muth v. Burrows, 575 So. 2d 501 (La. Ct. App. 5th Cir. 1991). [FN5] La.Roussel v. Railways Realty Co., 165 La. 536, 115 So. 742 (1928). [FN6] La.Harry Bourg Corp. v. Verrett, 633 So. 2d 285 (La. Ct. App. 1st Cir. 1993). [FN7] La.Lemoine v. Lemoine, 295 So. 2d 584 (La. Ct. App. 3d Cir. 1974), writ denied, 299 So. 2d 794 (La. 1974). [FN8] La.Board of Com'rs for Fifth Louisiana Levee Dist. v. Hollybrook Land Co., 191 So. 2d 724 (La. Ct. App. 2d Cir. 1966), writ refused, 250 La. 18, 193 So. 2d 528 (1967). [FN9] La.Ryan v. Pekinto, 387 So. 2d 1325 (La. Ct. App. 1st Cir. 1980), writ denied, 394 So. 2d 615 (La. 1980). [FN10] La.Johnston v. Bickham, 559 So. 2d 15 (La. Ct. App. 1st Cir. 1990). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 198 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VII. Joinder of Causes of Action C. Joinder Under Statutes and Rules of Civil Procedure 1. Overview Topic Summary References Correlation Table 199. Purpose and construction of statutes and rules West's Key Number Digest West's Key Number Digest, Action 43.1 The objects of the statutory provisions and court rules with respect to the joinder of causes of actions are to allow the adjudication of all claims between the parties and to avoid a multiplicity of actions. The philosophy of joinder provisions in rules of civil procedure is to adjudicate all appropriately brought claims, between all appropriate parties, in one suit.[1] The object of these statutory provisions and court rules is to avoid a multiplicity of actions,[2] by allowing the pleading of multiple claims of all types against an opposing party,[3] with a view to convenience and economy,[4] and to expedite the administration of justice.[5] While the purpose of the joinder rule is to simplify, and not complicate, litigation,[6] it has also been held that difficulties in managing a single plaintiff, single defendant, multiclaim suit do not preclude joinder at the pleading stage of the litigation.[7] The rules or statutes should be liberally construed,[8] with a view to effecting their objectives,[9] including avoiding unnecessary litigation.[10] Joinder is strongly encouraged, in the interest of allowing the broadest scope of action consistent with fairness to the parties.[11] Joinder provisions should be construed and applied, where possible, without substantial prejudice to the rights of litigants, in the light of the principles of convenience and finality of decisions.[12] However, joinder should not be allowed if a party's substantial rights would be significantly prejudiced or if jury confusion would result.[13] A trial court has a broad discretion in questions pertaining to joinder,[14] and its actions will not be disturbed absent an abuse of discretion.[15] However, a court may not dismiss a complaint merely because it contains properly joined issues that the court prefers be severed.[16] A defendant waives the right to complain of a misjoinder of actions by a failure to object.[17] CUMULATIVE SUPPLEMENT Cases:
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The core purpose of the rule on permissive joinder is to permit a single trial of claims having a similar foundation or similar issues. Kennedy v. Lasting Paints, Inc., 404 Md. 427, 947 A.2d 503 (2008). [END OF SUPPLEMENT]
[FN1] OhioBasham v. Jackson, 51 Ohio App. 2d 100, 5 Ohio Op. 3d 249, 367 N.E.2d 66 (10th Dist. Franklin County 1977), judgment aff'd, 54 Ohio St. 2d 366, 8 Ohio Op. 3d 385, 377 N.E.2d 491 (1978). [FN2] Minn.Burns v. Van Buskirk, 163 Minn. 48, 203 N.W. 608 (1925). N.C.American Air Filter Co. v. Robb, 267 N.C. 583, 148 S.E.2d 580 (1966). S.C.Gantt v. Universal C. I. T. Credit Corp., 254 S.C. 112, 173 S.E.2d 658 (1970). Tex. Massey v. Massey, 807 S.W.2d 391 (Tex. App. Houston 1st Dist. 1991), writ denied, 867 S.W.2d 766 (Tex. 1993). UtahBartholomew v. Bartholomew, 548 P.2d 238 (Utah 1976). Prevent multiple determinations The joint resolution of multiple claims is favored, to prevent multiple determinations of the same matter. Tex. Howell Crude Oil Co. v. Tana Oil & Gas Corp., 860 S.W.2d 634 (Tex. App. Corpus Christi 1993). Avoid multiple trials The purpose of a permissive joinder statute is to avoid multiple trials involving identical or similar issues. Wis.Kluth v. General Cas. Co. of Wisconsin, 178 Wis. 2d 808, 505 N.W.2d 442 (Ct. App. 1993). [FN3] Mo.State ex rel. Farmers Ins. Co., Inc. v. Murphy, 518 S.W.2d 655 (Mo. 1975). Contingent claims The mere fact that a cause of action is contingent on the outcome of another suit does not prevent the two claims from being raised and litigated simultaneously in the same suit. Tex.Guetersloh v. State, 930 S.W.2d 284 (Tex. App. Austin 1996), writ denied, (July 31, 1997). [FN4] Ill.Stykel v. City of Freeport, 318 Ill. App. 3d 839, 252 Ill. Dec. 368, 742 N.E.2d 906 (2d Dist. 2001). Mich.Kubiak v. Hurr, 143 Mich. App. 465, 372 N.W.2d 341 (1985).
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Even if more than one trial Convenience would be promoted by the joinder of claims in the same lawsuit, even if joinder did not lead to a single trial, so long as inconsistent findings on questions of mutual concern could be avoided. Mo.State ex rel. Bitting v. Adolf, 704 S.W.2d 671 (Mo. 1986). [FN5] N.D.Ulness v. Dunnell, 61 N.D. 95, 237 N.W. 208 (1931). Speedy determination Objective of rules pertaining to joinder of claims is to facilitate attainment of a just, speedy and inexpensive determination of all disputes between same parties. Md.Robertson v. Davis, 271 Md. 708, 319 A.2d 816 (1974). Judicial efficiency Ill.Board of Managers of the Courtyards at the Woodlands Condominium Ass'n v. Iko Mfg., Inc., 288 Ill. App. 3d 801, 224 Ill. Dec. 120, 681 N.E.2d 102 (1st Dist. 1997), judgment rev'd on other grounds, 183 Ill. 2d 66, 231 Ill. Dec. 942, 697 N.E.2d 727 (1998). [FN6] Pa. Brandywine Area Joint School Authority v. VanCor, Inc., 426 Pa. 448, 233 A.2d 240 (1967). [FN7] N.J.Lech v. State Farm Ins. Co., 335 N.J. Super. 254, 762 A.2d 269 (App. Div. 2000). [FN8] Cal.Joerger v. Pacific Gas & Electric Co., 207 Cal. 8, 276 P. 1017 (1929). Ill.Stykel v. City of Freeport, 318 Ill. App. 3d 839, 252 Ill. Dec. 368, 742 N.E.2d 906 (2d Dist. 2001). Minn.Seitz v. Michel, 141 Minn. 244, 170 N.W. 197 (1918). N.D.Ulness v. Dunnell, 61 N.D. 95, 237 N.W. 208 (1931). Okla.Stephenson v. Clement, 1935 OK 374, 171 Okla. 333, 43 P.2d 430 (1935). [FN9] Nev.Walser v. Moran, 42 Nev. 111, 173 P. 1149 (1918), rev'd on other grounds, 42 Nev. 111, 180 P. 492 (1919). N.D.Ulness v. Dunnell, 61 N.D. 95, 237 N.W. 208 (1931). [FN10] Minn.Burns v. Van Buskirk, 163 Minn. 48, 203 N.W. 608 (1925). N.J.Theobald v. Kenney's Suburban House, Inc., 48 N.J. 203, 225 A.2d 10 (1966). N.D.Ulness v. Dunnell, 61 N.D. 95, 237 N.W. 208 (1931). [FN11] U.S.Gursky v. Northwestern Mut. Life Ins. Co., 139 F.R.D. 279 (E.D. N.Y. 1991).
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Wis.Kluth v. General Cas. Co. of Wisconsin, 178 Wis. 2d 808, 505 N.W.2d 442 (Ct. App. 1993). [FN12] N.D.Stark County v. Mischel, 33 N.D. 432, 156 N.W. 931 (1916). [FN13] Mich.Kubiak v. Hurr, 143 Mich. App. 465, 372 N.W.2d 341 (1985). [FN14] Ind.Jones v. Jones, 641 N.E.2d 98 (Ind. Ct. App. 1st Dist. 1994). Pa.Hamilton v. Gallo, 233 Pa. Super. 476, 334 A.2d 692 (1975). Tex.Threeway Constructors, Inc. v. Aten, 659 S.W.2d 700 (Tex. App. El Paso 1983). [FN15] Tex.Threeway Constructors, Inc. v. Aten, 659 S.W.2d 700 (Tex. App. El Paso 1983). [FN16] Ga.Shleifer v. Bridgestone-Firestone, Inc., 223 Ga. App. 256, 477 S.E.2d 405 (1996). [FN17] Mo.Hillman v. Hedgpeth, 600 S.W.2d 625 (Mo. Ct. App. S.D. 1980). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 199 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VII. Joinder of Causes of Action C. Joinder Under Statutes and Rules of Civil Procedure 1. Overview Topic Summary References Correlation Table 200. Mandatory or permissive joinder West's Key Number Digest West's Key Number Digest, Action 43.1, 49 Under most rules, joinder of claims is permissive, but some statutes or rules may require joinder to facilitate the resolution of the entire controversy. If independent causes of action are involved, joinder of claims and remedies is generally permissive, rather than mandatory.[1] This means that a plaintiff who has suffered multiple wrongs caused by a defendant may normally bring successive actions, or has the option to join several claims together in one lawsuit,[2] and the defendant cannot compel joinder,[3] but a party is prohibited, by res judicata, from subsequently litigating, in a second suit, any related claims the person failed to join in the prior suit.[4] Under other statutes or rules, joinder is mandatory when certain forms of actions arise from the same transaction against the same person,[5] or there is a substantial risk that a defendant will incur multiple or inconsistent obligations by reason of two claims made against him or her.[6] Claims may be joined if full relief could not otherwise be granted.[7] A compulsory joinder rule does not necessarily apply to cases brought in small claims court.[8] CUMULATIVE SUPPLEMENT Cases: The similarities of the claims of the persons joined need not be total in order to allow a permissive joinder. Kennedy v. Lasting Paints, Inc., 404 Md. 427, 947 A.2d 503 (2008). In determining whether to allow permissive joinder, court must consider amount of evidence jury must assimilate and how much of this evidence would be individualized rather than common. However, considerations of convenience and economy must yield to paramount concern for fair and impartial trial. Benefits of efficiency can never be purchased at cost of fairness. Purdue Pharma, L.P. v. Estate of Heffner, 904 So. 2d 100 (Miss.
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2004). The statute governing joinder of claims is permissive in nature and does not alter the pre-existing common law that governs the trial court's discretionary power over consolidation requests. State v. One Thousand Two Hundred Sixty-Seven Dollars, 2006 OK 15, 131 P.3d 116 (Okla. 2006). [END OF SUPPLEMENT]
[FN1] Conn.Solomon v. Aberman, 196 Conn. 359, 493 A.2d 193 (1985). Kan.Shelton v. DeWitte, 271 Kan. 831, 26 P.3d 650 (2001). Tex.Turner v. City of Carrollton Civil Service Com'n, 884 S.W.2d 889 (Tex. App. Amarillo 1994). Wash.Seattle-First Nat. Bank v. Kawachi, 91 Wash. 2d 223, 588 P.2d 725 (1978). As to what are separate causes of action, see 188 et seq. As to splitting a cause of action, see 224 et seq. As to whether joinder of claims is permissive or mandatory in a multiparty case, see 218. [FN2] N.C.Bockweg v. Anderson, 333 N.C. 486, 428 S.E.2d 157 (1993). [FN3] U.S.Waltman v. Union Cent. Life Ins. Co., 25 F.2d 320 (N.D. Tex. 1928). [FN4] Tex. Turner v. City of Carrollton Civil Service Com'n, 884 S.W.2d 889 (Tex. App. Amarillo 1994). As to relitigation of claims barred by res judicata, see C.J.S., Judgments 702 to 955. [FN5] Pa.D'Allessandro v. Wassel, 526 Pa. 534, 587 A.2d 724 (1991). [FN6] Ga.Stenger v. Grimes, 260 Ga. 838, 400 S.E.2d 318 (1991). [FN7] Ill.In re Estate of Knowlson, 154 Ill. App. 3d 249, 107 Ill. Dec. 364, 507 N.E.2d 28 (1st Dist. 1987). [FN8] Mich.Kaiser v. Smith, 188 Mich. App. 495, 470 N.W.2d 88 (1991). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 200 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VII. Joinder of Causes of Action C. Joinder Under Statutes and Rules of Civil Procedure 2. Joinder of Particular Types of Claims Topic Summary References Correlation Table 201. Common-law and statutory causes West's Key Number Digest West's Key Number Digest, Action 44, 45(1) Ordinarily, common-law and statutory causes of action may be joined. The general rule is that common-law and statutory causes of action of the same nature may be joined.[1] For instance, a common-law fraud claim may be joined with one founded upon a violation of a securities act, because elements of damages were alleged in the common-law cause of action that could not be recovered under the statute.[2] A claim for deceit and a claim under a consumer protection act may similarly be joined.[3] Claims may be joined where one is based upon common-law and the other upon statutory negligence,[4] breach of contract and statutory fraud,[5] common-law negligence and a workers' compensation act,[6] or negligence and the violation of an ordinance.[7] Joinder rules may apply in special proceedings, such as statutory proceedings involving assignments for the benefit of creditors, to which ordinary civil claims may be joined.[8] A will contest may be subject to a rule of civil procedure on joinder of claims,[9] or a probate court may have sufficient jurisdiction in a will contest proceeding to hear related claims,[10] and thus a suit to determine heirship may be joined with a will contest.[11] However, where inconsistent claims may not be joined, a common-law action for money damages may not be joined with a statutory mandamus proceeding.[12] Some statutes allow an injured party to file a related tort claim, which is one connected with the subject matter of the proceeding.[13] On the other hand, where a statutory proceeding is the sole means for obtaining an appraisal of corporate dissenters' shares, other causes of action may not be joined.[14]
[FN1] Ala.Jenkins v. Mann, 220 Ala. 661, 127 So. 230 (1930). Mo.Hunter Land & Development Co. v. Caruthersville Stave & Heading Co., 223 Mo. App. 132, 9 S.W.2d 531 (1928). R.I.Chase v. Mousseau, 448 A.2d 1221, 5 Ed. Law Rep. 1182 (R.I. 1982).
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[FN2] S.C.Bradley v. Hullander, 266 S.C. 188, 222 S.E.2d 283 (1976). [FN3] Okla.Brashears v. Sight &aposN Sound Appliance Centers, Inc., 1999 OK CIV APP 52, 981 P.2d 1270 (Div. 3 1999). [FN4] Minn.Doyle v. St. Paul Union Depot Co., 134 Minn. 461, 159 N.W. 1081 (1916). Mo.Milburn v. Chicago, M., St. P. & P. R. Co., 331 Mo. 1171, 56 S.W.2d 80 (1932). N.Y.Farruggia v. Town of Riverhead, 34 A.D.2d 1008, 312 N.Y.S.2d 802 (2d Dep't 1970). [FN5] Fla.Williams v. Peak Resorts Intern. Inc., 676 So. 2d 513 (Fla. Dist. Ct. App. 5th Dist. 1996). [FN6] Kan.Hutton v. Link Oil Co., 108 Kan. 197, 194 P. 925 (1921). [FN7] Mo.Hanson v. Springfield Traction Co., 226 S.W. 1 (Mo. 1920). Mo.Swinehart v. Kansas City Rys. Co., 233 S.W. 59 (Mo. Ct. App. 1921). [FN8] Wis.Dalton v. Meister, 71 Wis. 2d 504, 239 N.W.2d 9, 11 A.L.R.4th 332 (1976). [FN9] Ind.McCoy v. Like, 511 N.E.2d 501 (Ind. Ct. App. 1st Dist. 1987). [FN10] Ill. Estate of Jeziorski, 162 Ill. App. 3d 1057, 114 Ill. Dec. 267, 516 N.E.2d 422 (1st Dist. 1987). Interference with expectancy An action for tortious interference with an expectancy under a will could be joined with an action challenging the validity of the will, where the invalidation of the will would not necessarily provide the full relief requested if an earlier will could not be validated. Ill.In re Estate of Knowlson, 154 Ill. App. 3d 249, 107 Ill. Dec. 364, 507 N.E.2d 28 (1st Dist. 1987). [FN11] Miss.Dees v. Estate of Moore, 562 So. 2d 109 (Miss. 1990). [FN12] Ark.Rastle v. Marion County Rural School Dist. No. 1, 260 Ark. 740, 543 S.W.2d 923 (1976) . [FN13] Okla.Ward Petroleum Corp. v. Stewart, 64 P.3d 1113 (Okla. 2003). [FN14] OhioArmstrong v. Marathon Oil Co., 32 Ohio St. 3d 397, 513 N.E.2d 776 (1987). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 201 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VII. Joinder of Causes of Action C. Joinder Under Statutes and Rules of Civil Procedure 2. Joinder of Particular Types of Claims Topic Summary References Correlation Table 202. Causes having different places of trial West's Key Number Digest West's Key Number Digest, Action 45(1) Causes of action requiring different places of trial may not generally be joined, unless statutes provide for multiple venue or joinder where the venue of either claim is proper. Rules of civil procedure do not authorize the joinder of claims where, due to a failure of venue, one of the causes of action could not itself have been brought in the particular court.[1] It is not permissible to join causes of action having or requiring different places of trial.[2] On the other hand, there is no restriction upon joinder of several causes of action merely because the alleged negligence arose in different counties, if the action could have been brought in any county where any of the causes of action arose.[3] A statute may also provide that when causes of action are joined, whether properly or not, the venue may be laid in any county in which either cause of action could have been commenced and tried, subject to court rules governing the transfer and severance of cases, and under such a statute, a plaintiff may join claims and bring a single action in either county.[4]
[FN1] U.S.Locke Mfg. Co. v. Sabel, 244 F. Supp. 829 (W.D. Ky. 1965). [FN2] HawaiiSherman v. Sawyer, 63 Haw. 55, 621 P.2d 346 (1980). Tex.Auto Refinance Corp. v. Smith, 84 S.W.2d 296 (Tex. Civ. App. Fort Worth 1935). Wis.Fitzwilliams v. O'Shaughnessy, 40 Wis. 2d 123, 161 N.W.2d 242 (1968). [FN3] Fla.Highland Ins. Co. v. Walker Memorial Sanitarium & Benev. Ass'n, 225 So. 2d 572 (Fla. Dist. Ct. App. 2d Dist. 1969). [FN4] Mich.Pietrangelo v. Burns Clinic Medical Center, P.C., 179 Mich. App. 302, 445 N.W.2d 194 (1989).
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VII. Joinder of Causes of Action C. Joinder Under Statutes and Rules of Civil Procedure 2. Joinder of Particular Types of Claims Topic Summary References Correlation Table 203. Review of administrative decision and other claims West's Key Number Digest West's Key Number Digest, Action 43.1, 45(1) Courts differ on whether other claims may be joined in a judicial review proceeding, with some courts denying joinder on such grounds as the different bases of jurisdiction and standards of review. In some situations, a party who has exhausted administrative remedies may join in a suit for judicial review any other claim that could not have been brought in proceedings before the administrative agency.[1] However, it has also been held that a joinder rule does not expressly nor impliedly permit the joinder of original actions with a petition for judicial review,[2] and thus in most cases, a party may not join private causes of action with a request for judicial review of an agency ruling.[3] Reasons given for denying joinder include that judicial review only invokes the appellate jurisdiction of a court,[4] and in judicial review, there is a different level of judicial scrutiny,[5] and only certain types of relief may be granted.[6] Joinder with an original action may not be used to revive an untimely petition for judicial review.[7] While in some jurisdictions, one may join a claim for inverse condemnation in a petition to review an administrative decision, and thus obtain damages for a regulatory taking,[8] and such joinder is permissive,[9] elsewhere, a proceeding to review a municipality's denial of a land use permit may not be joined with a cause of action alleging constitutional violations and seeking damages, costs, and attorney's fees in connection with the denial of that application.[10]
[FN1] Tex. Turner v. City of Carrollton Civil Service Com'n, 884 S.W.2d 889 (Tex. App. Amarillo 1994). Liberal joinder State rules of civil procedure allow for liberal joinder of claims in civil actions in the circuit court, including actions that seek judicial review of administrative agency decisions.
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Ala.Boyette v. Jefferson County, 728 So. 2d 639 (Ala. Civ. App. 1998), rev'd on other grounds, 728 So. 2d 644 (Ala. 1998). Constitutional claims A terminated police officer was entitled to raise her constitutional claims in a suit seeking to set aside a civil service commission's ruling upholding her indefinite suspension, despite the city's contention that the officer waived her constitutional challenge to the department's policy by failing to present those claims during the commission's administrative hearing; thus, claims that could not have been brought in proceedings before the administrative agency could be joined in a suit seeking review of the agency decision. Tex.Turner v. City of Carrollton Civil Service Com'n, 884 S.W.2d 889 (Tex. App. Amarillo 1994). [FN2] IowaBlack v. University of Iowa, 362 N.W.2d 459, 23 Ed. Law Rep. 264 (Iowa 1985). [FN3] Ariz.Rail N Ranch Corp. v. Hassell, 177 Ariz. 487, 868 P.2d 1070, 89 Ed. Law Rep. 655 (Ct. App. Div. 1 1994). Tenn.State ex rel. Byram v. City of Brentwood, 833 S.W.2d 500 (Tenn. Ct. App. 1991). Denial of tenure and damages An assistant professor who sought judicial review of the denial of tenure could not join claims for recovery of damages with the request for judicial review. IowaBlack v. University of Iowa, 362 N.W.2d 459, 23 Ed. Law Rep. 264 (Iowa 1985). [FN4] IowaBlack v. University of Iowa, 362 N.W.2d 459, 23 Ed. Law Rep. 264 (Iowa 1985). [FN5] License revocation A chiropractor, seeking judicial review of the revocation of his license, could not also bring a civil rights cause of action and seek declaratory relief, because those actions were not directed at the same questions of law that the court was required to determine in judicial review, which is under the substantial evidence rule, while the additional causes of action were to be determined based upon the preponderance of the evidence. Tex.Adams v. Texas State Bd. of Chiropractic Examiners, 744 S.W.2d 648 (Tex. App. Austin 1988). [FN6] IowaBlack v. University of Iowa, 362 N.W.2d 459, 23 Ed. Law Rep. 264 (Iowa 1985). [FN7] IowaFort Dodge Sec. Police, Inc. v. Iowa Dept. of Revenue, 414 N.W.2d 666 (Iowa Ct. App. 1987). [FN8] Cal.Hensler v. City of Glendale, 8 Cal. 4th 1, 32 Cal. Rptr. 2d 244, 876 P.2d 1043 (1994), as modified on denial of reh'g, (Sept. 22, 1994).
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[FN9] Wash.Hayes v. City of Seattle, 76 Wash. App. 877, 888 P.2d 1227 (Div. 1 1995), reconsideration filed, (Mar. 3, 1995) and aff'd, 131 Wash. 2d 706, 934 P.2d 1179 (1997), opinion corrected, 943 P.2d 265 (Wash. 1997). [FN10] N.C.Batch v. Town of Chapel Hill, 326 N.C. 1, 387 S.E.2d 655 (1990). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 203 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VII. Joinder of Causes of Action C. Joinder Under Statutes and Rules of Civil Procedure 2. Joinder of Particular Types of Claims Topic Summary References Correlation Table 204. Domestic relations matters West's Key Number Digest West's Key Number Digest, Action 43.1, 45(1) There are differing views whether other claims may be joined in a divorce action, and whether such joinder is permissive or mandatory. Some courts have recognized that a tort action between spouses may be joined with a divorce proceeding,[1] and that such joinder is encouraged, when feasible.[2] Many courts hold that joinder is not compulsory,[3] for such reasons as that it would unduly complicate the divorce case,[4] or deny the right to a trial by jury on the tort claim.[5] Some courts have held that if an interspousal tort occurs prior to the filing of an action for divorce, the tort claim must be joined with the dissolution petition,[6] or that joinder is required under some circumstances, such as where the allegations are directly related to the issues in the divorce case,[7] and allowing the later litigation of the tort claim would undermine the divorce settlement.[8] Finally, other courts have held that neither permissive nor compulsory joinder of interspousal tort claims is allowed in divorce actions, due to the special nature of divorce proceedings,[9] the limited jurisdiction of the divorce court,[10] as well as public policy reasons.[11] Even though marital property is an issue in a divorce proceeding, it is not necessary to join a claim for an agricultural lien, where one spouse claimed a right to recover for taking care of the other's livestock.[12] A person seeking a divorce may join a claim that a gift of property to the other in contemplation of marriage should be revoked.[13] Requests for declarations of paternity may be joined in divorce actions,[14] or in a proceeding to determine heirship.[15] However, a claim for breach of promise of marriage may not be joined with a child's nonstatutory filiation claim.[16]
[FN1] Ala.Coleman v. Coleman, 566 So. 2d 482 (Ala. 1990).
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Ark.Liles v. Liles, 289 Ark. 159, 711 S.W.2d 447 (1986). IdahoNash v. Overholser, 114 Idaho 461, 757 P.2d 1180 (1988) (rejected on other grounds by, State v. Guzman, 122 Idaho 981, 842 P.2d 660 (1992)). N.J.Brennan v. Orban, 145 N.J. 282, 678 A.2d 667 (1996). N.Y.Pirodsky v. Pirodsky, 179 A.D.2d 1066, 579 N.Y.S.2d 524 (4th Dep't 1992). Tenn.Kemp v. Kemp, 723 S.W.2d 138 (Tenn. Ct. App. 1986). Wis.Stuart v. Stuart, 143 Wis. 2d 347, 421 N.W.2d 505 (1988). A.L.R. Library Joinder of tort action between spouses with proceeding for dissolution of marriage, 4 A.L.R. 5th 972. [FN2] Tex.Twyman v. Twyman, 855 S.W.2d 619 (Tex. 1993). [FN3] Ark.Cater v. Cater, 311 Ark. 627, 846 S.W.2d 173 (1993). IdahoNash v. Overholser, 114 Idaho 461, 757 P.2d 1180 (1988) (rejected on other grounds by, State v. Guzman, 122 Idaho 981, 842 P.2d 660 (1992)). Wis.Stuart v. Stuart, 143 Wis. 2d 347, 421 N.W.2d 505 (1988). [FN4] AlaskaNelson v. Jones, 787 P.2d 1031 (Alaska 1990). [FN5] U.S.Abbott v. Williams, 888 F.2d 1550 (11th Cir. 1989). [FN6] N.J.Tevis v. Tevis, 79 N.J. 422, 400 A.2d 1189 (1979). [FN7] Ala.Weil v. Lammon, 503 So. 2d 830 (Ala. 1987) (Ala. 1987). N.Y.Partlow v. Kolupa, 122 A.D.2d 509, 504 N.Y.S.2d 870 (3d Dep't 1986), order aff'd, 69 N.Y.2d 927, 516 N.Y.S.2d 632, 509 N.E.2d 327 (1987). Tenn.Kemp v. Kemp, 723 S.W.2d 138 (Tenn. Ct. App. 1986). [FN8] Ala.Coleman v. Coleman, 566 So. 2d 482 (Ala. 1990). [FN9] Ariz.Windauer v. O'Connor, 107 Ariz. 267, 485 P.2d 1157 (1971). OhioKoepke v. Koepke, 52 Ohio App. 3d 47, 556 N.E.2d 1198 (6th Dist. Wood County 1989). UtahNoble v. Noble, 761 P.2d 1369 (Utah 1988). Vt.Ward v. Ward, 155 Vt. 242, 583 A.2d 577, 4 A.L.R.5th 1152 (1990). Different relief
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N.H.Aubert v. Aubert, 129 N.H. 422, 529 A.2d 909 (1987). [FN10] Mass.Heacock v. Heacock, 402 Mass. 21, 520 N.E.2d 151 (1988). [FN11] Colo.Simmons v. Simmons, 773 P.2d 602 (Colo. Ct. App. 1988). [FN12] Wyo.Moore v. Moore, 835 P.2d 1148 (Wyo. 1992). [FN13] La.Larocca v. Larocca, 597 So. 2d 1000 (La. 1992). [FN14] Minn.Warhol v. Warhol, 464 N.W.2d 574 (Minn. Ct. App. 1990). Mo.L.M.K. v. D.E.K., 685 S.W.2d 614 (Mo. Ct. App. E.D. 1985). [FN15] La. Succession of Stevenson, 492 So. 2d 100 (La. Ct. App. 1st Cir. 1986), writ denied, 494 So. 2d 1178 (La. 1986). [FN16] Kan.McGregor v. Turner, 205 Kan. 386, 469 P.2d 324 (1970). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 204 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VII. Joinder of Causes of Action C. Joinder Under Statutes and Rules of Civil Procedure 2. Joinder of Particular Types of Claims Topic Summary References Correlation Table 205. Contract claims West's Key Number Digest West's Key Number Digest, Action 45(4) The joinder of causes of action based upon contract, including implied contracts and combinations of express and implied contracts, is generally permissible. Joinder of causes of action based upon contract is generally permissible,[1] sometimes subject to the requirement that each affect all the parties to the action.[2] Generally, it is permissible to join a cause of action upon an express contract with one upon an implied contract,[3] as upon quantum meruit.[4] Other causes that, as arising out of contract, may be joined include alleged breaches of a lease and a covenant to repair,[5] claims on several promissory notes,[6] claims on several insurance policies covering a loss,[7] claims for underinsured motorist benefits, and to be reimbursed under the policy for attorney's fees incurred in the action against the underinsured tortfeasor,[8] a claim against defendants upon one obligation as sureties and another against them upon other obligations as guarantors,[9] and a cause of action on open account and one on the same account as an account stated.[10] The joinder of related claims in contract actions is not mandatory where a contract gives rise to more than one cause of action,[11] or where the claims arise under separate contracts.[12] Causes of action that arise out of contract may be joined, even though the plaintiff acquired some of the rights by assignment.[13]
[FN1] Cal.Mansdorf v. California Physicians' Service, Inc., 87 Cal. App. 3d 412, 151 Cal. Rptr. 388 (2d Dist. 1978). N.C.Gibbs v. Heavlin, 22 N.C. App. 482, 206 S.E.2d 814 (1974). Tex. Coon v. Schoeneman, 476 S.W.2d 439 (Tex. Civ. App. Dallas 1972), writ refused n.r.e., (May
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17, 1972). Wis.Heritage Mut. Ins. Co. v. Thoma, 45 Wis. 2d 580, 173 N.W.2d 717 (1970). As to joinder of contract claims with claims of possession or title to property, see 210. [FN2] N.C.Robertson v. Bankers & Tel. Emp. Ins. Co., 1 N.C. App. 122, 160 S.E.2d 115 (1968). As to parties affected by the joined claims, see 218 et seq. [FN3] Cal.Weintraub v. Soronow, 115 Cal. App. 145, 1 P.2d 28 (2d Dist. 1931). IowaDonahoe v. Gagen, 217 Iowa 88, 250 N.W. 892 (1933). Kan.Emanuel Home v. Bergin, 127 Kan. 593, 274 P. 284 (1929). Tex.Bond v. Hancock, 163 S.W. 660 (Tex. Civ. App. Galveston 1914). Express and implied contracts for services Kan.Emanuel Home v. Bergin, 127 Kan. 593, 274 P. 284 (1929). [FN4] IdahoPhy v. Selby, 35 Idaho 409, 207 P. 1077 (1922). IowaDonahoe v. Gagen, 217 Iowa 88, 250 N.W. 892 (1933). Kan.Brakensiek v. Shaffer, 203 Kan. 817, 457 P.2d 511 (1969). Mo.Edmonds v. Stratton, 457 S.W.2d 228 (Mo. Ct. App. 1970). Neb. Associated Wrecking and Salvage Co. v. Wiekhorst Bros. Excavating & Equipment Co., 228 Neb. 764, 424 N.W.2d 343 (1988). Or. Kashmir Corp. v. Patterson, 43 Or. App. 45, 602 P.2d 294 (1979), judgment aff'd, 289 Or. 589, 616 P.2d 468 (1980). Tex.Olivares v. Porter Poultry & Egg Co., 523 S.W.2d 726 (Tex. Civ. App. San Antonio 1975). As to actions for specific performance or quantum meruit, see 212. Allegations in alternative Tex.Bond v. Hancock, 163 S.W. 660 (Tex. Civ. App. Galveston 1914). Contract or quasi-contract Pa.Daniel Adams Associates, Inc. v. Rimbach Pub. Inc., 287 Pa. Super. 74, 429 A.2d 726 (1981). Suit for attorney fee Joinder of counts on express contract and upon quantum meruit for attorney's fees is proper where it
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was not alleged that there was any agreement as to either the extent or amount of work to be done or amount of the fee to be charged. Ga.Perlis v. Horne, 118 Ga. App. 511, 164 S.E.2d 281 (1968). [FN5] Tex.Gist v. Turner, 32 S.W.2d 399 (Tex. Civ. App. El Paso 1930). [FN6] Ga.Morrow v. Fitzpatrick, 34 Ga. App. 801, 131 S.E. 189 (1926). Wash.Murphy v. Prosser, 96 Wash. 499, 165 P. 390 (1917). [FN7] Miss.Aetna Ins. Co. v. Commander, 169 Miss. 847, 153 So. 877 (1934). [FN8] Wash. Desmond v. Liberty Northwest Ins. Corp., 63 Wash. App. 81, 817 P.2d 872 (Div. 1 1991). [FN9] Ga.Stone v. Edwards, 32 Ga. App. 479, 124 S.E. 54 (1924). [FN10] S.C.Gwathmey v. Burgiss, 98 S.C. 152, 82 S.E. 394 (1914). [FN11] Ill.Turzynski v. Liebert, 39 Ill. App. 3d 87, 350 N.E.2d 76 (1st Dist. 1976). As to whether a contract gives rise to more than one cause of action, see 191. [FN12] Ark.State Life Ins. Co. v. Goodrum, 189 Ark. 509, 74 S.W.2d 230 (1934). [FN13] Claims for wages Ariz.Mosher v. Bellas, 33 Ariz. 147, 264 P. 468 (1928). Insurance claims A health care provider, as the assignee of a number of claims for personal injury protection benefits, could, under a permissive joinder rule, bring them against a single insurer in a single lawsuit. N.J.Lech v. State Farm Ins. Co., 335 N.J. Super. 254, 762 A.2d 269 (App. Div. 2000). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 205 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VII. Joinder of Causes of Action C. Joinder Under Statutes and Rules of Civil Procedure 2. Joinder of Particular Types of Claims Topic Summary References Correlation Table 206. Personal injury West's Key Number Digest West's Key Number Digest, Action 45(3) Joinder of various tort claims has been allowed. Parties have the right to join all claims that arise out of their alleged injuries.[1] A plaintiff may join causes of action for separate injuries caused by separate acts of negligence on the part of the same defendant,[2] or causes based respectively upon ordinary negligence and gross negligence,[3] or causes based upon an injury resulting from the concurrence of separate acts of negligence, each of which is separately actionable.[4] Even separate accidents involving injuries to the same parts of the plaintiff's body may involve a common question of fact within the meaning of a permissive joinder statute.[5] However, claims arising from two accidents at different times and places may not be joined, where no connection between the two claims existed,[6] and need not be joined, even though the interaction of the accidents on the plaintiff's condition may be a material issue.[7] Causes of action for false imprisonment and for malicious prosecution may be joined,[8] at least where they grow out of or are based upon the same transaction or set of facts,[9] as may causes for malicious prosecution, false imprisonment, and abuse of process,[10] or claims of alienation of affections, intentional infliction of emotional distress, and negligent infliction of emotional distress.[11] Causes of action for personal injuries may be brought jointly under two or more federal statutes,[12] or a federal act and state law.[13] Product liability. Some jurisdictions allow the joinder of a strict liability action based upon a defective design theory with an action grounded in negligence.[14] However, under some product liability acts, a product liability claim may not be joined with any other cause of action, common law or statutory.[15]
[FN1] N.M.Ortega v. Shube, 93 N.M. 584, 603 P.2d 323 (Ct. App. 1979) (overruled on other grounds
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by, Bracken v. Yates Petroleum Corp., 107 N.M. 463, 760 P.2d 155 (1988)). [FN2] Ky.Louisville & N.R. Co. v. Adams, 148 Ky. 513, 147 S.W. 384 (1912). [FN3] Wis.Lueke v. Senn, 165 Wis. 544, 163 N.W. 171 (1917). [FN4] Ala.Alabama Great Southern R. Co. v. Neal, 8 Ala. App. 591, 62 So. 554 (1913). [FN5] Mo.Hager v. McGlynn, 518 S.W.2d 173 (Mo. Ct. App. 1974) (overruled on other grounds by, Rodriguez v. Suzuki Motor Corp., 936 S.W.2d 104 (Mo. 1996)). As to whether the claims may be joined, even though they do not affect both tortfeasors, see 223. [FN6] Fla.Bass Orlando Lee Road, Inc. v. Lund, 702 So. 2d 250 (Fla. Dist. Ct. App. 4th Dist. 1997). [FN7] Kan.Barkley v. Freeman, 16 Kan. App. 2d 575, 827 P.2d 774 (1992). [FN8] Colo.King v. Milner, 63 Colo. 405, 167 P. 957 (1917). Mo.Burton v. Drennan, 332 Mo. 512, 58 S.W.2d 740 (1933). [FN9] Mo.Rosendale v. Market Square Dry Goods Co., 213 S.W. 169 (Mo. Ct. App. 1919). [FN10] S.D.Just v. Martin Bros Co., 37 S.D. 470, 159 N.W. 44 (1916). [FN11] UtahHeiner v. Simpson, 2001 UT 39, 23 P.3d 1041 (Utah 2001). [FN12] Employers' Liability Act and Federal Boiler Inspection Act Cal.Walton v. Southern Pac. Co., 8 Cal. App. 2d 290, 48 P.2d 108 (1st Dist. 1935). [FN13] Ark.St. Louis-San Francisco Ry. Co. v. Boudreaux, 159 Ark. 684, 252 S.W. 913 (1923). [FN14] N.H.Trull v. Volkswagen of America, Inc., 145 N.H. 259, 761 A.2d 477 (2000). [FN15] Conn. Hoboken Wood Flooring Corp. v. Torrington Supply Co., Inc., 42 Conn. Supp. 153, 606 A.2d 1006 (Super. Ct. 1991). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 206 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VII. Joinder of Causes of Action C. Joinder Under Statutes and Rules of Civil Procedure 2. Joinder of Particular Types of Claims Topic Summary References Correlation Table 207. Defamation West's Key Number Digest West's Key Number Digest, Action 45(3) Joinder may be allowed of various libels or publications of those libels, as well as claims of other torts. It may be permissible to join different causes for libel,[1] causes for different publications of the same libel,[2] or different causes for slander.[3] A cause of action for libel and slander may also be joined with one for wrongful death,[4] false-light invasion of privacy,[5] or of interference with contractual obligations.[6] A cause of action for libel and slander may be joined with ones for invasion of privacy and conversion of personal property, where there is sufficient identity of parties, place, time and circumstances, and a continuing episode of conduct is established.[7]
[FN1] Ga.Atlanta Journal Co. v. Pearce, 145 Ga. 694, 89 S.E. 759 (1916). Mo.Merriam v. Star-Chronicle Pub. Co., 29 S.W.2d 201 (Mo. Ct. App. 1930). [FN2] Ala.Bridwell v. Brotherhood of Railroad Trainmen, 227 Ala. 443, 150 So. 338 (1933). [FN3] Ky.Miller v. Noell, 193 Ky. 659, 237 S.W. 373 (1922). [FN4] Tex.Standard v. Texas Pacific Coal & Oil Co., 47 S.W.2d 443 (Tex. Civ. App. Eastland 1931), writ dismissed w.o.j., (June 20, 1932). [FN5] Ark.Wal-Mart Stores, Inc. v. Lee, 348 Ark. 707, 74 S.W.3d 634 (2002). [FN6] N.Y.G. Weiss Sons v. Hesse, 242 A.D. 640, 272 N.Y.S. 244 (2d Dep't 1934). [FN7] S.C.Gantt v. Universal C. I. T. Credit Corp., 254 S.C. 112, 173 S.E.2d 658 (1970).
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VII. Joinder of Causes of Action C. Joinder Under Statutes and Rules of Civil Procedure 2. Joinder of Particular Types of Claims Topic Summary References Correlation Table 208. Injuries to person and property West's Key Number Digest West's Key Number Digest, Action 45(3) Claims for personal injury and property damage may generally be joined. Where causes of action for personal injury and property damage are considered separate, this is usually a result of a statute that allows them to be permissibly joined.[1] Causes of action for injuries to the person and for damage to property generally may be joined in a single action,[2] or under provisions expressly permitting such joinder.[3]
[FN1] 193. [FN2] Tex. Lacy Feed Co. v. Parrish, 517 S.W.2d 845 (Tex. Civ. App. Waco 1974), writ refused n.r.e., (Mar. 26, 1975). [FN3] Cal.Weisshand v. City of Petaluma, 37 Cal. App. 296, 174 P. 955 (3d Dist. 1918). Okla.City of Sayre v. Rice, 1928 OK 499, 132 Okla. 95, 269 P. 361 (1928). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 208 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VII. Joinder of Causes of Action C. Joinder Under Statutes and Rules of Civil Procedure 2. Joinder of Particular Types of Claims Topic Summary References Correlation Table 209. Contract and tort West's Key Number Digest West's Key Number Digest, Action 47 Tort and contract claims generally may be joined, such as where breach and fraud are alleged with regard to the same contract. Plaintiffs may be entitled to pursue all claims that arise from the breach of a contract, including those that also could have been brought as independent tort actions, absent the contract, in the same action.[1] For instance, the joining of contract and conspiracy claims may be allowed, even if this would result in others becoming necessary parties, so long as this would not turn the case into one that is inconvenient to try.[2] A cause of action for breach of contract or warranty may be joined with one for fraud or misrepresentation with regard to the contract.[3] Thus, although a party may not ordinarily recover contractual damages in a tort action, claims for fraudulent inducement and breach of contract may be brought in the same suit.[4] Claims to recover money had and received may be joined with a cause of action for conversion, and the causes are not duplicative, since punitive damages may be awarded for conversion.[5] It is proper, and perhaps necessary, to join a bad faith claim against an insurer with a claim for benefits under the policy.[6] However, it may not be proper to allow discovery into the insurance company's practices until the issue of coverage has been determined.[7] Joining an action to recover no-fault benefits with a tort action may be appropriate, where common issues of fact exist regarding the extent and causes of the insured's injuries.[8] Tort and contract claims that involve dissimilar issues and legal principles need not be joined, such as where one cause of action is based on an allegation that excavation and construction work violated a license agreement and interfered with the operations of a neighboring business, and the other claim is for the death of an excavation worker.[9]
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[FN1] Tex.Manzo v. Ford, 731 S.W.2d 673 (Tex. App. Houston 14th Dist. 1987). Construction contract An owner could join breach of contract and tort claims against a contractor in the same suit. Va.Chesapeake and Potomac Telephone Co. of Virginia v. Sisson and Ryan, Inc., 234 Va. 492, 362 S.E.2d 723 (1987). [FN2] Or.Whitaker v. Bank of Newport, 313 Or. 450, 836 P.2d 695 (1992). [FN3] U.S.Ritchie v. Landau, 475 F.2d 151 (2d Cir. 1973). Ind.Nave v. Powell, 62 Ind. App. 274, 110 N.E. 1016 (Div. 1 1916). Ky.Ades v. Wash, 199 Ky. 687, 251 S.W. 970 (1923). Minn.Harris v. Simplex Tractor Co., 140 Minn. 278, 167 N.W. 1045 (1918). N.Y.Sommer v. Ehrgott, 193 A.D. 663, 184 N.Y.S. 802 (2d Dep't 1920). S.C.Cline v. Southern Ry. Co., 110 S.C. 534, 96 S.E. 532 (1918). [FN4] U.S.In re Apex Automotive Warehouse, L.P., 205 B.R. 547 (Bankr. N.D. Ill. 1997). Fla.Williams v. Peak Resorts Intern. Inc., 676 So. 2d 513 (Fla. Dist. Ct. App. 5th Dist. 1996). [FN5] N.Y. Prudential-Bache Securities Inc. v. Golden Larch-Sequoia, Inc., 118 A.D.2d 487, 500 N.Y.S.2d 1 (1st Dep't 1986). [FN6] U.S.Pen Coal Corp. v. William H. McGee and Co., Inc., 903 F. Supp. 980 (S.D. W. Va. 1995). Fla.State Farm Mut. Auto. Ins. Co. v. Lenard, 531 So. 2d 180 (Fla. Dist. Ct. App. 2d Dist. 1988). Tex.Underwriters Life Ins. Co. v. Cobb, 746 S.W.2d 810 (Tex. App. Corpus Christi 1988). [FN7] Fla.Hartford Ins. Co. v. Mainstream Const. Group, Inc., 864 So. 2d 1270 (Fla. Dist. Ct. App. 5th Dist. 2004). [FN8] N.Y.Nellegar v. Cote, 255 A.D.2d 821, 680 N.Y.S.2d 297 (3d Dep't 1998). [FN9] N.Y.197 Merrick Road Corp. v. 185 Merrick Road Associates, 152 A.D.2d 551, 543 N.Y.S.2d 482 (2d Dep't 1989). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 209 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VII. Joinder of Causes of Action C. Joinder Under Statutes and Rules of Civil Procedure 2. Joinder of Particular Types of Claims Topic Summary References Correlation Table 210. Title to or possession of real property West's Key Number Digest West's Key Number Digest, Action 45(1), 45(2) Various claims related to title or possession of property may be joined, or may be joined with contract claims, but joinder in forcible entry and detainer statutes may be limited. A claim to quiet title may be joined with one for slander of title.[1] Claims may also be joined for trespass and de facto taking,[2] or to quiet title, declare a forfeiture under a land contract, and recover damages for withholding the property.[3] However, claims for possession, damages for trespass, and the establishment of true boundaries may not be joined, where the last request for relief requires a special statutory proceeding.[4] An issue as to the title of property may be joined with a claim that the vendor was unjustly enriched by the purchaser's overpayments.[5] However, consolidation of a specific performance claim with a summary holdover proceeding is not appropriate where the specific performance claim was not ready for trial.[6] Except as expressly permitted by statute,[7] an action of forcible entry and detainer or of forcible or unlawful detainer, for possession of premises, may not be joined with a claim for damages for rent,[8] of for breach of contract,[9] although growing out of the same transaction. A forcible detainer statute may allow the joinder of matters that are considered germane to the issue of possession, but the term "germane" is construed more strictly in actions involving commercial leases.[10]
[FN1] N.M.Den-Gar Enterprises v. Romero, 94 N.M. 425, 611 P.2d 1119 (Ct. App. 1980). [FN2] N.Y. O'Brien v. City of Syracuse, 79 A.D.2d 874, 434 N.Y.S.2d 547 (4th Dep't 1980), order aff'd, 54 N.Y.2d 353, 445 N.Y.S.2d 687, 429 N.E.2d 1158 (1981). [FN3] Cal.Keele v. Clouser, 92 Cal. App. 526, 268 P. 682 (2d Dist. 1928). [FN4] N.C.Johnson v. Daughety, 270 N.C. 762, 155 S.E.2d 205 (1967).
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As to a prohibition on cumulation under the civil law, see 198. [FN5] Minn.Block v. Litchy, 428 N.W.2d 850 (Minn. Ct. App. 1988). [FN6] N.Y.White v. Smith, 117 A.D.2d 734, 499 N.Y.S.2d 2 (2d Dep't 1986). [FN7] Past-due rent A cause of action for past-due rent may be properly joined to a forcible entry and detainer suit, since both causes of action are governed by the same statutes. Tex.Wetsel v. Fort Worth Brake, Clutch & Equipment, Inc., 780 S.W.2d 952 (Tex. App. Fort Worth 1989). Future damages Although a summary possession statute terminates the landlord-tenant relationship, it does not limit the landlord's award to damages that have accrued as of the time of judgment, and does not preclude a landlord from joining a breach of contract action, seeking damages as measured by future rent, with the summary possession action. Haw.Hi Kai Inv., Ltd. v. Aloha Futons Beds & Waterbeds, Inc., 84 Haw. 75, 929 P.2d 88 (1996). Reformation Joinder of a forcible entry and detainer action with a hearing on reformation of the lease was proper, where the lessor raised equitable issues relevant to the question of rightful possession. S.D.LPN Trust v. Farrar Outdoor Advertising, Inc., 1996 SD 97, 552 N.W.2d 796 (S.D. 1996). [FN8] Okla.Hart v. Ferguson, 1918 OK 639, 73 Okla. 293, 176 P. 396 (1918). [FN9] Cal.Vasey v. California Dance Co., 70 Cal. App. 3d 742, 139 Cal. Rptr. 72 (2d Dist. 1977). [FN10] Ill.Great American Federal Sav. & Loan Ass'n v. Grivas, 137 Ill. App. 3d 267, 91 Ill. Dec. 870, 484 N.E.2d 429 (1st Dist. 1985). Eviction and enforcement of guaranty An action against a personal guarantor of the performance of all covenants of a lease by a corporate lessee could not be regarded as intimately related to the distinctive purposes of the lessor's forcible entry and detainer action against the lessee, and joinder of the action on the guaranty was improper. Ill.Twin-City Inn, Inc. v. Hahne Enterprises, Inc., 37 Ill. 2d 133, 225 N.E.2d 630 (1967). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 210
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END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VII. Joinder of Causes of Action C. Joinder Under Statutes and Rules of Civil Procedure 2. Joinder of Particular Types of Claims Topic Summary References Correlation Table 211. Recovery of personal property West's Key Number Digest West's Key Number Digest, Action 45(2) Some statutes bar the joinder of other claims in a replevin action. Where a statute prescribing the action of replevin provides that the action may not be joined with other claims for relief, claims for conversion or the like may not be joined.[1] It may be improper to include in a replevin action a count for the conversion of goods not in the defendant's possession,[2] or an action on promissory notes given under a conditional sale agreement in an action to replevy the goods sold.[3] However, the remedy for misjoinder in a replevin case is not to dismiss the action, but to docket the action for damages separately or strike the improperly joined claims, retaining at least one cause of action docketed in the original case.[4]
[FN1] IowaRoush v. Mahaska State Bank, 605 N.W.2d 6 (Iowa 2000). [FN2] N.J.Barenson v. Zaritsky, 11 N.J. Misc. 530, 167 A. 671 (Sup. Ct. 1933). [FN3] Okla.Galbreath v. Mayo, 1918 OK 414, 70 Okla. 252, 174 P. 517 (1918). [FN4] IowaRoush v. Mahaska State Bank, 605 N.W.2d 6 (Iowa 2000). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 211 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VII. Joinder of Causes of Action C. Joinder Under Statutes and Rules of Civil Procedure 2. Joinder of Particular Types of Claims Topic Summary References Correlation Table 212. Legal and equitable causes West's Key Number Digest West's Key Number Digest, Action 44, 46 Except where the effect of particular statutory provisions is otherwise, the general rule is that legal and equitable causes of action may be joined. While the provisions abolishing the distinction between actions at law and suits in equity do not abrogate the distinction between legal and equitable rights or remedies, they render it proper to join in one pleading actions to enforce legal and equitable rights or to obtain legal and equitable relief,[1] including ancillary equitable relief.[2] The Federal Rules of Civil Procedure allow the joinder of as many claims, legal, equitable, or maritime, as a party has against an opposing party,[3] and this preserves the right to invoke the jurisdiction of historically separate departments of a district court in a single action.[4] Similarly, where a state court with jurisdiction over the parties and controversy has the power to render whatever relief is required, be it equitable or damages, there is no need to institute two separate proceedings.[5] The difficulties that arise when claims and defenses at law and in equity are joined are not jurisdictional, but practical, including such matters as what issues are to be tried first or by a jury.[6] However, other statutes and rules do not authorize the joinder of equitable and legal rights of action, with varying procedural rights, in the same proceeding.[7] Under a rule authorizing the joinder of causes of action arising out of the same transaction or transactions connected with the same subject of action,[8] causes so arising may be joined even though some of them are legal and others equitable.[9] On the other hand, while a state may allow the comingling of legal and equitable matters in a single action under certain circumstances,[10] its rule requiring the joinder of actions of a type formerly classified as in the nature of trespass or assumpsit arising from the same transaction against the same person does not require the joinder of any actions arising in equity.[11] In particular cases, joinder of legal and equitable claims may be improper because of a direct statutory prohibition,[12] or the claims do not arise out of the same transaction or transactions connected with the same subject of action.[13] Specific performance and money judgment.
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Generally, a plaintiff may, in the same action, join a demand for the specific performance of a contract and a claim for damages for a breach of that contract, the remedies or causes being consistent.[14] A suit for specific performance of a contract to will property may be joined with a count based upon a quantum meruit.[15] Injunction and legal relief. A plaintiff may, in the same action, sue to recover damages already sustained, and to enjoin the repetition or continuance of the harm.[16] Likewise, the joinder of a cause of action for an injunction and an action in the nature of a proceeding in quo warranto has been allowed,[17] as has the joinder of a claim for an injunction against, and one for an accounting from, an executor.[18] A claim to enjoin the levy and collection of future real estate taxes may not be joined with an action to recover taxes paid under protest.[19] CUMULATIVE SUPPLEMENT Statutes: Fed. R. Civ. P. 18(a) was amended in 2007 to eliminate the reference to "legal, equitable, or maritime claims", and now provides that "A party asserting a claim, counterclaim, crossclaim, or third-party claim may join, as independent or alternative claims, as many claims as it has against an opposing party." [END OF SUPPLEMENT]
[FN1] U.S.Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S. Ct. 948, 3 L. Ed. 2d 988, 2 Fed. R. Serv. 2d 650 (1959). Ala.Poston v. Gaddis, 335 So. 2d 165 (Ala. Civ. App. 1976). Cal.Peters v. Binnard, 219 Cal. 141, 25 P.2d 834 (1933). Conn.Crepeau v. Gronager, 41 Conn. App. 302, 675 A.2d 1361 (1996). Ga.Miller v. Turner, 228 Ga. 701, 187 S.E.2d 688 (1972). Md.Mattingly v. Mattingly, 92 Md. App. 248, 607 A.2d 575 (1992). Mo.Sturgis v. Sturgis, 663 S.W.2d 375 (Mo. Ct. App. E.D. 1983). Neb.Kula v. Prososki, 219 Neb. 626, 365 N.W.2d 441 (1985). OhioDeVore v. Mutual of Omaha Ins. Co., 32 Ohio App. 2d 36, 61 Ohio Op. 2d 21, 288 N.E.2d 202 (7th Dist. Mahoning County 1972). Or.Rexnord, Inc. v. Ferris, 294 Or. 392, 657 P.2d 673 (1983). S.C.Airfare, Inc. v. Greenville Airport Commission, 249 S.C. 265, 153 S.E.2d 846 (1967). Tenn.Campbell v. Miller, 562 S.W.2d 827 (Tenn. Ct. App. 1977).
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Conversion of partnership property and accounting Minn.Leonard v. Smieja, 366 N.W.2d 372 (Minn. Ct. App. 1985). [FN2] Cal.Peters v. Binnard, 219 Cal. 141, 25 P.2d 834 (1933). [FN3] Fed. R. Civ. P. Rule 18(a). [FN4] U.S. Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 43 Fed. R. Evid. Serv. 869 (4th Cir. 1995). [FN5] Mo.State ex rel. Leonardi v. Sherry, 137 S.W.3d 462 (Mo. 2004). [FN6] Mo.State ex rel. Leonardi v. Sherry, 137 S.W.3d 462 (Mo. 2004). [FN7] Va.Packett v. Herbert, 237 Va. 422, 377 S.E.2d 438 (1989). [FN8] 217. [FN9] Cal.Blodgett v. Trumbull, 83 Cal. App. 566, 257 P. 199 (2d Dist. 1927). N.Y.Moe v. Reliance Ins. Co., 188 A.D. 977, 176 N.Y.S. 911 (2d Dep't 1919). N.C.Craven County v. Investment Co., 201 N.C. 523, 160 S.E. 753 (1931). N.D.Ulness v. Dunnell, 61 N.D. 95, 237 N.W. 208 (1931). Okla.Southwestern Sur. Ins. Co. v. Douglas, 1921 OK 153, 81 Okla. 232, 198 P. 334 (1921). [FN10] Pa.Goodwin v. Rodriguez, 520 Pa. 296, 554 A.2d 6 (1989). [FN11] Pa.D'Allessandro v. Wassel, 526 Pa. 534, 587 A.2d 724 (1991). Severance Where a request for both legal and equitable relief in the same complaint in a civil action at law, although made in separate counts, constituted a misjoinder of causes of action, since the legal and equitable causes of action did not arise from a single occurrence, a trial court erred in outright dismissing the equitable count and should have severed that count. Pa.City of Philadelphia v. Pennrose Management Co., 142 Pa. Commw. 627, 598 A.2d 105 (1991). [FN12] Md.Millison v. Citizens Nat. Bank of Southern Md., 256 Md. 431, 260 A.2d 324 (1970). Mich. Schaffer v. Eighty-One Hundred Jefferson Ave. East Corp., 267 Mich. 437, 255 N.W. 324 (1934). [FN13] N.Y.Baldwin v. A.B. Leach & Co., 214 A.D. 725, 210 N.Y.S. 381 (2d Dep't 1925). [FN14] Ga.Loewus v. Eskridge & Downing, 175 Ga. 456, 165 S.E. 576 (1932).
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Ill.Roth v. Meeker, 72 Ill. App. 3d 66, 27 Ill. Dec. 840, 389 N.E.2d 1248 (3d Dist. 1979). Okla.Okmulgee Producing & Refining Co. v. Baugh, 1925 OK 34, 111 Okla. 203, 239 P. 900 (1925). Tex.Naylor v. Parker, 139 S.W. 93 (Tex. Civ. App. Fort Worth 1911). [FN15] Ga.Pinkussohn v. Rehm, 175 Ga. 475, 165 S.E. 222 (1932). [FN16] U.S.Ward v. Village of Ridgewood, 531 F. Supp. 470 (D.N.J. 1982). Cal.Weisshand v. City of Petaluma, 37 Cal. App. 296, 174 P. 955 (3d Dist. 1918). Pollution A plaintiff in a pollution case may maintain an action at law for damages for past injuries, and, at the same time, seek equitable relief through an injunction or other extraordinary remedy to abate the continuance of the injury. Tex.Atlas Chemical Industries, Inc. v. Anderson, 514 S.W.2d 309 (Tex. Civ. App. Texarkana 1974), writ granted, (Nov. 20, 1974) and judgment aff'd, 524 S.W.2d 681 (Tex. 1975). [FN17] Enjoining taxation and annulling annexation An action to enjoin the taxation of property annexed to a school district may be joined with an action in the nature of a proceeding in quo warranto to annul the annexation proceedings. S.D.Menagh v. Elvira School Dist. No. 4 of Buffalo County, 50 S.D. 311, 210 N.W. 51 (1926). [FN18] Ga.King v. King, 225 Ga. 142, 166 S.E.2d 347 (1969). [FN19] Kan.McManaman v. Board of Com'rs of Ford County, 205 Kan. 118, 468 P.2d 243 (1970). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 212 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VII. Joinder of Causes of Action C. Joinder Under Statutes and Rules of Civil Procedure 2. Joinder of Particular Types of Claims Topic Summary References Correlation Table 213. Legal and equitable causesReformation or cancellation of instruments and other relief West's Key Number Digest West's Key Number Digest, Action 46 Claims may be joined for reformation of an instrument and its enforcement as reformed, or for cancellation of an instrument and monetary relief, unless the remedies are inconsistent. A plaintiff may, in the same pleading, properly join causes of action for the reformation of a written instrument and its enforcement as reformed.[1] Thus, one may join causes of action for the reformation of a contract and for damages for its breach,[2] or for reformation and recovery on the contract as reformed.[3] In a like manner, a deed may be reformed and enforced,[4] such as by awarding damages for a breach of covenant or warranty in the deed as reformed.[5] A contract to convey real estate may be reformed and enforced,[6] and a lease may be reformed, and damages recovered for a breach of it as reformed, in the same action.[7] In an action to recover specific real property, equitable relief with regard to the same property may, as a general rule, be sought, for the cancellation of a deed.[8] A cause of action to set aside a conveyance, which a plaintiff has been fraudulently induced to make, may be joined with one to recover money had and received[9] or for damages.[10] Cancellation or rescission of contract. Some authorities have held that a plaintiff may, in the same action, sue to recover damages for breach of a contract, and also to have the contract rescinded,[11] but, unless inconsistent claims may be pleaded,[12] joinder has been denied on the ground that the causes are inconsistent.[13]
[FN1] IdahoCarroll v. Hartford Fire Ins. Co., 28 Idaho 466, 154 P. 985 (1916). Minn.Schreiner v. Ranweiler, 169 Minn. 92, 210 N.W. 628 (1926).
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Mo.Spelman v. Delano, 187 Mo. App. 119, 172 S.W. 1163 (1915). OhioBingham v. Nypano R. Co., 112 Ohio St. 115, 3 Ohio L. Abs. 186, 147 N.E. 1 (1925). Okla.Depuy v. Selby, 1919 OK 210, 76 Okla. 307, 185 P. 107 (1919). Tex.St. Paul Fire & Marine Ins. Co. v. Culwell, 62 S.W.2d 100 (Tex. Comm'n App. 1933). Wash.Russell v. Mutual Lumber Co., 134 Wash. 508, 236 P. 96 (1925). [FN2] Minn.Schreiner v. Ranweiler, 169 Minn. 92, 210 N.W. 628 (1926). Mo.Spelman v. Delano, 187 Mo. App. 119, 172 S.W. 1163 (1915). OhioBingham v. Nypano R. Co., 112 Ohio St. 115, 3 Ohio L. Abs. 186, 147 N.E. 1 (1925). [FN3] Okla.State Mut. Ins. Co. v. Green, 1915 OK 1092, 62 Okla. 214, 166 P. 105 (1915). Wash.Russell v. Mutual Lumber Co., 134 Wash. 508, 236 P. 96 (1925). Insurance policy U.S.Rapides Club v. American Union Ins. Co. of New York, 33 F.2d 552 (W.D. La. 1929). IdahoCarroll v. Hartford Fire Ins. Co., 28 Idaho 466, 154 P. 985 (1916). [FN4] Ariz.Chantler v. Wood, 6 Ariz. App. 134, 430 P.2d 713 (1967), opinion supplemented on other grounds, 6 Ariz. App. 325, 432 P.2d 469 (1967). Okla.Depuy v. Selby, 1919 OK 210, 76 Okla. 307, 185 P. 107 (1919). [FN5] Okla.Depuy v. Selby, 1919 OK 210, 76 Okla. 307, 185 P. 107 (1919). [FN6] S.D.Hareid v. Graff, 51 S.D. 110, 212 N.W. 502 (1927). [FN7] N.Y.Manheimer v. Kuhn, 173 A.D. 135, 159 N.Y.S. 437 (1st Dep't 1916). [FN8] Ind.McKinley v. Britton, 55 Ind. App. 21, 103 N.E. 349 (Div. 1 1913). Okla.Tomlin v. Roberts, 1927 OK 133, 126 Okla. 165, 258 P. 1041 (1927). [FN9] Cal.Bonifacio v. Stuart, 52 Cal. App. 487, 199 P. 69 (1st Dist. 1921). [FN10] Conn.Crepeau v. Gronager, 41 Conn. App. 302, 675 A.2d 1361 (1996). [FN11] Rescission for usury and recovery of interest An action to rescind as usurious a promissory note and an instrument providing for the payment of a bonus for a loan was properly joined with an action for damages for interest paid.
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Cal.Jones v. Dickerman, 114 Cal. App. 357, 300 P. 135 (3d Dist. 1931). [FN12] As to pleading alternate, hypothetical, and inconsistent claims under federal practice, see C.J.S., Federal Civil Procedure 322. [FN13] N.Y.Joannes Bros. Co. v. Lamborn, 237 N.Y. 207, 142 N.E. 587 (1923). N.C.F.E. Lykes & Co. v. Grove, 201 N.C. 254, 159 S.E. 360 (1931). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 213 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VII. Joinder of Causes of Action C. Joinder Under Statutes and Rules of Civil Procedure 2. Joinder of Particular Types of Claims Topic Summary References Correlation Table 214. Legal and equitable causesEstablishment of debt and foreclosure or other creditor's remedy West's Key Number Digest West's Key Number Digest, Action 46 A plaintiff may join a claim on a debt with a request that a lien be foreclosed, or for other equitable remedies available to a creditor. As a general rule, a cause of action for the establishment or enforcement of a debt may be joined with one for the enforcement or foreclosure of a lien securing that debt,[1] or the foreclosure of a mortgage[2] or deed of trust,[3] at least, in the case of a mortgage, where the parties are limited to the parties to the debt.[4] A claim for the balance due on a land contract and a request that the judgment obtained constitutes a lien against the property and that lien be foreclosed may be combined in one proceeding.[5] Under the general rule that legal and equitable relief may be sought in the same action, a creditor may, in the same proceeding, obtain a judgment for the debt and also have the aid of equity to subject property of the debtor to the payment of the debt,[6] as by the setting aside of a fraudulent conveyance.[7] Provisions authorizing both legal and equitable relief in the same court, and the joinder of legal and equitable causes in the same action, obviate the creditor's need to exhaust legal remedies, recover a judgment against the debtor, and attempt to levy on the debtor's property before pursuing the fraudulently conveyed property.[8] A creditor may join an equitable cause of action to have an implied trust declared with an action at law, to prevent the debtor from fraudulently disposing of property so as to defeat the legal claim.[9]
[FN1] N.Y.Cooper & Evans Co. v. Manhattan Bridge Three-Cent Line, 164 A.D. 64, 149 N.Y.S. 433 (2d Dep't 1914). Tex.Sims v. Callihan, 39 S.W.2d 153 (Tex. Civ. App. Eastland 1931), writ dismissed w.o.j., (July 22, 1931). [FN2] Colo.Parker v. McGinty, 77 Colo. 458, 239 P. 10 (1925).
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IowaLeekley v. Short, 216 Iowa 376, 249 N.W. 363, 91 A.L.R. 394 (1933) (overruled in part on other grounds by, Johanik v. Des Moines Drug Co., 235 Iowa 679, 17 N.W.2d 385 (1945)). Mo.Commerce Trust Co. v. White, 172 Mo. App. 537, 158 S.W. 457 (1913). S.C.People's Bank of Hartsville v. Bryant, 148 S.C. 133, 145 S.E. 692 (1928). Wis.Cavadini v. Larson, 211 Wis. 200, 248 N.W. 209 (1933). [FN3] N.C.Marshville Cotton Mills v. Maslin, 195 N.C. 12, 141 S.E. 348 (1928). [FN4] Wis.Cavadini v. Larson, 211 Wis. 200, 248 N.W. 209 (1933). [FN5] N.M.Armstrong v. Csurilla, 112 N.M. 579, 817 P.2d 1221 (1991). [FN6] N.J.Polk v. Schwartz, 166 N.J. Super. 292, 399 A.2d 1001 (App. Div. 1979). [FN7] U.S.Super Value Stores, Inc. v. Parker's Food Town, Inc., 525 F. Supp. 730 (N.D. Ga. 1981). Ga.Coleman v. Law, 170 Ga. 906, 154 S.E. 445, 74 A.L.R. 684 (1930). N.C.Allred v. Robbins, 205 N.C. 823, 172 S.E. 404 (1934). N.D.Baird v. Meyer, 55 N.D. 930, 215 N.W. 542, 56 A.L.R. 175 (1927). S.D.Ott v. Cheney, 63 S.D. 524, 261 N.W. 204 (1935). Tex.City of Huntsville v. McKay, 286 S.W. 305 (Tex. Civ. App. Texarkana 1926). Conversion and fraudulent conveyance of secured property Conversion and fraudulent conveyance claims were properly joined in a creditor's action to recover personal property described in a security agreement, as well as a deficiency judgment. Tenn.Fred's Finance Co. v. Fred's of Dyersburg, Inc., 741 S.W.2d 903, 4 U.C.C. Rep. Serv. 2d 1613 (Tenn. Ct. App. 1987). [FN8] Ariz.First Nat. Bank v. McDonough, 19 Ariz. 223, 168 P. 635 (1917). Ga.Lebovitz v. Mudd, 293 S.C. 49, 358 S.E.2d 698 (1987). N.D.Baird v. Meyer, 55 N.D. 930, 215 N.W. 542, 56 A.L.R. 175 (1927). [FN9] Ga.Coleman v. Law, 170 Ga. 906, 154 S.E. 445, 74 A.L.R. 684 (1930). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 214 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VII. Joinder of Causes of Action C. Joinder Under Statutes and Rules of Civil Procedure 2. Joinder of Particular Types of Claims Topic Summary References Correlation Table 215. Declaratory judgment and other claims West's Key Number Digest West's Key Number Digest, Action 44, 45(1) Claims for other relief may generally be joined in an action for a declaratory judgment. A claim for damages may be joined with claim for declaratory relief.[1] Other legal relief, such as a writ of possession, may be sought in an action for a declaratory judgment.[2] A petition for a writ of mandate may sometimes be properly joined with a complaint for declaratory relief.[3] Furthermore, a suit seeking a refund of taxes paid under protest may be joined with a declaratory judgment action, so long as the taxpayer first follows the protest procedure.[4]
[FN1] Mo.State ex rel. Riordan v. Dierker, 956 S.W.2d 258 (Mo. 1997). Insurance An insured was not barred from bringing an action, seeking a declaration that she was entitled to coverage under a home health care insurance policy, and a bad faith breach of contract claim in the same suit, although the insured could not recover on the bad faith claim absent a finding that she was entitled to coverage; the trier of fact could be directed to address the threshold question of coverage before addressing the bad faith claim. U.S.Lister v. Bankers Life and Cas. Co., 218 F. Supp. 2d 49, 2002 DNH 163 (D.N.H. 2002). [FN2] N.Y.Thames Realty Co. v. Grant, 128 A.D.2d 415, 512 N.Y.S.2d 698 (1st Dep't 1987). [FN3] Cal. Environmental Protection Information Center, Inc. v. Maxxam Corp., 4 Cal. App. 4th 1373, 6 Cal. Rptr. 2d 665 (1st Dist. 1992). [FN4] Tex.Bullock v. Marathon Oil Co., 798 S.W.2d 353 (Tex. App. Austin 1990).
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VII. Joinder of Causes of Action C. Joinder Under Statutes and Rules of Civil Procedure 2. Joinder of Particular Types of Claims Topic Summary References Correlation Table 216. Penalties West's Key Number Digest West's Key Number Digest, Action 45(1) Claims for penalties may be joined with other claims, if they arose out of the same transaction, or on a similar basis. Joinder of claims for the recovery of penalties may be proper under provisions authorizing the joinder of causes arising out of a contract.[1] Furthermore, such joinder has been held proper as being of causes capable of the same character of relief.[2] Joinder of a claim to recover a penalty with a different cause of action may be proper on the ground that both causes arose out of a contract,[3] or arose out of the same transaction or transactions connected with the same subject.[4] For instance, claims brought under a conflict of interest statute to remove and penalize a school board member, whose spouse was employed by the district, and for the forfeiture of the spouse's salary under a tainted contract, were properly joined, under rules of civil procedure governing the joinder of claims and parties, even though the two claims required different burdens of proof, where the claims asked jointly for relief, arose out of same transaction or occurrence, and presented on their face common questions of both law and fact.[5]
[FN1] Okla.State Bank of Paden v. Lanam, 1912 OK 477, 34 Okla. 485, 126 P. 220 (1912). [FN2] Ariz.Miami Copper Co. v. State, 17 Ariz. 179, 149 P. 758 (1915). [FN3] N.C.Robertson v. Atlantic Coast Line R. Co., 148 N.C. 323, 62 S.E. 413 (1908). [FN4] Mo.Shaffer v. Chicago, R.I. & P.R. Co., 300 Mo. 477, 254 S.W. 257 (1923), aff'd, 263 U.S. 687, 44 S. Ct. 228, 68 L. Ed. 507 (1924). [FN5] Miss. Towner v. Moore ex rel. Quitman County School Dist., 604 So. 2d 1093, 77 Ed. Law Rep. 1056 (Miss. 1992).
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VII. Joinder of Causes of Action C. Joinder Under Statutes and Rules of Civil Procedure 2. Joinder of Particular Types of Claims Topic Summary References Correlation Table 217. Causes arising out of same transaction West's Key Number Digest West's Key Number Digest, Action 48(1) to 48(3) Some state rules limit the joinder of claims to those arising out of the same transaction or occurrence. Under the practice in some states, plaintiffs may only join claims arising out of the same transaction or occurrence.[1] Some courts have held that the joinder of unrelated claims is unfair to the parties in the absence of a common operative set of facts.[2] While it has been held that, absent special circumstances, all claims of a party arising out of an occurrence giving rise to any one claim must be joined,[3] under other authority, a plaintiff is not required to join separate causes of action arising out of the same transaction.[4] Under some statutes, joinder is mandated, upon a defendant's motion, with respect to claims derived from personal injuries sustained by a single individual, while it is not required in other cases involving multiple claims resulting from the same occurrence.[5] In conformity to the purpose of joinder statutes generally,[6] the purpose of these rules or provisions is to avoid multiple lawsuits by settling, in one action, all claims arising from transactions or occurrences that gave rise to the plaintiff's complaint,[7] and to effect, in one action, a complete determination of all matters in controversy between the parties,[8] affecting one subject matter.[9] The purpose is also to expedite the disposition of litigation, at minimum cost.[10] These provisions or rules should be construed so as to avoid a multiplicity of suits,[11] where possible, without prejudice to the rights of litigants.[12] Being of a remedial nature, the provision or rule should be liberally construed, to the end that related controversies between the same parties may be adjudicated at one time.[13] However, where common questions are not presented, joinder under a statute governing joinder of all claims arising out of a transaction is not permitted.[14] Similarly, under a statute that authorizes joinder of claims if they arise out of the same transaction, occurrence, or series of transactions or occurrences, the fact that evidence of a similar transaction is admissible does not authorize the joinder of claims involving that other transaction.[15] Under some authority, a charge of conspiracy alleges a series of transactions related by a common purpose or intent, and is usually sufficient to meet the requirements of a statute or rule permitting the joinder of claims
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arising from concerted action.[16] However, there is also authority that the mere allegation of a conspiracy does not make several separate torts part of the same transaction.[17] Joinder may not be premised on the existence of a common transaction or occurrence, if torts were committed in separate transactions.[18] A cause of action for trespass by wrongfully depriving a tenant of possession of an apartment, and a cause of action to recover possession of personal property that was in the apartment at the time, and was wrongfully retained by the landlord, may be joined in the same complaint, since both causes of action arose out of the same "transaction."[19] CUMULATIVE SUPPLEMENT Cases: Policyholders' claims against life insurer to recover for fraud and negligence or wantonness did not arise out of a series of transactions or occurrences and, therefore, were not subject to permissive joinder; each agent made different oral and written representations to policyholders, each policyholder's reliance on the representations was different, the circumstances surrounding each policy were different, the policies were individually sold by individual agents who had received individual training, and the policies were individually handled according to the particular needs of each policyholder. Ex parte Alfa Life Ins. Corp., 2005 WL 1492062 (Ala. 2005). The "feasible joinder" principle requires that loss of consortium claims be brought with the primary injury or death claim unless the plaintiff can show it was not feasible for the consortium claim to be joined with the primary claim. Christy v. Miulli, 692 N.W.2d 694 (Iowa 2005). Joinder of a loss of consortium with the claim based on the primary injury or death is not required when it is not feasible. Christy v. Miulli, 692 N.W.2d 694 (Iowa 2005). The feasible joinder rule which requires that a loss of consortium claim be brought with a primary injury or death claim is designed to reduce a multiplicity of suits and the possibility of double recovery. Christy v. Miulli, 692 N.W.2d 694 (Iowa 2005). Permissive joinder may be allowed when two conditions are shown: (1) the issues in the litigations arise out of the same transaction, occurrence, or series of transactions, and (2) there is a common question of law or fact with respect to all or part of the action. Kennedy v. Lasting Paints, Inc., 404 Md. 427, 947 A.2d 503 (2008). From a policy standpoint, rules permitting the joinder of multiple parties and claims were to remedy the procedural and substantive defects in the law which prevented the resolution in one action of the rights and obligations of all parties whose connection with the case arose out of the same source and occurrence. Kennedy v. Lasting Paints, Inc., 404 Md. 427, 947 A.2d 503 (2008). [END OF SUPPLEMENT]
[FN1] Pa.D'Allessandro v. Wassel, 526 Pa. 534, 587 A.2d 724 (1991). As to whether equitable claims may be joined under such a rule, see 212. [FN2] La.Albarado v. Union Pacific R.R. Co., 787 So. 2d 431 (La. Ct. App. 4th Cir. 2001), writ granted on other grounds, 796 So. 2d 666 (La. 2001). As to cumulation being the civil law equivalent to joinder, see 198.
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[FN3] Minn.Boland v. Morrill, 275 Minn. 496, 148 N.W.2d 143 (1967) (overruled on other grounds by, Busch v. Busch Const., Inc., 262 N.W.2d 377 (Minn. 1977)). Single suit Where a controversy grew out of and is incident to the same transaction and relates to the same subject matter, the parties must settle all their controversies in a single suit, if practicable. Tex.Humphreys v. Young, 293 S.W. 655 (Tex. Civ. App. Amarillo 1927). [FN4] Cal.Stanson v. Mott, 17 Cal. 3d 206, 130 Cal. Rptr. 697, 551 P.2d 1 (1976). As to whether joinder is mandatory or permissive, see 200. [FN5] Ga.Stenger v. Grimes, 260 Ga. 838, 400 S.E.2d 318 (1991). [FN6] 199. [FN7] Ariz.Staffco, Inc. v. Maricopa Trading Co., 122 Ariz. 353, 595 P.2d 31 (1979). Okla. Construction Resources Corp. v. Courts, Ltd., 1979 OK CIV APP 1, 591 P.2d 335 (Ct. App. Div. 1 1979). Pa.Goodman v. Kotzen, 436 Pa. Super. 71, 647 A.2d 247 (1994). Tex.Hudmon v. Foster, 231 S.W. 346 (Tex. Comm'n App. 1921). [FN8] Md. Great Atlantic & Pacific Tea Co. v. Royal Crown Bottling Co., 243 Md. 280, 220 A.2d 598 (1966). [FN9] Cal.Morris v. Judkins, 36 Cal. App. 413, 172 P. 163 (1st Dist. 1918). [FN10] Tex.Craig v. City of Dallas, 20 S.W.2d 154 (Tex. Civ. App. Dallas 1929), writ refused, (Dec. 11, 1929). Speedy and efficient resolution Mich.Todd v. Department of Corrections, 232 Mich. App. 623, 591 N.W.2d 375 (1998). [FN11] Minn.Price v. Minnesota, D. & W. Ry. Co., 130 Minn. 229, 153 N.W. 532 (1915). N.D.Stark County v. Mischel, 33 N.D. 432, 156 N.W. 931 (1916). [FN12] N.D.Stark County v. Mischel, 33 N.D. 432, 156 N.W. 931 (1916). Tex.Standard Acc. Ins. Co. v. Arnold, 1 S.W.2d 434 (Tex. Civ. App. Austin 1927). [FN13] Cal.Blodgett v. Trumbull, 83 Cal. App. 566, 257 P. 199 (2d Dist. 1927). IowaLiberty Loan Corp. of Des Moines v. Williams, 201 N.W.2d 462 (Iowa 1972).
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Minn.Price v. Minnesota, D. & W. Ry. Co., 130 Minn. 229, 153 N.W. 532 (1915). Okla.Chicago, R. I. & P. R. Co. v. Davila, 1971 OK 125, 489 P.2d 760 (Okla. 1971). [FN14] Okla.Construction Resources Corp. v. Courts, Ltd., 1979 OK CIV APP 1, 591 P.2d 335 (Ct. App. Div. 1 1979). [FN15] Ga.Howard Motor Co., Inc. v. Swint, 214 Ga. App. 682, 448 S.E.2d 713 (1994). [FN16] Ind.Gumz v. Starke County Farm Bureau Co-op. Ass'n, Inc., 271 Ind. 694, 395 N.E.2d 257, 27 U.C.C. Rep. Serv. 1000 (1979). [FN17] IdahoDahlquist v. Mattson, 40 Idaho 378, 233 P. 883 (1925). [FN18] Attorney malpractice Two claims against an attorney, in which the plaintiff alleged that the attorney negligently represented her in two separate real estate transactions, were improperly joined; each act of negligence constituted a separate tort involving a distinct subject of action. Conn.Teris v. Dawson, 173 Conn. 206, 377 A.2d 288 (1977). [FN19] UtahFudge v. Downing, 83 Utah 101, 27 P.2d 33 (1933). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 217 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VII. Joinder of Causes of Action C. Joinder Under Statutes and Rules of Civil Procedure 3. Joinder of Claims in Multiparty Cases Topic Summary References Correlation Table 218. Generally West's Key Number Digest West's Key Number Digest, Action 50(1) A joinder of causes of action generally does not require that all the causes of action joined in the same complaint affect all of the parties to the action, especially where rules allow the broad joinder of claims in third party complaints and cross claims, although courts following traditional authority require that causes of action, to be joined, affect all the parties to the action. In multiparty cases, a joinder of causes of action under some statutory provisions or rules does not require that all the causes of action joined in the same complaint affect all of the parties to the action.[1] Accordingly, separate causes of action not between the same parties may be joined in a single complaint,[2] so long as rules regarding necessary and permissive parties, third parties, and cross claims are satisfied.[3] Since a rule governing the joinder of claims does not authorize the joinder of additional parties, but only allows a party to assert other claims against any other party already in the suit,[4] the joinder of claims becomes relevant only after the requirements of the rule on permissive joinder of parties have been met with respect to a party against whom a claim is to be asserted.[5] A party asserting a third party claim may, under some rules, join in a single action as many claims as the pleader has against a third party defendant,[6] or, in accordance with federal practice, a third party claim may include any claim that is the subject matter of the opposing party's claim.[7] A third party plaintiff is not required to file a new suit and secure service of process when the law clearly allows it to join claims.[8] Also, a rule permitting the joinder of related claims allows a party to maintain claims against a third-party defendant.[9] A cross claim, under the Federal Rules, may include any claim by one party against a coparty arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim, or relating to any property that is the subject matter of the original action.[10] Statutes or rules allowing the joinder of claims in third party claims, cross claims, and the like apply whether the causes of action joined are legal or equitable, or both.[11] Under some statutory provisions, a trial court has great discretion concerning the joinder of causes of action
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and the joinder of parties.[12] Judicial efficiency may be served by allowing a third party plaintiff to cumulate claims, so that all damages arising out of an accident can be determined.[13] Reasonably related claims for relief by or against different parties may be permissibly joined.[14] Another jurisdiction follows the "entire controversy doctrine," which requires the mandatory joinder of all parties, and that a party assert all claims that he or she may have against any other party, so as to dispose of the entire controversy.[15] Some cases, following traditional authority, hold that causes of action, to be properly joined, must affect all of the parties to the action.[16] In accordance with this rule, separate causes of action between the same parties may be joined,[17] at least if they are capable of the same relief,[18] but separate causes not between the same parties may not,[19] although they concern the same property.[20]
[FN1] D.C.Green v. Louis Fireison & Associates, 618 A.2d 185 (D.C. 1992). N.Y.Sherlock v. Manwaren, 208 A.D. 538, 203 N.Y.S. 709 (4th Dep't 1924). N.C.Robertson v. Bankers & Tel. Emp. Ins. Co., 1 N.C. App. 122, 160 S.E.2d 115 (1968). OhioHenderson v. Ryan, 13 Ohio St. 2d 31, 42 Ohio Op. 2d 65, 233 N.E.2d 506 (1968). S.C.McGann v. Mungo, 287 S.C. 561, 340 S.E.2d 154 (Ct. App. 1986). [FN2] N.Y.Sherlock v. Manwaren, 208 A.D. 538, 203 N.Y.S. 709 (4th Dep't 1924). N.C.Robertson v. Bankers & Tel. Emp. Ins. Co., 1 N.C. App. 122, 160 S.E.2d 115 (1968). OhioHenderson v. Ryan, 13 Ohio St. 2d 31, 42 Ohio Op. 2d 65, 233 N.E.2d 506 (1968). [FN3] Tex.Texas Land Drilling Co. v. First State Bank & Trust Co. of Port Lavaca, 445 S.W.2d 571 (Tex. Civ. App. Corpus Christi 1969), writ refused n.r.e., (Dec. 31, 1969). As to joinder of parties, see C.J.S., Parties 41 to 53, 56 to 73. Misjoinder of both claims and parties In action brought by the operator of taxicab business and by a taxicab driver against the owner of a bus terminal and terminal agent for tortious interference with a business relationship and for assault and battery on the driver, the inclusion of both counts in the same complaint created a misjoinder of claims and a misjoinder of parties, since the causes of action were entirely separate. Fla.Tamiami Trail Tours, Inc. v. Cotton, 463 So. 2d 1126 (Fla. 1985). [FN4] U.S.Tietz v. Blackner, 157 F.R.D. 510 (D. Utah 1994). [FN5] U.S.Intercon Research Associates, Ltd. v. Dresser Industries, Inc., 696 F.2d 53 (7th Cir. 1982). [FN6] Mo.Rabon v. Michigan Mut. Ins. Co., 654 S.W.2d 648 (Mo. Ct. App. E.D. 1983). [FN7] Fed. R. Civ. P. Rule 13(b), discussed in C.J.S., Federal Civil Procedure 388 and 389.
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[FN8] Ga.Shleifer v. Bridgestone-Firestone, Inc., 223 Ga. App. 256, 477 S.E.2d 405 (1996). [FN9] Ark.Carpetland of Northwest Arkansas, Inc. v. Howard, 304 Ark. 420, 803 S.W.2d 512 (1991). [FN10] Fed. R. Civ. P. Rule 13(g), discussed in C.J.S., Federal Civil Procedure 393. [FN11] Tex.Texas Land Drilling Co. v. First State Bank & Trust Co. of Port Lavaca, 445 S.W.2d 571 (Tex. Civ. App. Corpus Christi 1969), writ refused n.r.e., (Dec. 31, 1969). [FN12] Tex.Texas Land Drilling Co. v. First State Bank & Trust Co. of Port Lavaca, 445 S.W.2d 571 (Tex. Civ. App. Corpus Christi 1969), writ refused n.r.e., (Dec. 31, 1969). [FN13] La.Mid-South Car & Truck Rental v. Moore, 516 So. 2d 1224 (La. Ct. App. 2d Cir. 1987). [FN14] Tenn.Woods v. Fields, 798 S.W.2d 239 (Tenn. Ct. App. 1990). [FN15] N.J.Burrell v. Quaranta, 259 N.J. Super. 243, 612 A.2d 379 (App. Div. 1992). [FN16] Neb.Ravenna Bank v. Custom Unlimited, 223 Neb. 540, 391 N.W.2d 557 (1986). Okla.Roesler v. Roesler, 1982 OK 21, 641 P.2d 550 (Okla. 1982). [FN17] Okla.Roesler v. Roesler, 1982 OK 21, 641 P.2d 550 (Okla. 1982). [FN18] Ariz.Martinez v. Garcia, 43 Ariz. 243, 30 P.2d 501 (1934). [FN19] Ariz.Martinez v. Garcia, 43 Ariz. 243, 30 P.2d 501 (1934). Neb.Stahmer v. Marsh, 202 Neb. 450, 276 N.W.2d 87 (1979). [FN20] Ariz.Martinez v. Garcia, 43 Ariz. 243, 30 P.2d 501 (1934). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 218 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VII. Joinder of Causes of Action C. Joinder Under Statutes and Rules of Civil Procedure 3. Joinder of Claims in Multiparty Cases Topic Summary References Correlation Table 219. Plaintiffs West's Key Number Digest West's Key Number Digest, Action 50(2), 50(3) Under modern rules, joinder of causes of action involving different plaintiffs is permitted, even though each of the claims does not affect all of the plaintiffs, provided that the causes arise out of the same transaction or occurrence and involve a common question of law and fact. Under modern rules, joinder of causes of action involving different plaintiffs is permitted, even though each of the claims does not affect all of the plaintiffs,[1] provided that the causes of action arise out of the same transaction or occurrence[2] and involve common questions of law and fact,[3] which is the standard for permissive joinder of parties.[4]
[FN1] Wis.Ewing v. General Motors Corp., 70 Wis. 2d 962, 236 N.W.2d 200 (1975). As to courts still following the traditional rule, see 218. Ends of justice Permitting owners of an apartment and a general contractor to join their causes of action against a subcontractor in the same suit would best serve the ends of justice without violating acceptable rules of pleading, since this procedure would bring all interested parties before the court in the same action and would simplify, rather than complicate, the trial and enable the trial court to do complete justice to all parties involved in the subject matter of the litigation. Fla.Mullray v. Aire-Lok Co., 216 So. 2d 801 (Fla. Dist. Ct. App. 3d Dist. 1968). Permissive claims or counterclaims Mich.Baker v. Golematis, 17 Mich. App. 383, 169 N.W.2d 521 (1969).
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[FN2] Mich.Baker v. Golematis, 17 Mich. App. 383, 169 N.W.2d 521 (1969). Tex.Texas Land Drilling Co. v. First State Bank & Trust Co. of Port Lavaca, 445 S.W.2d 571 (Tex. Civ. App. Corpus Christi 1969), writ refused n.r.e., (Dec. 31, 1969). [FN3] Tex.Texas Land Drilling Co. v. First State Bank & Trust Co. of Port Lavaca, 445 S.W.2d 571 (Tex. Civ. App. Corpus Christi 1969), writ refused n.r.e., (Dec. 31, 1969). Common interest Generally, joinder is proper when nondistinct and connected causes are involved and when plaintiffs have common interest in subject matter of litigation or connection with each other to the extent the issues in litigation are concerned. Fla.Cassidy v. Ice Queen Intern., Inc., 390 So. 2d 465 (Fla. Dist. Ct. App. 3d Dist. 1980). [FN4] Fed. R. Civ. P. Rule 20(a), discussed in C.J.S., Federal Civil Procedure 137. As to permissive joinder of plaintiffs under state law, see C.J.S., Parties 41 to 47. Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 219 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VII. Joinder of Causes of Action C. Joinder Under Statutes and Rules of Civil Procedure 3. Joinder of Claims in Multiparty Cases Topic Summary References Correlation Table 220. PlaintiffsActions by or on behalf of parent and child West's Key Number Digest West's Key Number Digest, Action 50(2), 50(3) There is a divergence of opinion whether claims brought by a parent on behalf of a child and in the parent's own right may or must be joined. Some courts recognize that a parent has the right to bring an action, as guardian, on behalf of his or her child, subject to the condition that claims by the parents on their own behalf and those of the child must be joined.[1] Under other authorities, the two causes of action to which an injury to a minor gives rise, one on behalf of the child and the other on behalf of the parent, may be either joined or tried separately.[2] Other authority has held that the two causes may not be joined.[3]
[FN1] Pa.Dengler by Dengler v. Crisman, 358 Pa. Super. 158, 516 A.2d 1231 (1986). [FN2] Wash.Flessher v. Carstens Packing Co., 96 Wash. 505, 165 P. 397 (1917). Joinder unnecessary There is no statutory requirement that a claim of a child for damages for personal injury and a claim of parents for medical expenses be joined. Okla.Independent School Dist. I-29 v. Crawford, 1984 OK 62, 688 P.2d 1291, 20 Ed. Law Rep. 959 (Okla. 1984). [FN3] Tex.Fall v. Weber, 47 S.W.2d 365 (Tex. Civ. App. Dallas 1932), writ refused, (June 20, 1932). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 220
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END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VII. Joinder of Causes of Action C. Joinder Under Statutes and Rules of Civil Procedure 3. Joinder of Claims in Multiparty Cases Topic Summary References Correlation Table 221. PlaintiffsLoss of consortium and similar derivative claims West's Key Number Digest West's Key Number Digest, Action 50(1) to 50(3) Claims derived from another person's rights or injury, primarily for loss of consortium, generally should be joined with the claims of the party who was primarily injured. As a general rule, a claim derived from the claim of another must be joined with the claim of the injured party.[1] In addition, when spouses are injured in a common accident, one spouse may be required to join both claims for his or her own personal injuries with derivative claims.[2] A claim for loss of consortium is a derivative cause of action, and depends on the establishment of the defendant's liability for the impaired spouse's injury.[3] Many courts have held that one spouse's claim for loss of consortium must be joined with the personal injury claim of the injured spouse, unless it is impossible to do so.[ 4] Other cases indicate that joinder is desirable, but not mandatory, often because the defendant may move to consolidate the cases for trial.[5] A child's claim for loss of parental consortium or society generally must be joined with that of the injured parent, whenever feasible.[6] Other courts hold that such a claim should be joined with the injured parent's claim, whenever feasible,[7] or that the defendant may require joinder of those claims by an appropriate motion.[8] Similarly, a parent or grandparent's claim for loss of consortium should be joined with the child's personal injury claim.[9] The reasons given for the mandatory joinder of claims for loss of consortium or of the society and companionship of an injured person, unless the party bringing the derivate claims affirmatively demonstrates that joinder is not feasible, is that it avoids duplicative litigation, potentially inconsistent results, and possible multiple recoveries against the same defendants for related claims that should be resolved at the same time.[10]
[FN1] Wis.Justin M.P. v. Solsrud, 191 Wis. 2d 805, 530 N.W.2d 59 (Ct. App. 1995).
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Statutory requirement A statutory joinder requirement for derivative claims was not negated by the enactment of a statute allowing recovery by dependent children for injuries to a parent. Fla.Taylor By and Through Parker v. General Motors Acceptance Corp., 622 So. 2d 1169 (Fla. Dist. Ct. App. 5th Dist. 1993). [FN2] N.J.Richardson v. Kulick, 213 N.J. Super. 250, 517 A.2d 149 (App. Div. 1986). [FN3] C.J.S., Husband and Wife 117. [FN4] AlaskaSchreiner v. Fruit, 519 P.2d 462 (Alaska 1974). Conn.Hopson v. St. Mary's Hospital, 176 Conn. 485, 408 A.2d 260 (1979). Ill.Brown v. Metzger, 104 Ill. 2d 30, 83 Ill. Dec. 344, 470 N.E.2d 302, 60 A.L.R.4th 1165 (1984). Ind.Rosander v. Copco Steel & Engineering Co., 429 N.E.2d 990, 29 A.L.R.4th 1196 (Ind. Ct. App. 3d Dist. 1982). IowaMadison v. Colby, 348 N.W.2d 202 (Iowa 1984). Md.Deems v. Western Maryland Ry. Co., 247 Md. 95, 231 A.2d 514 (1967). Mich.Oldani v. Lieberman, 144 Mich. App. 642, 375 N.W.2d 778 (1985). Minn.Huffer v. Kozitza, 375 N.W.2d 480 (Minn. 1985). Nev.General Elec. Co. v. Bush, 88 Nev. 360, 498 P.2d 366 (1972) (abrogated on other grounds by, Motenko v. MGM Dist., Inc., 112 Nev. 1038, 921 P.2d 933 (1996)). N.J.Ekalo v. Constructive Service Corp. of America, 46 N.J. 82, 215 A.2d 1 (1965). N.Y.Buckley v. National Freight, Inc., 90 N.Y.2d 210, 659 N.Y.S.2d 841, 681 N.E.2d 1287 (1997). N.C.Nicholson v. Hugh Chatham Memorial Hospital, Inc., 300 N.C. 295, 266 S.E.2d 818 (1980). N.D.Butz v. World Wide, Inc., 492 N.W.2d 88 (N.D. 1992). Pa.Nunamaker v. New Alexandria Bus Co., 371 Pa. 28, 88 A.2d 697 (1952). S.D.Wilson v. Hasvold, 86 S.D. 286, 194 N.W.2d 251 (1972). Claims for loss of consortium under underinsured motorist policy R.I.Desjarlais v. USAA Ins. Co., 824 A.2d 1272 (R.I. 2003). Consolidation cures failure to join A loss of consortium claim does not need to be dismissed under a rule requiring the mandatory joinder
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of consortium claims, where the claim had been consolidated with the spouse's personal injury claim by the trial court. Ill.Mitchell v. Atwood Enterprises, Inc., 253 Ill. App. 3d 475, 191 Ill. Dec. 690, 624 N.E.2d 878 (2d Dist. 1993). A.L.R. Library When must loss-of-consortium claim be joined with underlying personal injury claim, 60 A.L.R. 4th 1174 3. [FN5] U.S.Cruz v. Hendy Intern. Co., 638 F.2d 719 (5th Cir. 1981). Ala.Swartz v. U. S. Steel Corp., 293 Ala. 439, 304 So. 2d 881 (1974). Cal.Rodriguez v. Bethlehem Steel Corp., 12 Cal. 3d 382, 115 Cal. Rptr. 765, 525 P.2d 669 (1974). Del.Barni v. Kutner, 45 Del. 550, 76 A.2d 801 (Super. Ct. 1950). Ga.Stapleton v. Palmore, 250 Ga. 259, 297 S.E.2d 270 (1982). Ky.Kotsiris v. Ling, 451 S.W.2d 411 (Ky. 1970). Mass.Diaz v. Eli Lilly & Co., 364 Mass. 153, 302 N.E.2d 555 (1973). Mo.Cline v. Carthage Crushed Limestone Co., 504 S.W.2d 118 (Mo. 1974). N.H.Reid v. Spadone Mach. Co., 119 N.H. 198, 400 A.2d 54 (1979). OhioLayne v. Huffman, 42 Ohio St. 2d 287, 71 Ohio Op. 2d 260, 327 N.E.2d 767 (1975). Or.Snodgrass v. General Tel. Co. of Northwest, Inc., 275 Or. 79, 549 P.2d 1120 (1976). Wash.Lund v. Caple, 100 Wash. 2d 739, 675 P.2d 226 (1984). Wis.Fitzgerald v. Meissner & Hicks, Inc., 38 Wis. 2d 571, 157 N.W.2d 595 (1968). Joinder proper Ga.Miller v. Crumbley, 249 Ga. App. 403, 548 S.E.2d 657 (2001). A.L.R. Library When must loss-of-consortium claim be joined with underlying personal injury claim, 60 A.L.R. 4th 1174 4. [FN6] Ohio Coleman v. Sandoz Pharmaceuticals Corp., 74 Ohio St. 3d 492, 1996 -Ohio- 292, 660 N.E.2d 424 (1996). Vt.Hay v. Medical Center Hosp. of Vermont, 145 Vt. 533, 496 A.2d 939 (1985).
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W. Va.Belcher v. Goins, 184 W. Va. 395, 400 S.E.2d 830 (1990). Claims under underinsured motorist policy R.I.Desjarlais v. USAA Ins. Co., 824 A.2d 1272 (R.I. 2003). [FN7] Wyo.Craft v. Hermes Consol., Inc., 797 P.2d 559 (Wyo. 1990). [FN8] Ariz.Villareal v. State, Dept. of Transp., 160 Ariz. 474, 774 P.2d 213 (1989). [FN9] Haw.Masaki v. General Motors Corp., 71 Haw. 1, 780 P.2d 566 (1989). N.M. Fernandez v. Walgreen Hastings Co., 1998 -NMSC- 039, 126 N.M. 263, 968 P.2d 774, 84 A.L.R.5th 815 (1998). [FN10] R.I.Desjarlais v. USAA Ins. Co., 824 A.2d 1272 (R.I. 2003). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 221 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VII. Joinder of Causes of Action C. Joinder Under Statutes and Rules of Civil Procedure 3. Joinder of Claims in Multiparty Cases Topic Summary References Correlation Table 222. Defendants West's Key Number Digest West's Key Number Digest, Action 50(4.1) to 50(10) Under the more modern rule, causes of actions involving different defendants may be joined even though each cause does not affect all the defendants; however, under the more traditional rule, causes involving different defendants may not, generally, be joined, unless each cause affects them all and they have a joint or common liability or interest. Under the more modern authority, and in the absence of prejudice,[1] causes of action involving different defendants may be joined, even though each cause of action does not affect all the defendants, provided the right to relief asserted against them arises out of the same transaction, occurrence, or series of transactions or occurrences, and provided there is a question of law or fact common to all the causes.[2] These provisos are not mechanically applied in all jurisdictions; rather, joinder has been permitted where a common question of law or fact exists, but the plaintiff's causes of action do not arise out of the same transaction, occurrence, or series of transactions or occurrences.[3] At least one jurisdiction continues to follow the more traditional rule that causes of action involving different defendants may not be joined, unless each cause affects all defendants and they have a joint common liability or interest.[4] Permissive joinder of claims a plaintiff has against one defendant with those against another defendant in one lawsuit still results in the causes of action asserted against each defendant remaining distinct.[5] Joinder in a suit against jointly and severally liable defendants is at the plaintiff's election.[6] On the other hand, when two or more obligors are jointly liable, that liability is undivided and must be prosecuted in a joint action against them all.[7] If a defendant is sued as trustee, it may be mandatory for the plaintiff to combine all claims against that defendant, both individually and as trustee, arising out of the transaction in one suit.[8] A cause of action against a corporation may be joined with a separate cause of action against its stockhold-
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ers individually, such as where some individual defendants had assumed corporate obligations.[9]
[FN1] Tex.Lambert v. H. Molsen & Co., Inc., 551 S.W.2d 151 (Tex. Civ. App. Waco 1977), writ refused n.r.e., (Sept. 27, 1977). UtahDairyland Ins. Corp. v. Smith, 646 P.2d 737 (Utah 1982). Confusion OhioHenderson v. Ryan, 13 Ohio St. 2d 31, 42 Ohio Op. 2d 65, 233 N.E.2d 506 (1968). [FN2] N.Y.S.L. & Co. v. Bock, 118 Misc. 756, 194 N.Y.S. 773 (App. Term 1922). UtahDairyland Ins. Corp. v. Smith, 646 P.2d 737 (Utah 1982). As to this being the standard for permissive joinder of defendants, see C.J.S., Federal Civil Procedure 137; C.J.S., Parties 56. Causes in contract and in tort Under the more modern rule, a cause of action in contract and one in tort, which is not against the same defendant or defendants, may be joined. Ga.Key v. Bagen, 136 Ga. App. 373, 221 S.E.2d 234, 18 U.C.C. Rep. Serv. 882 (1975). [FN3] Tex.Lambert v. H. Molsen & Co., Inc., 551 S.W.2d 151 (Tex. Civ. App. Waco 1977), writ refused n.r.e., (Sept. 27, 1977). [FN4] Neb.Larson By and Through Larson v. Demuth, 252 Neb. 668, 564 N.W.2d 606 (1997). Replevin A single action of replevin against two or more defendants, each of whom is in exclusive possession of a portion of the goods, presents clear case of misjoinder of causes of action. Neb.Coomes v. Drinkwalter, 183 Neb. 564, 162 N.W.2d 533 (1968). Only some defendants executed guaranty Causes of action against a partnership on a promissory note executed by the partnership and on a guaranty executed by two partners individually could not be joined. Neb.Ravenna Bank v. Custom Unlimited, 223 Neb. 540, 391 N.W.2d 557 (1986). [FN5] Pa.Ieropoli v. AC&S Corp., 577 Pa. 138, 842 A.2d 919 (2004). [FN6] U.S.Foshee v. Lloyds, New York, 643 F.2d 1162 (5th Cir. 1981).
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[FN7] N.C.Harlow v. Voyager Communications V, 348 N.C. 568, 501 S.E.2d 72, 102 A.L.R.5th 783 (1998). As to mandatory joinder of defendants in contract cases, see C.J.S., Parties 70. [FN8] IowaManor of Lake City, Inc. v. Hinners, 576 N.W.2d 592 (Iowa 1998). [FN9] N.C.Dowd H. Price Fixture Co. v. Flowers & Monroe, Inc., 9 N.C. App. 262, 175 S.E.2d 695 (1970). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 222 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VII. Joinder of Causes of Action C. Joinder Under Statutes and Rules of Civil Procedure 3. Joinder of Claims in Multiparty Cases Topic Summary References Correlation Table 223. DefendantsTortfeasors West's Key Number Digest West's Key Number Digest, Action 50(6) A joinder of claims is generally permissible in tort actions against several defendants, regardless of whether they are joint tortfeasors. Under the modern rule, tort causes, to be joined, need not affect all of the defendants in order to justify joinder,[1] provided the damage arises out of the same transaction, occurrence, or series of transactions or occurrences, and there is a common question of law or fact.[2] Causes of action may be joined against defendants who allegedly committed a joint tort.[3] Joinder of separate causes may also be permissible where separate acts of the defendants in question produced a single indivisible injury, or where one defendant caused an injury and another defendant exacerbated it.[4] Thus, joinder of claims has been allowed where a plaintiff claimed that his or her injuries in a first accident were aggravated in a second accident, and different defendants caused each accident.[ 5] However, claims may not be joined where the accidents were not the same occurrence, and each defendant was responsible for injuries caused in the particular accident in which that defendant was involved.[6] Joinder is proper and desirable in a conspiracy case, in the absence of complicated facts or relationships that might give rise to prejudice.[7]
[FN1] U.S.Genesco, Inc. v. Cone Mills Corp., 604 F.2d 281 (4th Cir. 1979). Ga. Bulloch County Hospital Authority v. Fowler, 124 Ga. App. 242, 183 S.E.2d 586 (1971) (overruled on other grounds by, Gilson v. Mitchell, 131 Ga. App. 321, 205 S.E.2d 421 (1974)). Violation of statutory duty It was proper for an engine crew member, who was injured during his employment with a railway when he fell in an open hole located in the vicinity of tracks owned by a port authority to sue both the carrier
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on the ground of its violation of a statutory duty to provide a safe place to work and the port authority on the ground of negligence. Ga.Georgia Ports Authority v. Central of Georgia Ry. Co., 135 Ga. App. 859, 219 S.E.2d 467 (1975). [FN2] Ala.Guthrie v. Bio-Medical Laboratories, Inc., 442 So. 2d 92 (Ala. 1983). Wis.Ewing v. General Motors Corp., 70 Wis. 2d 962, 236 N.W.2d 200 (1975). As to parties who may be joined as defendants in a tort case, see C.J.S., Parties 58. [FN3] Ala.Chrysler Corp. v. Hassell, 291 Ala. 267, 280 So. 2d 102 (1973). [FN4] Ill.Hall v. Keating, 246 Ill. App. 3d 538, 186 Ill. Dec. 493, 616 N.E.2d 683 (3d Dist. 1993). [FN5] OhioKnapp v. Creston Elevator, Inc., 13 Ohio Misc. 188, 42 Ohio Op. 2d 221, 234 N.E.2d 326 (C.P. 1967). Wis.Kluth v. General Cas. Co. of Wisconsin, 178 Wis. 2d 808, 505 N.W.2d 442 (Ct. App. 1993). [FN6] Mo.State ex rel. Jinkerson v. Koehr, 826 S.W.2d 346 (Mo. 1992). [FN7] Ind.Gumz v. Starke County Farm Bureau Co-op. Ass'n, Inc., 271 Ind. 694, 395 N.E.2d 257, 27 U.C.C. Rep. Serv. 1000 (1979). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 223 END OF DOCUMENT
CJS ACTIONS VIII REF 1A C.J.S. Actions VIII Refs.
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VIII. Splitting Causes of Action Topic Summary Correlation Table Research References A.L.R. Library West's A.L.R. Digest, Action 38(1) to (6) , 53(1) to (3)
A.L.R. Index: Estoppel and Waiver; Splitting Cause of Action Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS VIII REF END OF DOCUMENT
CJS ACTIONS VIII A REF 1A C.J.S. Actions VIII A Refs.
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VIII. Splitting Causes of Action A. General Considerations Topic Summary Correlation Table Research References A.L.R. Library West's A.L.R. Digest, Action 38(1) to (6) , 53(1) to (3)
A.L.R. Index: Estoppel and Waiver; Splitting Cause of Action Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS VIII A REF END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VIII. Splitting Causes of Action A. General Considerations 1. Rule Against Splitting Causes of Action Topic Summary References Correlation Table 224. Generally West's Key Number Digest West's Key Number Digest, Action 38(1) to (6), 53(1) to (3) Splitting a cause of action for the purpose of bringing multiple actions on it is generally prohibited. The splitting of a cause of action, which is the bringing of an action for only a part of a cause of action,[1] is prohibited,[2] or at least disfavored,[3] in most jurisdictions. The rule against splitting a cause of action precludes successive claims arising from one wrongful act.[4] Under the rule, known in some jurisdictions as the entire controversy doctrine[5] or the single action rule,[6] a party who is in possession of all the facts on which a second action could be based must join in one action all claims involving a single transaction or the same subject matter.[7] A pleading that states the violation of one primary right in two causes of action contravenes the rule against splitting a cause of action.[8] CUMULATIVE SUPPLEMENT Cases: Under Florida law, all damages sustained or accruing to one as a result of a single wrongful act must be claimed and recovered in one action or not at all. Kelecseny v. Chevron, U.S.A., Inc., 262 F.R.D. 660 (S.D. Fla. 2009). A pleading that states the violation of one primary right in two causes of action contravenes the rule against 'splitting' a cause of action. Grisham v. Philip Morris U.S.A., Inc., 40 Cal. 4th 623, 54 Cal. Rptr. 3d 735, 151 P.3d 1151 (2007). [END OF SUPPLEMENT]
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[FN1] Mich.Tuttle v. Everhot Heater Co., 264 Mich. 60, 249 N.W. 467 (1933). N.J.Silber v. James Drug Stores, 124 N.J.L. 401, 11 A.2d 756 (N.J. Sup. Ct. 1940). [FN2] U.S.Mars Inc. v. Nippon Conlux Kabushiki-Kaisha, 58 F.3d 616 (Fed. Cir. 1995). Ala.Ex parte Leasecomm Corp., 886 So.2d 58, (Ala. 2003). AlaskaMcDowell v. State, 23 P.3d 1165 (Alaska 2001). Cal.Planned Parenthood Golden Gate v. Garibaldi, 107 Cal. App. 4th 345, 132 Cal. Rptr. 2d 46 (1st Dist. 2003). D.C.Moattar v. Foxhall Surgical Associates, 694 A.2d 435 (D.C. 1997). Fla.Petito v. A.H. Robins Co., Inc., 750 So. 2d 103 (Fla. Dist. Ct. App. 3d Dist. 1999). Ga.Mahan v. Watkins, 256 Ga. App. 260, 568 S.E.2d 130 (2002). Hawaii.Stevens v. Kirkpatrick, 82 Haw. 91, 919 P.2d 1003 (Ct. App. 1996). Ill.City of Chicago v. Latronica Asphalt and Grading, Inc., 346 Ill. App. 3d 264, 281 Ill. Dec. 913, 805 N.E.2d 281 (1st Dist. 2004), appeal denied, 209 Ill. 2d 578, 286 Ill. Dec. 164, 813 N.E.2d 221 (2004). Ind.Alexander v. Scheid, 726 N.E.2d 272 (Ind. 2000). IowaAllied Mut. Ins. Co. v. Heiken, 675 N.W.2d 820 (Iowa 2004). Kan.Shelton v. DeWitte, 271 Kan. 831, 26 P.3d 650 (2001). Ky. Carroll v. Owens-Corning Fiberglas Corp., 37 S.W.3d 699 (Ky. 2000), as amended, (Aug. 24, 2000) and as modified on denial of reh'g, (Mar. 22, 2001). La.Breaux v. Avondale Industries, Inc., 2002-1713, 842 So.2d 1115 (La. App. 2003). Me.In re Kaleb D., 2001 ME 55, 769 A.2d 179 (Me. 2001). Md.Levin v. Friedman, 271 Md. 438, 317 A.2d 831 (1974). Mo.Bagsby v. Gehres, 139 S.W.3d 611 (Mo. Ct. App. E.D. 2004). Nev.Smith v. Hutchins, 93 Nev. 431, 566 P.2d 1136 (1977). N.H.Canty v. Hopkins, 146 N.H. 151, 773 A.2d 1 (2001). N.J.Oliver v. Ambrose, 152 N.J. 383, 705 A.2d 742 (1998). N.M.Apodaca v. AAA Gas Co., 134 N.M. 77, 2003 -NMCA- 085, 73 P.3d 215 (Ct. App. 2003), cert. granted, 133 N.M. 771, 70 P.3d 761 (2003), cert. quashed, 135 N.M. 321, 2004-NMCERT-003, 88 P.3d
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263 (2004). N.Y.Board of Managers of Amherst Condominium v. CC Ming (USA) Ltd. Partnership, 308 A.D.2d 380, 764 N.Y.S.2d 271 (1st Dep't 2003). N.C.County Club of Johnston County, Inc. v. United States Fidelity & Guar. Co., 150 N.C. App. 231, 563 S.E.2d 269 (2002). N.D.Superpumper, Inc. v. Nerland Oil, Inc., 2000 ND 220, 620 N.W.2d 159 (N.D. 2000). OhioCastrataro v. Urban, 155 Ohio App. 3d 597, 2003 -Ohio- 6953, 802 N.E.2d 689 (5th Dist. Delaware County 2003), appeal not allowed, 102 Ohio St. 3d 1424, 2004 -Ohio- 2003, 807 N.E.2d 368 (2004). Okla.Lowder v. Oklahoma Farm Bureau Mut. Ins. Co., 1967 OK 245, 436 P.2d 654 (Okla. 1967). Pa.Cardenas v. Schober, 2001 PA Super 253, 783 A.2d 317 (2001), appeal granted in part, 568 Pa. 713, 797 A.2d 909 (2002). S.C.Plum Creek Development Co., Inc. v. City of Conway, 334 S.C. 30, 512 S.E.2d 106 (1999). Tenn.Hayes v. Civil Service Com'n of Metropolitan Government of Nashville and Davidson County, 907 S.W.2d 826 (Tenn. App. 1995). Tex.Schneider Nat. Carriers, Inc. v. Bates, 48 Tex. Sup. Ct. J. 6, 2004 WL 2192576 (Tex. 2004). UtahDennis v. Vazquez, 2003 UT App 1, 474 Utah Adv. Rep. 43, 72 P.3d 135 (Utah App. 2003). Va.Bill Greever Corp. v. Tazewell Nat. Bank, 256 Va. 250, 504 S.E.2d 854 (1998). Vt.B & E Corp. v. Bessery, 130 Vt. 597, 298 A.2d 544 (1972). Wash.Landry v. Luscher, 95 Wash. App. 779, 976 P.2d 1274 (Div. 3 1999). [FN3] Ariz.Commercial Union Ins. Co. v. Lewis and Roca, 183 Ariz. 250, 902 P.2d 1354 (Ct. App. Div. 1 1995). [FN4] Fla.Bettcher v. Wadsworth, 825 So. 2d 438 (Fla. Dist. Ct. App. 2d Dist. 2002). [FN5] N.J. DiIorio v. Structural Stone & Brick Co., Inc., 368 N.J. Super. 134, 845 A.2d 658, 53 U.C.C. Rep. Serv. 2d 249 (App. Div. 2004). Tenn.Trinity Industries, Inc. v. McKinnon Bridge Co., Inc., 46 UCC Rep.Serv.2d 119, 77 S.W.3d 159 (Tenn. App. 2001), appeal denied (Apr 29, 2002). [FN6] Tex.Pustejovsky v. Rapid-American Corp., 35 S.W.3d 643 (Tex. 2000). [FN7] 229. As to the effect of a party's discovery of such facts during or after the pendency of the first action, see
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233. [FN8] Cal.Rancho Viejo v. Tres Amigos Viejos, 100 Cal.App.4th 550, 123 Cal.Rptr.2d 479 (2002). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 224 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VIII. Splitting Causes of Action A. General Considerations 1. Rule Against Splitting Causes of Action Topic Summary References Correlation Table 225. Effect of rule; discretion of court West's Key Number Digest West's Key Number Digest, Action 53(1) The failure to raise in an action a claim arising from the transaction on which an asserted claim is based constitutes a waiver of the unasserted claim. In general, the failure to raise a claim that arises from the transaction or occurrence that is the subject matter of an action amounts to a waiver of that claim,[1] and precludes a party from maintaining a subsequent action on that claim.[2] A final judgment on the merits of a claim is a bar to a second action on the same claim,[3] and precludes the same plaintiff from bringing against the same defendant a subsequent action on the same claim, or any part of the claim, that was, or reasonably could have been, brought in the initial action.[4] However, arbitration of one part of a cause of action does not violate the rule, as the arbitrator's findings do not bind the trial court.[5] The rule against splitting a cause of action is an equitable one whose application is left to judicial discretion based on the factual circumstances of individual cases,[6] and should not be mindlessly and inflexibly applied without regard to the reasons for its application, when to do so would defeat the ends of justice.[7] Based on equitable considerations, a court may relax the mandatory joinder requirement when imposing it would be unfair.[8] For instance, a court will not apply the entire controversy doctrine when the first case was pending for only a few days and no notable activity took place.[9] The polestar for application of the doctrine is judicial fairness.[10] In applying the doctrine, a court must consider both the effect upon the defendant and fairness to the plaintiff.[11] Some jurisdictions consider the doctrine prohibiting the splitting of a cause of action to be a narrow one,[12 ] while others apply it strictly.[13]
[FN1] Cal.Allstate Ins. Co. v. Mel Rapton, Inc., 77 Cal. App. 4th 901, 92 Cal. Rptr. 2d 151 (3d Dist.
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2000). La.Westerman v. State Farm Mut. Auto. Ins. Co., 834 So. 2d 445 (La. Ct. App. 1st Cir. 2002). Pa.Cardenas v. Schober, 2001 PA Super 253, 783 A.2d 317 (2001), appeal granted in part, 568 Pa. 713, 797 A.2d 909 (2002). [FN2] N.J.Oltremare v. ESR Custom Rugs, Inc., 330 N.J. Super. 310, 749 A.2d 862 (App. Div. 2000) . [FN3] U.S.Alyeska Pipeline Service Co. v. U. S., 231 Ct. Cl. 540, 688 F.2d 765 (1982). AlaskaOsbourne v. Buckman, 993 P.2d 409 (Alaska 1999). Mo.Felling v. Giles, 47 S.W.3d 390 (Mo. Ct. App. E.D. 2001). [FN4] U.S.Alyeska Pipeline Service Co. v. U. S., 231 Ct. Cl. 540, 688 F.2d 765 (1982). [FN5] Cal.Cuevas v. Truline Corp., 118 Cal.App.4th 56, 12 Cal. Rptr. 3d 706 (2004). [FN6] N.J.Oliver v. Ambrose, 152 N.J. 383, 705 A.2d 742 (1998). [FN7] Fla.Tucker v. John Galt Ins. Agency Corp., 743 So. 2d 108 (Fla. Dist. Ct. App. 4th Dist. 1999) . [FN8] N.J.Prevratil v. Mohr, 145 N.J. 180, 678 A.2d 243 (1996). No undue prejudice Second suit arising from single transaction was not barred because it resulted in no undue prejudice to defendant's ability to defend second action. N.J.Oltremare v. ESR Custom Rugs, Inc., 330 N.J. Super. 310, 749 A.2d 862 (App. Div. 2000). [FN9] U.S.Paramount Aviation Corp. v. Agusta, 178 F.3d 132 (3d Cir. 1999) (New Jersey law). [FN10] N.J. DiIorio v. Structural Stone & Brick Co., Inc., 368 N.J. Super. 134, 845 A.2d 658, 53 U.C.C. Rep. Serv. 2d 249 (App. Div. 2004). Interests of justice Procedural rule requiring joinder of claims is not absolute and will yield to interests of justice. La.Breaux v. Avondale Industries, Inc., 2002-1713, 842 So.2d 1115 (La. App. 2003). [FN11] U.S.Fields v. Thompson Printing Co., Inc., 363 F.3d 259 (3d Cir. 2004) (New Jersey law). [FN12] N.Y.Rodriguez v. 1414-1422 Ogden Avenue Realty Corp., 304 A.D.2d 400, 758 N.Y.S.2d 43 (1st Dep't 2003).
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[FN13] U.S.Nubenco Enterprises, Inc. v. Inversiones Barbarena, S.A., 963 F.Supp. 353 (D.N.J. 1997) (applying New Jersey law; describing state's entire controversy doctrine as particularly strict application of rule against splitting causes of action). Compelling reason There must be a clear and convincing need of an extraordinary and compelling reason to overcome the policies favoring preclusion of a second action. N.M.Apodaca v. AAA Gas Co., 134 N.M. 77, 2003 -NMCA- 085, 73 P.3d 215 (Ct. App. 2003), cert. granted, 133 N.M. 771, 70 P.3d 761 (2003), cert. quashed, 135 N.M. 321, 2004-NMCERT-003, 88 P.3d 263 (2004). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 225 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VIII. Splitting Causes of Action A. General Considerations 1. Rule Against Splitting Causes of Action Topic Summary References Correlation Table 226. Purpose of rule West's Key Number Digest West's Key Number Digest, Action 53(1) The rule against splitting a cause of action is intended to prevent multiple actions on the same cause of action, and to protect defendants against fragmented litigation and the possibility of conflicting outcomes. The rule against splitting a cause of action is for the protection of the defendant,[1] and serves to prevent a multiplicity of suits[2] and appeals[3] with respect to a single cause of action. It is designed to promote fairness to the parties[4] by protecting defendants against fragmented,[5] harassing,[6] vexatious,[7] and costly[8] litigation, and the possibility of conflicting outcomes.[9] The rule reflects a public[10] and judicial[11] policy applied by federal and state courts[12] favoring finality in judicial proceedings[13] and intended to foster the efficient and economic administration of the judicial system,[14] by forestalling any undue clogging of court dockets.[15]
[FN1] U.S.Clements v. Airport Authority of Washoe County, 69 F.3d 321 (9th Cir. 1995). Cal.Allstate Ins. Co. v. Mel Rapton, Inc., 77 Cal. App. 4th 901, 92 Cal. Rptr. 2d 151 (3d Dist. 2000). Kan.Shelton v. DeWitte, 271 Kan. 831, 26 P.3d 650 (2001). Wash.Landry v. Luscher, 95 Wash. App. 779, 976 P.2d 1274 (Div. 3 1999). [FN2] U.S.Brown v. Chaffee, 612 F.2d 497, 28 Fed. R. Serv. 2d 833 (10th Cir. 1979). Ala.Ex parte Leasecomm Corp., 886 So.2d 58, (Ala. 2003). Ark.U.S. Fidelity & Guaranty Co. v. Glass, 261 Ark. 45, 545 S.W.2d 924 (1977).
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Fla. Brody Const., Inc. v. Fabri-Built Structures, Inc., 322 So. 2d 61 (Fla. Dist. Ct. App. 4th Dist. 1975). Ill. Handley v. Unarco Industries, Inc., 124 Ill. App. 3d 56, 79 Ill. Dec. 457, 463 N.E.2d 1011 (4th Dist. 1984). Kan.Winner v. Ratzlaff, 211 Kan. 59, 505 P.2d 606, 73 A.L.R.3d 623 (1973). La.Honeycutt v. Town of Boyce, 341 So. 2d 327 (La. 1976). Mo.Bagsby v. Gehres, 139 S.W.3d 611 (Mo. Ct. App. E.D. 2004). N.J.State, by Com'r of Transp. v. Sun Oil Co., 160 N.J. Super. 513, 390 A.2d 661 (Law Div. 1978). Tex.Adler v. Beverly Hills Hospital, 594 S.W.2d 153 (Tex. Civ. App. Dallas 1980). Wash.In re Guardianship of Bouchat, 11 Wash. App. 369, 522 P.2d 1168 (Div. 1 1974), on reh'g, 13 Wash. App. 141, 533 P.2d 858 (Div. 1 1975). Three purposes The purposes of the entire controversy doctrine are: (1) the need for complete and final disposition through the avoidance of piecemeal decisions; (2) fairness to parties to the action and those with a material interest in the action; and (3) efficiency and the avoidance of waste and the reduction of delay. N.J.In re Estate of Gabrellian, 859 A.2d 700 (N.J. Super. Ct. App. Div. 2004). [FN3] Ga.Cochran v. Levitz Furniture Co. of Eastern Region, 249 Ga. 504, 291 S.E.2d 535 (1982). Kan.U. S. Fidelity & Guar. Co. v. Continental Ins. Co., 216 Kan. 5, 531 P.2d 9 (1975). Me.Durgin v. Robertson, 428 A.2d 65 (Me. 1981). Mo.Bagsby v. Gehres, 139 S.W.3d 611 (Mo. Ct. App. E.D. 2004). Mont.Reidy v. Anaconda-Deer Lodge County, 196 Mont. 127, 637 P.2d 1196 (1981). [FN4] Ala.Ex parte Leasecomm Corp., 886 So.2d 58, (Ala. 2003). Me.Camps Newfound/Owatonna Corp. v. Town of Harrison, 1998 ME 20, 705 A.2d 1109 (1998). N.J.In re Estate of Gabrellian, 859 A.2d 700 (N.J. Super. Ct. App. Div. 2004). [FN5] U.S.Fields v. Thompson Printing Co., Inc., 363 F.3d 259 (3d Cir. 2004) (New Jersey law). Kan.Shelton v. DeWitte, 271 Kan. 831, 26 P.3d 650 (2001). Mo.Bagsby v. Gehres, 139 S.W.3d 611 (Mo. Ct. App. E.D. 2004). N.J.Oltremare v. ESR Custom Rugs, Inc., 330 N.J. Super. 310, 749 A.2d 862 (App. Div. 2000).
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N.D.Superpumper, Inc. v. Nerland Oil, Inc., 2000 ND 220, 620 N.W.2d 159 (N.D. 2000). [FN6] Fla.Bettcher v. Wadsworth, 825 So. 2d 438 (Fla. Dist. Ct. App. 2d Dist. 2002). Hawaii.Stevens v. Kirkpatrick, 82 Haw. 91, 919 P.2d 1003 (Ct. App. 1996). [FN7] Ala.Ex parte Leasecomm Corp., 886 So.2d 58 (Ala. 2003). Cal.Planned Parenthood Golden Gate v. Garibaldi, 107 Cal. App. 4th 345, 132 Cal. Rptr. 2d 46 (1st Dist. 2003). Hawaii.Stevens v. Kirkpatrick, 82 Haw. 91, 919 P.2d 1003 (Ct. App. 1996). Mich.Rinaldi v. Rinaldi, 122 Mich. App. 391, 333 N.W.2d 61 (1983). Mo.Bagsby v. Gehres, 139 S.W.3d 611 (Mo. Ct. App. E.D. 2004). N.H.Canty v. Hopkins, 146 N.H. 151, 773 A.2d 1 (2001). N.Y.Seventy-Second St. Properties, Inc. v. Woods, 67 Misc. 2d 539, 324 N.Y.S.2d 339 (City Civ. Ct. 1971). Okla.Christian v. American Home Assur. Co., 1977 OK 141, 577 P.2d 899 (Okla. 1977). Wyo.Hurst v. Davis, 386 P.2d 943 (Wyo. 1963). [FN8] Mo.Bagsby v. Gehres, 139 S.W.3d 611 (Mo. Ct. App. E.D. 2004). [FN9] Cal.Planned Parenthood Golden Gate v. Garibaldi, 107 Cal. App. 4th 345, 132 Cal. Rptr. 2d 46 (1st Dist. 2003). N.H.Canty v. Hopkins, 146 N.H. 151, 773 A.2d 1 (2001). [FN10] U.S.Kirk v. First Nat. Bank of Columbus, 439 F. Supp. 1141 (M.D. Ga. 1977). Colo.Powers v. Board of County Com'rs of Larimer County, 651 P.2d 463 (Colo. Ct. App. 1982). Del.Webster v. State Farm Mut. Auto. Ins. Co., 348 A.2d 329 (Del. Super. Ct. 1975). Ill. Radosta v. Chrysler Corp., 110 Ill. App. 3d 1066, 66 Ill. Dec. 744, 443 N.E.2d 670 (1st Dist. 1982). Me.In re Kaleb D., 2001 ME 55, 769 A.2d 179 (Me. 2001). Mo.Shelter Mut. Ins. Co. v. Vulgamott, 96 S.W.3d 96 (Mo. Ct. App. W.D. 2003). N.J.Gareeb v. Weinstein, 161 N.J. Super. 1, 390 A.2d 706 (App. Div. 1978). N.Y.Browne v. Browne, 53 A.D.2d 134, 385 N.Y.S.2d 983 (4th Dep't 1976). Joinder rules
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State's strong policy against splitting causes of action or claims finds expression in its liberal rules regarding joinder of claims and of parties. Ala.Ex parte Leasecomm Corp., 886 So.2d 58, (Ala. 2003). [FN11] U.S.Burns v. Rockwood Distributing Co., 481 F. Supp. 841 (N.D. Ill. 1979). Mo.Shelter Mut. Ins. Co. v. Vulgamott, 96 S.W.3d 96 (Mo. Ct. App. W.D. 2003). [FN12] Ga.Bloomfield v. Liggett & Myers, Inc., 129 Ga. App. 141, 198 S.E.2d 906 (1973). [FN13] Cal.Weikel v. TCW Realty Fund II Holding Co., 55 Cal. App. 4th 1234, 65 Cal. Rptr. 2d 25 (4th Dist. 1997). Me.Camps Newfound/Owatonna Corp. v. Town of Harrison, 1998 ME 20, 705 A.2d 1109 (Me. 1998) . [FN14] Ala.Ex parte Leasecomm Corp., 886 So.2d 58, (Ala. 2003). Del.Western Sav. Fund Soc. of Philadelphia v. A. V. C. Corp., 305 A.2d 632 (Del. Super. Ct. 1973). La.Marburgh v. Managan Carroll Bldg. Materials, Inc., 406 So. 2d 320 (La. Ct. App. 3d Cir. 1981). Me.Camps Newfound/Owatonna Corp. v. Town of Harrison, 1998 ME 20, 705 A.2d 1109 (1998). Mo.Shelter Mut. Ins. Co. v. Vulgamott, 96 S.W.3d 96 (Mo. Ct. App. W.D. 2003). N.J.In re Estate of Gabrellian, 859 A.2d 700 (N.J. Super. Ct. App. Div. 2004). Wyo.Lane Co., By and Through Lane v. Busch Development, Inc., 662 P.2d 419 (Wyo. 1983). [FN15] U.S.Ritchie v. Landau, 475 F.2d 151 (2d Cir. 1973). Ark.Lisenbey v. Farm Bureau Mut. Ins. Co. of Ark., Inc., 245 Ark. 144, 431 S.W.2d 484 (1968). Mo.Shelter Mut. Ins. Co. v. Vulgamott, 96 S.W.3d 96 (Mo. Ct. App. W.D. 2003). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 226 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VIII. Splitting Causes of Action A. General Considerations 1. Rule Against Splitting Causes of Action Topic Summary References Correlation Table 227. Relation or rule to claim and issue preclusion West's Key Number Digest West's Key Number Digest, Action 53(1) The rule against splitting a cause of action is related to the principles of claim and issue preclusion in that all are intended to prevent a multiplicity of suits. The rule against splitting a cause of action is related to the principle of res judicata, or claim preclusion,[1] in that the aim of each principle is to prevent a multiplicity of suits.[2] The rule differs from the doctrine of res judicata in that it is based exclusively on grounds of public policy, is not aided by the presumptive correctness of a former judgment, and ought not to be permitted to favor a wrongdoer as against the injured party.[3] The scope and purpose of the entire controversy doctrine differ from those of the doctrine of issue preclusion, or collateral estoppel, in that the entire controversy doctrine applies not only to matters actually litigated, but to all aspects of controversy that might have been litigated and determined.[4]
[FN1] Cal. Hamilton v. Asbestos Corp., Ltd., 22 Cal. 4th 1127, 95 Cal. Rptr. 2d 701, 998 P.2d 403 (2000). Mont.Hughes v. Salo, 203 Mont. 52, 659 P.2d 270 (1983). N.J.Prevratil v. Mohr, 145 N.J. 180, 678 A.2d 243 (1996). Tex.Zacharie v. U.S. Nat. Resources, Inc., 94 S.W.3d 748 (Tex. App. San Antonio 2002). [FN2] Mo.Collins v. Burg, 996 S.W.2d 512 (Mo. Ct. App. E.D. 1999). N.Y.Weiner v. Greyhound Bus Lines, Inc., 55 A.D.2d 189, 389 N.Y.S.2d 884 (2d Dep't 1976).
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Designed to prevent repetitive litigation Doctrines of collateral estoppel, res judicata and splitting a cause of action are designed to prevent repetitive litigation and should be employed when litigation of a particular issue has reached such a stage that a court sees no really good reason for permitting it to be litigated again. U.S.American Standard, Inc. v. Crane Co., 60 F.R.D. 35, 17 Fed. R. Serv. 2d 1419 (S.D. N.Y. 1973). [FN3] Or.Huffman v. Knight, 36 Or. 581, 60 P. 207 (1900). Wyo.Hurst v. Davis, 386 P.2d 943 (Wyo. 1963). [FN4] N.J.Mori v. Hartz Mountain Development Corp., 193 N.J. Super. 47, 472 A.2d 150 (App. Div. 1983). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 227 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VIII. Splitting Causes of Action A. General Considerations 1. Rule Against Splitting Causes of Action Topic Summary References Correlation Table 228. Who may invoke and waive rule West's Key Number Digest West's Key Number Digest, Action 53(1) The rule against splitting a cause of action may be invoked by the defendant or sua sponte by the court, and a defendant may waive enforcement of the rule. The claim that a plaintiff has split a cause of action is an affirmative defense[1] which is waived if the defendant fails to raise it[2] at the earliest possible time.[3] Although it has been held that the rule against splitting a cause of action may be invoked only by the defendant for whose protection it is designed,[4] the question of claim or issue preclusion based on violation of the rule may also be raised sua sponte by the court, inasmuch as the rule is also designed to promote judicial economy and convenience.[5] Generally, a defendant may consent to[6] or acquiesce in[7] the splitting of a cause of action, or may waive enforcement of the rule,[8] either expressly or implicitly,[9] by failure to interpose a proper and timely objection[10] based upon a prior settlement or judgment, or a pending action, as to an element of the cause of action.[ 11] To waive the defense implicitly, however, the defendant must be aware that there is a second suit for the same cause of action.[12] Some courts refuse to recognize such a waiver by an unrepresented defendant in small claims court.[13]
[FN1] U.S.Paramount Aviation Corp. v. Agusta, 178 F.3d 132 (3d Cir. 1999) (New Jersey law). Cal.Ferraro v. Southern Cal. Gas Co., 102 Cal. App. 3d 33, 162 Cal. Rptr. 238 (2d Dist. 1980). N.J.Brown v. Brown, 208 N.J. Super. 372, 506 A.2d 29 (App. Div. 1986). [FN2] U.S.Paramount Aviation Corp. v. Agusta, 178 F.3d 132 (3d Cir. 1999) (New Jersey law).
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[FN3] Mo.Shores v. Express Lending Services, Inc., 998 S.W.2d 122 (Mo. Ct. App. E.D. 1999). [FN4] U.S.Welch v. Farmers' Loan & Trust Co., 165 F. 561 (C.C.A. 6th Cir. 1908). Ala.First Nat. Bank v. Murphree, 218 Ala. 221, 118 So. 404 (1928). [FN5] U.S.Alyeska Pipeline Service Co. v. U. S., 231 Ct. Cl. 540, 688 F.2d 765 (1982). Wyo.Lane Co., By and Through Lane v. Busch Development, Inc., 662 P.2d 419 (Wyo. 1983). [FN6] U.S.Dodd v. Hood River County, 59 F.3d 852 (9th Cir. 1995). [FN7] U.S.Clements v. Airport Authority of Washoe County, 69 F.3d 321 (9th Cir. 1995). [FN8] N.Y.Stoner v. Culligan, Inc., 32 A.D.2d 170, 300 N.Y.S.2d 966 (3d Dep't 1969). Tex.Cantu v. Bage, 467 S.W.2d 680 (Tex. Civ. App. Beaumont 1971). [FN9] U.S.Dodd v. Hood River County, 59 F.3d 852 (9th Cir. 1995); Iron Workers Local Union No. 17 Ins. Fund and its Trustees v. Philip Morris Inc., 182 F.R.D. 512 (N.D. Ohio 1998). Cal.Mattson v. City of Costa Mesa, 106 Cal. App. 3d 441, 164 Cal. Rptr. 913 (4th Dist. 1980). IowaPagel v. Notbohm, 186 N.W.2d 638 (Iowa 1971). Me.Thompson v. Gaudette, 148 Me. 288, 92 A.2d 342 (1952). Mich.Chunko v. LeMaitre, 10 Mich. App. 490, 159 N.W.2d 876 (1968). Mo.Chuning v. Calvert, 452 S.W.2d 580 (Mo. Ct. App. 1970). N.Y.Solow v. Avon Products, Inc., 44 N.Y.2d 711, 405 N.Y.S.2d 449, 376 N.E.2d 921 (1978). Okla.Christian v. American Home Assur. Co., 1977 OK 141, 577 P.2d 899 (Okla. 1977). Tex.Pierce v. Reynolds, 160 Tex. 198, 329 S.W.2d 76 (1959). Va.Bill Greever Corp. v. Tazewell Nat. Bank, 256 Va. 250, 504 S.E.2d 854 (1998). Settlement with heir Defendants, by voluntarily electing to settle wrongful death action with one heir at a time when defendants had full knowledge of other nonparty heirs, had waived right to insist on a single action joined in by all heirs. IdahoHogan v. Hermann, 101 Idaho 893, 623 P.2d 900, 21 A.L.R.4th 249 (1980). [FN10] IowaPagel v. Notbohm, 186 N.W.2d 638 (Iowa 1971). Kan.Fiscus v. Kansas City Public Service Co., 153 Kan. 493, 112 P.2d 83 (1941).
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Me.Thompson v. Gaudette, 148 Me. 288, 92 A.2d 342 (1952). Mich.Rinaldi v. Rinaldi, 122 Mich. App. 391, 333 N.W.2d 61 (1983). Okla.King v. City of Guymon, 523 P.2d 1154 (Okla. Ct. App. Div. 2 1974). Va.Fentress v. Pruden, 185 Va. 461, 39 S.E.2d 240 (1946). [FN11] Ga.Southern Guaranty Ins. Co. v. Robinson, 132 Ga. App. 121, 207 S.E.2d 599 (1974). IowaPagel v. Notbohm, 186 N.W.2d 638 (Iowa 1971). Okla.King v. City of Guymon, 523 P.2d 1154 (Okla. Ct. App. Div. 2 1974). [FN12] Wash.Landry v. Luscher, 95 Wash. App. 779, 976 P.2d 1274 (Div. 3 1999). [FN13] Cal.Allstate Ins. Co. v. Mel Rapton, Inc., 77 Cal. App. 4th 901, 92 Cal. Rptr. 2d 151 (3d Dist. 2000). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 228 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VIII. Splitting Causes of Action A. General Considerations 2. Applicability of Rule; Exceptions Topic Summary References Correlation Table 229. Generally West's Key Number Digest West's Key Number Digest, Action 38(1), (2), (6), 53(1) The rule against splitting a cause of action applies only to claims and demands which are parts of one cause of action, and are recoverable in the first action. The rule against splitting causes of action requires that all claims between the same parties arising out of or relating to the same transactional circumstances[1] or core set of facts,[2] or arising from a single wrong,[3] or involving the same subject matter[4] be joined in a single action, if practicable.[5] It is the factual circumstances giving rise to the controversy itself that trigger the requirement of joinder.[6] The rule against splitting causes of action, however, is restricted in its application to claims and demands which are parts of a single and indivisible cause of action[7] and which are capable of recovery in the first action.[8] Generally, a litigant may not assert claims in a subsequent action that could have been litigated in the first instance[9] or seek the enforcement of separate remedies, such as specific performance and damages, in separate actions.[10] Even if a plaintiff's claims are based on different legal theories, if they arise out of the same transaction or occurrence, they must be asserted in the same action.[11] Generally, courts do not allow a case arising out of an attorney's alleged bad legal advice or improper representation to be split out into separate claims for negligence, breach of contract, or fraud, because the real issue is whether the attorney exercised the required degree of care, skill, and diligence.[12] However, claims for professional malpractice are different from those for breach of fiduciary duty, as the two theories involve breaches of different duties, and separate actions may be brought on them.[13] The rule against splitting causes of action does not prevent a plaintiff from suing for a part of a single cause of action, where he or she does not attempt to bring a later suit on another part of the same cause of action.[14] Nor does it prevent parties from entering into a partial settlement of a claim.[15] It applies only where the claims or demands are divided and made the basis of several actions,[16] and if a plaintiff sues for a part of a cause of action, it merely precludes him or her from thereafter maintaining another action for the other portion.[17]
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In most jurisdictions, the rule does not prevent the prosecution of several actions upon several causes of action,[18] even where they arise from the same occurrence,[19] without regard to the propriety of their joinder[20 ] or consolidation.[21] In others, however, a plaintiff may not withhold part of a controversy for separate litigation, even when the withheld component is a separate and independently cognizable cause of action.[22]
[FN1] U.S.Koziara v. City of Casselberry, 239 F. Supp. 2d 1245 (M.D. Fla. 2002) (Florida law). AlaskaMcDowell v. State, 23 P.3d 1165 (Alaska 2001). N.J.Oliver v. Ambrose, 152 N.J. 383, 705 A.2d 742 (1998). Series of transactions U.S.Mars Inc. v. Nippon Conlux Kabushiki-Kaisha, 58 F.3d 616 (Fed. Cir. 1995). Definition The word "transaction" includes all facts and circumstances out of which injury arose. Mo.Bagsby v. Gehres, 139 S.W.3d 611 (Mo. Ct. App. E.D. 2004). Medical device Medical malpractice claim asserted by patient against hospital for alleged defective joint implant, and strict products liability claim later asserted by patient against hospital, were part of same claim and could not be split, as actions arose out of same act and transaction, and parties were for all intents and purposes identical. Mo.McCrary v. Truman Medical Center, Inc., 943 S.W.2d 695 (Mo. Ct. App. W.D. 1997). [FN2] AlaskaMcDowell v. State, 23 P.3d 1165 (Alaska 2001). N.J.Hobart Bros. Co. v. National Union Fire Ins. Co., 354 N.J. Super. 229, 806 A.2d 810 (App. Div. 2002). Tex.Genecov Group, Inc. v. Roosth Production Co., 144 S.W.3d 546 (Tex. App. Tyler 2003), review denied, (Apr. 7, 2004) and reh'g overruled, (Apr. 9, 2004). [FN3] Fla. State Farm Mut. Auto. Ins. Co. v. Yenke, 804 So. 2d 429 (Fla. Dist. Ct. App. 5th Dist. 2001). N.C.County Club of Johnston County, Inc. v. United States Fidelity & Guar. Co., 150 N.C. App. 231, 563 S.E.2d 269 (2002). Tex.Pustejovsky v. Rapid-American Corp., 35 S.W.3d 643 (Tex. 2000). Right, duty, and breach
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A cause of action is comprised of a primary right of the plaintiff, a corresponding primary duty of the defendant, and a wrongful act by the defendant constituting a breach of that duty. Cal. Rothschild v. Tyco Internat. (US), Inc., 83 Cal. App. 4th 488, 99 Cal. Rptr. 2d 721 (4th Dist. 2000). Judicial interference Cause of action is based upon act which gives right to invoke judicial interference. La.Steptoe v. Lallie Kemp Hosp., 634 So. 2d 331 (La. 1994), on reh'g, 638 So. 2d 643 (La. 1994). [FN4] Ga.Gunby v. Simon, 277 Ga. 698, 594 S.E.2d 342 (2004). [FN5] Tex.Genecov Group, Inc. v. Roosth Production Co., 144 S.W.3d 546 (Tex. App. Tyler 2003), review denied, (Apr. 7, 2004) and reh'g overruled, (Apr. 9, 2004). [FN6] N.J.In re Estate of Gabrellian, 859 A.2d 700 (N.J. Super. Ct. App. Div. 2004). Test Test for determining whether a cause of action is single and cannot be split is (1) whether separate actions brought arise out of the same act, contract or transaction, (2) or whether the parties, subject matter and evidence necessary to sustain the claim are the same in both actions. U.S.Rosemann v. Roto-Die, Inc., 276 F.3d 393 (8th Cir. 2002) (Missouri law). Mo.Deatherage v. Cleghorn, 115 S.W.3d 447 (Mo. Ct. App. S.D. 2003). Identity of facts and evidence Even if plaintiff is aware of factual basis of suit at filing of another suit, he or she is not obligated to bring all claims together if there is no identity of facts and evidence between the two claims. UtahMacris & Associates, Inc. v. Neways, Inc., 2000 UT 93, 16 P.3d 1214 (Utah 2000). [FN7] Conn.Beizer v. Dictograph Products, Inc., 6 Conn. Cir. Ct. 28, 263 A.2d 93 (App. Div. 1969). [FN8] U.S.International Prisoners' Union v. Rizzo, 356 F. Supp. 806 (E.D. Pa. 1973). Mo.Smith v. Hackleman, 467 S.W.2d 61 (Mo. Ct. App. 1971). [FN9] Tex.Zacharie v. U.S. Nat. Resources, Inc., 94 S.W.3d 748 (Tex. App. San Antonio 2002). As to the effect of a plaintiff's ignorance of a claim, see 233. [FN10] Ga.Madison, Ltd. v. Price, 146 Ga. App. 837, 247 S.E.2d 523 (1978). Neb.Brezina v. Hill, 202 Neb. 773, 277 N.W.2d 224 (1979).
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[FN11] U.S.Alyeska Pipeline Service Co. v. U. S., 231 Ct. Cl. 540, 688 F.2d 765 (1982). La.Westerman v. State Farm Mut. Auto. Ins. Co., 834 So. 2d 445 (La. Ct. App. 1st Cir. 2002). Mich.Clements v. Constantine, 344 Mich. 446, 73 N.W.2d 889 (1955). Medical malpractice and breach of contract Patient improperly split her cause of action for medical malpractice into two claims in two different courts by filing suit that alleged failure to diagnose virus and to disclose test results and another suit that alleged breach of contract by failing to disclose medical information, giving false and misleading information, and not fulfilling his duty or promise; both cases arose from the same set of facts. OhioCastrataro v. Urban, 155 Ohio App. 3d 597, 2003 -Ohio- 6953, 802 N.E.2d 689 (5th Dist. Delaware County 2003), appeal not allowed, 102 Ohio St. 3d 1424, 2004 -Ohio- 2003, 807 N.E.2d 368 (2004). [FN12] Tex.Kimleco Petroleum, Inc. v. Morrison & Shelton, 91 S.W.3d 921 (Tex. App. Fort Worth 2002), reh'g overruled, (Jan. 9, 2003) and review denied, (May 1, 2003). [FN13] Ga. Blier v. Greene, 263 Ga. App. 35, 587 S.E.2d 190 (2003), reconsideration dismissed, (Sept. 3, 2003) and cert. denied, (Jan. 20, 2004). Negligence and breach of fiduciary duty Former client's allegations against law firm involving firm's conflicts of interest were appropriately classified as breach of fiduciary duty claim, and thus, allegations did not impermissibly fracture client's negligence claim against firm, in firm's action against client to recover unpaid legal bills. Tex.Deutsch v. Hoover, Bax & Slovacek, L.L.P, 97 S.W.3d 179 (Tex. App. Houston 14th Dist. 2002) , reh'g overruled, (Jan. 30, 2003). [FN14] Cal.Martin v. Howe, 190 Cal. 187, 211 P. 453 (1922). Ill.Smith, for Use of Karle v. Vandalia R. Co., 188 Ill. App. 426, 1914 WL 2732 (4th Dist. 1914). IowaHall v. Great American Ins. Co. of New York, 217 Iowa 1005, 252 N.W. 763 (1934). Mich.General Elec. Engineering Co. v. Brumm, 218 Mich. 571, 188 N.W. 500 (1922). Mo.Viviano v. Ferguson, 39 S.W.2d 568 (Mo. Ct. App. 1931). Okla.State ex rel. Brett v. North Am. Life Ins. Co. of Chicago, Ill., 1950 OK 332, 203 Okla. 672, 225 P.2d 796 (1950). UtahNational Union Fire Ins. Co. v. Denver & R.G.R. Co., 44 Utah 26, 137 P. 653 (1913). [FN15] La.Honeycutt v. Town of Boyce, 341 So. 2d 327 (La. 1976). [FN16] U.S.Fellows v. National Can Co., 13 F.2d 210 (E.D. Mich. 1926).
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[FN17] U.S.Container Transport Intern., Inc. v. U. S., 199 Ct. Cl. 713, 468 F.2d 926 (1972). Ala.Colquett v. Williams, 269 Ala. 383, 113 So. 2d 347 (1959). Cal.Savage v. Emery, 255 Cal. App. 2d 603, 63 Cal. Rptr. 566 (5th Dist. 1967). Ga.Story v. Rivers, 220 Ga. 232, 138 S.E.2d 304 (1964). Kan.Pretz v. Lamont, 6 Kan. App. 2d 31, 626 P.2d 806, 24 A.L.R.4th 638 (1981). La.Sutterfield v. Fireman's Fund American Ins. Co., 344 So. 2d 1159 (La. Ct. App. 4th Cir. 1977). Md.In re Carlin's Estate, 212 Md. 526, 129 A.2d 827 (1957). Mo. Eugene Alper Const. Co., Inc. v. Joe Garavelli's of West Port, Inc., 655 S.W.2d 132 (Mo. Ct. App. E.D. 1983). N.J.Mori v. Hartz Mountain Development Corp., 193 N.J. Super. 47, 472 A.2d 150 (App. Div. 1983). Va.Gary Steel Products Corp. v. Kitchin, 197 Va. 471, 90 S.E.2d 120 (1955). Wash. Sanwick v. Puget Sound Title Ins. Co., 70 Wash. 2d 438, 423 P.2d 624, 38 A.L.R.3d 315 (1967). [FN18] AlaskaKnaebel v. Heiner, 645 P.2d 201 (Alaska 1982). Cal.Sawyer v. First City Financial Corp., 124 Cal. App. 3d 390, 177 Cal. Rptr. 398 (4th Dist. 1981). Fla.Cole v. First Development Corp. of America, 339 So. 2d 1130 (Fla. Dist. Ct. App. 2d Dist. 1976). Ga.Edwards v. Carlton, 98 Ga. App. 230, 105 S.E.2d 372 (1958). Kan.Parsons Mobile Products, Inc. v. Remmert, 216 Kan. 138, 531 P.2d 435 (1975). Miss.O'Briant v. Hull, 208 So. 2d 784 (Miss. 1968). Mo.Shores v. Express Lending Services, Inc., 998 S.W.2d 122 (Mo. Ct. App. E.D. 1999). Neb.Gaspar v. Flott, 209 Neb. 260, 307 N.W.2d 500 (1981). [FN19] Ind.Rees v. Heyser, 404 N.E.2d 1183, 14 A.L.R.4th 1376 (Ind. Ct. App. 1st Dist. 1980). [FN20] Fla. Cole v. First Development Corp. of America, 339 So. 2d 1130 (Fla. Dist. Ct. App. 2d Dist. 1976). Kan.Parsons Mobile Products, Inc. v. Remmert, 216 Kan. 138, 531 P.2d 435 (1975). N.J.McFadden v. Turner, 159 N.J. Super. 360, 388 A.2d 244 (App. Div. 1978). As to the joinder of causes of action, generally, see 187 et seq.
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[FN21] U.S. Union Cent. Life Ins. Co. of Cincinnati, Ohio v. Drake, 214 F. 536 (C.C.A. 8th Cir. 1914). IowaLozier Auto. Exch. v. Interstate Cas. Co., 197 Iowa 935, 195 N.W. 885 (1923). Mo.Lee v. Guettler, 391 S.W.2d 311 (Mo. 1965). Wash.Helsley v. American Mineral Production Co., 118 Wash. 571, 204 P. 190 (1922). As to the consolidation of causes of action, generally, see 259 et seq. [FN22] U.S. Dowdell v. University of Medicine and Dentistry of New Jersey, 94 F. Supp. 2d 527 (D.N.J. 2000) (New Jersey law). N.J.Brown v. Brown, 208 N.J. Super. 372, 506 A.2d 29 (App. Div. 1986). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 229 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VIII. Splitting Causes of Action A. General Considerations 2. Applicability of Rule; Exceptions Topic Summary References Correlation Table 230. Identity of parties West's Key Number Digest West's Key Number Digest, Action 38(6), 53(1) The rule against splitting causes of actions applies only where the actions are between the same parties. Although in some jurisdictions all negligence claims arising out of one occurrence must be determined in one action, and a plaintiff may not bring a second action against a party that could have been, but was not, named in the first action,[1] the rule against the splitting of a cause of action generally applies to claims rather than to parties.[2] The rule is applicable only where the multiple actions between which a cause of action is split are between the same parties[3] acting in the same capacities.[4] The commencement or maintenance of an action against one of several parties against whom the plaintiff possesses causes of actions does not bar subsequent actions against the others.[5] Thus, a plaintiff is not required to assert every claim for relief he or she may have against a defendant in a single lawsuit.[6]
[FN1] U.S.McCormick v. City of Lawrence, 325 F. Supp. 2d 1191 (D. Kan. 2004) (Kansas law). [FN2] Ga.Gunby v. Simon, 277 Ga. 698, 594 S.E.2d 342 (2004). N.J.Crispin v. Volkswagenwerk, A.G., 96 N.J. 336, 476 A.2d 250 (1984). Prejudice to non-party The mandatory party-joinder component of the entire controversy doctrine has been eliminated by rule, except in special situations involving both inexcusable conduct and substantial prejudice to the nonparty resulting from omission from the suit. N.J.Hillsborough Tp. Bd. of Educ. v. Faridy Thorne Frayta, P.C., 321 N.J. Super. 275, 728 A.2d 857 (App. Div. 1999).
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A.L.R. Library Comparative Negligence: Judgment Allocating Fault In Action Against Less Than All Potential Defendants As Precluding Subsequent Action Against Parties Not Sued In Original Action, 4 A.L.R. 5th 753. [FN3] U.S. Springs Mills, Inc. v. Consumer Product Safety Commission, 434 F. Supp. 416 (D.S.C. 1977). Fla.Alvarez v. Nestor Salesco, Inc., 695 So. 2d 941 (Fla. Dist. Ct. App. 4th Dist. 1997). Mo.Shores v. Express Lending Services, Inc., 998 S.W.2d 122 (Mo. Ct. App. E.D. 1999). N.J.Gareeb v. Weinstein, 161 N.J. Super. 1, 390 A.2d 706 (App. Div. 1978). [FN4] Ga.Bedingfield v. Bedingfield, 248 Ga. 91, 281 S.E.2d 554 (1981). Partnership Fla.Kassner v. Travelers Indem. Co., 285 So. 2d 686 (Fla. Dist. Ct. App. 3d Dist. 1973). [FN5] N.Y.Fugnitto v. Fugnitto, 113 Misc. 2d 666, 452 N.Y.S.2d 976 (App. Term 1982). [FN6] Ga.Holmes v. Achor Center, Inc., 249 Ga. App. 184, 547 S.E.2d 332 (2001). N.Y.Bofinger v. Bofinger, 107 Misc. 2d 573, 435 N.Y.S.2d 652 (Sup 1981). Different controversies Entire controversy doctrine did not bar second suit brought against rug manufacturer by purchaser; whereas first suit pertained to rug that shed, second suit pertained to rug that had faded, and though made by same manufacturer, rugs were manufactured at different times and allegations related to different defects. N.J.Oltremare v. ESR Custom Rugs, Inc., 330 N.J. Super. 310, 749 A.2d 862 (App. Div. 2000). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 230 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VIII. Splitting Causes of Action A. General Considerations 2. Applicability of Rule; Exceptions Topic Summary References Correlation Table 231. Types of actions or proceedings to which rule applies West's Key Number Digest West's Key Number Digest, Action 38(1), 53(1) The rule against splitting causes of actions applies in contract, tort, probate, and divorce proceedings, and in actions concerning real property. The rule against splitting a cause of action applies in contract[1] and tort[2] actions, as well as in proceedings dealing with probate,[3] divorce[4] and other family actions,[5] actions involving real property,[6] or taxation,[7] actions brought by or against federal[8] and state[9] instrumentalities, and actions for civil rights violations.[10] Under some authority, the entire controversy doctrine does not apply to legal malpractice claims.[11] Although it has been held otherwise,[12] the prohibition against splitting causes of action requires that attorney's fees be sought within the action in which they are incurred, and not in a subsequent action,[13] where the recovery of such fees could have been requested in the action in which the attorneys' services were rendered.[14] CUMULATIVE SUPPLEMENT Cases: When a condemnor institutes condemnation proceedings, all legal and equitable issues relating to the taking must be litigated in those proceedings, and the condemnee cannot bring a separate action to dispose of those matters. Department of Transp. v. Gilbert's Auto Service, Inc., 301 Ga. App. 419, 687 S.E.2d 659 (2009). [END OF SUPPLEMENT]
[FN1] As to the application of the rule to contract actions, generally, see 236 et seq.
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[FN2] As to the application of the rule to tort actions, generally, see 250 et seq. [FN3] Fla.Maeder v. Grayson, 222 So. 2d 242 (Fla. Dist. Ct. App. 3d Dist. 1968). Ill.Akerman v. Trosper, 95 Ill. App. 3d 1051, 51 Ill. Dec. 590, 420 N.E.2d 1148 (3d Dist. 1981). IowaWolder v. Rahm, 249 N.W.2d 630 (Iowa 1977). Mo.Gerhardt v. Miller, 532 S.W.2d 852 (Mo. Ct. App. 1975). [FN4] Fla.Telford v. Telford, 225 So. 2d 165 (Fla. Dist. Ct. App. 2d Dist. 1969). Tex.Burrell v. Cornelius, 588 S.W.2d 403 (Tex. Civ. App. Tyler 1979), writ refused n.r.e., (Feb. 27, 1980). [FN5] Adoption N.J.Oliver v. Ambrose, 152 N.J. 383, 705 A.2d 742 (1998). Termination of parental rights By statute, entire controversy doctrine is inapplicable to actions brought by state's Division of Youth and Family Services for termination of parental rights. N.J.B.F. v. Division of Youth and Family Services, 296 N.J. Super. 372, 686 A.2d 1249 (App. Div. 1997). A.L.R. Library Joinder of tort action between spouses with proceeding for dissolution of marriage, 4 A.L.R. 5th 972. [FN6] U.S.Pan Am. Match Inc. v. Sears, Roebuck & Co., 454 F.2d 871 (1st Cir. 1972). [FN7] Ill.People v. Hagerty, 104 Ill. App. 3d 240, 60 Ill. Dec. 9, 432 N.E.2d 908 (1st Dist. 1982). [FN8] Fee recovery U.S.Alyeska Pipeline Service Co. v. U. S., 231 Ct. Cl. 540, 688 F.2d 765 (1982). Government employment U.S.Burich v. U. S., 177 Ct. Cl. 139, 366 F.2d 984 (1966). Government contract U.S.Nager Elec. Co. v. U. S., 177 Ct. Cl. 234, 368 F.2d 847 (1966).
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[FN9] U.S.Perkins v. McGuire, 480 F. Supp. 840 (S.D. N.Y. 1979); International Prisoners' Union v. Rizzo, 356 F. Supp. 806 (E.D. Pa. 1973). Interest levy Cal.Diachenko v. State of California, 123 Cal. App. 3d 932, 177 Cal. Rptr. 164 (4th Dist. 1981). Condemnation U.S.Lake Lorraine, Inc. v. American Tel. and Tel., 378 F. Supp. 13 (E.D. Mo. 1974). Cal.City of Downey v. Johnson, 79 Cal. App. 3d 970, 145 Cal. Rptr. 298 (2d Dist. 1978). [FN10] U.S.Grier v. Specialized Skills, Inc., 326 F. Supp. 856 (W.D. N.C. 1971). [FN11] N.J.Smith v. Farber, 307 N.J. Super. 107, 704 A.2d 569 (App. Div. 1997). Accrual of cause of action Legal malpractice action did not accrue until date of dismissal with prejudice of underlying medical malpractice action for failure to timely serve summons and complaint, even though client was aware of attorney's negligence prior to that date and trial court could have dismissed complaint earlier for untimely service; thus, client had no obligation under entire controversy doctrine to join attorney in underlying medical malpractice action. N.J.Olds v. Donnelly, 150 N.J. 424, 696 A.2d 633 (1997). [FN12] Plenary action Condominium board's plenary action against a condominium unit owner to recover attorney's fees incurred in an action to foreclose liens upon the unit for unpaid common charges and association dues was not barred by the rule against splitting a cause of action. Cal. Board of Managers of Dickerson Pond Condominium I v. Jagwani, 276 A.D.2d 517, 713 N.Y.S.2d 761 (2d Dep't 2000). [FN13] N.Y. Wavertree Corp. v. 136 Waverly Associates, 258 A.D.2d 392, 685 N.Y.S.2d 693 (1st Dep't 1999). Pa.Freidenbloom v. Weyant, 2003 PA Super 6, 814 A.2d 1253 (2003). [FN14] Pa.Goldberg v. Goldberg, 306 Pa. Super. 504, 452 A.2d 838 (1982). Court order not to raise issue before jury N.Y.Mercy Community Hosp. v. Cannon Design, Inc., 235 A.D.2d 405, 652 N.Y.S.2d 87 (2d Dep't 1997).
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VIII. Splitting Causes of Action A. General Considerations 2. Applicability of Rule; Exceptions Topic Summary References Correlation Table 232. Claims and defenses to which rule applies West's Key Number Digest West's Key Number Digest, Action 38(1), 53(1) The rule against splitting causes of actions applies to claims, defenses, and counterclaims, as well as to claims that were not, but could have been, litigated in the original action. The rule against splitting a cause of action encompasses virtually all causes, claims,[1] and defenses[2] relating to a controversy, and at minimum requires all parties to a suit to assert all affirmative claims and defenses arising out of the underlying controversy.[3] The rule also applies to a defendant's assertion of a counterclaim.[4 ] Thus, if a defendant knows that he or she has a claim for contribution or indemnification, the claim should be asserted in the original action.[5] The entire controversy doctrine applies not only to matters actually litigated, but to all aspects of a controversy that might have been litigated and determined[6] if the litigant had exercised due diligence.[7]
[FN1] N.J.Oliver v. Ambrose, 152 N.J. 383, 705 A.2d 742 (1998). [FN2] U.S.Fields v. Thompson Printing Co., Inc., 363 F.3d 259 (3d Cir. 2004) (New Jersey law). N.J.Oliver v. Ambrose, 152 N.J. 383, 705 A.2d 742 (1998). N.M.In re Richards, 1999 -NMSC- 030, 127 N.M. 716, 986 P.2d 1117 (1999). [FN3] N.J.Oliver v. Ambrose, 152 N.J. 383, 705 A.2d 742 (1998). [FN4] U.S.Washington-Baltimore Newspaper Guild Local 35, of Am. Newspaper Guild AFL-CIO v. Washington Post Co., 367 F. Supp. 917 (D.D.C. 1973). Ala.Ex parte Breman Lake View Resort L.P., 729 So. 2d 849 (Ala. 1999).
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N.J.Oliver v. Ambrose, 152 N.J. 383, 705 A.2d 742 (1998). [FN5] N.J.Mettinger v. Globe Slicing Mach. Co., Inc., 153 N.J. 371, 709 A.2d 779 (1998). [FN6] N.J.Vision Mortg. Corp., Inc. v. Patricia J. Chiapperini, Inc., 307 N.J. Super. 48, 704 A.2d 97 (App. Div. 1998), decision aff'd, 156 N.J. 580, 722 A.2d 527 (1999). [FN7] Tenn. Hayes v. Civil Service Com'n of Metropolitan Government of Nashville and Davidson County, 907 S.W.2d 826 (Tenn. App. 1995). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 232 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VIII. Splitting Causes of Action A. General Considerations 2. Applicability of Rule; Exceptions Topic Summary References Correlation Table 233. Where claim is unknown or unripe at time original action is brought West's Key Number Digest West's Key Number Digest, Action 38(1), 53(1) A claim that is unknown, or has not arisen or accrued, at the time the original action is brought may be raised in a separate action. Chief among the equitable considerations determining the applicability of the entire controversy doctrine is the full and fair opportunity of the party sought to be precluded in the second action to have raised his or her claim in the original action.[1] Thus, the doctrine does not apply to bar component claims that are unknown or have not arisen or accrued at the time the original action is brought,[2] where the party is not ignorant of the cause of action through his or her own negligence, or where it was caused by the other party's fraud or fault.[3] For instance, plaintiffs in medical monitoring cases, who seek to recover the costs of periodic medical examinations necessary to detect the onset of physical harm, will not be precluded by the rule against splitting causes of action from bringing claims for whatever physical injuries they suffer if and when they arise.[4] For purposes of the entire controversy doctrine, a party knows of the existence of a cause of action if he or she knows, or should know, of facts which establish that an injury has occurred and that fault for that injury can be attributed to another.[5] Thus, knowledge of the existence of a cause of action which will invoke the rule against splitting a cause of action is the same as knowledge which will trigger the running of the statute of limitations in cases to which the discovery rule is applicable.[6] The mere fact that damages might be uncertain does not delay the accrual of a cause of action for purposes of the entire-controversy doctrine, as the doctrine does not require that all or even the greater part of the damages be fixed and ascertainable before the cause of action accrues.[7] However, in deciding whether to apply the rule, a trial court may consider whether the injured party lacks sufficient information to assert a claim because of uncertainty about the permanency of his or her injury, or the extent of a nonpermanent injury.[8] If at the time of the commencement of an action to recover on a severable part of a claim which is then capable of recovery in that action, another severable part of the claim is incapable of recovery in that particular action, because it is not yet due or for some other reason, it may be made the subject of a separate action without
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violating the rule prohibiting the splitting of causes of action.[9] Accordingly, where several claims payable at different times arise out of one cause of action, separate actions may be brought as each liability accrues,[10] but where no action is brought until more than one is due, all that are due must be included in one action.[11] Although the rule against splitting a cause of action does not bar related claims which have not arisen or accrued during the pendency of the original action,[12] a litigant must generally join, or at least attempt to join, a constituent cause of action that arises while the original action is pending by allowing the court to determine whether the new claim should be joined in the action or reserved.[13] A party who fails to apprise the court and his or her adversary of the existence of the new claim risks losing the cause of action.[14]
[FN1] N.J.Illiano v. Seaview Orthopedics, 299 N.J. Super. 99, 690 A.2d 662 (App. Div. 1997). [FN2] N.J.Sutton Warehousing, Inc. v. Director, New Jersey Div. of Taxation, 290 N.J. Super. 686, 676 A.2d 615 (App. Div. 1996). [FN3] Hawaii.Stevens v. Kirkpatrick, 82 Haw. 91, 919 P.2d 1003 (Ct. App. 1996). Reliance not unreasonable Entire controversy doctrine was inapplicable to real estate developer's negligence claim against soil engineering analysts who mistakenly surveyed the wrong property and who testified as expert witnesses in developer's lawsuit against vendor, where developer did not discover analysts' error until after end of original lawsuit and developer was not unreasonable in relying on work or conclusions of analysts. N.J.Mocci v. Carr Engineering Associates, 306 N.J. Super. 302, 703 A.2d 686 (App. Div. 1997). [FN4] Fla.Petito v. A.H. Robins Co., Inc., 750 So. 2d 103 (Fla. Dist. Ct. App. 3d Dist. 1999). [FN5] U.S. Maertin v. Armstrong World Industries, Inc., 241 F. Supp. 2d 434 (D.N.J. 2002) (New Jersey law). [FN6] N.J.Riemer v. St. Clare's Riverside Medical Center, 300 N.J. Super. 101, 691 A.2d 1384 (App. Div. 1997). [FN7] N.J.Thomas v. Hargest, 363 N.J. Super. 589, 834 A.2d 409 (App. Div. 2003). [FN8] N.J.Prevratil v. Mohr, 145 N.J. 180, 678 A.2d 243 (1996). [FN9] Fla.Ecological Science Corp. v. Boca Ciega Sanitary Dist., 317 So. 2d 857 (Fla. Dist. Ct. App. 2d Dist. 1975). Mo. Eugene Alper Const. Co., Inc. v. Joe Garavelli's of West Port, Inc., 655 S.W.2d 132 (Mo. Ct. App. E.D. 1983). [FN10] U.S.Chicago, R. I. & P. R. Co. v. Furniture Forwarders of St. Louis, Inc., 420 F.2d 385 (8th Cir. 1970).
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Alimony and child support Neb.Roach v. Roach, 192 Neb. 268, 220 N.W.2d 27 (1974). [FN11] Mo. Fidelity & Deposit Co. of Maryland v. Brown, 228 Mo. App. 164, 65 S.W.2d 1064 (1933). N.Y.Golden v. Ramapo Imp. Corp., 78 A.D.2d 648, 432 N.Y.S.2d 238 (2d Dep't 1980). Okla.State ex rel. Brett v. North Am. Life Ins. Co. of Chicago, Ill., 1950 OK 332, 203 Okla. 672, 225 P.2d 796 (1950). [FN12] U.S.Todaro v. Township of Union, 27 F. Supp. 2d 517 (D.N.J. 1998) (New Jersey law). [FN13] N.J.Brown v. Brown, 208 N.J. Super. 372, 506 A.2d 29 (App. Div. 1986). Action of court Rule concerning claim-splitting was inapplicable where state court effectively split plaintiffs' federal civil rights and wrongful death actions arising from same accident when it denied plaintiffs' motion to join two actions in one proceeding. U.S.Delew v. Wagner, 143 F.3d 1219 (9th Cir. 1998). Perjury Second suit for fraud, based on perjury (intrinsic fraud) committed in first suit, may not be filed against person involved in first suit, if statutes and court rules provide avenue for bringing fraud to attention of first court and asking for relief there. Mich.Daoud v. De Leau, 455 Mich. 181, 565 N.W.2d 639 (1997). Denial of motion Former partner did not split causes of action by filing suit that added fraud claim while first suit against fellow partner was still pending following denial of motion to add fraud claim to that suit. Fla.Froman v. Kirland, 753 So. 2d 114 (Fla. Dist. Ct. App. 4th Dist. 1999). [FN14] N.J. DiIorio v. Structural Stone & Brick Co., Inc., 368 N.J. Super. 134, 845 A.2d 658, 53 U.C.C. Rep. Serv. 2d 249 (App. Div. 2004). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 233 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VIII. Splitting Causes of Action A. General Considerations 3. Jurisdiction; Statute of Limitations; Partial Assignments Topic Summary References Correlation Table 234. Jurisdiction; statute of limitations West's Key Number Digest West's Key Number Digest, Action 53(1) Jurisdiction of a cause of action cannot be conferred on a court of limited jurisdiction by splitting the cause, but such a court is not deprived of any jurisdiction of separate causes which it may have by the fact that they can be joined in one action in a court of larger jurisdiction. Unless the rule against splitting is waived, a single cause of action or entire demand cannot be split up into different parts for the purpose of defeating the jurisdiction of the court to which the action jurisdictionally belongs,[1] in order to bring it within the jurisdiction of a court of more limited jurisdiction.[2] However, if the first action is brought in a court that does not have jurisdiction over all of the plaintiff's claims, the rule against splitting does not apply.[3] The splitting between federal and state courts of an action over which federal courts have exclusive jurisdiction is, of course, not permitted.[4] However, the rule against splitting a cause of action is not violated where different rights, obligations, or remedies concerning the same subject matter are litigated in federal and state forums respectively.[5] A plaintiff bringing suit in federal court may not divide his or her claim based upon speculation that the federal court would decline to exercise its pendent jurisdiction over the plaintiff's state claims.[6] Rather, the state claims should be brought in federal court, and if the federal court then declines to exercise pendent jurisdiction, the state claims should be dismissed without prejudice and left for resolution in state court.[7] If two claims arising from the same transaction are subject to different limitations periods, the plaintiff may be excused from bringing both in the same action.[8]
[FN1] Conn.Beizer v. Dictograph Products, Inc., 6 Conn. Cir. Ct. 28, 263 A.2d 93 (App. Div. 1969). Jurisdictional limits
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A party may not split a cause of action in order to circumvent the monetary jurisdictional limit applicable to a small claims action. N.Y.Moore v. Pecora, 191 Misc.2d 256, 741 N.Y.S.2d 394 (N.Y.Dist.Ct. 2002). [FN2] Cal.Allstate Ins. Co. v. Mel Rapton, Inc., 77 Cal. App. 4th 901, 92 Cal. Rptr. 2d 151 (3d Dist. 2000). N.Y.Benson v. Cohoes School Bd., 98 Misc. 2d 110, 413 N.Y.S.2d 600 (County Ct. 1979). [FN3] U.S.Aquatherm Industries, Inc. v. Florida Power & Light Co., 84 F.3d 1388 (11th Cir. 1996). Cal.Le Parc Community Ass'n. v. Workers' Compensation Appeals Bd., 110 Cal.App.4th 1161, 2 Cal. Rptr. 3d 408 (2d Dist. 2003). Equality of fora In order for entire controversy doctrine to apply, there must be equality of forum, that is, first forum must have been able to provide all parties with same full and fair opportunity to litigate issues and with same remedial opportunities as second forum. U.S.Todaro v. Township of Union, 27 F. Supp. 2d 517 (D.N.J. 1998) (New Jersey law). Administrative proceeding Firefighter's administrative proceeding before state department of personnel did not bar subsequent retaliation action, as agency could not have addressed free speech retaliation claim. U.S.Fioriglio v. City of Atlantic City, 963 F. Supp. 415 (D.N.J. 1997) (New Jersey law). [FN4] La.Pool v. Kemper Ins. Group, 386 So. 2d 1006 (La. Ct. App. 3d Cir. 1980), writ refused, 391 So. 2d 456 (La. 1980). [FN5] U.S.Fowler Mfg. Co. v. Gorlick, 415 F.2d 1248, 9 A.L.R. Fed. 268 (9th Cir. 1969). Mich. Marshall v. Consumers Power Co., 65 Mich. App. 237, 237 N.W.2d 266, 82 A.L.R.3d 729 (1975). [FN6] Colo.Dalal v. Alliant Techsystems, Inc., 934 P.2d 830 (Colo. Ct. App. 1996). [FN7] Colo.Dalal v. Alliant Techsystems, Inc., 934 P.2d 830 (Colo. Ct. App. 1996). [FN8] Thirty days and three years Civil rights claim brought by real estate developer for city council's alleged violation of his constitutional rights in improperly imposing conditions on his master use permit did not have to be joined with state law claims that developer asserted in statutory writ action for judicial review of city council's decision; requiring developer, at risk of having his civil rights claims barred by res judicata, to join such
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claims with state statutory claims subject to 30-day period of limitations was incompatible with threeyear period of limitations applicable to 1983 claims. Wash. Hayes v. City of Seattle, 76 Wash. App. 877, 888 P.2d 1227 (Div. 1 1995), reconsideration filed, (Mar. 3, 1995) and aff'd, 131 Wash. 2d 706, 934 P.2d 1179 (1997), opinion corrected, 943 P.2d 265 (Wash. 1997). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 234 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VIII. Splitting Causes of Action A. General Considerations 3. Jurisdiction; Statute of Limitations; Partial Assignments Topic Summary References Correlation Table 235. Partial assignments West's Key Number Digest West's Key Number Digest, Action 53(1) Except in equity, partial assignments of a single cause of action ordinarily will not be enforced. Unless it is waived,[1] the rule against splitting causes of action ordinarily prevents splitting by partial assignments of a single cause of action or claim arising out of an entire contract so as to make it the subject of different actions.[2] There is no splitting of actions where the assignor brings one action for the entire claim for the benefit of both the assignee and the assignor,[3] or where the assignee sues and the assignor raises no claim other than that assigned to the plaintiff.[4] The rule against splitting does not apply where the partial assignment is not attempted until after the action has been commenced.[5]
[FN1] As to waiver of the rule, see 228. [FN2] Md.Summers v. Freishtat, 274 Md. 404, 335 A.2d 89 (1975). Miss.Chuning v. Calvert, 452 S.W.2d 580 (Mo. Ct. App. 1970). Or.Groce v. Fidelity General Ins. Co., 252 Or. 296, 448 P.2d 554 (1968). [FN3] Pa.Bates v. Carter Const. Co., 255 Pa. 200, 99 A. 813 (1916). [FN4] Colo.Cotton v. Roberts Bros., Peterson, Shirley & Gunther, 83 Colo. 505, 266 P. 1116 (1928). Mich.National Liberty Ins. Co. v. Foth, 254 Mich. 152, 235 N.W. 821 (1931). [FN5] N.D.Reineke v. Commonwealth Ins. Co. of New York, 52 N.D. 324, 202 N.W. 657 (1924).
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CJS ACTIONS VIII B REF 1A C.J.S. Actions VIII B Refs.
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VIII. Splitting Causes of Action B. Actions in Contract Topic Summary Correlation Table Research References A.L.R. Library West's A.L.R. Digest, Action 38(5) , 53(1) , (3)
A.L.R. Index: Splitting Cause of Action Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS VIII B REF END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VIII. Splitting Causes of Action B. Actions in Contract 1. In General Topic Summary References Correlation Table 236. Single, indivisible contract West's Key Number Digest West's Key Number Digest, Action 53(3) Only one cause of action arises from a single and indivisible contract. A single, nondivisible contract generally gives rise to a single cause of action, which cannot generally be split up and made the subject of different actions.[1] Only one action can be brought to recover for a single breach,[2] or for several breaches[3] of a single and indivisible contract, and all the damages claimed by reason of the breach must be recovered in a single action.[4] This is so where the claims are ascertainable at the time the action is commenced[5] and the plaintiff is in possession of the facts in support of the claim.[6] The settlement of a portion of a contract claim, not intended as full satisfaction, will not, however, prevent an action for the remainder,[7] and the parties may consent to a judgment with respect to one issue in an action in contract and preserve their right to litigate another issue.[8]
[FN1] U.S.Alyeska Pipeline Service Co. v. U. S., 231 Ct. Cl. 540, 688 F.2d 765 (1982). Cal.Neil Norman, Ltd. v. William Kasper & Co., 149 Cal. App. 3d 942, 197 Cal. Rptr. 198 (2d Dist. 1983). Ga.Bauder Finishing & Career College, Inc. v. Kettle, 128 Ga. App. 422, 197 S.E.2d 381 (1973). Okla.Greater Oklahoma City Amusements, Inc. v. Moyer, 1970 OK 213, 477 P.2d 73 (Okla. 1970). [FN2] Ky.Overstreet v. Greenwell, 441 S.W.2d 443 (Ky. 1969). N.Y.Hartley v. Paul Properties, Inc., 88 Misc. 2d 205, 387 N.Y.S.2d 537 (City Ct. 1976). Okla.Greater Oklahoma City Amusements, Inc. v. Moyer, 1970 OK 213, 477 P.2d 73 (Okla. 1970).
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Or.Kulm v. Coast to Coast Stores, 254 Or. 608, 461 P.2d 526 (1969). [FN3] Fla.Beck v. Pennsylvania Nat. Mut. Cas. Ins. Co., 279 So. 2d 377 (Fla. Dist. Ct. App. 3d Dist. 1973). Ill.Turzynski v. Liebert, 39 Ill. App. 3d 87, 350 N.E.2d 76 (1st Dist. 1976). N.J.Silber v. James Drug Stores, 124 N.J.L. 401, 11 A.2d 756 (N.J. Sup. Ct. 1940). [FN4] U.S.Larry R. George Sales Co. v. Cool Attic Corp., 587 F.2d 266 (5th Cir. 1979). Mich.Canvasser Custom Builders, Inc. v. Seskin, 38 Mich. App. 643, 196 N.W.2d 859 (1972). Okla.Christian v. American Home Assur. Co., 1977 OK 141, 577 P.2d 899 (Okla. 1977). S.C.Harth v. United Ins. Co. of America, 266 S.C. 1, 221 S.E.2d 102 (1975). Wyo.Lane Co., By and Through Lane v. Busch Development, Inc., 662 P.2d 419 (Wyo. 1983). [FN5] N.Y.Solow v. Avon Products, Inc., 56 A.D.2d 785, 392 N.Y.S.2d 618 (1st Dep't 1977), judgment aff'd, 44 N.Y.2d 711, 405 N.Y.S.2d 449, 376 N.E.2d 921 (1978). [FN6] U.S.Alyeska Pipeline Service Co. v. U. S., 231 Ct. Cl. 540, 688 F.2d 765 (1982). Mo.Mullen v. General Motors Corp., 640 S.W.2d 144 (Mo. Ct. App. W.D. 1982). [FN7] U.S.Bethlehem Steel Corp. v. Holmes, 322 F. Supp. 711 (N.D. Okla. 1971). N.Y. Charles E. S. McLeod, Inc. v. R. B. Hamilton Moving and Storage, 89 A.D.2d 863, 453 N.Y.S.2d 251 (2d Dep't 1982). [FN8] Pa.Keystone Bldg. Corp. v. Lincoln Sav. and Loan Ass'n, 468 Pa. 85, 360 A.2d 191 (1976). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 236 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VIII. Splitting Causes of Action B. Actions in Contract 1. In General Topic Summary References Correlation Table 237. Severable or separate contracts West's Key Number Digest West's Key Number Digest, Action 53(3) Separate demands arising from a severable contract or from separate and distinct contracts give rise to separate and distinct causes of action. Distinct and separate demands arising out of a contract give rise to separate causes of action upon which separate actions may be maintained,[1] even if they are of such a character that it would be proper to join them in one action.[2] Thus, whether more than one suit can be brought to recover on a single contract depends on whether or not that contract is divisible or indivisible.[3] Whether a contract is divisible or indivisible must be determined upon the bare facts of that contract.[4] The same contract may give rise to different causes of action, either through successive breaches of the contract,[5] or through the different stipulations or provisions of the contract,[6] although an apparent intention that the agreement be indivisible will be enforced and only one suit permitted for its breach.[7] Of course, separate and distinct contracts give rise to separate and distinct causes of action[8] even though the causes of action are of such a nature that joinder would be proper.[9]
[FN1] Cal.Neil Norman, Ltd. v. William Kasper & Co., 149 Cal. App. 3d 942, 197 Cal. Rptr. 198 (2d Dist. 1983). S.C.Ayers v. Guess, 217 S.C. 233, 60 S.E.2d 315 (1950). Wrongful eviction Tenant was not precluded from seeking damages from landlord in wrongful eviction action separate from that in which tenant sought to be restored to possession of the premises.
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N.Y. Rodriguez v. 1414-1422 Ogden Avenue Realty Corp., 304 A.D.2d 400, 758 N.Y.S.2d 43 (1st Dep't 2003). [FN2] UtahFelt City Townsite Co. v. Felt Inv. Co., 50 Utah 364, 167 P. 835 (1917). Wash.White v. Miley, 138 Wash. 502, 244 P. 986 (1926). As to joinder of actions, generally, see 187 et seq. [FN3] Wash.Helsley v. American Mineral Production Co., 118 Wash. 571, 204 P. 190 (1922). [FN4] S.C. Floyd v. American Employers' Ins. Co. of Boston, Mass., 187 S.C. 344, 197 S.E. 385 (1938). Wash.Helsley v. American Mineral Production Co., 118 Wash. 571, 204 P. 190 (1922). [FN5] Fla.Union Indem. Co. v. Vetter, 107 Fla. 761, 143 So. 869 (1932). Mo. WEA Crestwood Plaza, L.L.C. v. Flamers Charburgers, Inc., 24 S.W.3d 1 (Mo. Ct. App. E.D. 2000). [FN6] N.H.McQuaid v. Michou, 85 N.H. 299, 157 A. 881 (1932). Tex.Eastland County v. Davisson, 13 S.W.2d 673 (Tex. Comm'n App. 1929). [FN7] Pa.Conkle v. Laughlin, 83 Pa. Super. 468, 1924 WL 4037 (1924). [FN8] U.S.Local 1401, Retail Clerks Intern. Ass'n, AFL-CIO v. Woodman's Food Market, Inc., 371 F.2d 199 (7th Cir. 1966). Mo.Fidelity & Deposit Co. of Maryland v. Brown, 228 Mo. App. 164, 65 S.W.2d 1064 (1933). UtahFelt City Townsite Co. v. Felt Inv. Co., 50 Utah 364, 167 P. 835 (1917). [FN9] U.S.Union Cent. Life Ins. Co. of Cincinnati, Ohio v. Drake, 214 F. 536 (C.C.A. 8th Cir. 1914). Mich.Marine Trust Co. of Buffalo v. Roden, 218 Mich. 693, 188 N.W. 397 (1922). Mo.Collins v. Burg, 996 S.W.2d 512 (Mo. Ct. App. E.D. 1999). Breach of contract The rule against splitting a cause of action did not apply to project owner's action against general contractor and liability insurer for declaratory judgment on rights under policy; although the owner sued the contractor for breach of contract, it had not previously filed any action on the right to coverage under the contractor's liability insurance policy. Fla.J.J. Gumberg Co. v. Janis Services, Inc., 847 So.2d 1048 (Fla. App. 2003). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VIII. Splitting Causes of Action B. Actions in Contract 1. In General Topic Summary References Correlation Table 238. Cancellation of contract West's Key Number Digest West's Key Number Digest, Action 53(3) An action for the cancellation of a contract may not be split. An action to have a contract or deed set aside may not be split, even though several grounds such as fraud, undue influence, and mental incapacity are being relied upon, and a denial of an attack based upon one such ground will bar a subsequent action based upon a ground not relied upon previously.[1] However, an action to cancel a contract does not bar a subsequent action to recover damages, on the basis of an alleged breach of the contract, where the claim for damages did not fully accrue before the cancellation of the contract.[2]
[FN1] La.Mitchell v. Bertolla, 340 So. 2d 287 (La. 1976). [FN2] Fla.Georgia-Pacific Corp. v. Squires Development Corp., 387 So. 2d 986 (Fla. Dist. Ct. App. 4th Dist. 1980). La.Reed v. Classified Parking System, 324 So. 2d 484 (La. Ct. App. 2d Cir. 1975). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 238 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VIII. Splitting Causes of Action B. Actions in Contract 1. In General Topic Summary References Correlation Table 239. Continuing contracts West's Key Number Digest West's Key Number Digest, Action 38(5), 53(3) Except that the same question cannot be twice litigated, successive actions for each breach as it occurs may be brought on continuing contracts which are not terminated by a single breach. The rule against splitting a cause of action is inapplicable to a contract which imposes a continuing duty[1] and is not terminated by a single breach,[2] provided that an action which is based on a separate breach is brought before the occurrence of a subsequent alleged breach.[3] A party can bring successive claims on the same contract for damages that have not accrued as of the time of entry of judgment in the prior action.[4] While the contract is in existence, each time the defendant fails to perform in accordance with its provisions is a separate violation of its terms and gives rise to a new cause of action.[5] If at the time an action is commenced on a separable and divisible contract several defaults have occurred or more than one claim or installment is due, all such breaches or claims or installments are parts of one indivisible demand, constituting one cause of action, and must be included in the action.[6] Breaches occurring after the action is brought are claimable in a subsequent action.[7] For instance, on an agreement to pay a sum of money by installments,[8] particularly in the absence of an acceleration clause,[9] an action will lie to recover each installment as it becomes due.
[FN1] Mo.Finley v. St. John's Mercy Medical Center, 958 S.W.2d 593 (Mo. Ct. App. E.D. 1998). [FN2] Tex.State Life Ins. Co. v. Wilson, 57 S.W.2d 355 (Tex. Civ. App. Amarillo 1933). Plaintiff's election In event of material breach of contract, promisee may treat breach as total and sue for all foreseeable future damages or, if promisor has not repudiated the contract, promisee may elect to treat breach as partial and bring successive suits for continued or successive breaches; this rule does not transgress principle forbidding splitting cause of action, so long as the successive suits do not become so unreasonable
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as to be vexatious. Tex.Kaiser v. Northwest Shopping Center, Inc., 587 S.W.2d 454 (Tex. Civ. App. Dallas 1979), writ refused n.r.e., (Feb. 13, 1980). [FN3] HawaiiBolte v. Aits, Inc., 60 Haw. 58, 587 P.2d 810 (1978). Or.Stowell v. R.L.K. and Co., 66 Or. App. 567, 675 P.2d 1074 (1984). [FN4] Mo.WEA Crestwood Plaza, L.L.C. v. Flamers Charburgers, Inc., 24 S.W.3d 1 (Mo. Ct. App. E.D. 2000). [FN5] Mo.Finley v. St. John's Mercy Medical Center, 958 S.W.2d 593 (Mo. Ct. App. E.D. 1998). [FN6] HawaiiBolte v. Aits, Inc., 60 Haw. 58, 587 P.2d 810 (1978). Iowa Davenport Osteopathic Hospital Ass'n of Davenport, Iowa v. Hospital Service, Inc., of Iowa, 261 Iowa 247, 154 N.W.2d 153 (1967). N.Y.Marine Midland Bank v. Roberts, 102 Misc. 2d 903, 424 N.Y.S.2d 671 (City Civ. Ct. 1980). Or.Stowell v. R.L.K. and Co., 66 Or. App. 567, 675 P.2d 1074 (1984). Tex.Westinghouse Credit Corp. v. Kownslar, 496 S.W.2d 531 (Tex. 1973). [FN7] Ky.Overstreet v. Greenwell, 441 S.W.2d 443 (Ky. 1969). [FN8] U.S.Citizens & Southern Nat. Bank v. Bruce, 562 F.2d 590 (8th Cir. 1977). D.C.Keefe Co. v. Americable Intern., Inc., 755 A.2d 469 (D.C. 2000). Ga. International Biochemical Industries, Inc. v. Jamestown Management Corp., 262 Ga. App. 770, 586 S.E.2d 442 (2003). Mo.Grue v. Hensley, 357 Mo. 592, 210 S.W.2d 7 (1948). Okla.Oklahoma Brick Corp. v. McCall, 1972 OK 70, 497 P.2d 215, 10 U.C.C. Rep. Serv. 843 (Okla. 1972). Tenn.Alsup v. Travelers Ins. Co., 196 Tenn. 346, 268 S.W.2d 90 (1954). [FN9] Okla.Kouri v. Toma, 1947 OK 3, 198 Okla. 111, 175 P.2d 975 (1947). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 239 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VIII. Splitting Causes of Action B. Actions in Contract 1. In General Topic Summary References Correlation Table 240. Principal debt and security West's Key Number Digest West's Key Number Digest, Action 53(3) Generally, the holder of a secured obligation may maintain separate actions on the obligation and on the security without splitting his or her cause of action. Although there can be only one satisfaction of the amount of a debt, a principal debt or obligation with some other obligation as collateral security for the debt gives rise to a separate cause of action on each obligation, on which different actions may be brought.[1] Accordingly, unless provided otherwise by statute, it is generally held that the right to recover a personal judgment for a debt secured by a lien and the right to foreclosure of that lien are severable and may be made the subject matter of two distinct causes of action.[2] However, it has been held without reference to any statute that a mortgagee who has properly foreclosed a mortgage cannot afterward maintain a separate action on a related promissory note.[3] Different mortgages constitute different contracts so that a suit to foreclose one will not preclude another suit to foreclose the other.[4] A senior mortgagee may bring an action to cut off the equity of redemption of a junior mortgagee not a party to the foreclosure of the senior mortgage.[5] In a jurisdiction where partial foreclosure is accepted, a foreclosure and sale to recover only interest due does not implicate the rule against the splitting of a cause of action and, thus, does not preclude a second foreclosure and sale to recover only principal.[6] Effect of statute. In a number of jurisdictions, statutory provisions in effect prohibit the maintenance of more than one action for the recovery of a debt secured by a mortgage, and require that there be only one action for the recovery of debt or the enforcement of any right secured by a mortgage.[7] Under such provisions, a mortgagee is not permitted to unduly burden property with successive actions to secure rights arising from a single mortgage.[8]
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[FN1] Cal. Kmap, Inc. v. Town & Country Broadcasters, Inc., 49 Cal. App. 3d 544, 122 Cal. Rptr. 420, 17 U.C.C. Rep. Serv. 591 (5th Dist. 1975). Mich.Canvasser Custom Builders, Inc. v. Seskin, 38 Mich. App. 643, 196 N.W.2d 859 (1972). [FN2] U.S.Bank of Nova Scotia v. St. Croix Drive-in Theatre, Inc., 552 F. Supp. 1244 (D.V.I. 1982), judgment aff'd, 728 F.2d 177 (3d Cir. 1984). Mich.Canvasser Custom Builders, Inc. v. Seskin, 38 Mich. App. 643, 196 N.W.2d 859 (1972). [FN3] IowaJones v. Knutson, 212 Iowa 268, 234 N.W. 548 (1931). [FN4] Mich.Michigan Nat. Bank v. Martin, 19 Mich. App. 458, 172 N.W.2d 920 (1969). [FN5] IowaNelson v. First Nat. Bank, 199 Iowa 804, 202 N.W. 847 (1925). [FN6] N.Y.Golden v. Ramapo Imp. Corp., 78 A.D.2d 648, 432 N.Y.S.2d 238 (2d Dep't 1980). As to splitting a contract action with regard to interest, generally, see 241. [FN7] Mont.Stallings v. Erwin, 148 Mont. 227, 419 P.2d 480 (1966). [FN8] Cal.Schehr v. Berkey, 166 Cal. 157, 135 P. 41 (1913). Mont.Stallings v. Erwin, 148 Mont. 227, 419 P.2d 480 (1966). S.C.Ayers v. Guess, 217 S.C. 233, 60 S.E.2d 315 (1950). Taxes Since the amount paid for taxes, together with amount due on mortgage, constitutes only a single and indivisible demand, existing only by virtue of the mortgage, and being collateral and subordinate thereto, it cannot be separated and collected in a separate action. Mont.Stallings v. Erwin, 148 Mont. 227, 419 P.2d 480 (1966). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 240 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VIII. Splitting Causes of Action B. Actions in Contract 1. In General Topic Summary References Correlation Table 241. Interest West's Key Number Digest West's Key Number Digest, Action 53(1), (3) Interest payable as damages does not constitute a claim separate and distinct from the principal, but where payable by reason of contract it does, and a separate action may be maintained for each installment as it falls due. Interest, if recoverable only as damages, and not because of a contract to pay it, does not constitute a claim distinct and apart from the principal claim, so separate actions may not be brought for the recovery of damages and interest on them.[1] If, however, interest is provided for by contract, and is payable at other times than the principal, the interest and the principal debt each give rise to separate causes of action, for the recovery of which separate actions may be brought.[2] This rule applies even where both principal and interest are due at the time of the first action.[3] If interest is payable at stated intervals, a separate action may be maintained to recover each installment as it falls due.[4]
[FN1] Mo.Federal Deposit Ins. Corp. v. Farmers Bank of Newtown, 238 Mo. App. 350, 180 S.W.2d 532 (1944). [FN2] Ill.Wolf v. Brookfield, 248 Ill. App. 428, 1928 WL 4001 (2d Dist. 1928), cert. denied. [FN3] Mich.Schuhardt v. Jensen, 11 Mich. App. 19, 160 N.W.2d 590 (1968). [FN4] Ky.Huffman v. Martin, 226 Ky. 137, 10 S.W.2d 636 (1928). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 241
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END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VIII. Splitting Causes of Action B. Actions in Contract 2. Specific Types of Contracts Topic Summary References Correlation Table 242. Accounts West's Key Number Digest West's Key Number Digest, Action 38(5), 53(1), (3) An open running account constitutes a single cause of action, subject to the understanding or express agreement of the parties. Separate running accounts constitute distinct causes of action. Although it has been held that each separate item of a running account constitutes a distinct cause of action on which the creditor may sue separately unless there is some agreement, understanding, or course of dealing to the contrary,[1] the majority rule is that in the absence of special circumstances, an open or continuous running account between the same parties constitutes a single and entire cause of action which is not susceptible of division, and the aggregate of all the items of the account constitute the amount due.[2] In either case, however, if it affirmatively appears that the parties regarded the different items as separate transactions and not as parts of an ordinary running account,[3] or if by express agreement the amount of the account is to be due and payable at stated intervals,[4] the account constitutes several causes of action. If there are distinct and separate running accounts between the same parties, separate actions may be maintained on each account.[5] An open mutual account constitutes a single cause of action, and that is for the balance and belongs to the person in whose favor the balance is due.[6] However, in accordance with the rule that a party may sue for a portion of an action even though that prevents him or her from later suing for the balance,[7] a party may bring an action on a single item or any number of items fewer than all the items of such an account.[8] A stated account constitutes an entire demand, the different items of which cannot be made the subject of separate actions.[9]
[FN1] N.C.Simpson v. Elwood, 114 N.C. 528, 19 S.E. 598 (1894).
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[FN2] Ga.Parks v. Oskamp, 97 Ga. 802, 25 S.E. 369 (1896). Minn.Crosby v. St. Paul City Ry. Co., 34 Minn. 413, 26 N.W. 225 (1886). Mo.Meyerotto v. Rommel's Estate, 227 Mo. App. 13, 49 S.W.2d 1081 (1932). R.I.Potter v. Harvey, 34 R.I. 71, 82 A. 812 (1912). [FN3] Mo.Meyerotto v. Rommel's Estate, 227 Mo. App. 13, 49 S.W.2d 1081 (1932). N.C.Mayo v. Martin, 186 N.C. 1, 118 S.E. 830 (1923). [FN4] Neb.Beck v. Deveraux, 9 Neb. 109, 2 N.W. 365 (1879). [FN5] Mo.Grue v. Hensley, 357 Mo. 592, 210 S.W.2d 7 (1948). [FN6] Mass.Kingsley v. Delano, 169 Mass. 285, 47 N.E. 1013 (1897). Minn. Banner Grain Co. v. Burr Farmers' Elevator & Supply Co., 162 Minn. 334, 202 N.W. 740 (1925). [FN7] Discussed in 229. [FN8] Minn. Banner Grain Co. v. Burr Farmers' Elevator & Supply Co., 162 Minn. 334, 202 N.W. 740 (1925). [FN9] Mich. A. Krolik & Co. v. Ossowski (State Report Title: A. Krolk & Co. v. Ossowski), 213 Mich. 1, 180 N.W. 499 (1920). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 242 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VIII. Splitting Causes of Action B. Actions in Contract 2. Specific Types of Contracts Topic Summary References Correlation Table 243. Negotiable instruments West's Key Number Digest West's Key Number Digest, Action 38(5), 53(1), (3) A single note gives rise to one cause of action, but each of several notes provides a separate cause of action even though all arise from the same transaction. A single promissory note gives rise to a single cause of action which cannot be split,[1] while different notes or negotiable instruments, even if they are between the same parties, give rise to different causes of action upon which separate actions may be maintained.[2] This rule applies even if the different notes were given in the same transaction,[3] and even if they all become due upon a prescribed default in payment[4] or were all due at the time of the first action.[5] Different notes secured by different mortgages on the same land[6] or by the same mortgage[7] give rise to separate causes of action. A note given in payment of an installment due on a contract to purchase land creates a cause of action independent of the cause of action for specific performance of the contract of sale,[8] or for ejectment,[9] or in trespass to try title,[10] and such actions do not prevent an independent action for recovery on the note.[11] An action on a check may be pursued separately from one on a contract to which the check relates.[12]
[FN1] IowaIowa Title & Loan Co. v. Clark, 215 Iowa 929, 247 N.W. 211 (1933). Md.Iula v. Grampa, 257 Md. 370, 263 A.2d 548 (1970). Mo.Grue v. Hensley, 357 Mo. 592, 210 S.W.2d 7 (1948). Tex.Westinghouse Credit Corp. v. Kownslar, 496 S.W.2d 531 (Tex. 1973).
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[FN2] IowaIowa Title & Loan Co. v. Clark, 215 Iowa 929, 247 N.W. 211 (1933). Mich.Ginsburg v. McBride, 248 Mich. 221, 226 N.W. 873 (1929). Mo.Broyles v. Achor, 78 S.W.2d 459 (Mo. Ct. App. 1935). Okla.Gaddis v. Williams, 1921 OK 173, 81 Okla. 289, 198 P. 483 (1921). [FN3] Ga.Morrow v. Fitzpatrick, 34 Ga. App. 801, 131 S.E. 189 (1926). Mich.Ginsburg v. McBride, 248 Mich. 221, 226 N.W. 873 (1929). Mo.Broyles v. Achor, 78 S.W.2d 459 (Mo. Ct. App. 1935). Okla.Gaddis v. Williams, 1921 OK 173, 81 Okla. 289, 198 P. 483 (1921). [FN4] Ga.Morrow v. Fitzpatrick, 34 Ga. App. 801, 131 S.E. 189 (1926). [FN5] Mich.Ginsburg v. McBride, 248 Mich. 221, 226 N.W. 873 (1929). Okla.Gaddis v. Williams, 1921 OK 173, 81 Okla. 289, 198 P. 483 (1921). [FN6] Va.Blanton v. Keneipp, 155 Va. 668, 156 S.E. 413 (1931). [FN7] IowaIowa Title & Loan Co. v. Clark Bros., 213 Iowa 875, 237 N.W. 336 (1931), opinion corrected, 240 N.W. 266 (Iowa 1932). [FN8] IowaHuie v. Falde, 197 N.W. 60 (Iowa 1924). [FN9] Mo.Castle v. Tracy, 463 S.W.2d 777 (Mo. 1971). [FN10] Tex.Teachworth v. Terry, 440 S.W.2d 881 (Tex. Civ. App. Houston 14th Dist. 1969). [FN11] Mo.Castle v. Tracy, 463 S.W.2d 777 (Mo. 1971). Tex.Teachworth v. Terry, 440 S.W.2d 881 (Tex. Civ. App. Houston 14th Dist. 1969). [FN12] Fla.Popwell v. Abel, 226 So. 2d 418 (Fla. Dist. Ct. App. 4th Dist. 1969). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 243 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VIII. Splitting Causes of Action B. Actions in Contract 2. Specific Types of Contracts Topic Summary References Correlation Table 244. Personal services West's Key Number Digest West's Key Number Digest, Action 38(5), 53(1), (3) Only one action may be maintained for services under a single contract of employment except that installments of wages may be recovered in separate actions as they come due. Only one action can be maintained for services rendered under an entire contract.[1] However, if under the contract of employment compensation is to be paid at stated intervals, a separate action may be maintained for each installment as it falls due.[2] All claims or installments under the same contract, due at the time of the commencement of the first action, must be included in that action.[3] Claims for services rendered under separate and distinct contracts of employment constitute different causes of action for which different actions may be maintained,[4] even if both contracts have been fully performed at the time the first action is instituted.[5] Under some authority, it is held that if an employee is wrongfully dismissed and there are wages due and unpaid, the claim for the wages earned and due before the wrongful dismissal and the claim for damages for such dismissal constitute separate and distinct causes of action.[6] Under other authority, the alleged wrongful discharge of an employee may be treated as a total breach of the contract of employment for which only a single action may be maintained and in which a judgment is obtainable for all wages past due and for all promised future wages, less the earnings obtainable by the discharged employee by reasonable effort in similar employment.[7] The rule against splitting a cause of action has been found not to be violated by the institution of one action on a promissory note and another action for a balance due under a contract for the performance of services and the furnishing of materials.[8]
[FN1] Me.Pomeroy v. Prescott, 106 Me. 401, 76 A. 898 (1910).
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[FN2] D.C.Le John Mfg. Co. v. Webb, 91 A.2d 332 (Mun. Ct. App. D.C. 1952). Me.Goodwin v. Cabot Amusement Co., 129 Me. 36, 149 A. 574 (1930). [FN3] Ga.Seaboard Air Line Ry. v. Hamilton, 16 Ga. App. 646, 85 S.E. 942 (1915). Mo.Grue v. Hensley, 357 Mo. 592, 210 S.W.2d 7 (1948). [FN4] N.Y.Fox v. Phyfe, 36 Misc. 207, 73 N.Y.S. 149 (App. Term 1901). [FN5] Mo.Wheless v. Serrano, 121 Mo. App. 17, 98 S.W. 108 (1906). [FN6] La.Bartlett v. Doctors Hosp. of Tioga, 422 So. 2d 660 (La. Ct. App. 3d Cir. 1982), writ denied, 427 So. 2d 869 (La. 1983). N.Y.Lonsdale v. J.A. Migel, Inc., 222 A.D. 197, 225 N.Y.S. 593 (2d Dep't 1927). [FN7] Tex.Lone Star Steel Co. v. Wahl, 636 S.W.2d 217 (Tex. App. Texarkana 1982). [FN8] N.Y.John Milnes Co. v. Staten Island Bd. of Jewish Ed., Inc., 26 A.D.2d 831, 273 N.Y.S.2d 931 (2d Dep't 1966). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 244 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VIII. Splitting Causes of Action B. Actions in Contract 2. Specific Types of Contracts Topic Summary References Correlation Table 245. Rents West's Key Number Digest West's Key Number Digest, Action 38(5), 53(1), (3) Rents due under different leases may be recovered in different actions, as may different installments of rent, provided they are not all due at the time the action is brought. Claims for rents due under separate and distinct leases[1] or claims based on different provisions of a single lease[2] constitute different causes of action, for which different actions may be maintained, but damages for a breach going to the whole of a lease must all be recovered in one action.[3] Where rent is payable at stated intervals, a separate action may be brought to recover each installment as it becomes due,[4] but all installments or portions of rent which are due and unpaid under the same lease at the time an action is brought must be included in that action in order to be recovered.[5]
[FN1] N.Y.Haviland & Co. v. Sphinx Import Co., 55 Misc. 2d 448, 285 N.Y.S.2d 414 (City Civ. Ct. 1967). Tenn.Matheny v. Preston Hotel Co., 140 Tenn. 41, 203 S.W. 327 (1918). [FN2] IowaWestway Trading Corp. v. River Terminal Corp., 314 N.W.2d 398 (Iowa 1982). [FN3] Or.Kulm v. Coast to Coast Stores, 254 Or. 608, 461 P.2d 526 (1969). Wash.Oldfield v. Angeles Brewing & Malting Co., 77 Wash. 158, 137 P. 469 (1913). [FN4] IowaHoefer v. Fortmann, 219 Iowa 746, 259 N.W. 494 (1935). Mo.Viviano v. Ferguson, 39 S.W.2d 568 (Mo. Ct. App. 1931). N.J.Stark v. National Research & Design Corp., 33 N.J. Super. 315, 110 A.2d 143 (App. Div. 1954).
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Pa.Byren & Weil v. French & Keeley, 103 Pa. Super. 573, 157 A. 367 (1931). R.I.Ulin v. Flanzbaum, 54 R.I. 345, 173 A. 80 (1934). Tex.Regal Properties v. Donovitz, 479 S.W.2d 748 (Tex. Civ. App. Dallas 1972), writ refused n.r.e., (Oct. 11, 1972). Vt.Luce v. Minard, 87 Vt. 177, 88 A. 728 (1913). Wash.Hare v. Winfree, 131 Wash. 138, 229 P. 16, 42 A.L.R. 126 (1924). [FN5] Cal.Lekse v. Municipal Court, 138 Cal. App. 3d 188, 187 Cal. Rptr. 698 (2d Dist. 1982). Mo.Smith v. Hackleman, 467 S.W.2d 61 (Mo. Ct. App. 1971). N.J.F.W. Woolworth & Co. v. Zimmerman, 13 N.J. Misc. 505, 179 A. 474 (Sup. Ct. 1935). N.Y.Maxwell v. Simons, 77 Misc. 2d 184, 353 N.Y.S.2d 589 (City Civ. Ct. 1973) (rejected on other grounds by, 269 Associates v. Yerkes, 113 Misc. 2d 450, 449 N.Y.S.2d 593 (City Civ. Ct. 1982)). R.I.Ulin v. Flanzbaum, 54 R.I. 345, 173 A. 80 (1934). Wash.Hare v. Winfree, 131 Wash. 138, 229 P. 16, 42 A.L.R. 126 (1924). Acceleration clause Where lease between landlord and tenant had a mandatory acceleration clause whereby all rent for the term of the lease became due and payable, whether or not accrued, in event of default by tenant, and where landlord upon default brought successful action against tenant for only a portion of the rent, subsequent suit by landlord for balance of the rent due was improper splitting of cause of action. Va.Snyder v. Exum, 227 Va. 373, 315 S.E.2d 216 (1984). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 245 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VIII. Splitting Causes of Action B. Actions in Contract 2. Specific Types of Contracts Topic Summary References Correlation Table 246. Sales West's Key Number Digest West's Key Number Digest, Action 38(5), 53(1), (3) An entire contract of sale creates only one cause of action, but a severable contract of sale may give rise to several causes of action, and separate sales create separate causes of action. An entire contract of sale cannot be split up and made the subject of different actions.[1] However, separate causes of action may arise from a severable contract of sale, as for example, where one party's performance consists of several distinct and separate items and the price to be paid by the other is apportioned to each item to be performed;[2] or where payment is to be made at different times, in which case the seller may sue for all items due when the suit is brought;[3] or where there are separate and distinct covenants in the contract, such as an agreement by the buyer to pay expenses and attorney's fees if the seller is forced to employ an attorney to collect the purchase price.[4]
[FN1] U.S.Knowles v. Albert, 9 F.2d 163 (S.D. Fla. 1925). Mass.Foyle v. Meil, 186 N.E.2d 641 (Ohio Ct. App. 8th Dist. Cuyahoga County 1962). N.Y. Gold Medal Farms, Inc. v. Rutland County Co-op. Creamery, Inc., 9 A.D.2d 473, 10 A.D.2d 584, 195 N.Y.S.2d 179 (3d Dep't 1959). [FN2] Ill. Citizens Bank of Tifton v. Adam Schillo Lumber Co., 188 Ill. App. 535, 1914 WL 2755 (1st Dist. 1914). Sales tax Although seller's suit on buyer's note had been dismissed with prejudice on parties' joint motion reciting that payment had been made, seller's subsequent suit for additional sales taxes on sales for which note was given did not constitute splitting cause of action.
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Miss.Ricks Lumber Co., Inc. v. Natchez Steel & Pipe, Inc., 318 So. 2d 883 (Miss. 1975). [FN3] N.Y.Ikonograph Co. v. John Newton Porter Co., 113 N.Y.S. 537 (App. Term 1908). Wash.Kenworth Sales Co. v. Salantino, 154 Wash. 236, 281 P. 996 (1929). [FN4] U.S.Frick Co. v. Rubel Corporation, 1 F. Supp. 100 (E.D. N.Y. 1932). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 246 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VIII. Splitting Causes of Action B. Actions in Contract 3. Insurance Policies Topic Summary References Correlation Table 247. Generally West's Key Number Digest West's Key Number Digest, Action 38(5), 53(1), (3) Generally, a cause of action to recover on an insurance policy cannot be split; however, insurance payable in periodic installments or under different policies may be recovered in different actions. Generally, there can be no splitting of causes of action on a single insurance policy, and whoever sues must be able to enforce the whole policy.[1] Thus, where different parties are entitled to different portions of the insurance, they cannot maintain separate actions against the insurer to recover the amounts respectively payable to each.[2] Likewise, an insurer's agreement to be liable for damages for injuries caused by its insured and to satisfy and discharge any judgment rendered against the insured for those injuries gives to the injured person only one cause of action against both the insured and the insurer.[3] Furthermore, unless the rule is waived,[4] an insured and his or her insurer cannot maintain separate actions against the party causing the loss.[5] An insured's cause of action against a tortfeasor may not be split,[6] as the maintenance of multiple actions against a single tortfeasor on the basis of a single wrong is disfavored.[7] If insurance is payable in periodic installments, the insured may generally bring an action for each installment or sum due as it becomes payable and in default.[8] In some jurisdictions, however, it has been held that if there is an actual breach coupled with a repudiation of the entire contract, the insured may maintain only one action for the entire damages occasioned by the breach.[9] Realty and personalty losses covered by a homeowner's policy may not be claimed in separate actions against the insurer, if they occur simultaneously.[10] The rule against splitting a cause of action does not apply where separate actions are brought on separate causes of action involving insurance policies.[11]
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[FN1] Mich.Hartford Fire Ins. Co. v. Davenport, 37 Mich. 609, 1877 WL 3844 (1877). [FN2] Ala.First Nat. Bank v. Murphree, 218 Ala. 221, 118 So. 404 (1928). N.Y.O'Neil v. Franklin Fire Ins. Co. of Philadelphia, Pa., 159 A.D. 313, 145 N.Y.S. 432 (4th Dep't 1913), aff'd, 216 N.Y. 692, 110 N.E. 1045 (1915). Tex.Hartford Fire Ins. Co. v. Evans, 255 S.W. 487 (Tex. Civ. App. Amarillo 1923). [FN3] U.S.Lake v. Texas News Co., 51 F.2d 862 (S.D. Tex. 1931). [FN4] N.Y.Clarcq v. Chamberlain Mobile Home Transport, Inc., 58 Misc. 2d 227, 294 N.Y.S.2d 550 (Sup 1968). N.C.Southern Stock Fire Ins. Co. of Greensboro v. Raleigh, C. & S. Ry. Co., 179 N.C. 290, 102 S.E. 504 (1920). As to waiver of the rule against splitting a cause of action, see 228. [FN5] Cal.Allstate Ins. Co. v. Mel Rapton, Inc., 77 Cal. App. 4th 901, 92 Cal. Rptr. 2d 151 (3d Dist. 2000). N.Y.Clarcq v. Chamberlain Mobile Home Transport, Inc., 58 Misc. 2d 227, 294 N.Y.S.2d 550 (Sup 1968). [FN6] Ariz.Henshaw v. Mays, 20 Ariz. App. 300, 512 P.2d 604 (Div. 1 1973) (disapproved of on other grounds by, Stephens v. Textron, Inc., 127 Ariz. 227, 619 P.2d 736 (1980)) and (disapproved of on other grounds by, Ross v. Superior Court, In and For Maricopa County, 128 Ariz. 301, 625 P.2d 890 (1981)). Cal.Pacific Indem. Group v. Dunton, 243 Cal. App. 2d 504, 52 Cal. Rptr. 332 (3d Dist. 1966). Neb.Jelinek v. Nebraska Natural Gas Co., 196 Neb. 488, 243 N.W.2d 778 (1976). [FN7] R.I.Lemieux v. American Universal Ins. Co., 116 R.I. 685, 360 A.2d 540 (1976). Refusal to sue wrongdoer If property insurer pays insured only part of loss, and insured refuses to bring suit against wrongdoer causing loss, insurer may sue in its own name for amount it has paid and make insured a party defendant; wrongdoer is entitled to have amount of his liability determined in a single action. N.C.Hardware Dealers Mut. Fire Ins. Co. v. Sheek, 272 N.C. 484, 158 S.E.2d 635 (1968). [FN8] Cal.Robinson v. Exempt Fire Co. of San Francisco, 103 Cal. 1, 36 P. 955 (1894). Tenn.Atkinson v. Railroad Employes' Mut. Relief Society, 160 Tenn. 158, 22 S.W.2d 631 (1929).
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Tex.State Life Ins. Co. v. Wilson, 57 S.W.2d 355 (Tex. Civ. App. Amarillo 1933). [FN9] U.S. Federal Life Ins. Co. v. Rascoe, 12 F.2d 693 (C.C.A. 6th Cir. 1926) (disapproved of on other grounds by, Mobley v. New York Life Ins. Co., 295 U.S. 632, 55 S. Ct. 876, 79 L. Ed. 1621, 99 A.L.R. 1166 (1935)) and (disapproved of on other grounds by, New York Life Ins. Co. v. Viglas, 297 U.S. 672, 56 S. Ct. 615, 80 L. Ed. 971 (1936)). [FN10] Ark. Lisenbey v. Farm Bureau Mut. Ins. Co. of Ark., Inc., 245 Ark. 144, 431 S.W.2d 484 (1968). [FN11] Declaratory judgment The rule against multiple trials in damage suits over issues of fault and damages did not apply to automobile insurer's action against insured for declaratory judgment that policy was void due to misrepresentations in application, and, thus, rule did not bar subsequent suit by insurer's general agent claiming that insurance agent negligently completed application and breached fiduciary duty to properly complete it; litigating comparative fault of agent and insurer in issuing policy would be inappropriate in declaratory judgment action. Kan. Med James, Inc. v. Barnes, 31 Kan. App. 2d 89, 61 P.3d 86 (2003), review denied, (June 26, 2003). Uninsured and underinsured coverage Insured who was injured in motor vehicle accident did not improperly split causes of action by bringing lawsuit against automobile insurer to recover underinsured motorist (UIM) benefits, after bringing initial personal injury action against tortfeasor and naming insurer as party for purpose of recovering uninsured (UM) motorist benefits based upon tortfeasor's allegation that unknown motorist caused insured's injuries; UM coverage and UIM coverage related to separate policy provisions, giving rise to separate causes of action. Fla.State Farm Mut. Auto. Ins. Co. v. Yenke, 804 So. 2d 429 (Fla. Dist. Ct. App. 5th Dist. 2001). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 247 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VIII. Splitting Causes of Action B. Actions in Contract 3. Insurance Policies Topic Summary References Correlation Table 248. Subrogation West's Key Number Digest West's Key Number Digest, Action 38(5), 53(1), (3) A tortfeasor's single liability is not rendered divisible by the partial indemnification of a subrogee. Since a subrogee derives his or her right to recovery from the injured party, the prohibition against splitting a cause of action is no less binding where the interests of a subrogee are involved.[1] The rule against splitting a cause of action is violated where both an insurer, which has paid a portion of a loss under its insurance policy and is subrogated to the insured's rights, and the insured, who has not fully recovered for the loss, pursue separate actions against the tortfeasor who is responsible for the loss.[2] A tortfeasor's single liability is generally not rendered joint and divisible by the fact that a subrogee has been partially indemnified, unless the tortfeasor consents,[3] or settles with the insured with knowledge of the insurer's subrogation rights[4] and without the insurer's consent.[5] As between the injured insured and a partially subrogated insurer, the insured is given the right of action against the responsible tortfeasor.[6]
[FN1] Pa.Travelers Ins. Co. v. Hartford Acc. & Indem. Co., 222 Pa. Super. 546, 294 A.2d 913 (1972) . Statute Statute governing subrogation claims by personal injury insurers does not create an exception to the general rule against claim splitting so as to allow such an insurer whose insured has filed a tort suit against a third party to bring a separate suit against the third party to recover personal injury benefits paid. Or.Wynia v. Fick, 162 Or. App. 365, 986 P.2d 625 (1999).
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[FN2] Cal.Allstate Ins. Co. v. Mel Rapton, Inc., 77 Cal. App. 4th 901, 92 Cal. Rptr. 2d 151 (3d Dist. 2000). Ind.Erie Ins. Co. v. George, 681 N.E.2d 183 (Ind. 1997). IowaAllied Mut. Ins. Co. v. Heiken, 675 N.W.2d 820 (Iowa 2004). [FN3] Ark.U.S. Fidelity & Guaranty Co. v. Glass, 261 Ark. 45, 545 S.W.2d 924 (1977). R.I.Hospital Service Corp. of R. I. v. Pennsylvania Ins. Co., 101 R.I. 708, 227 A.2d 105 (1967). [FN4] Cal.Allstate Ins. Co. v. Mel Rapton, Inc., 77 Cal. App. 4th 901, 92 Cal. Rptr. 2d 151 (3d Dist. 2000). Okla.Aetna Cas. & Sur. Co. v. Associates Transports, Inc., 1973 OK 62, 512 P.2d 137 (Okla. 1973). [FN5] IowaAllied Mut. Ins. Co. v. Heiken, 675 N.W.2d 820 (Iowa 2004). [FN6] IowaAllied Mut. Ins. Co. v. Heiken, 675 N.W.2d 820 (Iowa 2004). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 248 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VIII. Splitting Causes of Action B. Actions in Contract 3. Insurance Policies Topic Summary References Correlation Table 249. SubrogationAutomobile subrogation exception West's Key Number Digest West's Key Number Digest, Action 38(5), 53(1), (3) Under some authority, the splitting of a cause of action concerning an automobile liability claim is permissible where the insured assigns one cause of action to the insurer, but retains another. Under some authority, for the limited purpose of the prosecution of an automobile policy claim, a single cause of action may be divided to the extent that an insurer subrogated to a part of a claim assigned to it by an insured may prosecute it in a separate action against the tortfeasor.[1] For instance, the splitting of a cause of action is permissible where an insured assigns to his or her insurer his or her cause of action for property damage, but retains a cause of action for personal injuries.[2] The policy reason behind this exception to the general rule prohibiting splitting causes of action is to facilitate the prompt settlement of property damage claims by the insured as against his or her own insurance carrier without prejudicing either the insured's right to sue the tortfeasor for personal injuries or the insurance carrier's right to bring a subrogated property claim against the same tortfeasor.[3] Such an action by the insurer may be brought either before[4] or after[5] the action brought by the insured. In a majority of jurisdictions,[6] a single cause of action for personal injuries may be divided to the extent that an insurer, subrogated to the medical expense claim of an insured, may prosecute this claim in a separate action against the alleged tortfeasor.[7]
[FN1] OhioNationwide Ins. Co. v. Steigerwalt, 21 Ohio St. 2d 87, 50 Ohio Op. 2d 200, 255 N.E.2d 570, 40 A.L.R.3d 102 (1970). [FN2] Fla.State Farm Mut. Auto. Ins. Co. v. Robbins, 237 So. 2d 208 (Fla. Dist. Ct. App. 4th Dist. 1970).
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Mo.State ex rel. Home Service Oil Co. v. Hess, 485 S.W.2d 616 (Mo. Ct. App. 1972). [FN3] Fla.McKibben v. Zamora, 358 So. 2d 866 (Fla. Dist. Ct. App. 3d Dist. 1978). [FN4] Nev.Smith v. Hutchins, 93 Nev. 431, 566 P.2d 1136 (1977). R.I.Lemieux v. American Universal Ins. Co., 116 R.I. 685, 360 A.2d 540 (1976). [FN5] Fla.McKibben v. Zamora, 358 So. 2d 866 (Fla. Dist. Ct. App. 3d Dist. 1978). [FN6] OhioSmith v. Travelers Ins. Co., 50 OAPP2D 349, 4 Ohio Op. 3d 292, 363 N.E.2d 750 (10th Dist. Franklin County 1976), judgment aff'd, 50 Ohio St. 2d 43, 4 Ohio Op. 3d 114, 362 N.E.2d 264 (1977). [FN7] OhioSmith v. Travelers Ins. Co., 50 Ohio St. 2d 43, 4 Ohio Op. 3d 114, 362 N.E.2d 264 (1977) . Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 249 END OF DOCUMENT
CJS ACTIONS VIII C REF 1A C.J.S. Actions VIII C Refs.
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VIII. Splitting Causes of Action C. Actions in Tort Topic Summary Correlation Table Research References A.L.R. Library West's A.L.R. Digest, Action 38(1) , (3) , (4) , (6) , 53(1) , (2)
A.L.R. Index: Splitting Cause of Action Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS VIII C REF END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VIII. Splitting Causes of Action C. Actions in Tort Topic Summary References Correlation Table 250. Generally West's Key Number Digest West's Key Number Digest, Action 38(1), (3), (4), 53(1), (2) The rule against splitting causes of action applies to tort actions, and a single wrongful act gives rise, except in certain specified instances, to a single cause of action. The rule against splitting causes of action applies to causes of action arising in tort.[1] A single wrong gives rise to one cause of action, for which only one action can be maintained,[2] however numerous the elements or items of damage resulting from the wrong may be.[3] The rule cannot be evaded by varying the form of action in the different actions sought to be maintained for the same cause.[4] On the other hand, where there are distinct and separate causes of action, different actions may be maintained.[5] There are cases in which the same wrongful act or tort may occasion different causes of action.[6] For instance, the rule as to a single cause of action does not apply where the injury is suffered by different persons,[7] or where different rights, such as personal and property rights,[8] are implicated. Ordinarily, however, a single wrongful act, affecting a single person, gives rise to a single cause of action for which only one action can be maintained.[9] Some jurisdictions require that intentional tort actions between spouses be considered independently from their divorce actions;[10] others that intentional tort actions between former romantic partners be included in related family law actions.[11]
[FN1] Ala.Reichert v. City of Mobile, 776 So. 2d 761 (Ala. 2000). D.C.Keefe Co. v. Americable Intern., Inc., 755 A.2d 469 (D.C. 2000). Ill.Dillon v. Evanston Hosp., 199 Ill. 2d 483, 264 Ill. Dec. 653, 771 N.E.2d 357 (2002). N.J.Prevratil v. Mohr, 145 N.J. 180, 678 A.2d 243 (1996).
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N.C.Bailey v. Gitt, 135 N.C. App. 119, 518 S.E.2d 794 (1999). Okla.Muskogee Title Co. v. First Nat. Bank & Trust Co. of Muskogee, 1995 OK CIV APP 29, 894 P.2d 1148 (Ct. App. Div. 1 1995). Tex.Deutsch v. Hoover, Bax & Slovacek, L.L.P, 97 S.W.3d 179 (Tex. App. Houston 14th Dist. 2002) , reh'g overruled, (Jan. 30, 2003). UtahMedved v. Glenn, 2004 UT App 161, 92 P.3d 176 (Utah Ct. App. 2004), cert. granted, 98 P.3d 1177 (Utah 2004). Wash.Landry v. Luscher, 95 Wash. App. 779, 976 P.2d 1274 (Div. 3 1999). Product liability N.J. Harley Davidson Motor Co., Inc. v. Advance Die Casting, Inc., 150 N.J. 489, 696 A.2d 666 (1997). Wrongful death Tenn.Kline v. Eyrich, 69 S.W.3d 197 (Tenn. 2002). [FN2] U.S.Sharrock v. Perkins, 297 F. Supp. 1285 (W.D. Okla. 1969). Cal.Greenfield v. Insurance Inc., 19 Cal. App. 3d 803, 97 Cal. Rptr. 164 (5th Dist. 1971). Kan.Pretz v. Lamont, 6 Kan. App. 2d 31, 626 P.2d 806, 24 A.L.R.4th 638 (1981). Okla.Muskogee Title Co. v. First Nat. Bank & Trust Co. of Muskogee, 1995 OK CIV APP 29, 894 P.2d 1148 (Ct. App. Div. 1 1995). Tex.Martin v. Phillips Petroleum Co., 455 S.W.2d 429 (Tex. Civ. App. Houston 14th Dist. 1970). [FN3] Me.Warren v. Waterville Urban Renewal Authority, 290 A.2d 362 (Me. 1972). Okla.Muskogee Title Co. v. First Nat. Bank & Trust Co. of Muskogee, 1995 OK CIV APP 29, 894 P.2d 1148 (Ct. App. Div. 1 1995). [FN4] Cal.Greenfield v. Insurance Inc., 19 Cal. App. 3d 803, 97 Cal. Rptr. 164 (5th Dist. 1971). La.Golman v. Dixie Ins. Co., 385 So. 2d 309 (La. Ct. App. 1st Cir. 1980), writ refused, 386 So. 2d 357 (La. 1980). Negligence and breach of fiduciary duty Gist of former client's allegations against law firm, including failing to counsel and advise client about purpose and effect of indemnity language contained in engagement letter with firm, was that firm did not exercise degree of care, skill, or diligence as attorneys of ordinary skill and knowledge commonly possess, and as such, allegations could have only been pursued as negligence claim, rather than breach of fiduciary duty claim, and thus, client impermissibly fractured his negligence claim against firm by
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asserting such allegations as breach of fiduciary claim. Tex.Deutsch v. Hoover, Bax & Slovacek, L.L.P, 97 S.W.3d 179 (Tex. App. Houston 14th Dist. 2002) , reh'g overruled, (Jan. 30, 2003). [FN5] Subrogated actual damage; loss of rental value Where second action brought in name of lessor against lessee by lessor's insurer to recover for damage to leased crane did not encompass any part of claim lessor asserted in first action against lessee for lost rental value, but rather, asserted only subrogation claim in which lessor was merely nominal party, there was no improper splitting of cause of action. N.Y.Crown Crane Rental Co., Inc. v. Eberhart Const. Co., Inc., 117 Misc. 2d 268, 458 N.Y.S.2d 165 (Sup 1983). [FN6] U.S.Household Goods Carriers' Bureau v. Terrell, 452 F.2d 152 (5th Cir. 1971). S.C.Holcombe v. Garland & Denwiddie, 162 S.C. 379, 160 S.E. 881 (1931). Loss of consortium and wrongful death Widow's separate claims for pre-death loss of consortium and wrongful death, in action arising from automobile accident that caused husband's two and one-half year coma and ultimate death, did not amount to splitting of cause of action; there were different parties for loss of consortium and wrongful death actions, and different evidence was required to prove each claim. Mo.Bridges v. Van Enterprises, 992 S.W.2d 322 (Mo. Ct. App. S.D. 1999). [FN7] Discussed in 253. [FN8] Discussed in 254. [FN9] N.J.Smith v. Red Top Taxicab Corp., 111 N.J.L. 439, 168 A. 796 (N.J. Ct. Err. & App. 1933). Okla.Retherford v. Halliburton Co., 1977 OK 178, 572 P.2d 966 (Okla. 1977). [FN10] Ohio Koepke v. Koepke, 52 Ohio App. 3d 47, 556 N.E.2d 1198 (6th Dist. Wood County 1989). [FN11] Adoption Wife and new husband's intentional tort claims against wife's old partner should have been brought in their original suit seeking adoption or as counterclaims to old partner's custody and visitation suit. N.J.Oliver v. Ambrose, 152 N.J. 383, 705 A.2d 742 (1998).
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VIII. Splitting Causes of Action C. Actions in Tort Topic Summary References Correlation Table 251. Separate wrongful acts West's Key Number Digest West's Key Number Digest, Action 38(3), (4), 53(1), (2) Separate wrongful acts or torts resulting in different injuries give rise to distinct causes of action, but if only one injury results only one cause of action is created. Separate actions may be maintained for more than one tort or wrongful act from which different injuries result,[1] even if the different wrongs arise out of the same set of operative facts.[2] However, several distinct and different acts of negligence resulting in one injury constitute one indivisible cause of action for which only one action can be maintained.[3]
[FN1] U.S.Goodman v. Mead Johnson & Co., 534 F.2d 566, 21 Fed. R. Serv. 2d 871 (3d Cir. 1976). Negligent medical care An injured party has a separate cause of action against a successive and independent tort-feasor who negligently renders medical or hospital care in the treatment of injuries suffered at the hands of another. W.Va.Thornton v. Charleston Area Medical Center, 158 W. Va. 504, 213 S.E.2d 102 (1975). [FN2] U.S.Moran v. Paine, Webber, Jackson and Curtis, 279 F. Supp. 573 (W.D. Pa. 1966), judgment aff'd, 389 F.2d 242 (3d Cir. 1968). [FN3] U.S.Baltimore S.S. Co. v. Phillips, 274 U.S. 316, 47 S. Ct. 600, 71 L. Ed. 1069 (1927). IowaHawley v. Davenport, R.I. & N.W. Ry. Co., 242 Iowa 17, 45 N.W.2d 513 (1951). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 251
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END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VIII. Splitting Causes of Action C. Actions in Tort Topic Summary References Correlation Table 252. Libelous acts West's Key Number Digest West's Key Number Digest, Action 38(1), (4), 53(1), (2) Under the general rule that for more than one tort or wrongful act from which different injuries result, separate actions may be maintained, separate actions may be maintained for different publications of a libel. Under the general rule that separate actions may be maintained for more than one tort or wrongful act from which different injuries result,[1] separate actions may be maintained for different publications of a libel.[2] Each republication or repetition of a libel constitutes a cause of action separate and independent from the cause of action arising out of the original publication.[3] Defamatory words published after the commencement of the action also constitute a separate and distinct cause of action which cannot be included in the first action.[4] The "single publication rule," which has been codified in the Uniform Single Publication Act,[5] requires a plaintiff to recover in one action all damages arising from a libel published in any one issue of a newspaper,[6] magazine,[7] other periodical,[8] broadcast,[9] or book.[10] The rule is an exception to the general rule that each communication of the same defamatory matter by the same defamer, whether to a new person or to the same person, is a separate and distinct publication, for which a separate cause of action arises.[11] Under the single publication rule, the distribution or sale of each copy of a particular issue of a publication does not constitute a distinct and separate publication,[12] even if the copies are distributed over a substantial period of time.[13] The single publication rule applies only to multiple copies of the same matter published as part of a single printing, and not to the separate printing of the same matter in different publications.[14] For instance, while only one cause of action arises out of the original publication of all copies of the hardbound edition of a book, the republication of that book in paperback gives rise to a new cause of action, so that a previous libel action based on the hardcover edition does not bar a subsequent action based on the paperback edition.[15]
[FN1] Discussed in 251. [FN2] U.S. Dixson v. Newsweek, Inc., 562 F.2d 626 (10th Cir. 1977); Appleyard v. Transamerican
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Press, Inc., 539 F.2d 1026 (4th Cir. 1976). Ind.Elliott v. Roach, 409 N.E.2d 661 (Ind. Ct. App. 4th Dist. 1980). Miss.Ladner v. Arrington, 374 So. 2d 831 (Miss. 1979). Pa.Graham v. Today's Spirit, 503 Pa. 52, 468 A.2d 454, 41 A.L.R.4th 535 (1983). [FN3] U.S. Dixson v. Newsweek, Inc., 562 F.2d 626 (10th Cir. 1977); Appleyard v. Transamerican Press, Inc., 539 F.2d 1026 (4th Cir. 1976). Miss.Ladner v. Arrington, 374 So. 2d 831 (Miss. 1979). Pa.Graham v. Today's Spirit, 503 Pa. 52, 468 A.2d 454, 41 A.L.R.4th 535 (1983). Libelous letter Every repetition of libelous letter is independently actionable publication. Ind.Elliott v. Roach, 409 N.E.2d 661 (Ind. Ct. App. 4th Dist. 1980). See also C.J.S., Libel and Slander; Injurious Falsehood 53 et seq. [FN4] C.J.S., Libel and Slander; Injurious Falsehood 119. [FN5] Cal.Kanarek v. Bugliosi, 108 Cal. App. 3d 327, 166 Cal. Rptr. 526 (2d Dist. 1980). Pa.Graham v. Today's Spirit, 503 Pa. 52, 468 A.2d 454, 41 A.L.R.4th 535 (1983). Tenn.Applewhite v. Memphis State University, 495 S.W.2d 190 (Tenn. 1973). As to the single publication rule and the Uniform Single Publication Act in general, see C.J.S., Libel and Slander; Injurious Falsehood 53. A.L.R. Library What constitutes single publication within meaning of single publication rule affecting action for libel and slander, violation of privacy, or similar torts, 41 A.L.R. 4th 541. [FN6] Pa.Graham v. Today's Spirit, 503 Pa. 52, 468 A.2d 454, 41 A.L.R.4th 535 (1983). [FN7] U.S.Patch v. Playboy Enterprises, Inc., 652 F.2d 754 (8th Cir. 1981). [FN8] U.S.Glenn v. Advertising Publications, Inc., 251 F. Supp. 889 (S.D. N.Y. 1966). [FN9] Fla.Ovadia v. Bloom, 756 So. 2d 137 (Fla. Dist. Ct. App. 3d Dist. 2000). [FN10] U.S.Glenn v. Advertising Publications, Inc., 251 F. Supp. 889 (S.D. N.Y. 1966). [FN11] U.S. Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 104 S. Ct. 1473, 79 L. Ed. 2d 790
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(1984). [FN12] U.S.Eliah v. Ucatan Corp., 433 F. Supp. 309 (W.D. N.Y. 1977). One suit only General theory of the "single publication rule" is that a defendant should be subject to suit only once for each mass publication of libel, but that in that one action, plaintiff may introduce evidence of all sales in all jurisdictions to show extent of his or her injury. U.S.Novel v. Garrison, 294 F. Supp. 825 (N.D. Ill. 1969). [FN13] Cal.Kanarek v. Bugliosi, 108 Cal. App. 3d 327, 166 Cal. Rptr. 526 (2d Dist. 1980). [FN14] U.S.Regan v. Sullivan, 557 F.2d 300 (2d Cir. 1977). Pa.Graham v. Today's Spirit, 503 Pa. 52, 468 A.2d 454, 41 A.L.R.4th 535 (1983). Report of arrest and "rogues' gallery" picture Newspaper article reporting plaintiff's arrest, and showing of plaintiff's picture in "rogues' gallery," did not constitute a "single publication," since separate printing of differing publications was involved. U.S.Regan v. Sullivan, 557 F.2d 300 (2d Cir. 1977). [FN15] Cal.Kanarek v. Bugliosi, 108 Cal. App. 3d 327, 166 Cal. Rptr. 526 (2d Dist. 1980). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 252 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VIII. Splitting Causes of Action C. Actions in Tort Topic Summary References Correlation Table 253. Wrongs affecting two or more persons West's Key Number Digest West's Key Number Digest, Action 38(1), (6), 53(1), (2) Except as provided otherwise by statute, injuries sustained by two or more persons from the same wrong give rise to separate causes of action. In the absence of statutory provisions to the contrary, separate and distinct causes of action on which separate actions may be maintained accrue where two or more persons sustain injuries as a result of the same wrong.[ 1] This is so where, for example, the same negligent act or wrong causes the death of two or more persons, even though all the causes of action inure to the same party,[2] or injures one person and kills another, even though the cause of action for the death of the person killed inures to the person injured,[3] or injures the interests of both the lessor and of the lessee of the same property.[4] A husband and wife should institute only one action to recover for personal injuries inflicted on both in the same accident,[5] and the maintenance of separate actions to recover respectively for direct injuries sustained by one spouse and derivative injuries sustained by the other spouse may be proscribed.[6] Thus, it may be required that a spouse's claim of damages due to the other spouse's injuries be included in the other spouse's action[7] or that a spouse's loss of consortium claim be included in the other spouse's action.[8] Furthermore, under some authority, it may be required that a parent's claim for damages due to injuries sustained by a child be included in the action brought by the child.[9] Under statutes authorizing recovery for death caused by wrongful act, a wrongful death gives rise to a single and indivisible cause of action on which only one action for the recovery of all the damages for the benefit of all the beneficiaries may be maintained,[10] by a party specified in the applicable statute, such as a surviving spouse or child.[11] Accordingly, a judgment in one wrongful death action ordinarily bars another action by one who was not a party to the action in which a judgment has been rendered,[12] unless the defendant waives the application of the rule that only one wrongful death action may be maintained.[13]
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[FN1] U.S. Midcontinent Broadcasting Co. v. Dresser Industries, Inc., 486 F. Supp. 858, 29 U.C.C. Rep. Serv. 444 (D.S.D. 1980); Gulak v. Yu, 295 F. Supp. 1323 (E.D. Pa. 1969). N.Y. Brinkman v. Oil Transfer Corp., 185 Misc. 257, 56 N.Y.S.2d 773 (Sup 1945), judgment aff'd, 274 A.D. 985, 84 N.Y.S.2d 457 (1st Dep't 1948), judgment aff'd, 300 N.Y. 48, 88 N.E.2d 817, 13 A.L.R.2d 623 (1949). Provision to the contrary Pa.Fisher v. Hill, 368 Pa. 53, 81 A.2d 860 (1951). [FN2] U.S.Forrester v. Southern Ry. Co., 268 F. Supp. 194 (N.D. Ga. 1967). Miss.Payne v. Moore, 126 Miss. 693, 89 So. 225 (1921). Parents of pregnant automobile passenger Fact that parents of automobile passenger who had sustained fatal injuries in accident which occurred while passenger was nine months pregnant had previously brought wrongful death suit against driver of automobile for passenger's death did not operate, pursuant to rule against splitting causes of action, to bar parents from asserting separate, distinct wrongful death action against driver as heirs at law of passenger's unborn, viable fetus, even though joinder of causes of action may have been desirable. Kan.Shelton v. DeWitte, 271 Kan. 831, 26 P.3d 650 (2001). [FN3] Ga.Burns v. Brickle, 106 Ga. App. 150, 126 S.E.2d 633 (1962). Tex. Marcus v. Huguley, 37 S.W.2d 1100 (Tex. Civ. App. Dallas 1931), writ dismissed, (Nov. 28, 1932). [FN4] U.S. Midcontinent Broadcasting Co. v. Dresser Industries, Inc., 486 F. Supp. 858, 29 U.C.C. Rep. Serv. 444 (D.S.D. 1980). [FN5] Pa.Reeves v. Philadelphia Gas Works Co., 107 Pa. Super. 422, 164 A. 132 (1933). Purpose of rule Rule of civil procedure requiring that causes of action for injury to spouse be enforced in one action brought by both spouses is intended to diminish possibility of duplicating and overlapping damages and to avert piecemeal litigation that would unduly burden the courts. Mo.Garland v. American Family Mut. Ins. Co., 458 S.W.2d 889 (Mo. Ct. App. 1970). [FN6] Mo.Garland v. American Family Mut. Ins. Co., 458 S.W.2d 889 (Mo. Ct. App. 1970). [FN7] OhioMoore v. Baker, 25 Ohio Misc. 140, 54 Ohio Op. 2d 139, 266 N.E.2d 593 (C.P. 1970). [FN8] Mo.Garland v. American Family Mut. Ins. Co., 458 S.W.2d 889 (Mo. Ct. App. 1970). OhioMoore v. Baker, 25 Ohio Misc. 140, 54 Ohio Op. 2d 139, 266 N.E.2d 593 (C.P. 1970).
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Limitation on damages If husband's action for his injuries has concluded, wife still may assert her cause of action for loss of consortium separately but her damages are then limited to items other than loss of her husband's services. Wis.Edeler v. O'Brien, 38 Wis. 2d 691, 158 N.W.2d 301 (1968). A.L.R. Library When must loss-of-consortium claim be joined with underlying personal injury claim, 60 A.L.R. 4th 1174. [FN9] OhioMoore v. Baker, 25 Ohio Misc. 140, 54 Ohio Op. 2d 139, 266 N.E.2d 593 (C.P. 1970). Loss of society and companionship Parents' cause of action for loss of society and companionship of child must be combined with that of child for personal injuries. Wis.Korth by Lukas v. American Family Ins. Co., 115 Wis. 2d 326, 340 N.W.2d 494 (1983). [FN10] U.S.Doleman v. Levine, 295 U.S. 221, 55 S. Ct. 741, 79 L. Ed. 1402 (1935); Urdiales v. St. Paul Mercury Ins. Co., 445 F.2d 296 (9th Cir. 1971); Morrison v. New Orleans Public Service Inc., 415 F.2d 419 (5th Cir. 1969); Jamison v. Memphis Transit Management Co., 381 F.2d 670 (6th Cir. 1967). Mo.Forsthove v. Hardware Dealers Mut. Fire Ins. Co., 416 S.W.2d 208 (Mo. Ct. App. 1967). N.C.McEachern v. Miller, 268 N.C. 591, 151 S.E.2d 209 (1966). Tenn.Kline v. Eyrich, 69 S.W.3d 197 (Tenn. 2002). Wrongful death and survival claims required to be brought in one action U.S.Collier v. Varco-Pruden Buildings, a Div. of United Dominion Industries, Inc., 886 F. Supp. 528 (D.S.C. 1995) (North Carolina law). [FN11] Tenn.Kline v. Eyrich, 69 S.W.3d 197 (Tenn. 2002). Tex.Click v. Thuron Industries, Inc., 475 S.W.2d 715 (Tex. 1972) (disapproved of on other grounds by, Gutierrez v. Collins, 583 S.W.2d 312 (Tex. 1979)). [FN12] Parents' action barred Cal.Mayerhoff v. Kaiser Foundation Health Plan, Inc., 71 Cal. App. 3d 803, 138 Cal. Rptr. 319 (2d Dist. 1977). [FN13] IdahoHogan v. Hermann, 101 Idaho 893, 623 P.2d 900, 21 A.L.R.4th 249 (1980).
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VIII. Splitting Causes of Action C. Actions in Tort Topic Summary References Correlation Table 254. Wrongs affecting different properties or rights West's Key Number Digest West's Key Number Digest, Action 38(1), (6), 53(1), (2) An injury to different articles or kinds of property caused by the same wrongful act ordinarily gives rise to a single cause of action. Where different articles or kinds of property belonging to the same person are injured by the same wrongful act, there is generally considered to be a single cause of action, for which only one action may be maintained,[1] as where different articles of personal property are converted at the same time,[2] unless the plaintiff does not know of the amount or items of property converted.[3] In some jurisdictions, injuries to person and to property, although resulting from the same tortious act, give rise to different causes of action.[4] In other jurisdictions, which represent the majority view,[5] the fact that the injuries sustained are diversified in character does not cause two or more causes of action to accrue from a single tort, and a single tort which causes injury both to the person and property of an individual gives rise to a single cause of action,[6] which can only be split into more than one cause of action in exceptional cases where it is necessary to serve the ends of justice.[7] In such jurisdictions, the injury to the person and property are merely different items or elements of damage.[8] A settlement with regard to the injury done to one article, class of property, or right has been held not to preclude an action for an injury not included in the settlement,[9] and a defendant may by special agreement settle some claims and leave others outstanding to be adjusted by legal proceedings or otherwise.[10] Where the law as to whether a single tortious act which causes injury to the person and property of plaintiff gives rise to a single cause of action or to two separate causes is conflicting, the law of the state in which the injury occurred controls.[11]
[FN1] U.S.Silent Automatic Sales Corp. v. Stayton, 45 F.2d 476 (C.C.A. 8th Cir. 1930).
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Ga.Georgia Ry. & Power Co. v. Endsley, 167 Ga. 439, 145 S.E. 851, 62 A.L.R. 256 (1928). Subrogation Where oil company's truck exploded and burned, allegedly as result of its negligence, and damaged truckline's loading dock and truckline's cargo, action for such damage against oil company should have been brought in name of truckline as real party in interest, rather than in names of insurers of dock and in name of insurer of cargo as subrogees of truckline, and separate actions brought by the insurers constituted improper splitting of cause of action. Mo.State ex rel. Home Service Oil Co. v. Hess, 485 S.W.2d 616 (Mo. Ct. App. 1972). [FN2] Mass.Magaw v. Beals, 272 Mass. 334, 172 N.E. 347 (1930). UtahMadsen v. Madsen, 72 Utah 96, 269 P. 132 (1928). [FN3] As to the effect of ignorance of a cause of action, see 233. [FN4] Cal.State Farm Mut. Auto. Ins. Co. v. Davis, 122 Cal. App. 3d Supp. 23, 176 Cal. Rptr. 517 (App. Dep't Super. Ct. 1981). Md.Gelblum v. Bloom, 21 Md. App. 406, 319 A.2d 546 (1974). N.J.Humble Oil & Refining Co. v. Church, 100 N.J. Super. 495, 242 A.2d 652 (App. Div. 1968). [FN5] Va.Carter v. Hinkle, 189 Va. 1, 52 S.E.2d 135 (1949). [FN6] U.S.Silent Automatic Sales Corp. v. Stayton, 45 F.2d 476 (C.C.A. 8th Cir. 1930). Fla.McKibben v. Zamora, 358 So. 2d 866 (Fla. Dist. Ct. App. 3d Dist. 1978). Kan.Pretz v. Lamont, 6 Kan. App. 2d 31, 626 P.2d 806, 24 A.L.R.4th 638 (1981). La.Richard v. Travelers Ins. Co., 323 So. 2d 176 (La. Ct. App. 3d Cir. 1975), writ denied, 326 So. 2d 370 (La. 1976). Minn.Mattsen v. Packman, 358 N.W.2d 48 (Minn. 1984). Mo.Lee v. Guettler, 391 S.W.2d 311 (Mo. 1965). OhioHenderson v. Ryan, 13 Ohio St. 2d 31, 42 Ohio Op. 2d 65, 233 N.E.2d 506 (1968). S.D.Sodak Distributing Co. v. Wayne, 77 S.D. 496, 93 N.W.2d 791 (1958). Tenn.Crumley v. Travelers Indem. Co., 225 Tenn. 667, 475 S.W.2d 654 (1972). A.L.R. Library Simultaneous injury to person and property as giving rise to single cause of actionmodern cases, 24
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A.L.R. 4th 646. [FN7] Miss.Farmer v. Union Ins. Co. of Indiana, 146 Miss. 600, 111 So. 584 (1927). [FN8] Minn.Straughan v. U.S., 80 Minn. 83, 82 N.W. 1113 (1900). [FN9] Pa.Frankel v. Quaker City Cab Co., 82 Pa. Super. 217, 1923 WL 3777 (1923). [FN10] Ga.Phillips v. State Farm Mut. Auto. Ins. Co., 121 Ga. App. 342, 173 S.E.2d 723 (1970). La.Carney v. Hartford Acc. & Indem. Co., 250 So. 2d 776 (La. Ct. App. 1st Cir. 1970). [FN11] Mich.Tuttle v. Everhot Heater Co., 264 Mich. 60, 249 N.W. 467 (1933). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 254 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VIII. Splitting Causes of Action C. Actions in Tort Topic Summary References Correlation Table 255. Permanent or recurring injury West's Key Number Digest West's Key Number Digest, Action 38(1), 53(1), (2) Generally, a wrong complete or permanent in character gives rise to only one cause of action on which only one action can be maintained for the recovery of all damages, but if the injury is continuing, repetitive, or periodical, or is caused by an abatable nuisance or unlawful structure, several actions may be brought for the damages incurred. As a general rule, a wrong complete or permanent in character gives rise to only one cause of action on which only one action can be maintained for the recovery of all damages, both present and prospective.[1] This principle has been applied to claims for both property damage[2] and personal injury,[3] although it has been held that a worker who sues on or settles a claim for a non-malignant asbestos-related occupational disease with one defendant is not precluded from bringing a subsequent action against another defendant for a distinct malignant asbestos-related condition.[4] On the other hand, if the injury from a wrongful act or from a condition wrongfully created and maintained is continuing, repetitive, or periodic, each repetition, continuance, or recurrence of damage is a fresh injury giving rise to a new cause of action for which separate, successive actions may be maintained.[5] Where a permanent structure is not necessarily and of itself a permanent and continuing nuisance, but becomes so in consequence of some supervening cause, which produces special injury at different periods,[6] as where the construction of the improvement itself is proper but the damage results from its negligent maintenance,[7] each recurring injury affords separate rights of action.[8] However, a plaintiff can maintain only one action for the damages which have accrued from a continuance of the same wrong at the time of his or her first action.[9]
[FN1] Ala.Devenish v. Phillips, 743 So. 2d 492 (Ala. Civ. App. 1999). Kan.Dougan v. Rossville Drainage Dist., 270 Kan. 468, 15 P.3d 338 (2000). Ill.Dillon v. Evanston Hosp., 199 Ill. 2d 483, 264 Ill. Dec. 653, 771 N.E.2d 357 (2002).
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Tex. Walton v. Phillips Petroleum Co., 65 S.W.3d 262 (Tex. App. El Paso 2001), review denied, (May 9, 2002) and (abrogated on other grounds by, In re Estate of Swanson, 130 S.W.3d 144 (Tex. App. El Paso 2003)). [FN2] Mo.Mapco, Inc. v. Williams, 581 S.W.2d 402 (Mo. Ct. App. W.D. 1979). Street improvements Changes in the grade of a street and other improvements of it working damage to adjacent property are held compensable as for a permanent injury, for which property owner must recover in one action. Ala.City of Birmingham v. Leberte, 773 So. 2d 440 (Ala. 2000). Flooding Retaining wall that rested on footings on adjacent land and channeled water to it resulted in a permanent change to the land with a continuing harm and, therefore, did not entitle the adjacent landowner to file successive actions based on a theory of continuous trespass; rather, the landowner had only a right to full redress in a single action for permanent trespass. Ala.Devenish v. Phillips, 743 So. 2d 492 (Ala. Civ. App. 1999). [FN3] Failure to diagnose Patient injured by physician's negligence in failing to diagnose breast cancer, knowing that it is more probable than not that her cancer will metastasize, cannot split her claim and wait until cancer recurs before bringing suit. D.C.Moattar v. Foxhall Surgical Associates, 694 A.2d 435 (D.C. 1997). Toxic torts A plaintiff may not recover following discovery of each disease stemming from same exposure to toxic materials during employment in separate suits. Ky. Carroll v. Owens-Corning Fiberglas Corp., 37 S.W.3d 699 (Ky. 2000), as amended, (Aug. 24, 2000) and as modified on denial of reh'g, (Mar. 22, 2001). [FN4] Tex.Pustejovsky v. Rapid-American Corp., 35 S.W.3d 643 (Tex. 2000). [FN5] Cal.Stoops v. Pistachio, 70 Cal. App. 772, 234 P. 423 (1st Dist. 1925). Tex.Freeport Sulphur Co. v. American Sulphur Royalty Co. of Texas, 117 Tex. 439, 6 S.W.2d 1039, 60 A.L.R. 890 (1928). [FN6] Ga.Cobb v. Wrightsville & T.R. Co., 129 Ga. 377, 58 S.E. 862 (1907). IowaHughes v. Chicago, B. & Q. Ry. Co., 141 Iowa 273, 119 N.W. 924 (1909).
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Va.Virginian Ry. Co. v. Jeffries' Adm'r, 110 Va. 471, 66 S.E. 731 (1909). [FN7] Ala.City of Birmingham v. Flowers, 224 Ala. 279, 140 So. 353 (1932). [FN8] Ky.Chicago, St. L. & N. O. R. Co. v. Hicks, 249 Ky. 578, 61 S.W.2d 37 (1933). Okla.City of Ardmore v. Orr, 1913 OK 50, 35 Okla. 305, 129 P. 867 (1913). Airport noise Unless and until there was determination that allegedly excess airport noise was permanent nuisance which airport was privileged to continue, real parties could properly file successive small claims court nuisance actions against airport based on their continuing damages resulting from noise. Cal.City and County of San Francisco v. Small Claims Court, 141 Cal. App. 3d 470, 190 Cal. Rptr. 340 (1st Dist. 1983). [FN9] Mo.Cacioppo v. Southwestern Bell Tel. Co., 550 S.W.2d 919 (Mo. Ct. App. 1977). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 255 END OF DOCUMENT
CJS ACTIONS VIII D REF 1A C.J.S. Actions VIII D Refs.
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VIII. Splitting Causes of Action D. Actions by or Against Several Parties Topic Summary Correlation Table Research References A.L.R. Library West's A.L.R. Digest, Action 38(1) , 38(6) , 53(1) to (3)
A.L.R. Index: Splitting Cause of Action Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS VIII D REF END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VIII. Splitting Causes of Action D. Actions by or Against Several Parties Topic Summary References Correlation Table 256. Several plaintiffs West's Key Number Digest West's Key Number Digest, Action 38(1), (6), 53(1) to (3) Causes of action in favor of several persons jointly cannot be split, but where an indebtedness is to several persons severally or jointly and severally, each has a distinct cause of action on which he or she may maintain a separate action. In general, the rule against splitting a single cause of action applies where the cause is in favor of several persons jointly, and prevents two or more persons in whose favor there exists a claim or cause of action which is joint and not several from splitting the joint demand and recovering their respective shares by different actions.[ 1] Splitting does not become proper if it is attained indirectly by amendment or dismissal of one or more of the plaintiffs.[2] Indebtedness to several persons is several and not joint,[3] or joint and several,[4] and each may maintain a separate action to recover the proportionate share to which he or she may be entitled. Where the interest of several covenantees is several, they may maintain separate actions even if the language of the covenant is joint.[5] Separate actions are properly maintainable against the same defendant by two different parties or entities to whom separate independent causes of action have accrued under the same contract[6] or under identical contracts.[7]
[FN1] Mich.Jensen v. Gamble, 191 Mich. 233, 157 N.W. 440 (1916). Mo.Robinson v. Rinehart, 297 S.W. 439 (Mo. Ct. App. 1927). [FN2] Mo.Clark v. Zane, 165 Mo. App. 505, 148 S.W. 967 (1912). [FN3] Cal.Miller v. Ash, 156 Cal. 544, 105 P. 600 (1909). [FN4] Wyo.Kirch v. Nicholson, 42 Wyo. 489, 297 P. 398 (1931).
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[FN5] N.J.Becker v. Kelsey, 9 N.J. Misc. 1265, 157 A. 177 (Sup. Ct. 1931). [FN6] Fla.Kassner v. Travelers Indem. Co., 285 So. 2d 686 (Fla. Dist. Ct. App. 3d Dist. 1973). [FN7] Ga.A. R. Hudson Realty, Inc. v. Hood, 151 Ga. App. 778, 262 S.E.2d 189 (1979) (disapproved of on other grounds by, Merrill Lynch, Pierce, Fenner & Smith v. Zimmerman, 248 Ga. 580, 285 S.E.2d 181 (1981)). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 256 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VIII. Splitting Causes of Action D. Actions by or Against Several Parties Topic Summary References Correlation Table 257. Several defendants West's Key Number Digest West's Key Number Digest, Action 38(1), (6), 53(1) to (3) Separate actions cannot be maintained against parties jointly liable, but separate actions are proper where the parties are severally or jointly and severally liable. The rule that a single cause of action cannot be split and made the subject of several actions applies where the cause is against several persons jointly,[1] and not jointly and severally.[2] It does not apply where the separate actions are against joint and several debtors.[3]
[FN1] Md.Winslow v. Atz, 168 Md. 230, 177 A. 272 (1935). Mich.Jensen v. Gamble, 191 Mich. 233, 157 N.W. 440 (1916). [FN2] W.Va.Armentrout v. Smith, 52 W. Va. 96, 43 S.E. 98 (1903). [FN3] Mich.Marine Trust Co. of Buffalo v. Roden, 218 Mich. 693, 188 N.W. 397 (1922). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 257 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. VIII. Splitting Causes of Action D. Actions by or Against Several Parties Topic Summary References Correlation Table 258. Several defendantsIn tort actions West's Key Number Digest West's Key Number Digest, Action 38(1), (6), 53(2) Joint tortfeasors can be sued either jointly or severally, but only one satisfaction can be obtained; if the parties are not joint tortfeasors, separate recoveries may be obtained. Since the liability of joint tortfeasors is ordinarily joint and several, they may be sued either jointly or severally.[1] Consequently, separate actions may be maintained against each or any of them.[2] However, the right to recover for the tort is indivisible, and the injured person has only one cause of action which he or she cannot split;[3] therefore, he or she can recover only one satisfaction.[4] If the parties are not joint tortfeasors, separate recoveries may be obtained against them.[5]
[FN1] U.S.Whitehurst v. Charles Town Hospital, 626 F.2d 357 (4th Cir. 1980). Ala.Butler v. Olshan, 280 Ala. 181, 191 So. 2d 7 (1966). Ga.Rowe v. Citizens and Southern Nat. Bank, 129 Ga. App. 251, 199 S.E.2d 319 (1973). Ill. Handley v. Unarco Industries, Inc., 124 Ill. App. 3d 56, 79 Ill. Dec. 457, 463 N.E.2d 1011 (4th Dist. 1984). Minn.Kisch v. Skow, 305 Minn. 328, 233 N.W.2d 732 (1975). Wyo.Harris v. Grizzle, 599 P.2d 580 (Wyo. 1979). Inconsistent causes of action Ice cream store patron, who tripped and fell in entranceway, could assert inconsistent causes of action in separate suits against store owner, charged with maintaining dangerous entranceway due to ledge
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next to adjoining public sidewalk, and the village, charged with negligence creating the condition complained of. N.Y.Pontiatowski v. Baskin-Robbins, 91 A.D.2d 1035, 458 N.Y.S.2d 629 (2d Dep't 1983). [FN2] U.S.Whitehurst v. Charles Town Hospital, 626 F.2d 357 (4th Cir. 1980). Minn.Skaja v. Andrews Hotel Co., 281 Minn. 417, 161 N.W.2d 657 (1968). [FN3] Me.Wells v. Gould, 131 Me. 192, 160 A. 30 (1932). Minn.Almquist v. Wilcox, 115 Minn. 37, 131 N.W. 796 (1911). Tex.Thomas v. Pugh, 6 S.W.2d 202 (Tex. Civ. App. Fort Worth 1928). [FN4] U.S.Whitehurst v. Charles Town Hospital, 626 F.2d 357 (4th Cir. 1980). Ind.American Sur. Co. of New York v. Souers, 50 Ind. App. 475, 98 N.E. 829 (1912). [FN5] U.S.Whitehurst v. Charles Town Hospital, 626 F.2d 357 (4th Cir. 1980). Wyo.Harris v. Grizzle, 599 P.2d 580 (Wyo. 1979). Negligence and medical malpractice Survivors of accident victim who died as result of medical malpractice in treatment of his injuries were entitled to assert separate actions against original tortfeasors for negligent operation of motor vehicle and against medical personnel for malpractice. La.Steptoe v. Lallie Kemp Hosp., 634 So. 2d 331 (La. 1994), on reh'g, 638 So. 2d 643 (La. 1994). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 258 END OF DOCUMENT
CJS ACTIONS IX REF 1A C.J.S. Actions IX Refs.
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. IX. Consolidation of Actions Topic Summary Correlation Table Research References A.L.R. Library West's A.L.R. Digest, Action 55 to 59
A.L.R. Index: Conditions Precedent; Joinder of Actions Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS IX REF END OF DOCUMENT
CJS ACTIONS IX A REF 1A C.J.S. Actions IX A Refs.
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. IX. Consolidation of Actions A. In General Topic Summary Correlation Table Research References A.L.R. Library West's A.L.R. Digest, Action A.L.R. Index: Joinder of Actions Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS IX A REF END OF DOCUMENT 55
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. IX. Consolidation of Actions A. In General Topic Summary References Correlation Table 259. Generally West's Key Number Digest West's Key Number Digest, Action 55 Consolidation of actions occurs where several actions are combined and treated together. Separate actions that share common questions of law and fact[1] may be consolidated and treated together. Consolidation is ordinarily proper wherever the subject matter involved and relief demanded in the different suits make it expedient for the court to determine all of the issues involved and adjudicate the rights of the parties by hearing the suits together.[2] The consolidation of separate actions is considered in some jurisdictions to merge the consolidated actions into a single one, and in others to have only procedural effects.[3] The term "consolidation" has been used in three different ways: (1) where several actions are pending involving substantially the same subject matter, the court may stay proceedings in all but one and see whether the disposition of the one action may settle the others, thereby avoiding multiple trials on the same issue; (2) where several actions involve an inquiry into the same event in its general aspects, the actions may be tried together, but with separate docket entries, verdicts, and judgments, the consolidation being limited to a joint trial; and (3) where several actions are pending that might have been brought as a single action, the cases may be merged into one action, thereby losing their individual identity, to be disposed of in one suit.[4] These methods of procedure are entirely distinct, and the first two, strictly speaking, are not consolidation.[5] Consolidation may be for all purposes, or may be limited.[6] The proper consolidation of two or more actions serves many sound objects and purposes,[7] such as to achieve convenience and judicial economy[8] by avoiding a multiplicity of suits,[9] to prevent delay,[10] to clear congested dockets,[11] to simplify the work of the trial court,[12] and to avoid the possibility of inconsistent verdicts.[13]
[FN1] 267.
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[FN2] Ala.Ex parte Green, 221 Ala. 415, 129 So. 69 (1930). Fla.Baker v. Rowe, 102 Fla. 622, 136 So. 681 (1931). N.C.Wilder v. Greene, 172 N.C. 94, 89 S.E. 1062 (1916). S.C.Farmers' & Merchants' Nat. Bank of Lake City v. Foster, 132 S.C. 410, 129 S.E. 629 (1925). [FN3] 274. [FN4] Ill.Turner v. Williams, 326 Ill. App. 3d 541, 260 Ill. Dec. 804, 762 N.E.2d 70 (2d Dist. 2001), appeal denied, 198 Ill. 2d 631, 264 Ill. Dec. 330, 770 N.E.2d 224 (2002). Nev.Randall v. Salvation Army, 100 Nev. 466, 686 P.2d 241 (1984). [FN5] Mont.Handley v. Sprinkle, 31 Mont. 57, 77 P. 296 (1904). Pa.Azinger v. Pennsylvania R. Co., 262 Pa. 242, 105 A. 87 (1918). Vt.Yardley v. Rutland R. Co., 103 Vt. 182, 153 A. 195 (1931). For discussion of stays of pending actions generally, see 318 et seq. For discussion of joint trials, see C.J.S., Trial 9 to 16. [FN6] Cal.Committee for Responsible Planning v. City of Indian Wells, 225 Cal. App. 3d 191, 275 Cal. Rptr. 57 (4th Dist. 1990). Consolidation for discovery Fla.Pages v. Dominguez By and Through Dominguez, 652 So. 2d 864 (Fla. Dist. Ct. App. 4th Dist. 1995). Consolidation to resolve statute of limitations issue Me.Morris v. Hunter, 652 A.2d 80 (Me. 1994). Consolidation for trial N.Y. River Bank America v. Daniel Equities Corp., 205 A.D.2d 476, 614 N.Y.S.2d 11 (1st Dep't 1994). [FN7] Miss.Vicksburg Chemical Co. v. Thornell, 355 So. 2d 299 (Miss. 1978). [FN8] Ala.Newton v. Birmingham Area Legal Services Corp., Inc., 398 So. 2d 264 (Ala. 1981). Cal.Wouldridge v. Burns, 265 Cal. App. 2d 82, 71 Cal. Rptr. 394 (1st Dist. 1968). Fla. CDI Contractors, LLC. v. Allbrite Elec. Contractors, Inc., 836 So. 2d 1031 (Fla. Dist. Ct. App. 5th Dist. 2002).
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Ill.First Robinson Sav. & Loan v. Ledo Const. Co., Inc., 210 Ill. App. 3d 889, 155 Ill. Dec. 304, 569 N.E.2d 304 (5th Dist. 1991). Ind.Indiana Lumbermens Mut. Ins. Co. v. American Log Homes, Inc., 774 N.E.2d 603 (Ind. Ct. App. 2002). IowaKent Feeds, Inc. v. Manthei, 646 N.W.2d 87 (Iowa 2002). Mich.Papcum v. L. R. Jacobs Const. Co., 95 Mich. App. 746, 291 N.W.2d 191 (1980). Minn.Simchuck v. Fullerton, 299 Minn. 91, 216 N.W.2d 683 (1974). Miss.Vicksburg Chemical Co. v. Thornell, 355 So. 2d 299 (Miss. 1978). N.Y.Flaherty v. RCP Associates, 208 A.D.2d 496, 616 N.Y.S.2d 801 (2d Dep't 1994). S.D.Wulf v. Senst, 2003 SD 105, 669 N.W.2d 135 (S.D. 2003). Efficient administration of justice Trial court was not justified in refusing to consolidate three lawsuits arising out of same motor vehicle accident; court's reluctance to delay disposition of case before it, which was already set for trial, was not as important as efficient and proper administration of justice and avoidance of possibly inconsistent verdicts. Fla.Maharaj v. Grossman, 619 So. 2d 399 (Fla. Dist. Ct. App. 4th Dist. 1993). [FN9] Cal.Wouldridge v. Burns, 265 Cal. App. 2d 82, 71 Cal. Rptr. 394 (1st Dist. 1968). Del.Wilkes v. State ex rel. State Highway Dept., 265 A.2d 421 (Del. 1970). Kan.Guillan v. Watts, 249 Kan. 606, 822 P.2d 582 (1991). La.In re Miller, 665 So. 2d 774 (La. Ct. App. 1st Cir. 1995), writ denied, 667 So. 2d 541 (La. 1996). Md. Chinwuba v. Larsen, 142 Md. App. 327, 790 A.2d 83 (2002), cert. granted, 369 Md. 179, 798 A.2d 551 (2002) and judgment aff'd in part, rev'd in part on other grounds, 377 Md. 92, 832 A.2d 193 (2003). Minn.Simchuck v. Fullerton, 299 Minn. 91, 216 N.W.2d 683 (1974). Miss.Vicksburg Chemical Co. v. Thornell, 355 So. 2d 299 (Miss. 1978). N.Y.Inspiration Enterprises, Inc. v. Inland Credit Corp., 54 A.D.2d 839, 388 N.Y.S.2d 578 (1st Dep't 1976). [FN10] Fla.CDI Contractors, LLC. v. Allbrite Elec. Contractors, Inc., 836 So. 2d 1031 (Fla. Dist. Ct. App. 5th Dist. 2002). Miss.Fielder v. Magnolia Beverage Co., 757 So. 2d 925 (Miss. 1999).
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N.Y.Inspiration Enterprises, Inc. v. Inland Credit Corp., 54 A.D.2d 839, 388 N.Y.S.2d 578 (1st Dep't 1976). [FN11] Miss.Vicksburg Chemical Co. v. Thornell, 355 So. 2d 299 (Miss. 1978). [FN12] Miss.Vicksburg Chemical Co. v. Thornell, 355 So. 2d 299 (Miss. 1978). [FN13] Fla.City of Palm Bay v. State, Dept. of Transp., 588 So. 2d 624 (Fla. Dist. Ct. App. 1st Dist. 1991). N.Y.Sichel v. Community Synagogue, 256 A.D.2d 276, 682 N.Y.S.2d 382 (1st Dep't 1998). Pa.Bumberger by Hems v. Duff, 160 Pa. Commw. 354, 634 A.2d 1162 (1993). S.D.Wulf v. Senst, 2003 SD 105, 669 N.W.2d 135 (S.D. 2003). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 259 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. IX. Consolidation of Actions A. In General Topic Summary References Correlation Table 260. Policy favoring consolidation West's Key Number Digest West's Key Number Digest, Action 55 Because it avoids a multiplicity of suits, consolidation of actions is favored. Since it is the policy of the state to avoid a multiplicity of suits,[1] consolidation of actions is regarded with favor,[2] and, wherever possible, consolidation should be ordered by the trial courts.[3] Thus, if the conditions essential to a consolidation are present, it should ordinarily be granted if it can be attained without prejudice,[4] particularly if consolidation will serve the interests of economy and expedition.[5] On the other hand, consolidation should not be allowed to defeat its beneficial objects,[6] and should not be granted where it would cause complication, embarrassment, or delay, or prejudice the rights of a party,[7] as where it would cut off or restrict different parties, defenses, rights, or issues,[8] or permit questions adjudicated in other actions to be reopened.[9]
[FN1] U.S.Canadian Bronze Co., Ltd. v. Kenzler, 64 F.R.D. 79 (E.D. Wis. 1974). N.Y.Crown Crane Rental Co., Inc. v. Eberhart Const. Co., Inc., 117 Misc. 2d 268, 458 N.Y.S.2d 165 (Sup 1983). [FN2] Ill.J. F. Inc. v. Vicik, 99 Ill. App. 3d 815, 55 Ill. Dec. 282, 426 N.E.2d 257 (5th Dist. 1981) (overruled on other grounds by, Board of Managers of Courtyards at Woodlands Condominium Ass'n v. IKO Chicago, Inc., 183 Ill. 2d 66, 231 Ill. Dec. 942, 697 N.E.2d 727 (1998)). N.Y.Guasconi v. Pohl, 2 A.D.3d 1202, 770 N.Y.S.2d 203 (App. Div. 3d Dep't 2003). Miss.U.S. Fidelity & Guar. Co. v. Estate of Francis ex rel. Francis, 825 So. 2d 38 (Miss. 2002). [FN3] Wis.Whalen v. Eagle Lime Products Co., 155 Wis. 26, 143 N.W. 689 (1913).
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Orderly administration of justice Ariz.Matter of Appeal in Maricopa County Juvenile Action No. A-27789, 140 Ariz. 7, 680 P.2d 143 (1984). [FN4] N.Y. In re Seventh Judicial Dist. Asbestos Litigation, 191 Misc. 2d 625, 744 N.Y.S.2d 304 (Sup 2002). S.C.Barrett v. Broad River Power Co., 146 S.C. 85, 143 S.E. 650 (1928). As to conditions permitting consolidation, see 263 to 267. [FN5] Fla.Johnson v. Johnson, 454 So. 2d 797 (Fla. Dist. Ct. App. 4th Dist. 1984). N.Y. Chinatown Apartments, Inc. v. New York City Transit Authority, 100 A.D.2d 824, 474 N.Y.S.2d 763 (1st Dep't 1984). Pa.Altschuler v. Altschuler, 334 Pa. Super. 111, 482 A.2d 1106 (1984). As to the purposes of consolidation, see 259. [FN6] D.C.Gilbert v. Washington Beneficial Endowment Ass'n, 10 App. D.C. 316 (App. D.C. 1897). [FN7] Mont. State ex rel. Dept. of Revenue v. District Court of Eleventh Judicial Dist., In and For Flathead County, 167 Mont. 319, 538 P.2d 338 (1975). N.Y.Cohen v. Goldfein, 100 A.D.2d 795, 474 N.Y.S.2d 519 (1st Dep't 1984). S.D.Matter of Solid Waste Disposal Permit Application of Clay County and City of Vermillion, 295 N.W.2d 328 (S.D. 1980). Voluminous nature of case Tex.Williamson v. Tucker, 615 S.W.2d 881 (Tex. Civ. App. Dallas 1981), writ refused n.r.e., (Oct. 7, 1981). [FN8] Fla.Wagner v. Nova University, Inc., 397 So. 2d 375 (Fla. Dist. Ct. App. 4th Dist. 1981). N.Y.Wood v. Metropolitan Hotel Industry Stabilization Ass'n, 112 Misc. 2d 601, 447 N.Y.S.2d 813 (Sup 1982), rev'd on other grounds, 95 A.D.2d 560, 467 N.Y.S.2d 374 (1st Dep't 1983). [FN9] Ga.Collins v. Cowart, 157 Ga. 333, 121 S.E. 321 (1924). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 260 END OF DOCUMENT
CJS ACTIONS IX B REF 1A C.J.S. Actions IX B Refs.
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. IX. Consolidation of Actions B. Power to Consolidate Topic Summary Correlation Table Research References A.L.R. Library West's A.L.R. Digest, Action 56
A.L.R. Index: Conditions Precedent; Joinder of Actions Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS IX B REF END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. IX. Consolidation of Actions B. Power to Consolidate Topic Summary References Correlation Table 261. Statutory grant West's Key Number Digest West's Key Number Digest, Action 56 Although courts of general jurisdiction have inherent power independent of statute to consolidate actions, in many jurisdictions the practice is regulated by statute. Independent of statutory authority, courts of general jurisdiction have inherent power to consolidate different actions when the circumstances call for it.[1] Generally, however, consolidation of actions is expressly authorized by statute[2] or rule.[3] Where such statutes or rules exist, they are the sole authority authorizing the consolidation of actions, and they are exclusive, not cumulative, of the common-law authority.[4] CUMULATIVE SUPPLEMENT Cases: A trial court's authority to consolidate actions is clearly within its discretion. Ex parte Flexible Products Co., 915 So. 2d 34 (Ala. 2005). The statute governing joinder of claims is permissive in nature and does not alter the pre-existing common law that governs the trial court's discretionary power over consolidation requests. State v. One Thousand Two Hundred Sixty-Seven Dollars, 2006 OK 15, 131 P.3d 116 (Okla. 2006). It is within the trial court's sound discretion to order either a consolidated or separate trial. In re Carter, 224 S.W.3d 315 (Tex. App. El Paso 2005). [END OF SUPPLEMENT]
[FN1] Ind.Trook v. Crouch, 82 Ind. App. 309, 137 N.E. 773 (Div. 1 1923). Mass.Stoneman v. Coakley, 266 Mass. 64, 164 N.E. 802 (1929). Miss.Columbus & G. Ry. Co. v. Mississippi Clinic, 152 Miss. 869, 120 So. 187 (1929).
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N.J.Mutual Securities Corp. v. Gilbert T. Harris Corp., 100 N.J. Eq. 365, 135 A. 337 (Ch. 1926). N.C.Durham v. Laird, 198 N.C. 695, 153 S.E. 261 (1930). Tenn.Lawing v. Schaufflu, 162 Tenn. 79, 34 S.W.2d 1055, 85 A.L.R. 633 (1931). [FN2] Ill.Anderson v. Anchor Organization for Health Maintenance, 274 Ill. App. 3d 1001, 211 Ill. Dec. 213, 654 N.E.2d 675 (1st Dist. 1995). [FN3] Ala.State v. Reynolds, 2004 WL 1854233 (Ala. 2004). Ariz.Marvin Johnson, P.C. v. Myers, 184 Ariz. 98, 907 P.2d 67 (1995). Md. Chinwuba v. Larsen, 142 Md. App. 327, 790 A.2d 83 (2002), cert. granted, 369 Md. 179, 798 A.2d 551 (2002) and judgment aff'd in part, rev'd in part on other grounds, 377 Md. 92, 832 A.2d 193 (2003). OhioJamestown Village Condo. Owners Assn. v. Market Media Research, Inc., 96 Ohio App. 3d 678, 645 N.E.2d 1265 (8th Dist. Cuyahoga County 1994). R.I.Connor v. Sullivan, 826 A.2d 953 (R.I. 2003). Tex.In re J.K.R., 986 S.W.2d 278 (Tex. App. Eastland 1998). [FN4] Mo.Priddy v. MacKenzie, 205 Mo. 181, 103 S.W. 968 (1907). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 261 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. IX. Consolidation of Actions B. Power to Consolidate Topic Summary References Correlation Table 262. Jurisdiction West's Key Number Digest West's Key Number Digest, Action 56 Although courts of limited jurisdiction do not have inherent power to consolidate actions, in many jurisdictions such power has been conferred on them by statute. A court cannot consolidate in itself a case with another over which it has no jurisdiction.[1] For instance, courts of general civil jurisdiction may lack jurisdiction over probate matters, in which case a probate matter may not be consolidated with another matter before the non-probate court,[2] although probate actions and civil actions may be consolidated in a court of general jurisdiction with subject matter jurisdiction over both civil actions and probate matters.[3] Consolidation is appropriate only in a court in which all relief sought is available.[ 4] Except as authorized by statute or rule, a court has no power to consolidate causes pending in lower courts, where the lower courts do not lack jurisdiction to grant the relief requested[5] and no similar case is pending before the higher court.[6] Statutes authorizing courts of limited jurisdiction to consolidate actions do not impliedly enlarge their jurisdiction as to the amount in controversy[7] and, where a consolidation of actions would make the aggregate amount in controversy exceed the jurisdictional limit of the court, it should be denied.[8] The fact that another tribunal has concurrent jurisdiction of one of the actions sought to be consolidated does not deprive the court of the power to order the consolidation.[9]
[FN1] Cal.Cochrane v. Superior Court for Los Angeles County, 261 Cal. App. 2d 201, 67 Cal. Rptr. 675 (2d Dist. 1968). Fla. Wetherington v. State Farm Mut. Auto. Ins. Co., 661 So. 2d 1276 (Fla. Dist. Ct. App. 2d Dist. 1995).
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Tex.Buchner v. Wait, 137 S.W. 383 (Tex. Civ. App. Galveston 1911), writ refused, (May 24, 1911). Small claims action Superior Court lacked jurisdiction to consolidate appeal in small claims action with related case pending in Superior Court; purpose of Small Claims Act is to resolve minor civil disputes expeditiously, inexpensively, and fairly. Cal.Acuna v. Gunderson Chevrolet, Inc., 19 Cal. App. 4th 1467, 24 Cal. Rptr. 2d 62 (2d Dist. 1993). [FN2] Me.In re Estate of Campbell, 651 A.2d 382 (Me. 1994). Okla.In re Estate of Estes, 1999 OK 59, 983 P.2d 438 (Okla. 1999). [FN3] Ariz.Marvin Johnson, P.C. v. Myers, 184 Ariz. 98, 907 P.2d 67 (1995). [FN4] N.Y.DeCastro v. Bhokari, 201 A.D.2d 382, 607 N.Y.S.2d 348 (1st Dep't 1994). Okla.In re Estate of Estes, 1999 OK 59, 983 P.2d 438 (Okla. 1999). [FN5] N.Y.Curriere v. Roeill, 55 Misc. 2d 1049, 287 N.Y.S.2d 747 (Sup 1967). [FN6] Pending case Where court has jurisdiction to decide case pending before it, there is no limit on the right of that court to consolidate similar cases pending in lower courts. N.Y.Blank v. Meadow Park Clothes, Inc., 57 Misc. 2d 305, 292 N.Y.S.2d 581 (Sup 1968). [FN7] N.Y.Gillin v. Canary, 19 Misc. 594, 44 N.Y.S. 313 (App. Term 1897). [FN8] N.Y.M.F. O'Neill, Inc., v. Lockwhit Co., 82 Misc. 383, 143 N.Y.S. 729 (App. Term 1913). [FN9] Cal. Baker v. Superior Court, Sacramento County, 58 Cal. App. 288, 208 P. 698 (3d Dist. 1922). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 262 END OF DOCUMENT
CJS ACTIONS IX C REF 1A C.J.S. Actions IX C Refs.
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. IX. Consolidation of Actions C. Conditions Justifying Consolidation Topic Summary Correlation Table Research References A.L.R. Library West's A.L.R. Digest, Action 57(1) to 57(7)
A.L.R. Index: Conditions Precedent; Joinder of Actions Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS IX C REF END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. IX. Consolidation of Actions C. Conditions Justifying Consolidation Topic Summary References Correlation Table 263. Generally West's Key Number Digest West's Key Number Digest, Action 55 The propriety of consolidation generally depends on whether the actions could have been brought together originally. In general, the determining factor as to whether two suits can be consolidated depends on whether they could have been originally brought in one action.[1] Consolidation is proper if two actions are instituted where only one is maintainable.[2] The tests as to the propriety of a consolidation should be applied not as of the time that the actions were commenced, but according to the status of the actions at the time the application for consolidation is made.[3] The causes of action, subject matter, or questions involved in different actions must be the same or substantially so in order to authorize their consolidation,[4] and if the other conditions essential to consolidation are present, actions growing out of, and connected with, the same subject matter should ordinarily be consolidated.[ 5] Consolidation may be appropriate where the cases to be consolidated have the same or similar factual backgrounds,[6] where they depend largely on the same evidence,[7] where their procedural posture is similar,[8] where they have common legal issues,[9] and where the same attorneys are involved.[10] Consolidation should be denied where the suits are essentially inconsistent with each other and cannot be heard and determined together,[11] or where the various questions presented are so confused as to make it proper that the suits should be heard separately.[12] Where the outcome of one action will be determinative of another,[13] or where the viability of one action depends on the resolution of another,[14] consolidation is inappropriate.
[FN1] Ga.State Farm Mut. Auto. Ins. Co. v. Jiles, 115 Ga. App. 193, 154 S.E.2d 286 (1967).
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Ill.Vitale v. Dorgan, 25 Ill. App. 3d 941, 323 N.E.2d 616 (2d Dist. 1975). [FN2] Miss.Mobile, J. & K.C.R. Co. v. Hicks, 91 Miss. 273, 46 So. 360 (1908), aff'd, 219 U.S. 35, 31 S. Ct. 136, 55 L. Ed. 78 (1910). Wrongful death actions Ariz.Reed v. Frey, 10 Ariz. App. 292, 458 P.2d 386 (1969). As to splitting causes of action, see 224 et seq. [FN3] OhioTrout v. Marvin, 14 Ohio C.D. 333, 1902 WL 1264 (Ohio Cir. Ct. 1902), aff'd, 70 Ohio St. 437, 72 N.E. 1161 (1904), aff'd, 199 U.S. 212, 26 S. Ct. 31, 50 L. Ed. 157 (1905). [FN4] Ill.Joppa High School Dist. No. 21, Massac County v. Jones, 35 Ill. App. 3d 323, 341 N.E.2d 419 (5th Dist. 1976). N.H.Associated Home Utilities, Inc. v. Town of Bedford, 120 N.H. 812, 424 A.2d 186 (1980). Tex. Alice Nat. Bank v. Corpus Christi Bank and Trust, 431 S.W.2d 611 (Tex. Civ. App. Corpus Christi 1968), writ granted, (Feb. 5, 1969) and judgment aff'd, 444 S.W.2d 632 (Tex. 1969). [FN5] Tex.Commercial Standard Fire & Marine Co. v. Commissioner of Ins., 429 S.W.2d 930 (Tex. Civ. App. Austin 1968). [FN6] U.S.Maestri v. Westlake Excavating Co., Inc., 894 F. Supp. 573 (N.D. N.Y. 1995). La.First Guar. Bank v. Carter, 563 So. 2d 1240 (La. Ct. App. 1st Cir. 1990). Minn.Minnesota Personal Injury Asbestos Cases v. Keene Corp., 481 N.W.2d 24 (Minn. 1992). Miss.Fielder v. Magnolia Beverage Co., 757 So. 2d 925 (Miss. 1999). Mo. Birt v. Consolidated School Dist. No. 4, 829 S.W.2d 538, 75 Ed. Law Rep. 587 (Mo. Ct. App. W.D. 1992). N.Y.Firequench, Inc. v. Kaplan, 256 A.D.2d 213, 682 N.Y.S.2d 369 (1st Dep't 1998). As to consolidation of actions involving common questions of law and fact, see 267. [FN7] Ill.Turner v. Williams, 326 Ill. App. 3d 541, 260 Ill. Dec. 804, 762 N.E.2d 70 (2d Dist. 2001), appeal denied, 198 Ill. 2d 631, 264 Ill. Dec. 330, 770 N.E.2d 224 (2002). Minn.Minnesota Personal Injury Asbestos Cases v. Keene Corp., 481 N.W.2d 24 (Minn. 1992). N.Y.Firequench, Inc. v. Kaplan, 256 A.D.2d 213, 682 N.Y.S.2d 369 (1st Dep't 1998). S.D.Wulf v. Senst, 2003 SD 105, 669 N.W.2d 135 (S.D. 2003). [FN8] Minn.Minnesota Personal Injury Asbestos Cases v. Keene Corp., 481 N.W.2d 24 (Minn. 1992)
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. As to the requirement that all cases consolidated be pending, see 265. [FN9] U.S.Maestri v. Westlake Excavating Co., Inc., 894 F. Supp. 573 (N.D. N.Y. 1995). Ill.Turner v. Williams, 326 Ill. App. 3d 541, 260 Ill. Dec. 804, 762 N.E.2d 70 (2d Dist. 2001), appeal denied, 198 Ill. 2d 631, 264 Ill. Dec. 330, 770 N.E.2d 224 (2002). La.First Guar. Bank v. Carter, 563 So. 2d 1240 (La. Ct. App. 1st Cir. 1990). Minn.Minnesota Personal Injury Asbestos Cases v. Keene Corp., 481 N.W.2d 24 (Minn. 1992). Miss.Fielder v. Magnolia Beverage Co., 757 So. 2d 925 (Miss. 1999). Mo. Birt v. Consolidated School Dist. No. 4, 829 S.W.2d 538, 75 Ed. Law Rep. 587 (Mo. Ct. App. W.D. 1992). N.Y.Firequench, Inc. v. Kaplan, 256 A.D.2d 213, 682 N.Y.S.2d 369 (1st Dep't 1998). [FN10] U.S.Morrison v. National Ben. Life Ins. Co., 889 F. Supp. 945 (S.D. Miss. 1995). Minn.Minnesota Personal Injury Asbestos Cases v. Keene Corp., 481 N.W.2d 24 (Minn. 1992). Separate actions disfavored Court looks with disfavor upon commencement of two separate actions which assert essentially same cause of action based on essentially same facts and legal theories, before two different judges, particularly when same counsel represents plaintiffs in both actions. U.S.Grayson v. K Mart Corp., 79 F.3d 1086 (11th Cir. 1996). [FN11] Ala.Ex parte Green, 221 Ala. 415, 129 So. 69 (1930). [FN12] Fla.Spitzer-Rorick Trust & Savings Bank v. Thompson, 107 Fla. 752, 143 So. 865 (1932). [FN13] N.Y.Sokolow, Dunaud, Mercadier & Carreras LLP v. Lacher, 299 A.D.2d 64, 747 N.Y.S.2d 441 (1st Dep't 2002). [FN14] N.Y.Charles B. De Than Group v. Richmond, 176 A.D.2d 509, 574 N.Y.S.2d 703 (1st Dep't 1991). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 263 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. IX. Consolidation of Actions C. Conditions Justifying Consolidation Topic Summary References Correlation Table 264. Identity of parties West's Key Number Digest West's Key Number Digest, Action 55 Identity of parties is not required for consolidation. Although consolidation of actions may certainly be granted where there are identical parties and a determination of the same facts is required,[1] it is not necessary that the parties be identical.[2] Consolidation may be proper even if the actions are not technically between the same parties where the causes of action are almost identical, and where the parties are closely related.[3] Under the proper circumstances, actions brought by different plaintiffs against the same defendant[4] or by the same plaintiff suing in different capacities against the same defendant on causes of action which might have been joined[5] may be consolidated. On the other hand, however, suits should not ordinarily be consolidated where they differ both as to parties and subject matter,[6] or where the parties and claims are both different,[7] or where the parties are identical but the issues are different,[8] and is not required even if the parties and issues are identical.[9] The question of identity of parties is to be determined with reference to those who are actually made parties by service or appearance and not with reference to persons merely named as parties.[10] Nevertheless, consolidation is proper even if the plaintiff in one action did not obtain service on the defendant, where the claims presented in the action were also filed as counterclaims in the defendant's action against the plaintiff.[11] Where a single party may appear as both a plaintiff and a defendant in a consolidated action, consolidation may be improper.[12] However, a party is not prejudiced by the consolidation of cases in which he or she is cast in the role of plaintiff in one and defendant in the other, where the proof required to prosecute is identical to that required to defend.[13]
[FN1] N.J.Guglielmo v. Guglielmo, 253 N.J. Super. 531, 602 A.2d 741 (App. Div. 1992). S.C.Farmers' & Merchants' Nat. Bank of Lake City v. Foster, 132 S.C. 410, 129 S.E. 629 (1925).
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[FN2] Ala.Teague v. Motes, 57 Ala. App. 609, 330 So. 2d 434 (Civ. App. 1976). La.Bridwell v. Louisiana Patients' Compensation Fund, 2003-0683, 847 So.2d 686 (La. App. 2003). N.J.Jennings v. Studebaker Corp., 112 N.J. Eq. 591, 165 A. 631 (Ch. 1933). [FN3] N.Y.Michael v. S.H. Galleries, Ltd., 101 A.D.2d 755, 475 N.Y.S.2d 71 (1st Dep't 1984). [FN4] N.C.Wood v. Brown, 25 N.C. App. 241, 212 S.E.2d 690 (1975). [FN5] W.Va.Fortner v. Napier, 153 W. Va. 143, 168 S.E.2d 737 (1969). [FN6] Fla.Baker v. Rowe, 102 Fla. 622, 136 So. 681 (1931). [FN7] Ohio Waterman v. Kitrick, 60 Ohio App. 3d 7, 572 N.E.2d 250 (10th Dist. Franklin County 1990). [FN8] OhioJamestown Village Condo. Owners Assn. v. Market Media Research, Inc., 96 Ohio App. 3d 678, 645 N.E.2d 1265 (8th Dist. Cuyahoga County 1994). [FN9] N.Y.Rist v. Comi, 260 A.D.2d 890, 688 N.Y.S.2d 806 (3d Dep't 1999). [FN10] IowaBank of Montreal v. Ingerson, 105 Iowa 349, 75 N.W. 351 (1898). [FN11] D.C.Pollock v. Brown, 395 A.2d 50 (D.C. 1978). [FN12] N.Y.M & K Computer Corp. v. MBS Industries, Inc., 271 A.D.2d 660, 706 N.Y.S.2d 194 (2d Dep't 2000). [FN13] N.M.Bloom v. Lewis, 97 N.M. 435, 640 P.2d 935 (Ct. App. 1980), aff'd in part, rev'd in part on other grounds, 96 N.M. 63, 628 P.2d 308 (1981). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 264 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. IX. Consolidation of Actions C. Conditions Justifying Consolidation Topic Summary References Correlation Table 265. Procedural posture of actions West's Key Number Digest West's Key Number Digest, Action 55, 57(7) Actions to be consolidated must be pending, and should be at similar procedural stages. Consolidation presupposes the pendency of two or more proceedings.[1] An action is considered pending as long as it is still subject to review by an appellate court.[2] Consolidation cannot be ordered with reference to matters which are not the subject of any court proceeding,[3] such as where an action has already proceeded to judgment[4] or been dismissed with prejudice,[5] with reference to proceedings which cannot be maintained[6] or proceedings in which a cause of action is not stated.[ 7] However, consolidation may be permissible where partial summary judgment has been granted and affirmed on appeal, where the judgment and appeal do not affect issues remaining before the trial court.[8] Although consolidation is more likely to be appropriate where the cases to be consolidated are at similar procedural stages, so that consolidation will not cause delay,[9] and consolidation may be improper where the two cases to be consolidated are at different procedural stages,[10] the fact that one case is ready for trial should not, in itself, be reason to deny consolidation of actions for trial, as long as consolidation would not unduly delay the trial of presently set case to the parties' prejudice.[11] Cases cannot be consolidated with cases which are not triable in a similar manner,[12] or which are governed by different procedural rules.[13] CUMULATIVE SUPPLEMENT Cases: Consolidation of separate action filed in the Lake Circuit Court with previous action that was filed in the Lake Superior Court was warranted; both matters were to proceed before the Superior Court on a consolidated basis, and the preliminary injunction entered by the Circuit Court would remain in effect pending action by the Superior Court. State ex rel. Curley v. Lake Circuit Court, 899 N.E.2d 1271 (Ind. 2008).
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[END OF SUPPLEMENT]
[FN1] Fla.Wetherington v. State Farm Mut. Auto. Ins. Co., 661 So. 2d 1276 (Fla. Dist. Ct. App. 2d Dist. 1995). Ind.Board of Com'rs of Benton County v. Whistler, 455 N.E.2d 1149 (Ind. Ct. App. 4th Dist. 1983). La.In re Dendinger, 766 So. 2d 554 (La. Ct. App. 4th Cir. 1999). [FN2] Ind.Board of Com'rs of Benton County v. Whistler, 455 N.E.2d 1149 (Ind. Ct. App. 4th Dist. 1983). [FN3] Colo.Hawkins v. Powers, 635 P.2d 915 (Colo. Ct. App. 1981). Mont.Peavey Co. v. Agri-Services, Inc., 163 Mont. 394, 517 P.2d 718 (1973). Wis.Muchow v. Goding, 198 Wis. 2d 609, 544 N.W.2d 218 (Ct. App. 1995). Proposed proceeding not yet commenced N.Y.Del Bello v. Wilmot, 59 A.D.2d 1023, 399 N.Y.S.2d 760 (4th Dep't 1977). [FN4] Ga.Lowery v. Adams, 225 Ga. 248, 167 S.E.2d 636 (1969). La. Revere v. Canulette, 715 So. 2d 47 (La. Ct. App. 1st Cir. 1998), writ granted in part and remanded, 730 So. 2d 870 (La. 1999). N.Y.Flushing Nat. Bank v. Municipal Assistance Corp. of City of New York, 89 Misc. 2d 342, 393 N.Y.S.2d 873 (Sup 1977). [FN5] N.Y.Ventures Intern. v. Uppstrom, 166 A.D.2d 321, 560 N.Y.S.2d 1016 (1st Dep't 1990). [FN6] Wash.In re Adoption of Garay, 75 Wash. 2d 184, 449 P.2d 696 (1969). Only one appeal permissible Independently filed appeals of valuation of same property for same tax year filed by Federal Deposit Insurance Corporation (FDIC) and successive owner could not be consolidated, in light of prior determination that only one appeal of valuation was permissible so that both cases were not independently viable. Ariz.F.D.I.C. v. Maricopa County, 175 Ariz. 128, 854 P.2d 161 (Tax Ct. 1993). [FN7] Ga.Smith v. Bukofzer, 180 Ga. 213, 178 S.E. 640 (1935). [FN8] Colo. Mortgage Investments Corp. v. Battle Mountain Corp., 56 P.3d 1104 (Colo. Ct. App. 2001), as modified on denial of reh'g, (Jan. 17, 2002) and cert. granted, (Oct. 21, 2002) and rev'd and remanded on other grounds, 70 P.3d 1176 (Colo. 2003), as modified on denial of reh'g, (June 9, 2003).
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[FN9] Early stages of discovery N.Y.Bernstein v. Silverman, 228 A.D.2d 325, 644 N.Y.S.2d 235 (1st Dep't 1996). [FN10] N.Y.Abrams v. Port Authority Trans-Hudson Corp., 1 A.D.3d 118, 766 N.Y.S.2d 429 (App. Div. 1st Dep't 2003). Length of pendency Trial court properly denied motion to consolidate personal injury and medical malpractice actions, where medical malpractice action had not been fully answered and was in no posture to be tried, while personal injury action had been pending for several years. La.Doyle v. Picadilly Cafeterias, 576 So. 2d 1143 (La. Ct. App. 3d Cir. 1991). [FN11] Fla.Pages v. Dominguez By and Through Dominguez, 652 So. 2d 864 (Fla. Dist. Ct. App. 4th Dist. 1995). [FN12] Jury and nonjury cases R.I.Hutson v. Cavicchia, 53 R.I. 518, 167 A. 531 (1933). [FN13] Minn.Gaughan v. Gaughan, 450 N.W.2d 338 (Minn. Ct. App. 1990). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 265 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. IX. Consolidation of Actions C. Conditions Justifying Consolidation Topic Summary References Correlation Table 266. Lack of prejudice West's Key Number Digest West's Key Number Digest, Action 55 Actions may be consolidated only if consolidation will not result in prejudice to a substantial right of a party. A court may consolidate actions where common questions of law and fact are involved,[1] as long as it may be done without prejudice to a substantial right of a party.[2] Generally, consolidation of actions should not be ordered where it may result in prejudice to one or more of the parties,[3] or if possible confusion to the jury would result.[4] However, the mere possibility of some prejudice does not justify separate trials where such prejudice is not substantial and there are strong countervailing considerations of economy.[5] Mere delay is not a sufficient basis upon which to deny consolidation.[6]
[FN1] 267. [FN2] Ill.Anderson v. Anchor Organization for Health Maintenance, 274 Ill. App. 3d 1001, 211 Ill. Dec. 213, 654 N.E.2d 675 (1st Dist. 1995). Mich.Kelley v. Frank D. McKay Realty Co., 34 Mich. App. 370, 191 N.W.2d 123 (1971). N.M.Doe v. City of Albuquerque, 96 N.M. 433, 631 P.2d 728 (Ct. App. 1981). N.Y.Firequench, Inc. v. Kaplan, 256 A.D.2d 213, 682 N.Y.S.2d 369 (1st Dep't 1998). No prejudice shown Rights of manufacturer of product containing asbestos were not prejudiced by consolidation of three personal injury cases involving asbestos exposure with wrongful death case also involving such exposure, even though it was claimed that jury's awareness that there had been death allegedly caused by asbestos influenced them in their liability and damages determinations regarding personal injury cases;
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jury had been instructed that each case was to be considered as though it were a separate lawsuit, and differing verdicts in each case indicated that jury had observed instructions. Ill. Pickering v. Owens-Corning Fiberglas Corp., 265 Ill. App. 3d 806, 203 Ill. Dec. 1, 638 N.E.2d 1127 (5th Dist. 1994). [FN3] Ala.Bateh v. Brown, 293 Ala. 704, 310 So. 2d 186 (1975). Ark.Missouri Pacific R. Co. v. Arkansas Sheriff's Boys' Ranch, 280 Ark. 53, 655 S.W.2d 389 (1983). Mich.Papcum v. L. R. Jacobs Const. Co., 95 Mich. App. 746, 291 N.W.2d 191 (1980). N.Y. Earbert Restaurant, Inc. v. Little Luxuries, Inc., 99 A.D.2d 734, 472 N.Y.S.2d 359 (1st Dep't 1984). Tex.In re Van Waters & Rogers, Inc., 145 S.W.3d 203 (Tex. 2004). Fair and impartial trial Considerations of convenience and economy must yield to a paramount concern for a fair and impartial trial. Miss.Janssen Pharmaceutica, Inc. v. Armond, 866 So. 2d 1092 (Miss. 2004). Balancing test Court considering consolidation of actions must balance convenience against possibility of prejudice. Minn.Green v. City of Coon Rapids, 485 N.W.2d 712 (Minn. Ct. App. 1992). [FN4] Mich.Cohen v. Cohen, 125 Mich. App. 206, 335 N.W.2d 661 (1983). Tex.In re Van Waters & Rogers, Inc., 145 S.W.3d 203 (Tex. 2004). [FN5] S.D.Wulf v. Senst, 2003 SD 105, 669 N.W.2d 135 (S.D. 2003). [FN6] N.Y.Raboy v. McCrory Corp., 210 A.D.2d 145, 621 N.Y.S.2d 14 (1st Dep't 1994). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 266 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. IX. Consolidation of Actions C. Conditions Justifying Consolidation Topic Summary References Correlation Table 267. Common questions of law or fact West's Key Number Digest West's Key Number Digest, Action 57(3) Identity of subject matter, and common questions of law or fact are generally prerequisites to a consolidation. Consolidation of actions is warranted where the actions involve common questions of law or fact,[1] and is improper where there is no significant common question of law or fact,[2] or where the common questions have already been determined.[3] Subject to such other conditions as may be prescribed, consolidation is ordinarily proper where the questions and issues raised are substantially the same in both suits,[4] and a motion to consolidate should be granted where the issues in both actions are the same and the adverse party will not lose any substantial right,[5] or where the issues presented in the two actions are virtually identical and failure to consolidate the actions could result in inconsistent judgments.[6] Consolidation of actions is proper and may be warranted where the actions arise out of the same transaction, occurrence, or series of transactions or occurrences.[7] Consolidation is not rendered improper merely because in each case some questions of law or fact are different,[8] and the mere possibility of juries arriving at different conclusions on a fact common to two lawsuits does not alone mandate consolidation.[9] The fact that answers have not yet been served in the actions does not preclude the granting of consolidation where it is evident the common issues are presented.[10]
[FN1] U.S.Maestri v. Westlake Excavating Co., Inc., 894 F. Supp. 573 (N.D. N.Y. 1995). Ala. Hooper v. Huey, 293 Ala. 63, 300 So. 2d 100 (1974) (disapproved of on other grounds by, Bardin v. Jones, 371 So. 2d 23 (Ala. 1979)). AlaskaDean v. Firor, 681 P.2d 321 (Alaska 1984). Cal.Shuffer v. Board of Trustees, 67 Cal. App. 3d 208, 136 Cal. Rptr. 527 (2d Dist. 1977).
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Colo.Weyerhaeuser Mortg. Co. v. Equitable General Ins. Co., 686 P.2d 1357 (Colo. Ct. App. 1983). Fla.Pages v. Dominguez By and Through Dominguez, 652 So. 2d 864 (Fla. Dist. Ct. App. 4th Dist. 1995). Ill.Clore v. Fredman, 59 Ill. 2d 20, 319 N.E.2d 18 (1974). Ind.Board of Com'rs of Benton County v. Whistler, 455 N.E.2d 1149 (Ind. Ct. App. 4th Dist. 1983). IowaKent Feeds, Inc. v. Manthei, 646 N.W.2d 87 (Iowa 2002). Kan.Lone Star Industries, Inc. v. Secretary of Kansas Dept. of Transp., 234 Kan. 121, 671 P.2d 511 (1983). Md. Chinwuba v. Larsen, 142 Md. App. 327, 790 A.2d 83 (2002), cert. granted, 369 Md. 179, 798 A.2d 551 (2002) and judgment aff'd in part, rev'd in part on other grounds, 377 Md. 92, 832 A.2d 193 (2003). Minn.Price v. Amdal, 256 N.W.2d 461 (Minn. 1977) (holding modified on other grounds by, Gordon v. Microsoft Corp., 645 N.W.2d 393 (Minn. 2002)). Mo. Birt v. Consolidated School Dist. No. 4, 829 S.W.2d 538, 75 Ed. Law Rep. 587 (Mo. Ct. App. W.D. 1992). N.Y.Government Employees Ins. Co. v. Uniroyal Goodrich Tire Co., 242 A.D.2d 765, 661 N.Y.S.2d 847 (3d Dep't 1997). OhioJamestown Village Condo. Owners Assn. v. Market Media Research, Inc., 96 Ohio App. 3d 678, 645 N.E.2d 1265 (8th Dist. Cuyahoga County 1994). Okla.Puckett v. Cook, 1978 OK 108, 586 P.2d 721 (Okla. 1978). Pa.Bumberger by Hems v. Duff, 160 Pa. Commw. 354, 634 A.2d 1162 (1993). S.C.Creighton v. Coligny Plaza Ltd. Partnership, 334 S.C. 96, 512 S.E.2d 510 (Ct. App. 1998). Tex.State v. Public Utility Com'n of Texas, 840 S.W.2d 650 (Tex. App. Austin 1992), writ granted, (May 19, 1993) and judgment aff'd in part, rev'd in part on other grounds, 883 S.W.2d 190 (Tex. 1994). [FN2] HawaiiKainz v. Lussier, 4 Haw. App. 400, 667 P.2d 797 (1983). Mont.Keller v. Llewellyn, 175 Mont. 164, 573 P.2d 166 (1977). N.Y.Jacobsen v. Hills, 101 A.D.2d 980, 477 N.Y.S.2d 720 (3d Dep't 1984). Ohio Director of Highways v. Kleines, 38 Ohio St. 2d 317, 67 Ohio Op. 2d 368, 313 N.E.2d 370 (1974). [FN3] Colo. Southeastern Colorado Water Conservancy Dist. v. Huston, 197 Colo. 365, 593 P.2d 1347 (1979).
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[FN4] Ala.Teague v. Motes, 57 Ala. App. 609, 330 So. 2d 434 (Civ. App. 1976). N.H.Associated Home Utilities, Inc. v. Town of Bedford, 120 N.H. 812, 424 A.2d 186 (1980). N.M.Doe v. City of Albuquerque, 96 N.M. 433, 631 P.2d 728 (Ct. App. 1981). N.Y.City of Cohoes v. Cohoes Police Benev. and Protective Ass'n, 63 A.D.2d 793, 404 N.Y.S.2d 763 (3d Dep't 1978); Hankin v. Armstrong, 113 Misc. 2d 24, 451 N.Y.S.2d 334 (App. Term 1981). Okla.Puckett v. Cook, 1978 OK 108, 586 P.2d 721 (Okla. 1978). [FN5] Ill.Stone v. City of Belvidere, 39 Ill. App. 3d 829, 350 N.E.2d 526 (2d Dist. 1976). [FN6] Ill.Charles v. Gore, 248 Ill. App. 3d 441, 187 Ill. Dec. 963, 618 N.E.2d 554 (1st Dist. 1993). [FN7] Ill.Wagner v. David, 35 Ill. 2d 494, 221 N.E.2d 248 (1966). Mo.State ex rel. Allen v. Yeaman, 440 S.W.2d 138 (Mo. Ct. App. 1969). N.Y.Cafil Homes, Inc. v. Ihasz, 104 A.D.2d 961, 480 N.Y.S.2d 754 (2d Dep't 1984). N.C.Wood v. Brown, 25 N.C. App. 241, 212 S.E.2d 690 (1975). Okla.Puckett v. Cook, 1978 OK 108, 586 P.2d 721 (Okla. 1978). Varying facts Joinder of 10 different consumers' claims in products liability action against manufacturer of drug that treated gastroesophageal reflux disease (GERD) was improper; the actions did not arise out of the same transaction or occurrence given that the consumers ranged in age from three years old to 79 years old, each had unique prior medical histories, each was prescribed drug by a different physician in different amounts for different ailments, and each was prescribed the drug at different times over a six-year period. Miss. Janssen Pharmaceutica, Inc. v. Bailey, 878 So. 2d 31 (Miss. 2004), as modified on denial of reh'g, (Aug. 5, 2004). [FN8] D.C.Alfred A. Altimont, Inc. v. Chatelain, Samperton & Nolan, 374 A.2d 284 (D.C. 1977). [FN9] Fla.Friedman v. DeSota Park North Condominium Ass'n, 678 So. 2d 391 (Fla. Dist. Ct. App. 4th Dist. 1996). [FN10] N.Y.Cushing v. Cushing, 85 A.D.2d 809, 445 N.Y.S.2d 636 (3d Dep't 1981). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 267 END OF DOCUMENT
CJS ACTIONS IX D REF 1A C.J.S. Actions IX D Refs.
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. IX. Consolidation of Actions D. Actions that may be Consolidated Topic Summary Correlation Table Research References A.L.R. Library West's A.L.R. Digest, Action A.L.R. Index: Joinder of Actions Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS IX D REF END OF DOCUMENT 57(1) , 57(2) , 57(5)
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. IX. Consolidation of Actions D. Actions that may be Consolidated Topic Summary References Correlation Table 268. Generally West's Key Number Digest West's Key Number Digest, Action 57(1), 57(5) Consolidation has been held proper in a great variety of actions and proceedings. There are no limitations on the kinds of actions that may be consolidated,[1] and consolidation is proper in a great variety of actions and proceedings,[2] including class actions,[3] declaratory judgment actions,[4] a legal malpractice action and the defendant attorney's action for legal fees,[5] insurance cases,[6] and receivership proceedings.[7] Derivative actions by stockholders may be consolidated with other actions and proceedings,[8] including other derivative actions by different stockholders.[9] Special proceedings or petitions seeking prerogative or extraordinary remedies[10] and plenary actions and special proceedings[11] may also be consolidated. On the other hand, where the conditions authorizing consolidation do not exist, consolidation should not be ordered in particular proceedings,[12] such as mandamus proceedings and suits for injunction,[13] or an injunction action and a proceeding to review an administrative decision.[14] The appeal of a judgment may be consolidated with a challenge to the validity of the judgment.[15] Cases involving the construction of the same statute may be consolidated.[16] Challenges to a particular government action may be consolidated;[17] indeed, this is required under some statutes.[18] CUMULATIVE SUPPLEMENT Cases: Purchaser's claims for common law fraud and violation of state Real Estate Disclosure Act were distinct
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causes of action and thus were not subject to consolidation in action against vendors; claims had different elements, fraud claim had greater burden of proof, and Act did not limit or abridge liability for disclosure created by another provision of law. Jensen v. Sattler, 696 N.W.2d 582 (Iowa 2005). [END OF SUPPLEMENT]
[FN1] N.D.Praus ex rel. Praus v. Mack, 2001 ND 80, 626 N.W.2d 239 (N.D. 2001). [FN2] Ala.Bateh v. Brown, 293 Ala. 704, 310 So. 2d 186 (1975). Ga.Herring v. McLemore, 248 Ga. 808, 286 S.E.2d 425 (1982). [FN3] Cal. Salton City etc. Owners Assn. v. M. Penn Phillips Co., 75 Cal. App. 3d 184, 141 Cal. Rptr. 895 (2d Dist. 1977). [FN4] Ind. Cinergy Corp. v. St. Paul Surplus Lines Ins. Co., 785 N.E.2d 586 (Ind. Ct. App. 2003), transfer denied, 804 N.E.2d 745 (Ind. 2003). Declaratory judgment action and tort action Pa.Lincoln General Ins. Co. v. Donahue, 151 Pa. Commw. 297, 616 A.2d 1076 (1992). Separate trials Where a declaratory judgment action to determine insurance coverage is consolidated with a tort action against the insured, the actions must be tried separately. Ind.Indiana Lumbermens Mut. Ins. Co. v. American Log Homes, Inc., 774 N.E.2d 603 (Ind. Ct. App. 2002). [FN5] N.Y.Bernstein v. Silverman, 228 A.D.2d 325, 644 N.Y.S.2d 235 (1st Dep't 1996). [FN6] Ga.Moss v. Cincinnati Ins. Co., 154 Ga. App. 165, 268 S.E.2d 676 (1980). Kan.Febert v. Upland Mut. Ins. Co., 222 Kan. 197, 563 P.2d 467 (1977). N.J.Robert T. Winzinger, Inc. v. Brennan Bros., Inc., 191 N.J. Super. 114, 465 A.2d 579 (Law Div. 1983). N.Y.Hartford Fire Ins. Co. v. Weiss, 45 A.D.2d 694, 355 N.Y.S.2d 597 (1st Dep't 1974). Subrogation proceeding and principal action N.Y.Government Employees Ins. Co. v. Uniroyal Goodrich Tire Co., 242 A.D.2d 765, 661 N.Y.S.2d 847 (3d Dep't 1997). [FN7] Neb.State v. Banking House of A. Castetter, 116 Neb. 610, 218 N.W. 584 (1928).
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N.J.Jennings v. Studebaker Corp., 112 N.J. Eq. 591, 165 A. 631 (Ch. 1933). [FN8] N.Y.In re Elias, 29 A.D.2d 118, 286 N.Y.S.2d 371 (2d Dep't 1967). Dissolution of corporation N.Y.Application of Taines, 111 Misc. 2d 559, 444 N.Y.S.2d 540 (Sup 1981). [FN9] N.Y. Dresdner v. Goldman Sachs Trading Corp., 240 A.D. 242, 269 N.Y.S. 360 (2d Dep't 1934). [FN10] N.Y.Spinney Hill Collision, Inc. v. Caso, 56 A.D.2d 655, 391 N.Y.S.2d 903 (2d Dep't 1977). [FN11] N.Y.In re Elias, 29 A.D.2d 118, 286 N.Y.S.2d 371 (2d Dep't 1967). OhioFair v. School Emp. Retirement System of Ohio, 44 Ohio App. 2d 115, 73 Ohio Op. 2d 101, 335 N.E.2d 868 (10th Dist. Franklin County 1975). Wis.Dalton v. Meister, 71 Wis. 2d 504, 239 N.W.2d 9, 11 A.L.R.4th 332 (1976). Damages and mandamus IdahoHeaney v. Board of Trustees of Garden Valley School Dist. No. 71, 98 Idaho 900, 575 P.2d 498 (1978). Declaratory judgment and special proceedings N.Y. Bliek v. Town of Webster, 104 Misc. 2d 852, 429 N.Y.S.2d 811 (Sup 1980), aff'd, 85 A.D.2d 882, 446 N.Y.S.2d 955 (4th Dep't 1981), order rev'd on other grounds, 59 N.Y.2d 220, 464 N.Y.S.2d 431, 451 N.E.2d 189 (1983). [FN12] Fla.Brody Const., Inc. v. Fabri-Built Structures, Inc., 322 So. 2d 61 (Fla. Dist. Ct. App. 4th Dist. 1975). Ill.Catalano v. Aetna Cas. & Sur. Co. of Illinois, 105 Ill. App. 3d 195, 61 Ill. Dec. 94, 434 N.E.2d 31 (2d Dist. 1982). Ky.Adams Real Estate Corp. v. Ward, 458 S.W.2d 622 (Ky. 1970). Mich.Jachim v. Coussens, 88 Mich. App. 648, 278 N.W.2d 708 (1979). N.Y.Redanz v. Kuntz, 99 A.D.2d 654, 472 N.Y.S.2d 56 (4th Dep't 1984). [FN13] Iowa Independent School Dist. of Manning, Carroll County v. Miller, 189 Iowa 123, 178 N.W. 323 (1920). [FN14] S.D.Matter of Solid Waste Disposal Permit Application of Clay County and City of Vermillion, 295 N.W.2d 328 (S.D. 1980). [FN15] La.Marien v. Rapides Parish Police Jury, 717 So. 2d 1187 (La. Ct. App. 3d Cir. 1998), writ
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denied, 727 So. 2d 1166 (La. 1998). [FN16] Ill.Ad-Ex, Inc. v. City of Chicago, 247 Ill. App. 3d 97, 187 Ill. Dec. 125, 617 N.E.2d 333 (1st Dist. 1993). [FN17] Tax refund actions Trial court did not abuse its discretion by consolidating multiple tax refund actions in which taxpayers sought refund of business and occupation tax imposed on interstate manufacturers and sellers, which was challenged as violative of Commerce Clause. W.R. Grace & Co.Conn. v. State, Dept. of Revenue, 137 Wash. 2d 580, 973 P.2d 1011 (1999). [FN18] Cal. N.T. Hill Inc. v. City of Fresno, 72 Cal. App. 4th 977, 85 Cal. Rptr. 2d 562 (5th Dist. 1999) (holding modified on other grounds by, California Psychiatric Transitions, Inc. v. Delhi County Water Dist., 111 Cal. App. 4th 1156, 4 Cal. Rptr. 3d 503 (5th Dist. 2003)). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 268 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. IX. Consolidation of Actions D. Actions that may be Consolidated Topic Summary References Correlation Table 269. Contract actions West's Key Number Digest West's Key Number Digest, Action 57(1) Contract actions between the same parties or involving the same contract may be consolidated. Different contract actions between the same parties may be consolidated,[1] as may actions between different parties which involve the same contractual transaction and which must be considered together in order properly to dispose of the entire controversy without possible injustice to one of the parties.[2] However, consolidation is not necessary, even where the actions involve contracts between the same parties, where the contracts constitute separate and independent obligations.[3]
[FN1] N.Y.Schwartz v. Environmental Research & Development, Inc., 77 A.D.2d 852, 431 N.Y.S.2d 45 (1st Dep't 1980). S.C.Simons-Mayrant Co. v. Gulf Refining Co., 160 S.C. 179, 158 S.E. 255 (1931). [FN2] N.C.Interstate Nat. Bank of Kansas City v. Citizens' Bank & Trust Co., 184 N.C. 243, 114 S.E. 164 (1922). [FN3] Mont.Environmental Contractors, LLC v. Moon, 1999 MT 178, 295 Mont. 268, 983 P.2d 390 (1999). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 269 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. IX. Consolidation of Actions D. Actions that may be Consolidated Topic Summary References Correlation Table 270. Probate proceedings West's Key Number Digest West's Key Number Digest, Action 57(1) Probate proceedings may be consolidated with other types of actions, where one court has jurisdiction over both actions. Where one court has jurisdiction over both actions,[1] probate proceedings may be consolidated with related civil actions[2] or special proceedings,[3] such as actions involving claims for or against the estate or the disposition of the property of the estate,[4] an action for a declaration of the parties' interests in a decedent's bank account,[5] or actions to quiet title to estate property.[6] While it has been held that it is proper to consolidate applications to probate two different wills of the same decedent,[7] it has also been held that consolidation will not be ordered of separate proceedings to probate different wills of the same decedent where there is a right of trial by jury.[8] Consolidation of contests of spouses' wills is not required where the cases do not present the same issues.[9]
[FN1] As to jurisdiction of consolidated actions, see 262. [FN2] Ariz.Marvin Johnson, P.C. v. Myers, 184 Ariz. 98, 907 P.2d 67 (1995). [FN3] Wis.Matter of Estate of Martz, 171 Wis. 2d 89, 491 N.W.2d 772 (Ct. App. 1992). [FN4] N.Y.Matter of Birch's Estate, 50 A.D.2d 475, 378 N.Y.S.2d 792 (3d Dep't 1976). W.Va.Holland v. Joyce, 155 W. Va. 535, 185 S.E.2d 505 (1971). [FN5] Wis.Matter of Estate of Martz, 171 Wis. 2d 89, 491 N.W.2d 772 (Ct. App. 1992). [FN6] Kan.Matter of Estate of Beason, 248 Kan. 803, 811 P.2d 848 (1991).
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[FN7] Tex.Plummer v. Roberson, 666 S.W.2d 656 (Tex. App. Austin 1984), writ refused n.r.e., (May 2, 1984). [FN8] N.Y.In re Pinkney's Estate, 117 Misc. 262, 191 N.Y.S. 157 (Sur. Ct. 1921). [FN9] Ind.Kronmiller v. Wangberg, 665 N.E.2d 624 (Ind. Ct. App. 1996). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 270 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. IX. Consolidation of Actions D. Actions that may be Consolidated Topic Summary References Correlation Table 271. Actions involving real and personal property West's Key Number Digest West's Key Number Digest, Action 57(1) Various types of actions involving real and personal property may be consolidated. Consolidation is appropriate in a wide variety of real property-related actions,[1] such as different condemnation proceedings relating to the same property,[2] or to different property if there is unity of use and ownership.[3] Separate suits to foreclose or enforce the same mortgage or other lien security may be consolidated,[4] as may actions brought by different mortgagees or other encumbrancers, when their liens all attach against the same property and all the suits are pending.[5] Foreclosure actions may also be consolidated with other types of suits, such as actions to discharge a mortgage,[6] actions to quiet title,[7] or actions seeking damages for fraudulent inducement.[8] Quiet title actions to the same property brought by different persons may be consolidated.[9] Consolidation of actions concerning leased or rented property may be appropriate.[10] However, it may be improper to consolidate an action for specific performance with a summary eviction proceeding,[11] or with an action for ejectment,[12] nor is it necessary to consolidate a summary proceeding by a landlord for nonpayment of rent with a tenant's negligence action for damages caused by flooding.[13] Consolidation of suits to foreclose mechanics' liens is permissible.[14] A lienee should make full and timely disclosure to the court of all pending mechanic's lien foreclosure suits and all known lien claims so the court may make an informed decision on whether to consolidate them.[15]
[FN1] Ariz.Marvin Johnson, P.C. v. Myers, 184 Ariz. 98, 907 P.2d 67 (1995). Fla. Georgia-Pacific Corp. v. Squires Development Corp., 387 So. 2d 986 (Fla. Dist. Ct. App. 4th Dist. 1980).
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Mass.Commissioner of Dept. of Community Affairs v. Medford Housing Authority, 363 Mass. 826, 298 N.E.2d 862 (1973). N.J.Morrocco v. Felton, 112 N.J. Super. 226, 270 A.2d 739 (Law Div. 1970). Action for declaratory judgment and money damages N.Y.Kabasso v. Bruce Supply Corp., 77 A.D.2d 645, 431 N.Y.S.2d 546 (2d Dep't 1980). Damages for, and action to enjoin, trespass Consolidation of action seeking damages for trespass and action to enjoin a continuing trespass was proper where both actions involved question of ownership of proprietary leasehold interest in a terrace adjoining the apartments of the parties in a cooperative apartment building. N.Y.Friedman v. Law, 60 A.D.2d 832, 400 N.Y.S.2d 562 (2d Dep't 1978). [FN2] Cal.City of Los Angeles v. Klinker, 219 Cal. 198, 25 P.2d 826, 90 A.L.R. 148 (1933). [FN3] S.D.State Highway Commission v. Miller, 83 S.D. 124, 155 N.W.2d 780 (1968). Tex.Gossett v. State, 417 S.W.2d 730 (Tex. Civ. App. Eastland 1967), writ refused n.r.e., (Nov. 22, 1967). [FN4] N.C.Lookout Lumber Co. v. Sanford, 112 N.C. 655, 16 S.E. 849 (1893). [FN5] Ill.Belleville Sav. Bank v. Mercantile Trust Co., 194 Ill. App. 175, 1915 WL 2209 (4th Dist. 1915), cert. denied. Ky.Davis v. J.I. Case Threshing Mach. Co., 26 Ky. L. Rptr. 235, 80 S.W. 1145 (Ky. 1904). Minn.Miller v. Condit, 52 Minn. 455, 55 N.W. 47 (1893). [FN6] Mich.Degen v. Degen's Estate, 80 Mich. App. 573, 264 N.W.2d 64 (1978). [FN7] Colo. Mortgage Investments Corp. v. Battle Mountain Corp., 56 P.3d 1104 (Colo. Ct. App. 2001), as modified on denial of reh'g, (Jan. 17, 2002) and cert. granted, (Oct. 21, 2002) and rev'd and remanded on other grounds, 70 P.3d 1176 (Colo. 2003), as modified on denial of reh'g, (June 9, 2003). [FN8] Fla.Meyers v. Shore Industries, Inc., 575 So. 2d 783 (Fla. Dist. Ct. App. 2d Dist. 1991). [FN9] Md.Jenkins v. City of College Park, 379 Md. 142, 840 A.2d 139 (2003). [FN10] Dispossession actions Landlord's dispossession action based on tenant's allegedly allowing unauthorized person to occupy apartment should have been consolidated with landlord's prior action to dispossess for nonpayment of rent; both actions involved same landlord, same tenant, same premises, and landlord's right to dispos-
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sess tenant. N.J.Ashley Court Enterprises v. Whittaker, 249 N.J. Super. 552, 592 A.2d 1228 (App. Div. 1991). [FN11] N.Y.La Torre v. Mountcastle, 88 A.D.2d 724, 451 N.Y.S.2d 280 (3d Dep't 1982). [FN12] AlaskaBrown v. Hawkins, 418 P.2d 28 (Alaska 1966). [FN13] N.Y.Earbert Restaurant, Inc. v. Little Luxuries, Inc., 99 A.D.2d 734, 472 N.Y.S.2d 359 (1st Dep't 1984). [FN14] Ill. Malkov Lumber Co. v. Serafine Builders, Inc., 1 Ill. App. 3d 543, 273 N.E.2d 654 (1st Dist. 1971). Nev.Richmond Machinery Co. v. Bennett, 48 Nev. 286, 229 P. 1098 (1924). [FN15] Ill. Malkov Lumber Co. v. Serafine Builders, Inc., 1 Ill. App. 3d 543, 273 N.E.2d 654 (1st Dist. 1971). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 271 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. IX. Consolidation of Actions D. Actions that may be Consolidated Topic Summary References Correlation Table 272. Tort actions West's Key Number Digest West's Key Number Digest, Action 57(5) Tort actions may be consolidated where the parties, facts, and/or issues are identical or similar. Different tort actions may in some cases properly be consolidated,[1] as in the case of different actions against the same defendant, or different defendants, arising out of the same tort,[2] or related torts.[3] The consolidated cases may be for different personal injuries,[4] for wrongful death and personal injury,[5] or injuries to property,[6] or one for personal injury and another for an injury to property.[7] However, the fact that two cases arise out of the same accident is not of itself reason to require consolidation.[8] Consolidation may be proper where an injury sustained in one accident is alleged to have been aggravated by a second accident, and each defendant claims that the other is responsible for the extent of the injuries.[9] Even where there is no claim that the first injury was aggravated by the second accident, consolidation may be proper where the injuries were of the same general type, the plaintiff was treated by the same physician for both, and each defendant claims that the other was responsible for the plaintiff's injuries.[10] A products liability action may be consolidated with a spoliation action against the bailee of the allegedly defective product, where the jury will only reach the spoliation claim if the loss of the product would significantly impair the products liability claim, as a single jury will be in the best position to determine the issues of causation and damages.[11] Mass tort cases, such as medical device litigation[12] and cases dealing with workplace exposure to toxins[ 13] may be appropriate for consolidation. A court determining whether consolidation is appropriate in a mass tort case alleging exposure in a workplace will consider (1) whether the plaintiffs shared a common work site; (2) whether the plaintiffs shared similar occupations; (3) whether the plaintiffs had similar times of exposure; (4) whether the plaintiffs have a similar type of disease; (5) whether plaintiffs are alive or deceased; (6) the status of discovery; (7) whether all plaintiffs are represented by the same counsel; (8) the type of cancer alleged, if any; and (9) the type of products to which the plaintiffs were exposed.[14] CUMULATIVE SUPPLEMENT
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Cases: Trial court did not abuse its discretion in ordering coal miners' actions against manufacturers and distributors of isocyanate consolidated for purposes of conducting a common-issues trial as to liability and factual causation, which determinations would bind defendants in later trials, where defendants were afforded a pretrial opportunity to challenge whether the issues determined at the common-issues trial were truly common with respect to the plaintiffs in the later trials. Ex parte Flexible Products Co., 915 So. 2d 34 (Ala. 2005). [END OF SUPPLEMENT]
[FN1] Ill.Fanning v. McCarry, 2 Ill. App. 3d 650, 275 N.E.2d 897 (4th Dist. 1971). Pa.Reeves v. Philadelphia Gas Works Co., 107 Pa. Super. 422, 164 A. 132 (1933). [FN2] Colo.Askew v. Gerace, 851 P.2d 199 (Colo. Ct. App. 1992). Minn.Lines v. Ryan, 272 N.W.2d 896 (Minn. 1978). Miss.Fielder v. Magnolia Beverage Co., 757 So. 2d 925 (Miss. 1999). N.J.Colucci by Colucci v. Thomas Nicol Asphalt Co., 194 N.J. Super. 510, 477 A.2d 403 (App. Div. 1984). Claims of family members arising from same accident Fla.Maharaj v. Grossman, 619 So. 2d 399 (Fla. Dist. Ct. App. 4th Dist. 1993). Medical malpractice Trial court was required to consolidate actions brought by patient against hospital and doctor separately for alleged medical malpractice in failing to timely diagnose and treat her breast cancer; one jury hearing all the evidence could better determine the extent to which each defendant caused patient's injuries and potentially eliminate the possibility of inconsistent verdicts which might result from separate trials. N.Y.Morell v. Basa, 300 A.D.2d 134, 752 N.Y.S.2d 299 (1st Dep't 2002). [FN3] N.Y.Mayer v. Fleischner, 92 A.D.2d 463, 459 N.Y.S.2d 4 (1st Dep't 1983). [FN4] Ark.St. Louis Southwestern Ry. Co. v. Pennington, 261 Ark. 650, 553 S.W.2d 436 (1977). OhioMoore v. Baker, 25 Ohio Misc. 140, 54 Ohio Op. 2d 139, 266 N.E.2d 593 (C.P. 1970). Or.Vander Veer v. Toyota Motor Distributors, Inc., 282 Or. 135, 577 P.2d 1343 (1978). [FN5] Cal. General Motors Corp. v. Superior Court of Los Angeles County, 65 Cal. 2d 88, 52 Cal. Rptr. 460, 416 P.2d 492 (1966). Fla.Pages v. Dominguez By and Through Dominguez, 652 So. 2d 864 (Fla. Dist. Ct. App. 4th Dist.
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1995). N.Y.Tromblee v. Capraro, 73 Misc. 2d 87, 341 N.Y.S.2d 623 (Sup 1973). W.Va.Fortner v. Napier, 153 W. Va. 143, 168 S.E.2d 737 (1969). Consolidation required by statute U.S.Mingolla v. Minnesota Min. and Mfg. Co., 893 F. Supp. 499 (D.V.I. 1995) (applying Virgin Islands law). [FN6] Ala.Teague v. Motes, 57 Ala. App. 609, 330 So. 2d 434 (Civ. App. 1976). Tex.Turner v. Big Lake Oil Co., 62 S.W.2d 491 (Tex. Civ. App. El Paso 1933), aff'd, 128 Tex. 155, 96 S.W.2d 221 (1936). [FN7] N.Y.Lamboy v. Inter Fence Co., Inc., 196 A.D.2d 705, 601 N.Y.S.2d 619 (1st Dep't 1993). [FN8] Fla.Pages v. Dominguez By and Through Dominguez, 652 So. 2d 864 (Fla. Dist. Ct. App. 4th Dist. 1995). Consolidation improper Wife's personal injury action arising from automobile accident was improperly consolidated with husband's action arising from same accident, since each cause of action did not affect both plaintiffs, as required by joinder statute. Neb.Lager v. Schumacher, 1 Neb. App. 1159, 510 N.W.2d 558 (1993). [FN9] N.Y.Gage v. Travel Time & Tide, Inc., 161 A.D.2d 276, 554 N.Y.S.2d 910 (1st Dep't 1990). [FN10] N.Y.Richardson v. Uess Leasing Corp., 191 A.D.2d 394, 595 N.Y.S.2d 210 (1st Dep't 1993). [FN11] Fla.Yoder v. Kuvin, 785 So. 2d 679 (Fla. Dist. Ct. App. 3d Dist. 2001). [FN12] Breast implant cases Cal.McGhan Medical Corp. v. Superior Court, 11 Cal. App. 4th 804, 14 Cal. Rptr. 2d 264 (4th Dist. 1992). [FN13] Tex.In re Van Waters & Rogers, Inc., 145 S.W.3d 203 (Tex. 2004). [FN14] Tex.In re Van Waters & Rogers, Inc., 145 S.W.3d 203 (Tex. 2004). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 272
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END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. IX. Consolidation of Actions D. Actions that may be Consolidated Topic Summary References Correlation Table 273. Domestic relations proceedings West's Key Number Digest West's Key Number Digest, Action 57(1), 57(2) Consolidation of various actions or proceedings dealing with family relationships may be warranted. Consolidation may be warranted in various actions or proceedings dealing with family relationships,[1] including two divorce or dissolution actions involving the same spouses.[2] Divorce and dissolution actions may be consolidated with other actions involving domestic relations, such as an action for support,[3] an action seeking rescission of a separation agreement,[4] an action dealing with disposition of property,[5] an action for separation,[6] or a guardianship proceeding.[7] Custody cases dealing with different children may be consolidated.[8] Likewise, custody proceedings may be consolidated with paternity proceedings,[9] adoption proceedings,[10] guardianship proceedings,[11] actions for injunction,[12] and proceedings to terminate parental rights.[13]
[FN1] La. Fouchi v. Fouchi, 391 So. 2d 1352 (La. Ct. App. 4th Cir. 1980), writ denied, 396 So. 2d 918 (La. 1981). N.Y.Nelson v. Nelson, 74 Misc. 2d 946, 346 N.Y.S.2d 567 (Sup 1973). Actions against child's trust Consolidation of matrimonial action and action against child's trust would be warranted, in view of the interplay between actions. N.Y.de Saint Phalle v. de Saint Phalle, 92 A.D.2d 792, 459 N.Y.S.2d 785 (1st Dep't 1983). Adoption and guardianship proceedings Cal.San Diego County Dept. of Pub. Welfare v. Superior Court, 7 Cal. 3d 1, 101 Cal. Rptr. 541, 496
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P.2d 453 (1972). Enforcement and modification of divorce decree Wash.State v. Superior Court of Skagit County, 159 Wash. 277, 292 P. 1011 (1930). Domestic violence and other family court actions N.J.Mann v. Mann, 270 N.J. Super. 269, 637 A.2d 170 (App. Div. 1993). [FN2] Mass.Beninati v. Beninati, 18 Mass. App. Ct. 529, 468 N.E.2d 644 (1984). Tenn.Wright v. Roberts, 573 S.W.2d 468 (Tenn. 1978). Dismissal Trial court's decision to grant motion to consolidate two divorce cases filed separately by husband and wife in different counties was not abuse of discretion, although better practice would have been to dismiss second action since two cases were, in essence, the same action. IdahoJones v. Jones, 117 Idaho 621, 790 P.2d 914 (1990). [FN3] OhioRondy v. Rondy, 13 Ohio App. 3d 19, 468 N.E.2d 81 (9th Dist. Summit County 1983). [FN4] N.Y. Markowitz v. Markowitz, 77 Misc. 2d 586, 353 N.Y.S.2d 872 (Sup 1974), (Note: Decisions combined in N.Y.S.2d) and adhered to on reargument, 77 Misc. 2d 589, 1974 WL 41029 (N.Y. Sup 1974), (Note: Decisions combined in N.Y.S.2d). [FN5] Cal. In re Marriage of Buford, 155 Cal. App. 3d 74, 202 Cal. Rptr. 20 (3d Dist. 1984) (disapproved of on other grounds by, In re Marriage of Fabian, 41 Cal. 3d 440, 224 Cal. Rptr. 333, 715 P.2d 253 (1986)). N.Y.Sagnard v. Sagnard, 80 Misc. 2d 984, 365 N.Y.S.2d 692 (Sup 1975), order aff'd, 49 A.D.2d 751, 374 N.Y.S.2d 305 (2d Dep't 1975). Partition Cal.In re Marriage of Leversee, 156 Cal. App. 3d 891, 203 Cal. Rptr. 481 (1st Dist. 1984). Ill.Doyle v. Doyle, 268 Ill. 96, 108 N.E. 796 (1915). Fraudulent conveyance AlaskaDean v. Firor, 681 P.2d 321 (Alaska 1984). Cal. In re Marriage of McNeill, 160 Cal. App. 3d 548, 206 Cal. Rptr. 641 (4th Dist. 1984) (disapproved of on other grounds by, In re Marriage of Fabian, 41 Cal. 3d 440, 224 Cal. Rptr. 333, 715 P.2d 253 (1986)). [FN6] N.Y.Brinkmann v. Brinkmann, 54 Misc. 2d 882, 283 N.Y.S.2d 680 (Sup 1967).
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[FN7] Ill.Stafford v. Stafford, 299 Ill. 438, 132 N.E. 452, 20 A.L.R. 827 (1921). [FN8] N.C.In re Moore, 11 N.C. App. 320, 181 S.E.2d 118 (1971). [FN9] Md.Thomas v. Solis, 263 Md. 536, 283 A.2d 777 (1971). [FN10] Mass.Custody of a Minor (No. 1), 391 Mass. 572, 463 N.E.2d 324 (1984). Md.Thomas v. Solis, 263 Md. 536, 283 A.2d 777 (1971). Wash.In re Maypole, 4 Wash. App. 672, 483 P.2d 878 (Div. 1 1971). [FN11] Cal.Guardianship of Paduano, 215 Cal. App. 3d 346, 263 Cal. Rptr. 589 (2d Dist. 1989). [FN12] La.Gilkes v. Bower, 734 So. 2d 98 (La. Ct. App. 4th Cir. 1999). [FN13] Ky.Bryant v. Kentucky Dept. for Human Resources, 548 S.W.2d 165 (Ky. Ct. App. 1977). Care and protection petition and termination of parental rights proceeding Mass.Adoption of Astrid, 45 Mass. App. Ct. 538, 700 N.E.2d 275 (1998). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 273 END OF DOCUMENT
CJS ACTIONS IX E REF 1A C.J.S. Actions IX E Refs.
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. IX. Consolidation of Actions E. Operation and Effect of Consolidation Topic Summary Correlation Table Research References A.L.R. Library West's A.L.R. Digest, Action A.L.R. Index: Joinder of Actions Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS IX E REF END OF DOCUMENT 59
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. IX. Consolidation of Actions E. Operation and Effect of Consolidation Topic Summary References Correlation Table 274. Effect on status of case West's Key Number Digest West's Key Number Digest, Action 59 Under some authority, consolidation merges the consolidated actions into one case, but under other authority, the actions maintain their independent status. Under some authority, the effect of a consolidation of actions at law is to unite and merge all of the different actions consolidated into a single action for the purpose of all further proceedings, as if the different causes of action involved had originally been joined in a single action.[1] Under this view, defendants in consolidated actions become codefendants and plaintiffs become coplaintiffs,[2] and raises the potential for amendments and assertion of cross claims and counterclaims by the defendants, and of new causes of action against them by plaintiffs who had not originally sued them.[3] The consolidated actions are terminated as independent actions by the consolidation and superseded by the single action,[4] and all subsequent proceedings are conducted and the rights of the parties adjudicated in a single action.[5] Under other authority, although consolidation affects the procedure of the consolidated cases,[6] it does not merge the suits into a single cause, change the rights of the parties, or make those who are parties in one suit parties in another.[7] Rather, each suit maintains its independent status with respect to the rights of the parties involved.[8] Procedural rights peculiar to one case are not rendered applicable to companion case by mere fact of consolidation; each case must stand on its own merits.[9] In still other jurisdictions, whether consolidated cases are merged or retain their separate identities depends on the types of cases involved.[10] Where the consolidated actions are actions at law, the effect of consolidation is to unite and merge the actions into a single action for purposes of all further proceedings.[11] However, except where provided by statute, consolidation of actions in equity does not merge the suits and they maintain their separate identity insofar as parties, issues, and proof are concerned.[12] Whether the actions are merged or remain separate may depend on the wording of the consolidation order[ 13] or on a statute.[14] If consolidation is ordered of actions pending in different courts, the order of removal divests of jurisdiction
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the court in which the action sought to be removed is pending[15] and the failure of that court to physically transfer the transcript and pleadings does not affect the other court's jurisdiction.[16] For the purpose of dismissing a suit for want of prosecution, actions which have been consolidated are treated as distinct.[17]
[FN1] U.S.U.S. v. Stalbaum, 63 F.3d 537 (7th Cir. 1995) (applying Wisconsin law). N.Y.Vojtech Blau, Inc. v. Sara, 160 Misc. 2d 431, 609 N.Y.S.2d 515 (Sup 1994). Pa.Keefer v. Keefer, 741 A.2d 808 (Pa. Super. Ct. 1999). Tex.Perry v. Del Rio, 53 S.W.3d 818 (Tex. App. Austin 2001). Wash.Jeffery v. Weintraub, 32 Wash. App. 536, 648 P.2d 914 (Div. 1 1982). Wis.Seventeen Seventy-Six Peachtree Corp. v. Miller, 41 Wis. 2d 410, 164 N.W.2d 278 (1969). [FN2] N.Y.Vojtech Blau, Inc. v. Sara, 160 Misc. 2d 431, 609 N.Y.S.2d 515 (Sup 1994). [FN3] N.Y.Vojtech Blau, Inc. v. Sara, 160 Misc. 2d 431, 609 N.Y.S.2d 515 (Sup 1994). [FN4] U.S.U.S. v. Stalbaum, 63 F.3d 537 (7th Cir. 1995) (Wisconsin law). N.Y.Hull v. Shannon, 139 Misc. 564, 249 N.Y.S. 33 (Sup 1931). Pa.Keefer v. Keefer, 741 A.2d 808 (Pa. Super. Ct. 1999). Wis.In re Kane's Estate, 168 Wis. 1, 168 N.W. 402 (1918). [FN5] N.Y.Hull v. Shannon, 139 Misc. 564, 249 N.Y.S. 33 (Sup 1931). [FN6] Fla.CDI Contractors, LLC. v. Allbrite Elec. Contractors, Inc., 836 So. 2d 1031 (Fla. Dist. Ct. App. 5th Dist. 2002). [FN7] Ark.Knowlton v. Ward, 318 Ark. 867, 889 S.W.2d 721, 96 Ed. Law Rep. 831 (1994). Colo.Mission Viejo Co. v. Willows Water Dist., 818 P.2d 254 (Colo. 1991). Fla. Millar Elevator Service Co. v. McGowan, 804 So. 2d 1271 (Fla. Dist. Ct. App. 2d Dist. 2002), appeal on other grounds decided, 819 So. 2d 145 (Fla. Dist. Ct. App. 2d Dist. 2002), review denied, 835 So. 2d 267 (Fla. 2002). IdahoJones v. Jones, 117 Idaho 621, 790 P.2d 914 (1990). Ind.Gray v. Westinghouse Elec. Corp., 624 N.E.2d 49 (Ind. Ct. App. 4th Dist. 1993). Md.Yarema v. Exxon Corp., 305 Md. 219, 503 A.2d 239 (1986).
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Mo.Osage Water Co. v. City of Osage Beach, 58 S.W.3d 35 (Mo. Ct. App. S.D. 2001). Or.Rath v. Haycock, 137 Or. App. 456, 905 P.2d 854 (1995). S.C.Ellis by Ellis v. Oliver, 307 S.C. 365, 415 S.E.2d 400 (1992). [FN8] Fla.St. Mary's Hosp., Inc. v. Brinson, 685 So. 2d 33 (Fla. Dist. Ct. App. 4th Dist. 1996). Service of process Where, in first case, individual was unserved defendant and, in second case, same individual was plaintiff, suing party who was codefendant in the first case, consolidation of the cases for trial did not make individual a served party in first case. Tenn.Vanhooser v. Ling, 872 S.W.2d 913 (Tenn. Ct. App. 1993). [FN9] La.In re Miller, 665 So. 2d 774 (La. Ct. App. 1st Cir. 1995), writ denied, 667 So. 2d 541 (La. 1996). Probate procedure inapplicable to consolidated civil action Fact that judge of superior court who hears probate matter may hear other matters connected with it does not mean that summary in rem procedure of probate may be employed to determine rights of third parties in civil action. Ariz.Marvin Johnson, P.C. v. Myers, 184 Ariz. 98, 907 P.2d 67 (1995). [FN10] UtahJensen v. Morgan, 844 P.2d 287 (Utah 1992). [FN11] UtahJensen v. Morgan, 844 P.2d 287 (Utah 1992). [FN12] UtahJensen v. Morgan, 844 P.2d 287 (Utah 1992). [FN13] "Consolidated with" Consolidation order merged civil actions into a single action, rather than keeping the actions separate for a joint hearing or trial, where order contained phrase "to be consolidated with the matter," rather than "to be jointly tried." Pa.Keefer v. Keefer, 741 A.2d 808 (Pa. Super. Ct. 1999). [FN14] Wrongful death Under statute directing consolidation of actions for wrongful death and survival actions, rights of action remain distinct.
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Pa.Bortner v. Gladfelter, 302 Pa. Super. 492, 448 A.2d 1386 (1982). [FN15] Ind.Piskorowski v. Shell Oil Co., 403 N.E.2d 838 (Ind. Ct. App. 3d Dist. 1980). Ky.Alsmiller v. Caudill, 257 Ky. 666, 79 S.W.2d 15 (1935). As to transfer of cases for consolidation, see 279. [FN16] Ind.Piskorowski v. Shell Oil Co., 403 N.E.2d 838 (Ind. Ct. App. 3d Dist. 1980). [FN17] Cal.Rodde v. Trousdale Const. Co., 276 Cal. App. 2d 419, 80 Cal. Rptr. 774 (2d Dist. 1969). UtahJensen v. Morgan, 844 P.2d 287 (Utah 1992). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 274 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. IX. Consolidation of Actions E. Operation and Effect of Consolidation Topic Summary References Correlation Table 275. Pleadings and evidence West's Key Number Digest West's Key Number Digest, Action 59 The pleadings in consolidated actions are considered together, and any pleadings filed after consolidation apply to all the parties. Where consolidation is considered as merging the actions into one, the pleadings in the consolidated actions should be considered together as parts of the same pleading.[1] Filing motions and other pleadings and docket entries incident to the actions need not be duplicated for each action,[2] and the motions and pleas in the consolidated actions need not be ruled upon separately, but may be carried along in the unified proceeding and ruled upon at the time of entry of the final judgment.[3] The court, if necessary, should require the pleadings to be reconstructed as in one suit.[4] However, where the trial court fails to order the parties to replead, they are not required to do so unless it is shown that confusion will result from retaining their earlier pleadings.[5] The failure to name persons who were parties in the original action upon repleading after consolidation will result in the dismissal of claims against the omitted parties.[6] Where consolidation is not considered to merge the actions into one action, however, the filing of a pleading or motion in one of several consolidated cases does not procedurally affect the others.[7] When pending actions are consolidated only for the purpose of trial of related issues, evidence presented in one case is to be deemed applicable in other case insofar as it is relevant to the second case.[8] CUMULATIVE SUPPLEMENT Cases: Though parties in consolidated actions retain their separate identities and the parties and pleadings in one action do not become parties and pleadings in the other, there is a mutuality of issues and law, in some degree, and all parties participate in the trial and determination of the common issues. Ex parte Flexible Products Co., 915 So. 2d 34 (Ala. 2005).
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[END OF SUPPLEMENT]
[FN1] Cal.People ex rel. Camil v. Buena Vista Cinema, 57 Cal. App. 3d 497, 129 Cal. Rptr. 315 (2d Dist. 1976). Me.American Policyholders' Ins. Co. v. Cumberland Cold Storage Co., 373 A.2d 247 (Me. 1977). Wis.Seventeen Seventy-Six Peachtree Corp. v. Miller, 41 Wis. 2d 410, 164 N.W.2d 278 (1969). [FN2] Md.Daniels v. State to Use and Benefit of Deoudes, 243 Md. 244, 220 A.2d 604 (1966). [FN3] Tex.American Motorists Ins. Co. v. Box, 531 S.W.2d 401 (Tex. Civ. App. Tyler 1975), writ refused n.r.e., (Mar. 31, 1976). [FN4] Tex.Olin Corp. v. Dyson, 678 S.W.2d 650 (Tex. App. Houston 14th Dist. 1984), writ granted, (Dec. 19, 1984) and judgment rev'd on other grounds, 692 S.W.2d 456 (Tex. 1985). [FN5] Tex.Olin Corp. v. Dyson, 678 S.W.2d 650 (Tex. App. Houston 14th Dist. 1984), writ granted, (Dec. 19, 1984) and judgment rev'd on other grounds, 692 S.W.2d 456 (Tex. 1985). [FN6] Tex.Kaine v. Cooney, 448 S.W.2d 223 (Tex. Civ. App. San Antonio 1969). [FN7] La.In re Miller, 665 So. 2d 774 (La. Ct. App. 1st Cir. 1995), writ denied, 667 So. 2d 541 (La. 1996). [FN8] Cal. Stubblefield Construction Co. v. City of San Bernardino, 32 Cal. App. 4th 687, 38 Cal. Rptr. 2d 413 (4th Dist. 1995), as modified on denial of reh'g, (Feb. 23, 1995). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 275 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. IX. Consolidation of Actions E. Operation and Effect of Consolidation Topic Summary References Correlation Table 276. Trial, verdict, and judgment West's Key Number Digest West's Key Number Digest, Action 59 Consolidation should not delay the trial of the actions, which should be conducted as one case, and a single verdict and judgment rendered unless a statute in the particular case directs otherwise. Consolidation should not be permitted to delay the trial further than necessary.[1] Where consolidation is considered to merge the consolidation actions into one,[2] the court should make a single set of findings as in a single action,[3] although the failure to do so may not be fatal to the judgment.[4] A finding on any issue in the consolidated action will be binding upon all the parties.[5] There should be a single verdict and judgment in a consolidated case,[6] comprehending and settling all of the issues involved,[7] with which the judgment must correlate properly.[8] Where consolidated actions remain distinct, the entry of separate verdicts and judgments is required.[9] The court may direct a verdict ordering the jury to accept an assessment of compensatory damages in one action, and permit the jury to decide the question of punitive damages in the other action.[10]
[FN1] Ky.Gerrein's Adm'r v. Berry, 30 Ky. L. Rptr. 978, 99 S.W. 944 (Ky. 1907). Continuance denied Ill.Evergreen Sav. & Loan Ass'n v. Hirschman, 110 Ill. App. 2d 242, 249 N.E.2d 248 (1st Dist. 1969) . [FN2] Discussed in 274. [FN3] U.S.U.S. v. Stalbaum, 63 F.3d 537 (7th Cir. 1995) (Wisconsin law).
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Cal. Stanton v. Superior Court in and for Los Angeles County, 202 Cal. 478, 261 P. 1001 (1927) (overruled in part on other grounds by, Phelan v. Superior Court in and for City and County of San Francisco, 35 Cal. 2d 363, 217 P.2d 951 (1950)). [FN4] Cal.Bole v. Lovejoy, 138 Cal. App. 211, 31 P.2d 1074 (3d Dist. 1934). [FN5] Ala.Teague v. Motes, 57 Ala. App. 609, 330 So. 2d 434 (Civ. App. 1976). Cal.Coghlan v. Quartararo, 15 Cal. App. 662, 115 P. 664 (1st Dist. 1911). [FN6] U.S.U.S. v. Stalbaum, 63 F.3d 537 (7th Cir. 1995) (Wisconsin law). Ariz.Ellis v. First Nat. Bank, 19 Ariz. 464, 172 P. 281 (1918). Cal.Manufacturers' Finance Corp. v. Pacific Wholesale Radio, 130 Cal. App. 239, 19 P.2d 1013 (1st Dist. 1933). La.Grasser v. Darcy, 9 La. App. 362, 119 So. 297 (Orleans 1928). Miss.Columbus & G. Ry. Co. v. Mississippi Clinic, 152 Miss. 869, 120 So. 187 (1929). N.Y.Hull v. Shannon, 139 Misc. 564, 249 N.Y.S. 33 (Sup 1931). Pa.Azinger v. Pennsylvania R. Co., 262 Pa. 242, 105 A. 87 (1918). Wash.Johnson v. California-Washington Timber Co., 159 Wash. 214, 292 P. 418 (1930). [FN7] Ariz.Ellis v. First Nat. Bank, 19 Ariz. 464, 172 P. 281 (1918). Ga.Ward v. Chapman, 42 Ga. App. 283, 156 S.E. 283 (1930). N.Y.Hull v. Shannon, 139 Misc. 564, 249 N.Y.S. 33 (Sup 1931). [FN8] Cal.Dunlap v. Commercial Nat. Bank of Los Angeles, 50 Cal. App. 476, 195 P. 688 (1st Dist. 1920). U.S.Frye v. Lyon, 299 F. 926 (App. D.C. 1924). [FN9] Pa.Bortner v. Gladfelter, 302 Pa. Super. 492, 448 A.2d 1386 (1982). Independently submitted issues Separate findings and judgments must be made in each case in disposition of particular issues as independently submitted. Cal.Stubblefield Construction Co. v. City of San Bernardino, 32 Cal. App. 4th 687, 38 Cal. Rptr. 2d 413 (4th Dist. 1995), as modified on denial of reh'g, (Feb. 23, 1995). [FN10] N.M. North v. Public Service Co. of New Mexico, 97 N.M. 406, 640 P.2d 512 (Ct. App. 1982).
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. IX. Consolidation of Actions E. Operation and Effect of Consolidation Topic Summary References Correlation Table 277. Appeal West's Key Number Digest West's Key Number Digest, Action 59 Consolidated actions may be subject to different appeal deadlines. The general rule as to the finality of judgments, for purposes of appeal as of right, is applicable to actions which have been consolidated, and thus, the right to appeal does not commence where there is no final judgment on all the issues as to all the parties in the consolidated action.[1] Where statutes set different time limits to appeal different types of actions, in deciding the time to appeal judgments in actions which have been consolidated, the significant issue is whether, under the consolidation, the actions are considered merged, or whether they retain their independent identities.[2] If after consolidation the actions lose their independent nature, the procedure for perfecting the appeal is governed by the surviving cause.[3] Where the cases are not consolidated until judgment has been entered in at least one of them, the consolidated cases are subject to separate appeal deadlines,[4] and the appeal of one of the consolidated cases must be viable in its own right, irrespective of the appeal in the consolidated suit.[5]
[FN1] N.J.Florio v. Galanakis, 107 N.J. Super. 1, 256 A.2d 497 (App. Div. 1969). [FN2] Ill.Vitale v. Dorgan, 25 Ill. App. 3d 941, 323 N.E.2d 616 (2d Dist. 1975). [FN3] Ill.Vitale v. Dorgan, 25 Ill. App. 3d 941, 323 N.E.2d 616 (2d Dist. 1975). [FN4] Mo.Moss v. Home Depot USA, Inc., 988 S.W.2d 627 (Mo. Ct. App. E.D. 1999). [FN5] La.Mosing v. Stonewall Surplus Lines Ins. Co., 801 So. 2d 437 (La. Ct. App. 3d Cir. 2001), writ granted, 813 So. 2d 1095 (La. 2002).
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CJS ACTIONS IX F REF 1A C.J.S. Actions IX F Refs.
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. IX. Consolidation of Actions F. Proceedings for Consolidation Topic Summary Correlation Table Research References A.L.R. Library West's A.L.R. Digest, Action 57(6) , 58
A.L.R. Index: Conditions Precedent; Joinder of Actions Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS IX F REF END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. IX. Consolidation of Actions F. Proceedings for Consolidation 1. In General Topic Summary References Correlation Table 278. Generally West's Key Number Digest West's Key Number Digest, Action 58 The number of cases that may be consolidated depends on the circumstances. The maximum number of claims that can be aggregated is not an absolute, and the particular circumstances determine the outer limits beyond which trial courts cannot go in consolidating claims in a mass tort case alleging exposure in a workplace.[1] It is generally error for the court to dismiss one of the actions where a request for consolidation is made.[2] During the pendency of an appeal from a pretrial ruling,[3] or until the question as to whether personal jurisdiction has been obtained over a party has been settled,[4] denial, without prejudice to renewal, of a motion to consolidate may be proper. A government agency has standing to consolidate cases related to its sphere of activity in order to determine common questions of law.[5] Whether cases should be consolidated is a question of law for the court.[6] CUMULATIVE SUPPLEMENT Cases: Both consolidation and severance of cases can be accomplished only by trial court order. State v. One Thousand Two Hundred Sixty-Seven Dollars, 2006 OK 15, 131 P.3d 116 (Okla. 2006). [END OF SUPPLEMENT]
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[FN1] Tex.In re Van Waters & Rogers, Inc., 145 S.W.3d 203 (Tex. 2004). Eight cases Consolidation of eight cases involving execution by two lien creditors of their agreement to liquidate their security by seizing debtor's accounts receivable and inventory was proper; all eight cases involved creditors, debtor's depository, debtor, his corporations, and accommodation parties, and common facts arising out of complicated relations between them over essentially same period of time were integral to all cases. Va.Tazewell Oil Co., Inc. v. United Virginia Bank/Crestar Bank, 243 Va. 94, 413 S.E.2d 611 (1992). As to consolidation in mass tort cases, see 272. [FN2] Ga.West v. Life Ins. Co. of Virginia, 142 Ga. App. 877, 237 S.E.2d 239 (1977). [FN3] N.Y. Cotgreave v. Public Adm'r of Imperial County, 91 A.D.2d 600, 456 N.Y.S.2d 432 (2d Dep't 1982). [FN4] N.Y. Wholesale Distributors, Inc. v. Kameron, 50 A.D.2d 880, 377 N.Y.S.2d 160 (2d Dep't 1975). [FN5] Colo. Southeastern Colorado Water Conservancy Dist. v. Huston, 197 Colo. 365, 593 P.2d 1347 (1979). [FN6] Ga.Davis-Zirkle Lumber Co. v. Williams, 165 Ga. 142, 139 S.E. 867 (1927). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 278 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. IX. Consolidation of Actions F. Proceedings for Consolidation 1. In General Topic Summary References Correlation Table 279. Where actions are pending in different courts West's Key Number Digest West's Key Number Digest, Action 57(6), 58 Except as authorized by statute, actions pending in different courts cannot be consolidated, but, if otherwise proper, after actions pending in different courts have been transferred to the same court, they may be consolidated. Civil procedure rules permitting consolidation generally relate to actions pending before the same trial court.[1] In the absence of statutory authority, there is no authority for the consolidation of actions pending in different courts,[2] although an action brought up on appeal from an inferior court for a trial de novo may be consolidated with an action pending in the appellate court.[3] Actions pending in different courts may be transferred and consolidated[4] in a court in which the consolidated actions might originally have been brought,[5] even if they are pending in different counties[6] or judicial circuits,[7] especially where the aggregate amount sought exceeds the monetary jurisdictional limits of the transferor court.[8] A federal district court may also transfer cases to another federal district court for purposes of consolidation.[9] Venue of each case must be proper in the transferee court, or the cases may not be transferred for consolidation.[10] A statute or rule may require that the transfer be accepted by the transferee court before the cases may be consolidated.[11] Consolidation is generally appropriate in the court in which the first action was filed.[12] Under some statutes, a state's highest court may order the consolidation of cases pending in different lower courts, under its general administrative and supervisory authority.[13] To authorize transfer and consolidation, the conditions essential to authorize a consolidation where both actions are pending in the same court must exist,[14] such as common questions of law or fact,[15] and actions arising from the same transaction, occurrence, or accident.[16] However, even if these conditions exist, the court has discretion as to whether the power of transfer should be exercised,[17] and after transfer, the transferee court has discretion to determine whether the cases should actually be consolidated.[18]
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CUMULATIVE SUPPLEMENT Cases: California state law claim, brought against the telecommunication provider defendants in action in the Central District of California, was unique and thus would not be included in the centralization, for pretrial proceedings, of actions seeking reimbursement of the communications excise tax on certain long-distance telephone service. In re Long-Distance Telephone Service Federal Excise Tax Refund Litigation, 469 F. Supp. 2d 1348 (J.P.M.L. 2006). District of District of Columbia was appropriate transferee forum for centralized pretrial proceedings in multidistrict litigation seeking reimbursement of the communications excise tax on certain long-distance telephone service; most, if not all, discovery would likely come from the federal government, vicinity provided an easily accessible location, and coordination of discovery between the transferee judge and the judge handling the related case in the Court of Federal Claims would likely be easier. In re Long-Distance Telephone Service Federal Excise Tax Refund Litigation, 469 F. Supp. 2d 1348 (J.P.M.L. 2006). [END OF SUPPLEMENT]
[FN1] Colo. Southeastern Colorado Water Conservancy Dist. v. Huston, 197 Colo. 365, 593 P.2d 1347 (1979). Fla. Wetherington v. State Farm Mut. Auto. Ins. Co., 661 So. 2d 1276 (Fla. Dist. Ct. App. 2d Dist. 1995). Ill. Anderson v. Anchor Organization for Health Maintenance, 274 Ill. App. 3d 1001, 211 Ill. Dec. 213, 654 N.E.2d 675 (1st Dist. 1995). La.Boh v. James Industrial Contractors, L.L.C., 2003-1211, 868 So.2d 180 (La. App. 2004). [FN2] Cal.Cochrane v. Superior Court for Los Angeles County, 261 Cal. App. 2d 201, 67 Cal. Rptr. 675 (2d Dist. 1968). Ill.Horn v. Rincker, 84 Ill. 2d 139, 49 Ill. Dec. 315, 417 N.E.2d 1329 (1981). Tenn.Van Zandt v. Dance, 827 S.W.2d 785 (Tenn. Ct. App. 1991). Wash. American Mobile Homes of Washington, Inc. v. Seattle-First Nat. Bank, 115 Wash. 2d 307, 796 P.2d 1276 (1990). [FN3] Mich.Brewster Loud Lumber Co. v. General Builders' Supply Co., 228 Mich. 559, 200 N.W. 283 (1924). [FN4] Ind. Indiana Lumbermens Mut. Ins. Co. v. American Log Homes, Inc., 774 N.E.2d 603 (Ind. Ct. App. 2002). La.Ferguson v. Sugar, 804 So. 2d 844 (La. Ct. App. 4th Cir. 2001).
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N.Y.Israel v. Hirsh, 81 A.D.2d 694, 438 N.Y.S.2d 631 (3d Dep't 1981). Pa.Lincoln General Ins. Co. v. Donahue, 151 Pa. Commw. 297, 616 A.2d 1076 (1992). Tenn.Van Zandt v. Dance, 827 S.W.2d 785 (Tenn. Ct. App. 1991). W.Va.Holland v. Joyce, 155 W. Va. 535, 185 S.E.2d 505 (1971). [FN5] Md.Chinwuba v. Larsen, 142 Md. App. 327, 790 A.2d 83 (2002), cert. granted, 369 Md. 179, 798 A.2d 551 (2002) and judgment aff'd in part, rev'd in part on other grounds, 377 Md. 92, 832 A.2d 193 (2003). [FN6] Ariz.Behrens v. O'Melia, 206 Ariz. 309, 78 P.3d 278 (Ct. App. Div. 1 2003). N.Y.Weiss v. City of New York, 27 A.D.2d 709, 276 N.Y.S.2d 970 (1st Dep't 1967). Pa.Lincoln General Ins. Co. v. Donahue, 151 Pa. Commw. 297, 616 A.2d 1076 (1992). [FN7] Md.Chinwuba v. Larsen, 142 Md. App. 327, 790 A.2d 83 (2002), cert. granted, 369 Md. 179, 798 A.2d 551 (2002) and judgment aff'd in part, rev'd in part on other grounds, 377 Md. 92, 832 A.2d 193 (2003). [FN8] Mich.Harris v. Mid-Century Ins. Co., 115 Mich. App. 591, 322 N.W.2d 718 (1982). [FN9] U.S.Laughlin v. Edwards Business Machines, Inc., 155 F.R.D. 543 (W.D. Va. 1994). [FN10] Ariz.Behrens v. O'Melia, 206 Ariz. 309, 78 P.3d 278 (Ct. App. Div. 1 2003). La.Abshire v. State Through Dept. of Ins., 636 So. 2d 627 (La. Ct. App. 3d Cir. 1994), writ denied, 640 So. 2d 1332 (La. 1994). Political subdivision Actions were properly consolidated in county which was, under statute, only county in which one party, a political subdivision, could be sued. Pa.Bumberger by Hems v. Duff, 160 Pa. Commw. 354, 634 A.2d 1162 (1993). Entitlement to change of venue Where defendant was entitled to change place of trial from county in which consolidated trials would be held to county of his residence, action against defendant could not be consolidated with other actions. N.D.American State Bank of Dickinson v. Hoffelt, 236 N.W.2d 895 (N.D. 1975). [FN11] Md.Chinwuba v. Larsen, 142 Md. App. 327, 790 A.2d 83 (2002), cert. granted, 369 Md. 179, 798 A.2d 551 (2002) and judgment aff'd in part, rev'd in part on other grounds, 377 Md. 92, 832 A.2d 193 (2003). [FN12] Ind.State ex rel. Firestone v. Parke Circuit Court, 621 N.E.2d 1113 (Ind. 1993).
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N.Y.Williams v. Rockefeller Center Properties, 282 A.D.2d 285, 723 N.Y.S.2d 183 (1st Dep't 2001). [FN13] Ill.Horn v. Rincker, 84 Ill. 2d 139, 49 Ill. Dec. 315, 417 N.E.2d 1329 (1981). Multidistrict cases Consolidation of multidistrict cases may take place at the district court level or by order of the Supreme Court. Kan.McHorse v. Eaks, 27 Kan. App. 2d 817, 7 P.3d 1272 (2000). [FN14] N.Y.Martin v. Prentice, 133 A.D. 741, 118 N.Y.S. 215 (1st Dep't 1909). [FN15] N.Y.McCarthy v. Lewin, 41 A.D.2d 657, 340 N.Y.S.2d 668 (2d Dep't 1973). [FN16] Mich.Hiner v. State, 96 Mich. App. 497, 292 N.W.2d 709 (1980). N.Y.Paolo v. Eilat, 51 A.D.2d 585, 378 N.Y.S.2d 770 (2d Dep't 1976). [FN17] N.Y.Spycher v. Andrew, 55 A.D.2d 715, 388 N.Y.S.2d 725 (3d Dep't 1976). [FN18] W.Va.Hanlon v. Joy Mfg. Co., 187 W. Va. 280, 418 S.E.2d 594 (1992). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 279 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. IX. Consolidation of Actions F. Proceedings for Consolidation 1. In General Topic Summary References Correlation Table 280. Ruling and order West's Key Number Digest West's Key Number Digest, Action 55, 58 A ruling on a motion to consolidate is a matter within the court's sound discretion. The consolidation of actions is generally addressed to the sound discretion of the trial court[1] which is to be exercised in accordance with the circumstances of each case.[2] The court's discretion in this regard is broad,[ 3] and where the record provides a sufficient basis to justify a consolidation order, no abuse of discretion exists.[ 4] However, the court's discretion is not unlimited,[5] but is restrained by the court's paramount concern for a fair and impartial trial for all parties.[6] Ordinarily, a court order is necessary to effect a consolidation of actions.[7] However, the absence of a formal order is not necessarily fatal,[8] such as in the case where the parties consent to consolidation.[9] An order of consolidation may be entered nunc pro tunc if the parties and the court have treated the action as having been formally consolidated.[10] In cases where the position of some of the parties as plaintiff or defendant is not the same in all the actions, the order should state which parties are to be deemed plaintiffs and which defendants,[11] and where the order results in a change of the place of trial of at least one of the actions, it should fix the place of trial of the consolidated action.[12] The court may order consolidation in any court in which one or more of the actions is pending, and choice of venue, like the decision to consolidate, is left to the sound discretion of the trial court.[13 ]
[FN1] Ala.State v. Reynolds, 2004 WL 1854233 (Ala. 2004). AlaskaDean v. Firor, 681 P.2d 321 (Alaska 1984).
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Ariz.Hancock v. McCarroll, 188 Ariz. 492, 937 P.2d 682 (Ct. App. Div. 1 1996). Ark.St. Louis Southwestern Ry. Co. v. Pennington, 261 Ark. 650, 553 S.W.2d 436 (1977). Cal.Sales Dimensions v. Superior Court, 90 Cal. App. 3d 757, 153 Cal. Rptr. 690 (1st Dist. 1979). Colo.Askew v. Gerace, 851 P.2d 199 (Colo. Ct. App. 1992). D.C.Alfred A. Altimont, Inc. v. Chatelain, Samperton & Nolan, 374 A.2d 284 (D.C. 1977). Fla.Y.H. v. F.L.H., 784 So. 2d 565 (Fla. Dist. Ct. App. 1st Dist. 2001). Ga.Maslia v. DiMauro, 232 Ga. 546, 207 S.E.2d 509 (1974). HawaiiKainz v. Lussier, 4 Haw. App. 400, 667 P.2d 797 (1983). Ill.Charles v. Gore, 248 Ill. App. 3d 441, 187 Ill. Dec. 963, 618 N.E.2d 554 (1st Dist. 1993). Ind.City of New Haven v. Allen County Bd. of Zoning Appeals, 694 N.E.2d 306 (Ind. Ct. App. 1998) . IowaKent Feeds, Inc. v. Manthei, 646 N.W.2d 87 (Iowa 2002). Kan.Lone Star Industries, Inc. v. Secretary of Kansas Dept. of Transp., 234 Kan. 121, 671 P.2d 511 (1983). Ky.Adams Real Estate Corp. v. Ward, 458 S.W.2d 622 (Ky. 1970). Mich.McAuliff v. Gabriel, 34 Mich. App. 344, 191 N.W.2d 128 (1971). Minn.Green v. City of Coon Rapids, 485 N.W.2d 712 (Minn. Ct. App. 1992). Miss.U.S. Fidelity & Guar. Co. v. Estate of Francis ex rel. Francis, 825 So. 2d 38 (Miss. 2002). Mo.In re Adoption of H.M.C., 11 S.W.3d 81 (Mo. Ct. App. W.D. 2000). Mont.In re Estate of McDermott, 2002 MT 164, 310 Mont. 435, 51 P.3d 486 (2002). N.H.Associated Home Utilities, Inc. v. Town of Bedford, 120 N.H. 812, 424 A.2d 186 (1980). N.M.Five Keys, Inc. v. Pizza Inn, Inc., 99 N.M. 39, 653 P.2d 870 (1982). N.Y.Rodgers v. Worrell, 214 A.D.2d 553, 625 N.Y.S.2d 64 (2d Dep't 1995). N.D.Murphy v. Murphy, 1999 ND 118, 595 N.W.2d 571 (N.D. 1999). OhioJamestown Village Condo. Owners Assn. v. Market Media Research, Inc., 96 Ohio App. 3d 678, 645 N.E.2d 1265 (8th Dist. Cuyahoga County 1994). Pa.Geiger v. Rouse, 715 A.2d 454 (Pa. Super. Ct. 1998).
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S.C.Keels v. Pierce, 315 S.C. 339, 433 S.E.2d 902 (Ct. App. 1993). Tex.Perry v. Del Rio, 53 S.W.3d 818 (Tex. App. Austin 2001). W.Va.Holland v. Joyce, 155 W. Va. 535, 185 S.E.2d 505 (1971). Wis.Fire Ins. Exchange v. Basten, 202 Wis. 2d 74, 549 N.W.2d 690 (1996). [FN2] Tex.In re J.K.R., 986 S.W.2d 278 (Tex. App. Eastland 1998). [FN3] Ill.Turner v. Williams, 326 Ill. App. 3d 541, 260 Ill. Dec. 804, 762 N.E.2d 70 (2d Dist. 2001), appeal denied, 198 Ill. 2d 631, 264 Ill. Dec. 330, 770 N.E.2d 224 (2002). La.Ferguson v. Sugar, 804 So. 2d 844 (La. Ct. App. 4th Cir. 2001). N.Y.J.T. Mauro Co., Inc. v. Genesee Valley Group Health Ass'n, 184 A.D.2d 998, 585 N.Y.S.2d 247 (4th Dep't 1992). S.C.Keels v. Pierce, 315 S.C. 339, 433 S.E.2d 902 (Ct. App. 1993). Tex. Dearing Inc. v. Spiller, 824 S.W.2d 728 (Tex. App. Fort Worth 1992), writ denied, (Sept. 9, 1992). Wash. W.R. Grace & Co.Conn. v. State, Dept. of Revenue, 137 Wash. 2d 580, 973 P.2d 1011 (1999). [FN4] Pa.Abrams v. Uchitel, 2002 PA Super 172, 806 A.2d 1 (2002). [FN5] Miss.Janssen Pharmaceutica, Inc. v. Armond, 866 So. 2d 1092 (Miss. 2004). Tex.Dal-Briar Corp. v. Baskette, 833 S.W.2d 612 (Tex. App. El Paso 1992). [FN6] Miss.Janssen Pharmaceutica Inc. v. Keys, 879 So. 2d 446 (Miss. 2004). Unwieldy trial Court considering consolidation is required to render pragmatic judgment as to feasibility of fusing two or more separately filed complaints, and it must weigh such judgment against possibility of unwieldy trial. N.Y.Barbilex Associates v. Pesaitis, 113 Misc. 2d 436, 449 N.Y.S.2d 387 (N.Y. City Civ. Ct. 1982). [FN7] Okla.Tinker Inv. & Mortg. Corp. v. City of Midwest City, 1994 OK 41, 873 P.2d 1029 (Okla. 1994). [FN8] Cal.Santa Cruz Lumber Co. v. Bank of America Nat. Trust and Sav. Ass'n, 160 Cal. App. 3d 858, 207 Cal. Rptr. 28 (1st Dist. 1984). Suits not formally merged
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Although district court did not clearly state for what purposes two lawsuits were merged, suits were merged for purposes of convenience only, and were not formally merged, where suits were grouped under single docket number to simplify filing process, court noted that consolidation would best use scarce judicial resources, and court referred to suits as related litigation. U.S.Tri-State Hotels, Inc. v. F.D.I.C., 79 F.3d 707 (8th Cir. 1996). [FN9] Ala.Biddy v. Biddy, 284 Ala. 68, 222 So. 2d 162 (1969). [FN10] Ill.Ad-Ex, Inc. v. City of Chicago, 247 Ill. App. 3d 97, 187 Ill. Dec. 125, 617 N.E.2d 333 (1st Dist. 1993). [FN11] Tex.John Maynard Lumber Co. v. Brazell, 28 S.W.2d 877 (Tex. Civ. App. Amarillo 1930), writ dismissed w.o.j., (Oct. 29, 1930). [FN12] N.Y.Gibbs v. Sokol, 216 A.D. 260, 214 N.Y.S. 533 (4th Dep't 1926). [FN13] Pa.Wohlsen/Crow v. Pettinato Associated Contractors & Engineers, Inc., 446 Pa. Super. 215, 666 A.2d 701 (1995). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 280 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. IX. Consolidation of Actions F. Proceedings for Consolidation 1. In General Topic Summary References Correlation Table 281. Ruling and orderTerms and conditions West's Key Number Digest West's Key Number Digest, Action 58 The court in ordering consolidation may impose such terms as are proper, such as terms relating to the payment of costs and the right to open and close the case. The court should incorporate into its order for consolidation such terms and conditions as will protect the substantial rights of the parties.[1] Since consolidation is not a matter of right but of discretion, it may be granted upon such terms and conditions as the court may deem proper,[2] in the interest of fairness and justice to avoid prejudice to the substantial rights of the litigants.[3]
[FN1] N.Y.Brink's Exp. Co. v. Burns, 230 A.D. 559, 245 N.Y.S. 649 (4th Dep't 1930). [FN2] N.C.Wood v. Brown, 25 N.C. App. 241, 212 S.E.2d 690 (1975). [FN3] N.Y. Grimm & Davis v. Goldberg, 101 Misc. 2d 829, 422 N.Y.S.2d 319 (N.Y. City Civ. Ct. 1979). Submission of affidavit Conditioning consolidation of actions for medical malpractice and wrongful death upon submission of physician's affidavit establishing causal connection between malpractice and death was not abuse of discretion. N.Y.Pearsall v. Milim, 205 A.D.2d 601, 613 N.Y.S.2d 413 (2d Dep't 1994). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 281
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END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. IX. Consolidation of Actions F. Proceedings for Consolidation 1. In General Topic Summary References Correlation Table 282. Vacating or setting aside consolidation West's Key Number Digest West's Key Number Digest, Action 58 A court's order as to consolidation may be reversed for abuse of discretion. The power to consolidate includes the power to vacate or set aside the consolidation.[1] Consolidated cases may be unconsolidated.[2] A party seeking relief from a consolidation order must establish how the differences among the consolidated claims will materially affect the fairness of a trial.[3] A court's decision as to consolidation will not be disturbed unless it is shown that the court has abused its discretion.[4] The court's decision will be reversed if it is unreasonable, arbitrary, or unconscionable,[5] or if it departs from the essential requirements of law.[6] Abuse of discretion may be found if consolidation results in prejudice to the complaining party.[7] However, prejudice may not be presumed, but must be demonstrated, and the complaining party must show that it exercised reasonable diligence to avoid or prevent the harm by opposing the order for consolidation.[8] An order erroneously consolidating an action of which the court has jurisdiction with one forbidden by statute may be disregarded and the former action proceeded with as if the order had not been made.[9] After the consolidation has been vacated, the party whose action has been severed is not bound by any subsequent rulings of the court in the consolidated action.[10]
[FN1] Ariz. Yavapai County v. Superior Court In and For Yavapai County, 13 Ariz. App. 368, 476 P.2d 889 (Div. 1 1970). [FN2] Miss.Matter of Guardianship of Snodgrass, 692 So. 2d 85 (Miss. 1997). [FN3] Tex.In re Van Waters & Rogers, Inc., 145 S.W.3d 203 (Tex. 2004).
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[FN4] Ariz.Hancock v. McCarroll, 188 Ariz. 492, 937 P.2d 682 (Ct. App. Div. 1 1996). Colo.Askew v. Gerace, 851 P.2d 199 (Colo. Ct. App. 1992). Ill.Ad-Ex, Inc. v. City of Chicago, 247 Ill. App. 3d 97, 187 Ill. Dec. 125, 617 N.E.2d 333 (1st Dist. 1993). Ind.City of New Haven v. Allen County Bd. of Zoning Appeals, 694 N.E.2d 306 (Ind. Ct. App. 1998) . La.Bonnette v. Tunica-Biloxi Indians, 873 So. 2d 1 (La. Ct. App. 3d Cir. 2003), on reh'g, (Mar. 24, 2003). Mo.In re Adoption of H.M.C., 11 S.W.3d 81 (Mo. Ct. App. W.D. 2000). Pa.Abrams v. Uchitel, 2002 PA Super 172, 806 A.2d 1 (2002). Tex.North American Refractory Co. v. Easter, 988 S.W.2d 904 (Tex. App. Corpus Christi 1999). No abuse of discretion Time, trouble, and expense of going through unnecessary trial are not type of material injuries sufficient to justify invocation of Court of Appeal's certiorari jurisdiction and require consolidation of actions by separate plaintiffs against single defendant arising out of same accident. Fla.Pages v. Dominguez By and Through Dominguez, 652 So. 2d 864 (Fla. Dist. Ct. App. 4th Dist. 1995). Abuse of discretion shown Trial court abused its discretion in refusing to consolidate passengers' claims against driver and owner of truck for negligence with claims for wrongful death of their father in automobile accident, even though damages sustained by passengers from their injuries and from father's death were not identical, since both causes of action involved same issues concerning liability; evidence presented on damages in negligence suit improperly overlapped with evidence in wrongful death suit, and double recovery of damages for pain and suffering in negligence suit and loss of society in wrongful death suit was possible if suits were tried separately. Ill.Turner v. Williams, 326 Ill. App. 3d 541, 260 Ill. Dec. 804, 762 N.E.2d 70 (2d Dist. 2001), appeal denied, 198 Ill. 2d 631, 264 Ill. Dec. 330, 770 N.E.2d 224 (2002). [FN5] Ohio McDonnold v. McDonnold, 98 Ohio App. 3d 822, 649 N.E.2d 1236 (11th Dist. Lake County 1994). [FN6] Fla.Maharaj v. Grossman, 619 So. 2d 399 (Fla. Dist. Ct. App. 4th Dist. 1993). [FN7] Tex.Lone Star Ford, Inc. v. McCormick, 838 S.W.2d 734 (Tex. App. Houston 1st Dist. 1992), writ denied, (Jan. 27, 1993).
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[FN8] Tex.Lone Star Ford, Inc. v. McCormick, 838 S.W.2d 734 (Tex. App. Houston 1st Dist. 1992), writ denied, (Jan. 27, 1993). [FN9] N.C.Willard Mfg. Co. v. Geo. H. Tierney & Co., 130 N.C. 611, 41 S.E. 871 (1902). [FN10] N.M.Kandelin v. Lee Moor Contracting Co., 37 N.M. 479, 24 P.2d 731 (1933). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 282 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. IX. Consolidation of Actions F. Proceedings for Consolidation 2. Motion Topic Summary References Correlation Table 283. Generally West's Key Number Digest West's Key Number Digest, Action 58 Actions may be consolidated on motion of a party or, in many jurisdictions, on the court's own motion. Under some authority, a consolidation order cannot be made by the court on its own motion.[1] However, under other authority it has been held that a court may in a proper case order consolidation upon its own motion,[2] without the parties' consent.[3] Even where consolidation generally cannot be made sua sponte, a court may order actions consolidated where a party has moved to dismiss one of the actions but the court feels that consolidation is a more feasible alternative than dismissal of one of the cases.[4] Generally, either party may move for consolidation.[5] Nevertheless, consolidation cannot be ordered on the motion of only one of several plaintiffs who have sued separately in different courts,[6] and a person who is not a party to either case may not move to consolidate.[7] The fact that a related pending action is merely brought to a court's attention does not require that it be consolidated with another action pending before the court.[8] The parties may not contractually prohibit the exercise of the court's discretion in deciding whether to order consolidation.[9] Where the venue of actions is in different counties, the application to consolidate them may be made anywhere in the district containing the county in which the venue of either of the actions to be consolidated is laid.[ 10] Under some statutory authority, an application for consolidation must be made in the county in which venue is laid in the action first instituted,[11] unless the action first instituted does not state a cause of action, but is brought only to secure a favorable venue.[12] Where notice is required by statute, it is erroneous to order a consolidation where no notice was given to the nonmovant,[13] although the absence of notice will not necessarily invalidate the judgment rendered in the consolidation action,[14] as where it results only in harmless error.[15] The right to notice is waived by a party ap-
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pearing in court and objecting to the consolidation for reasons other than lack of notice.[16]
[FN1] N.Y.Matter of Amy M, 234 A.D.2d 854, 651 N.Y.S.2d 688 (3d Dep't 1996). [FN2] Ill.Ad-Ex, Inc. v. City of Chicago, 247 Ill. App. 3d 97, 187 Ill. Dec. 125, 617 N.E.2d 333 (1st Dist. 1993). N.J.Mann v. Mann, 270 N.J. Super. 269, 637 A.2d 170 (App. Div. 1993). Tex.Vaughn v. Texas Employment Com'n, 792 S.W.2d 139 (Tex. App. Houston 1st Dist. 1990). [FN3] OhioDirector of Highways v. Kleines, 38 Ohio St. 2d 317, 67 Ohio Op. 2d 368, 313 N.E.2d 370 (1974). Consent of parties Consolidation in equity is proper where there is consent by all parties. Ala.Newton v. Birmingham Area Legal Services Corp., Inc., 398 So. 2d 264 (Ala. 1981). [FN4] N.Y.John J. Campagna, Jr., Inc. v. Dune Alpin Farm Associates, 81 A.D.2d 633, 438 N.Y.S.2d 132 (2d Dep't 1981). [FN5] N.J.Mann v. Mann, 270 N.J. Super. 269, 637 A.2d 170 (App. Div. 1993). [FN6] N.Y.Brennan v. National Equitable Inv. Co., 210 A.D. 426, 206 N.Y.S. 280 (1st Dep't 1924). [FN7] Ga.State Farm Mut. Auto. Ins. Co. v. Jiles, 115 Ga. App. 193, 154 S.E.2d 286 (1967). [FN8] Ill.Atlee Elec. Co., Inc. v. Johnson Const. Co., 14 Ill. App. 3d 716, 303 N.E.2d 192 (1st Dist. 1973). [FN9] Lease prohibition Lease prohibition against consolidation was contrary to public policy and would not be enforced. N.Y. Ultrashmere House, Ltd. v. 38 Town Associates, 123 Misc. 2d 102, 473 N.Y.S.2d 120 (Sup 1984). [FN10] Wis.Rossow Oil Co., Inc. v. Heiman, 72 Wis. 2d 696, 242 N.W.2d 176 (1976). [FN11] N.J. Robert T. Winzinger, Inc. v. Brennan Bros., Inc., 191 N.J. Super. 114, 465 A.2d 579 (Law Div. 1983). N.Y.Richardson v. Uess Leasing Corp., 191 A.D.2d 394, 595 N.Y.S.2d 210 (1st Dep't 1993).
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[FN12] N.J. Robert T. Winzinger, Inc. v. Brennan Bros., Inc., 191 N.J. Super. 114, 465 A.2d 579 (Law Div. 1983). [FN13] N.Y.Stephens v. Antonaccio, 60 A.D.2d 581, 400 N.Y.S.2d 13 (2d Dep't 1977). [FN14] IowaWillard v. Calhoun, 70 Iowa 650, 28 N.W. 22 (1886). [FN15] Tex.Hall v. Dorsey, 596 S.W.2d 565 (Tex. Civ. App. Houston 1st Dist. 1980), writ refused n.r.e., (July 16, 1980). [FN16] Tex.Roy Campbell & Co. v. Rains, 66 S.W.2d 1108 (Tex. Civ. App. San Antonio 1933). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 283 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. IX. Consolidation of Actions F. Proceedings for Consolidation 2. Motion Topic Summary References Correlation Table 284. Time for filing West's Key Number Digest West's Key Number Digest, Action 58 A motion to consolidate actions must be made in a timely fashion. A motion to consolidate actions must be made in a timely fashion.[1] Generally, the issues should be distinctly defined by the pleadings before consolidation is sought,[2] which ordinarily requires that the application should not be made until the answers are filed and issue is joined in all of the actions.[3] This is not an invariable rule, and where the court can see what the issues are to be,[4] as where the defendants in their application for consolidation state what their defenses to the actions will be,[5] the order may be granted before the issues are fully framed. After the issues are framed, the motion may be made at any time,[6] but may be rejected as untimely under some circumstances.[7] A party may not renew a prior motion for consolidation, where renewal is based on evidence which existed at the time of the prior motion and the movant fails to provide a valid excuse for not submitting the evidence in the original motion.[8]
[FN1] U.S.Shooters Island Shipyard Co. v. Standard Shipbuilding Corp., 4 F.2d 101 (C.C.A. 3d Cir. 1925). [FN2] N.Y.Gibbs v. Sokol, 216 A.D. 260, 214 N.Y.S. 533 (4th Dep't 1926). [FN3] N.Y.Luks v. New York Life Ins. Co., 213 A.D. 623, 210 N.Y.S. 806 (1st Dep't 1925). [FN4] N.Y.Cushing v. Cushing, 85 A.D.2d 809, 445 N.Y.S.2d 636 (3d Dep't 1981). [FN5] La.Fried v. New York Life Ins. Co., 177 La. 132, 148 So. 5 (1933). N.Y.Perkins v. Merchants' Lithographing Co., 21 Misc. 516, 47 N.Y.S. 712 (City Ct. 1897), aff'd, 51
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N.Y.S. 1148 (App. Term 1897). [FN6] Eve of trial N.Y.D. M. I. Painting, Inc. v. Eastern Long Island Hospital, 74 A.D.2d 838, 425 N.Y.S.2d 633 (2d Dep't 1980). [FN7] One week before trial Trial court's refusal to consolidate related cases was proper, given that defendants did not move to consolidate until one week before trial. Pa.Geiger v. Rouse, 715 A.2d 454 (Pa. Super. Ct. 1998). [FN8] N.Y. Innovative Chemical Corp. v. Howe Plastics & Chemical Companies, Inc., 164 A.D.2d 965, 559 N.Y.S.2d 598 (4th Dep't 1990). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 284 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. IX. Consolidation of Actions F. Proceedings for Consolidation 2. Motion Topic Summary References Correlation Table 285. Allegations and proof West's Key Number Digest West's Key Number Digest, Action 58 A movant for consolidation must state facts supporting the motion. A movant for consolidation has the burden of persuading the trial court that consolidation is desirable[1] by stating such facts as will support consolidation,[2] such as that consolidation is necessary to avoid a multiplicity of suits.[3] A conclusory statement that the actions concern common questions of law and fact is insufficient where the motion is opposed.[4] An affidavit from the movant as to the merits of the motion may be required.[5] The burden of showing prejudice to a substantial right in ordering consolidation rests on the party opposing consolidation.[6] Thus, if the requisite facts are stated and not controverted by the other party, and it does not appear that any delay or other prejudice will result, the motion for consolidation will be granted,[7]
[FN1] HawaiiKainz v. Lussier, 4 Haw. App. 400, 667 P.2d 797 (1983). S.C.Keels v. Pierce, 315 S.C. 339, 433 S.E.2d 902 (Ct. App. 1993). [FN2] Ga. New Orleans & Northeastern Railroad Company v. Pioneer Plastics Corp., 224 Ga. 228, 161 S.E.2d 294 (1968). No statement as to common issues of law and fact Plaintiff was not entitled to consolidation of contract and negligence claims, even though parties were same; plaintiff never specified commonality in issues of fact or law between two actions. N.Y.Heydt Contracting Corp. v. Tishman Const. Corp. of New York, 163 A.D.2d 196, 558 N.Y.S.2d 47 (1st Dep't 1990).
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[FN3] Ga. New Orleans & Northeastern Railroad Company v. Pioneer Plastics Corp., 224 Ga. 228, 161 S.E.2d 294 (1968). [FN4] Pa.Ahnert v. Rank America, Inc., 429 Pa. Super. 505, 632 A.2d 1336 (1993). [FN5] N.Y.Friendship, Inc. v. Wu, 166 Misc. 2d 352, 633 N.Y.S.2d 743 (N.Y. City Civ. Ct. 1995). [FN6] N.Y.Vojtech Blau, Inc. v. Sara, 160 Misc. 2d 431, 609 N.Y.S.2d 515 (Sup 1994). [FN7] N.Y.Cramer v. Henderson, 123 Misc. 2d 159, 473 N.Y.S.2d 672 (Sup 1984). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 285 END OF DOCUMENT
CJS ACTIONS X REF 1A C.J.S. Actions X Refs.
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. X. Severance of Actions Topic Summary Correlation Table Research References A.L.R. Library West's A.L.R. Digest, Action 60
A.L.R. Index: Severance of Action Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS X REF END OF DOCUMENT
CJS ACTIONS X A REF 1A C.J.S. Actions X A Refs.
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. X. Severance of Actions A. In General Topic Summary Correlation Table Research References A.L.R. Library West's A.L.R. Digest, Action 60
A.L.R. Index: Severance of Action Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS X A REF END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. X. Severance of Actions A. In General Topic Summary References Correlation Table 286. Generally West's Key Number Digest West's Key Number Digest, Action 60 Severance is the division of one action into two or more distinct actions. The severance of an action is the division of a single action into two or more separate and distinct actions,[1 ] or a segregation of issues to make possible two or more separate judgments,[2] and is, in effect, the converse of a consolidation.[3] As a general rule, any claim may be severed and proceeded with separately.[4] A court may not, however, sever issues that do not constitute a separate claim.[5] Severance of a single cause of action into two parts, which is never proper, should not be granted in order to enable the litigants to obtain an early appellate ruling on the trial court's determination of one phase of the case.[6] CUMULATIVE SUPPLEMENT Cases: When a claim is severed from the original action, a new action is thereby established and a completely independent judgment results. Ex parte Alfa Life Ins. Corp., 2005 WL 1492062 (Ala. 2005). Both consolidation and severance of cases can be accomplished only by trial court order. State v. One Thousand Two Hundred Sixty-Seven Dollars, 2006 OK 15, 131 P.3d 116 (Okla. 2006). [END OF SUPPLEMENT]
[FN1] N.C.Bryan v. Spivey, 106 N.C. 95, 11 S.E. 510 (1890). As to separate trials, see C.J.S., Trial 17 to 30. [FN2] N.Y. City of New York v. Interborough Rapid Transit Co., 134 Misc. 827, 236 N.Y.S. 449
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(Sup 1929). [FN3] N.J.Davis v. Public Service Corp., 77 N.J.L. 275, 72 A. 82 (N.J. Sup. Ct. 1909). As to consolidation, generally, see 259 et seq. [FN4] Tex. Henry S. Miller Management Corp. v. Houston State Associates, 792 S.W.2d 128 (Tex. App. Houston 1st Dist. 1990), writ denied, (Nov. 28, 1990). [FN5] Ala.Ex parte Thorn, 788 So. 2d 140 (Ala. 2000). [FN6] Tex.Dalisa, Inc. v. Bradford, 81 S.W.3d 876 (Tex. App. Austin 2002). As to splitting causes of action, see 224 et seq. Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 286 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. X. Severance of Actions A. In General Topic Summary References Correlation Table 287. Power to order or permit severance West's Key Number Digest West's Key Number Digest, Action 60 The court has power to order severance, even in the absence of any statutory authorization, and the allowance of severance is discretionary with the trial court. A trial court is empowered to sever claims to assure manageability, clarity and fairness.[1] Although the court's authority to order a severance is generally established by statute or rule,[2] the power of the court to order a severance in proper cases has been recognized without reference to, or independently of, any statutory authority for it.[3] Severance, when proper or permissible, is generally a matter resting within the sound discretion of the court,[4] which extends to the severance of a third-party claim[5] or a counterclaim.[6] However, a trial court has a duty to deny a motion to sever when all facts and circumstances of the case unquestionably require the claims to be tried together, there is no fact or circumstance supporting a contrary conclusion, and the legal rights of parties will not be prejudiced by severance.[7] A state court violates the Supremacy Clause of the United States Constitution if it severs claims in order to defeat a party's right to remove the entire action to federal court.[8]
[FN1] N.J.Mustilli v. Mustilli, 287 N.J. Super. 612, 671 A.2d 653 (Ch. Div. 1995). [FN2] Ala.Ex parte Turpin Vise Ins. Agency, Inc., 705 So. 2d 368 (Ala. 1997). Fla.Pearlman v. National Bank of New York City, 600 So. 2d 5 (Fla. Dist. Ct. App. 4th Dist. 1992). Ill.Cook v. General Elec. Co., 146 Ill. 2d 548, 167 Ill. Dec. 957, 588 N.E.2d 1087 (1992). N.Y.Reid v. Haher, 88 A.D.2d 873, 451 N.Y.S.2d 775 (1st Dep't 1982).
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[FN3] Wis.Rohloff v. Folkman, 174 Wis. 504, 182 N.W. 735 (1921). [FN4] Ala.State v. Reynolds, 2004 WL 1854233 (Ala. 2004). Ark.Lackey v. Bramblett, 355 Ark. 414, 139 S.W.3d 467 (2003). Colo.Kielsmier v. Foster, 669 P.2d 630 (Colo. Ct. App. 1983). Fla.Brodfuehrer v. Estate of Brodfuehrer, 833 So. 2d 784 (Fla. Dist. Ct. App. 3d Dist. 2002). Ga.Tennessee Farmers Mut. Ins. Co. v. Wheeler, 170 Ga. App. 380, 317 S.E.2d 269 (1984). Ill. Pickering v. Owens-Corning Fiberglas Corp., 265 Ill. App. 3d 806, 203 Ill. Dec. 1, 638 N.E.2d 1127 (5th Dist. 1994). Ind.Jones v. Jones, 641 N.E.2d 98 (Ind. Ct. App. 1st Dist. 1994). Mo.Guess v. Escobar, 26 S.W.3d 235 (Mo. Ct. App. W.D. 2000). N.J.Rendine v. Pantzer, 141 N.J. 292, 661 A.2d 1202 (1995). N.C.Fulk v. Piedmont Music Center, 138 N.C. App. 425, 531 S.E.2d 476 (2000). N.Y.Rothstein v. Milleridge Inn, Inc., 251 A.D.2d 154, 674 N.Y.S.2d 346 (1st Dep't 1998). Pa.Meyer by Meyer v. Heilman, 503 Pa. 472, 469 A.2d 1037 (1983). Tex.Liberty Nat. Fire Ins. Co. v. Akin, 927 S.W.2d 627 (Tex. 1996). UtahStevensen v. Goodson, 924 P.2d 339 (Utah 1996). [FN5] Fla.Burns v. Riccardi, 356 So. 2d 1334 (Fla. Dist. Ct. App. 3d Dist. 1978). Ga.Howard v. Bank South, N.A., 209 Ga. App. 407, 433 S.E.2d 625 (1993), judgment aff'd, 264 Ga. 339, 444 S.E.2d 799, 42 A.L.R.5th 763 (1994). Mo.State ex rel. Ashcroft v. Gibbar, 575 S.W.2d 924 (Mo. Ct. App. 1978). N.Y.Strange v. Sampson, 73 A.D.2d 749, 423 N.Y.S.2d 319 (3d Dep't 1979). [FN6] N.Y. Statewide Sav. and Loan Ass'n v. Sawyerkill Enterprises, Inc., 65 A.D.2d 887, 410 N.Y.S.2d 423 (3d Dep't 1978). Tex.Ellisor v. Ellisor, 630 S.W.2d 746 (Tex. App. Houston 1st Dist. 1982). [FN7] Tex.Lusk v. Puryear, 896 S.W.2d 377 (Tex. App. Amarillo 1995). [FN8] U.S.Kansas Public Employees Retirement System v. Reimer & Koger Associates, Inc., 4 F.3d 614 (8th Cir. 1993). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
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CJS ACTIONS X B REF 1A C.J.S. Actions X B Refs.
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. X. Severance of Actions B. Proceedings for Severance Topic Summary Correlation Table Research References A.L.R. Library West's A.L.R. Digest, Action 60
A.L.R. Index: Severance of Action Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS X B REF END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. X. Severance of Actions B. Proceedings for Severance Topic Summary References Correlation Table 288. Generally; motion and hearing West's Key Number Digest West's Key Number Digest, Action 60 Any party may move for severance, or the court may sever claims on its own motion. A party may waive his or her right to a severance.[1] While the trial court may order severance on the motion of any party,[2] a motion to sever is deemed unnecessary under some rules,[3] and a trial court may sever claims on its own initiative.[4] In some jurisdictions, the parties must given an opportunity to object to severance or seek a continuance to address the issue;[5] in others, a court is not required to provide the parties with notice of its intent to sever, and parties are not entitled to an evidentiary hearing before severance.[6] The court may order a severance where the motion is made at any time before trial.[7] However, a claim should not be severed until the substance of the claims and defenses had been fully developed.[8] A case is submitted to the trial court for resolution, and claims can no longer be severed, when the parties present stipulated facts and request that the trial court render judgment upon them.[9] Severance to permit appeal of a judgment partially disposing of a case should be sought as quickly as practicable after the judgment.[10] A party may not seek severance of an action after the verdict has been rendered.[11]
[FN1] Ill.Moore v. Clearing Indus. Dist., Inc., 64 Ill. App. 3d 391, 20 Ill. Dec. 854, 380 N.E.2d 1063 (1st Dist. 1978). N.Y.Bozydaj v. Town of Plattekill, 70 A.D.2d 690, 416 N.Y.S.2d 409 (3d Dep't 1979). [FN2] Ala.Ex parte Furnace and Corrosive Services, Inc., 418 So. 2d 891 (Ala. 1982).
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Me.Lynch v. Town of Kittery, 473 A.2d 1277 (Me. 1984). N.J. Lake Lenore Estates, Associates v. Township of Parsippany-Troy Hills Bd. of Educ., 312 N.J. Super. 409, 712 A.2d 200, 127 Ed. Law Rep. 342 (App. Div. 1998). [FN3] Tex.Rice v. Travelers Exp. Co., 407 S.W.2d 534 (Tex. Civ. App. Houston 1966). [FN4] Ala.Ex parte Furnace and Corrosive Services, Inc., 418 So. 2d 891 (Ala. 1982). Ill.Klein v. Steel City Nat. Bank, 212 Ill. App. 3d 629, 156 Ill. Dec. 771, 571 N.E.2d 751 (1st Dist. 1991). N.Y.Marine Midland Bank, N.A. v. Cafferty, 174 A.D.2d 932, 571 N.Y.S.2d 628 (3d Dep't 1991). Tex. Aviation Composite Technologies, Inc. v. CLB Corp., 131 S.W.3d 181 (Tex. App. Fort Worth 2004), reh'g overruled, (Mar. 4, 2004). [FN5] Ill.Klein v. Steel City Nat. Bank, 212 Ill. App. 3d 629, 156 Ill. Dec. 771, 571 N.E.2d 751 (1st Dist. 1991). [FN6] Tex. Aviation Composite Technologies, Inc. v. CLB Corp., 131 S.W.3d 181 (Tex. App. Fort Worth 2004), reh'g overruled, (Mar. 4, 2004). [FN7] Tex.Ballard v. Perry's Adm'r, 28 Tex. 347, 1866 WL 4010 (1866). [FN8] Ga.Howard v. Bank South, N.A., 209 Ga. App. 407, 433 S.E.2d 625 (1993), judgment aff'd, 264 Ga. 339, 444 S.E.2d 799, 42 A.L.R.5th 763 (1994). [FN9] Tex.In re El Paso County Hosp. Dist., 979 S.W.2d 10 (Tex. App. El Paso 1998). [FN10] Tex.Crowson v. Wakeham, 897 S.W.2d 779 (Tex. 1995). [FN11] N.Y.Atkinson v. Mobil Oil Corp., 205 A.D.2d 719, 614 N.Y.S.2d 36 (2d Dep't 1994). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 288 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. X. Severance of Actions B. Proceedings for Severance Topic Summary References Correlation Table 289. Order West's Key Number Digest West's Key Number Digest, Action 60 A severance should be effected by a court order, usually entered on motion of a party. Severance can generally be effected only by court order.[1] The parties cannot effect a severance by agreement.[2] Nevertheless, while it has been said that severance cannot be accomplished by implication,[3] it has also been held that claims may, under some circumstances, be severed without an order,[4] and that the substance of the court's action, not its form, controls as to whether there has been a severance.[5] An order granting severance is effective when signed, unless the court conditions the effectiveness of severance on a future certain event, even without the court clerk's creation of a separate physical file with a different cause number.[6] Under appropriate circumstances, the trial court may modify[7] or vacate[8] a severance order previously granted. CUMULATIVE SUPPLEMENT Cases: An order granting a severance, with judgment in cause ordered severed, is effective when signed, rendering judgment final and appealable, regardless of whether the district clerk creates a separate physical file with a different cause number. McWherter v. Agua Frio Ranch, 224 S.W.3d 285 (Tex. App. El Paso 2005). [END OF SUPPLEMENT]
[FN1] Okla.Tinker Inv. & Mortg. Corp. v. City of Midwest City, 1994 OK 41, 873 P.2d 1029 (Okla.
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1994). [FN2] Tex. Dillon v. Rosalie Dahl Estate Trust, 2003 WL 1565959 (Tex. App. Houston 14th Dist. 2003), review denied, (Nov. 21, 2003). [FN3] Tex.In re Southwestern Bell Telephone Co., 6 S.W.3d 753 (Tex. App. Corpus Christi 1999). [FN4] Particular facts Although there was no order in record which specifically severed plaintiff's claim against motor company from its claim against home building company, where there was order transferring cause of action against building company from county and docket entry reciting that there was severance as to home building company, severance of causes of action was effectuated. Tex.Helfman Motors, Inc. v. Stockman, 616 S.W.2d 394 (Tex. Civ. App. Fort Worth 1981), writ refused n.r.e., (Oct. 28, 1981). [FN5] Ala.Key v. Robert M. Duke Ins. Agency, 340 So. 2d 781 (Ala. 1976). Motion implicitly overruled Where trial court, in action seeking damages for fraud in inducement of contracts executed between plaintiffs and defendants, took defendants' pretrial motion for severance under advisement to be ruled on at time of trial, and where transcript of trial did not show that motion for severance was acted on before judgment was entered, entry of judgment by court in principal case implicitly overruled motion for severance. Tex.Pierson v. McClanahan, 531 S.W.2d 672 (Tex. Civ. App. Austin 1975), writ refused n.r.e., (Apr. 7, 1976). [FN6] Tex.McRoberts v. Ryals, 863 S.W.2d 450 (Tex. 1993). [FN7] N.C.Falls Sales Co., Inc. v. Board of Transp., 292 N.C. 437, 233 S.E.2d 569 (1977). As to modification or vacation of orders granted on motion, generally, see C.J.S., Motions and Orders 65 to 72. [FN8] N.Y.Porter v. Avlis Contracting Corp., 86 Misc. 2d 235, 381 N.Y.S.2d 595 (Sup 1976), judgment modified on other grounds, 57 A.D.2d 222, 394 N.Y.S.2d 226 (2d Dep't 1977). Tex.Soliz v. Cofer, 2002 WL 821909 (Tex. App. Austin 2002), review denied, (Nov. 14, 2002). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 289 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. X. Severance of Actions B. Proceedings for Severance Topic Summary References Correlation Table 290. Effect of, and proceedings after, severance West's Key Number Digest West's Key Number Digest, Action 60 A severance divides a single action into two or more distinct actions, each of which is docketed separately, and in each of which separate pleadings are filed and a final judgment rendered. A severed cause of action becomes a separate action,[1] which may be terminated in a separate judgment.[2] It is error to permit a severed party to participate further in the main action,[3] and a request for instructions to the jury is properly denied where the request is made by one who, because of severance, is no longer a party in the action.[4] Where a party's claims are severed from the original action, that party's rights may not be adjudicated in the original action.[5] Furthermore, a person who has been severed from an action lacks standing to file exceptions to the decision rendered in the action.[6] In each of the separate actions a final judgment may be rendered,[7] which is not affected by any proceedings taken in connection with a judgment rendered in the other action,[8] and from which an appeal may be taken without regard to the other or others.[9]
[FN1] Ala.Ex parte Furnace and Corrosive Services, Inc., 418 So. 2d 891 (Ala. 1982). N.Y.Kline v. Town of Guilderland, 289 A.D.2d 741, 734 N.Y.S.2d 333 (3d Dep't 2001). Tex.In re E.I. du Pont de Nemours and Co., 92 S.W.3d 517 (Tex. 2002). [FN2] N.Y.Kline v. Town of Guilderland, 289 A.D.2d 741, 734 N.Y.S.2d 333 (3d Dep't 2001). [FN3] Okla.Spencer v. Nelson Sales Co., Inc., 1980 OK CIV APP 58, 620 P.2d 477 (Ct. App. Div. 2 1980). [FN4] Fla.Sun Ins. Office, Limited v. Noel, 254 So. 2d 7 (Fla. Dist. Ct. App. 3d Dist. 1971).
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[FN5] Fla.Levine v. Saavedra, 727 So. 2d 1110 (Fla. Dist. Ct. App. 2d Dist. 1999). [FN6] Pa.Hughes v. Pron, 286 Pa. Super. 419, 429 A.2d 9 (1981). [FN7] Tex.Nolan v. Bettis, 562 S.W.2d 520 (Tex. Civ. App. Austin 1978). Independent judgment When claim is severed from original action, completely independent judgment results. Ala.Ex parte Furnace and Corrosive Services, Inc., 418 So. 2d 891 (Ala. 1982). [FN8] Tex.Boone v. Hulsey, 71 Tex. 176, 9 S.W. 531 (1887). Reassertion not required Warranty of habitability claim originally severed from other claims was not required to be reasserted when the other claims were dismissed. N.Y.Jone v. Simkowitz, 163 A.D.2d 77, 557 N.Y.S.2d 334 (1st Dep't 1990). [FN9] Ind.Giller v. West, 162 Ind. 17, 69 N.E. 548 (1904). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 290 END OF DOCUMENT
CJS ACTIONS X C REF 1A C.J.S. Actions X C Refs.
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. X. Severance of Actions C. When Permissible Topic Summary Correlation Table Research References A.L.R. Library West's A.L.R. Digest, Action 60
A.L.R. Index: Severance of Action Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS X C REF END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. X. Severance of Actions C. When Permissible Topic Summary References Correlation Table 291. Generally West's Key Number Digest West's Key Number Digest, Action 60 A severance may generally be allowed where, although the claims are of a nature such as may generally be joined in one action, due to the particular circumstances of the case it would be inexpedient or unjust to try the causes together. A severance may generally be allowed where, although the claims are of such a nature that they could generally be joined in one action, due to the particular circumstances of the case it would be inexpedient or unjust to try the causes together,[1] as where a party's substantial rights would be prejudiced if severance were not granted.[2] Severance of cross-claims and third-party claims may be appropriate.[3] However, since there is a strong policy preference for joint trials,[4] courts exercise their authority to sever claims sparingly.[5] A severance which could possibly occasion unnecessary litigation is not proper,[6] and severance will not be ordered of causes of action contained in one complaint which, if made originally the subject of two or more actions, would have been consolidated upon proper application.[7] Thus, severance is likely to be inappropriate where the same facts and law underlie the causes of action, the claims all arise from the same incident or transaction, and the same evidence would be presented at separate trials,[8] although it may be granted to avoid inconvenience[9] or delay, as where one plaintiff has retained counsel and another is representing himself or herself.[10] To be severable, issues must be independent of each other.[11] Claims may not be severed if they are inextricably interwoven[12] or intertwined.[13] A permissive counterclaim may be severed from the main claim,[14] but a compulsory counterclaim may not.[15] In ruling on severance motion, the trial court should look exclusively to the live pleadings on file, and may not receive or consider evidence on any factor supporting severance, absent some special circumstance.[16] In deciding whether to grant severance, a court will consider efficiency,[17] judicial economy,[18] the avoidance of multiple trials,[19] justice,[20] convenience,[21] the rights of litigants,[22] the avoidance of prejudice,[23] the possibility of inconsistent results,[24] and minimization of expense and delay,[25] all to the end of adopting that procedure which will result in a just and final disposition of the litigation.[26]
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CUMULATIVE SUPPLEMENT Cases: Avoiding prejudice, doing justice, and increasing convenience are the controlling reasons to allow severance of a claim. F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680 (Tex. 2007). A claim is properly severable if: (1) the controversy involves more than one cause of action, (2) the severed claim is one that would be the proper subject of a lawsuit if independently asserted, and (3) the severed claim is not so interwoven with the remaining action that they involve the same facts and issues. F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680 (Tex. 2007). [END OF SUPPLEMENT]
[FN1] Fla.Mitchell v. Mason, 61 Fla. 338, 54 So. 863 (1911). [FN2] N.Y.Rothstein v. Milleridge Inn, Inc., 251 A.D.2d 154, 674 N.Y.S.2d 346 (1st Dep't 1998). [FN3] N.Y.Santos v. Sure Iron Works, 166 A.D.2d 571, 560 N.Y.S.2d 857 (2d Dep't 1990). [FN4] Ill.Cook v. General Elec. Co., 146 Ill. 2d 548, 167 Ill. Dec. 957, 588 N.E.2d 1087 (1992). [FN5] N.Y. Statewide Sav. and Loan Ass'n v. Sawyerkill Enterprises, Inc., 65 A.D.2d 887, 410 N.Y.S.2d 423 (3d Dep't 1978). [FN6] Tex.Bates v. First Nat. Bank of Waco, 502 S.W.2d 181 (Tex. Civ. App. Waco 1973). Piecemeal appeals Cal. California Dental Assn. v. California Dental Hygienists' Assn., 222 Cal. App. 3d 49, 271 Cal. Rptr. 410 (2d Dist. 1990). La.Whitener v. Clark, 356 So. 2d 1094 (La. Ct. App. 2d Cir. 1978), writ denied, 358 So. 2d 638 (La. 1978) and writ denied, 358 So. 2d 641 (La. 1978). [FN7] N.Y.Blank v. Becker, 50 A.D.2d 418, 377 N.Y.S.2d 792 (3d Dep't 1976). [FN8] N.Y.Edward Joy Co., Inc. v. McGuire & Bennett, Inc., 199 A.D.2d 1015, 608 NYS2D 26 (4th Dep't 1993). [FN9] N.Y.Mollerson v. City of New York, 178 Misc. 2d 803, 680 N.Y.S.2d 800 (Sup 1998). [FN10] N.Y.Mollerson v. City of New York, 178 Misc. 2d 803, 680 N.Y.S.2d 800 (Sup 1998). [FN11] Cal.County of Santa Clara v. Redevelopment Agency, 18 Cal. App. 4th 1008, 22 Cal. Rptr. 2d 868 (1st Dist. 1993). Mo.Edmison v. Clarke, 61 S.W.3d 302 (Mo. Ct. App. W.D. 2001).
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Proper subject of lawsuit To be severable, cause must be capable of being brought as separate suit with separate final judgment rendered on it. Tex.Martinez v. Humble Sand & Gravel, Inc., 875 S.W.2d 311 (Tex. 1994). [FN12] Fla. Maris Distributing Company v. Anheuser-Busch, Inc., 710 So. 2d 1022 (Fla. Dist. Ct. App. 1st Dist. 1998). Tex.State Dept. of Highways and Public Transp. v. Cotner, 845 S.W.2d 818 (Tex. 1993). [FN13] N.Y.Erbach Finance Corp. v. Royal Bank of Canada, 203 A.D.2d 80, 610 N.Y.S.2d 20 (1st Dep't 1994). Tex.C.S.R., Inc. v. Mobile Crane Inc., 671 S.W.2d 638 (Tex. App. Corpus Christi 1984). Interrelated injuries Severance of action brought against motorist by automobile accident victim from victim's action against driver of vehicle involved in second accident with victim was improper, as cases involved interrelated injuries and issue of exacerbation. N.Y.Kupferschmid v. Hennessy, 221 A.D.2d 225, 633 N.Y.S.2d 776 (1st Dep't 1995). [FN14] Fla. Whigum v. Heilig-Meyers Furniture Inc., 682 So. 2d 643 (Fla. Dist. Ct. App. 1st Dist. 1996). [FN15] Fla. Whigum v. Heilig-Meyers Furniture Inc., 682 So. 2d 643 (Fla. Dist. Ct. App. 1st Dist. 1996). Tex.Goins v. League Bank and Trust, 857 S.W.2d 628 (Tex. App. Houston 1st Dist. 1993). [FN16] Tex.Jones v. Ray, 886 S.W.2d 817 (Tex. App. Houston 1st Dist. 1994). [FN17] IowaMorningstar v. Myers, 255 N.W.2d 159 (Iowa 1977). [FN18] U.S. Seiler v. E.F. Hutton & Co., Inc., 102 F.R.D. 880 (D.N.J. 1984); International Bank v. Price Waterhouse & Co., 85 F.R.D. 140 (S.D. N.Y. 1980). Ala.Ex parte Turpin Vise Ins. Agency, Inc., 705 So. 2d 368 (Ala. 1997). IowaMorningstar v. Myers, 255 N.W.2d 159 (Iowa 1977). N.Y.Oak Beach v. Town of Babylon, 100 A.D.2d 930, 474 N.Y.S.2d 818 (2d Dep't 1984). [FN19] IowaMorningstar v. Myers, 255 N.W.2d 159 (Iowa 1977). [FN20] Tex. Guaranty Federal Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 11 U.C.C. Rep. Serv. 2d 571 (Tex. 1990).
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[FN21] Ill. Pickering v. Owens-Corning Fiberglas Corp., 265 Ill. App. 3d 806, 203 Ill. Dec. 1, 638 N.E.2d 1127 (5th Dist. 1994). Mont.State ex rel. Stenberg v. Nelson, 157 Mont. 310, 486 P.2d 870 (1971). Tex.Guaranty Federal Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 11 U.C.C. Rep. Serv. 2d 571 (Tex. 1990). UtahColeman v. Dillman, 624 P.2d 713 (Utah 1981). [FN22] Ill.Needy v. Sparks, 51 Ill. App. 3d 350, 9 Ill. Dec. 70, 366 N.E.2d 327 (1st Dist. 1977). [FN23] Ala.Ex parte Turpin Vise Ins. Agency, Inc., 705 So. 2d 368 (Ala. 1997). AlaskaAnchorage Nissan, Inc. v. State, 941 P.2d 1229 (Alaska 1997). Fla.Estate of Gimbert v. Lamb, 601 So. 2d 230 (Fla. Dist. Ct. App. 2d Dist. 1992). Ill. Pickering v. Owens-Corning Fiberglas Corp., 265 Ill. App. 3d 806, 203 Ill. Dec. 1, 638 N.E.2d 1127 (5th Dist. 1994). Mont.State ex rel. Stenberg v. Nelson, 157 Mont. 310, 486 P.2d 870 (1971). N.Y.National Superlease, Inc. v. Reliance Ins. Co. of New York, 103 A.D.2d 737, 477 N.Y.S.2d 203 (2d Dep't 1984). Tex.Guaranty Federal Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 11 U.C.C. Rep. Serv. 2d 571 (Tex. 1990). [FN24] Ala.Ex parte Turpin Vise Ins. Agency, Inc., 705 So. 2d 368 (Ala. 1997). N.Y.Culver v. Parsons, 7 A.D.3d 931, 777 N.Y.S.2d 536 (App. Div. 3d Dep't 2004). [FN25] La.Bruce v. Rogers Oil Tool Services, Inc., 556 So. 2d 922 (La. Ct. App. 3d Cir. 1990). Mont.State ex rel. Stenberg v. Nelson, 157 Mont. 310, 486 P.2d 870 (1971). N.Y.Attie v. City of New York, 221 A.D.2d 274, 634 N.Y.S.2d 88 (1st Dep't 1995). Late-filed claims Severance of third-party claims was proper where the third-party claims were not asserted until approximately one month before scheduled jury trial of main action. La.Doyle v. Picadilly Cafeterias, 576 So. 2d 1143 (La. Ct. App. 3d Cir. 1991). [FN26] Mont.State ex rel. Stenberg v. Nelson, 157 Mont. 310, 486 P.2d 870 (1971). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. X. Severance of Actions C. When Permissible Topic Summary References Correlation Table 292. Severance as to parties West's Key Number Digest West's Key Number Digest, Action 60 An action on a single cause of action owned by several persons jointly cannot be severed except with the defendant's consent or by means of specific procedure employed in case of the nonappearance or default of some of the plaintiffs. Severance of parties may be required where each of several plaintiffs depends on separate facts and evidence and there is no single transaction or occurrence connecting all plaintiffs and all defendants,[1] where individual issues predominate concerning particular circumstances applicable to each plaintiff, raising the potential for jury confusion,[2] or where the negligence alleged is from two separate, unrelated acts and the negligent acts are not part of a series of related acts or transactions.[3] In an action against joint tort-feasors who are alleged to be solidarily liable, it is proper for the court to refuse to allow a severance.[4] Severance is not permissible if it would allow the defendants in each of the severed cases to defend by asserting that the absent defendants are responsible for the plaintiff's injury.[5] Severance is not appropriate where a defendant is not properly before the court.[6] However, severance of a defendant's counterclaim against a state is proper where the state did not waive its sovereign immunity by bringing the action.[7] Severance as to some of the defendants is improper where a claim asserted requires not only proof of individual wrongdoing, but proof of conspiracy to commit such wrongdoing.[8]
[FN1] Miss.Janssen Pharmaceutica, Inc. v. Grant, 873 So. 2d 100 (Miss. 2004). [FN2] N.Y.Abbondandolo v. Hitzig, 282 A.D.2d 224, 724 N.Y.S.2d 26 (1st Dep't 2001). [FN3] Mo.Guess v. Escobar, 26 S.W.3d 235 (Mo. Ct. App. W.D. 2000). [FN4] La.Warren v. Bergeron, 599 So. 2d 369 (La. Ct. App. 3d Cir. 1992), writ denied, 604 So. 2d 995 (La. 1992).
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[FN5] U.S.Sunbelt Corp. v. Noble, Denton & Associates, Inc., 5 F.3d 28 (3d Cir. 1993). [FN6] Tex.Kramek v. Stewart, 648 S.W.2d 399 (Tex. App. San Antonio 1983). [FN7] Ill. People ex rel. Dept. of Transp. v. Cook Development Co., 274 Ill. App. 3d 175, 210 Ill. Dec. 648, 653 N.E.2d 843 (1st Dist. 1995). [FN8] Ala.Ex parte Turpin Vise Ins. Agency, Inc., 705 So. 2d 368 (Ala. 1997). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 292 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. X. Severance of Actions C. When Permissible Topic Summary References Correlation Table 293. Misjoinder of parties or causes West's Key Number Digest West's Key Number Digest, Action 60 An action may be severed for misjoinder of plaintiffs or defendants, or for misjoinder of causes of action, but not for a misjoinder of both parties and causes of action. An action may be severed where parties without a joint cause of action have improperly joined as plaintiffs,[ 1] or where parties who should have been sued separately have been improperly joined as defendants,[2] so long as at least one of the original plaintiffs and one of the original defendants remain as parties.[3] A misjoinder of causes of action is a proper ground for permitting or directing a severance.[4] If a statute forbids the joinder of certain types of claims, severance is required.[5] Although there is authority to the contrary,[6] it has been held that if there is a misjoinder of both parties and causes of action, severance is not authorized, and that in such case the court must dismiss the complaint.[7]
[FN1] U.S.Keary v. Mutual Reserve Fund Life Ass'n, 30 F. 359 (C.C.E.D. Mo. 1887). [FN2] Ala.Ex parte Furnace and Corrosive Services, Inc., 418 So. 2d 891 (Ala. 1982). IowaLucas v. Pioneer, Inc., 256 N.W.2d 167 (Iowa 1977). Ky.Bradford v. Sagraves, 556 S.W.2d 166 (Ky. Ct. App. 1977). Undue prejudice Estate of insured was unduly prejudiced by failure to sever negligence action against estate from fraud action against insurer. Fla.Estate of Gimbert v. Lamb, 601 So. 2d 230 (Fla. Dist. Ct. App. 2d Dist. 1992).
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[FN3] Md.Gress v. ACandS, Inc., 150 Md. App. 369, 820 A.2d 616 (2003), rev'd on other grounds, 378 Md. 667, 838 A.2d 362 (2003). [FN4] Fla.Payette v. Clark, 559 So. 2d 630 (Fla. Dist. Ct. App. 2d Dist. 1990). Kan.Campbell v. Durant, 110 Kan. 30, 202 P. 841 (1921). N.Y.Leszynsky v. Levinsohn, 170 A.D. 514, 156 N.Y.S. 494 (1st Dep't 1915). N.C.Shore v. Holt, 185 N.C. 312, 117 S.E. 165 (1923). Dismissal improper Remedy for misjoinder of counterclaims is not dismissal but severance. Tex.D'Tel Communications v. Roadway Package Service, Inc., 987 S.W.2d 213 (Tex. App. Eastland 1999). [FN5] Insurance coverage Trial court erred in denying severance of insured's third-party claim against insurer, seeking declaration of coverage, from underlying tort action against insured, as trying coverage issues together with underlying tort claims would defeat purpose and policy of nonjoinder statute to prevent insurance coverage from bearing on jury's determination of liability and damages. Fla. Merchants and Businessmen's Mut. Ins. Co. v. Bennis, 636 So. 2d 593 (Fla. Dist. Ct. App. 4th Dist. 1994). [FN6] N.Y. Gerseta Corporation v. Silk Ass'n of America, 220 A.D. 302, 222 N.Y.S. 7 (1st Dep't 1927). Tex. Lewis v. Pitts, 275 S.W. 473 (Tex. Civ. App. Waco 1925), writ dismissed w.o.j., (Nov. 18, 1925). [FN7] N.C.Citizens' Nat. Bank of Baltimore v. Angelo Bros., 193 N.C. 576, 137 S.E. 705 (1927). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 293 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. X. Severance of Actions C. When Permissible Topic Summary References Correlation Table 294. Where part of claim disposed of West's Key Number Digest West's Key Number Digest, Action 60 If one claim is disposed of, a remaining claim may be severed. If one claim in an action is dismissed,[1] or if partial summary judgment is granted,[2] or if one defendant files for bankruptcy,[3] a remaining claim should be severed so as to permit the plaintiff to proceed with it or to appeal the disposition.[4]
[FN1] Ill. Kubian v. Alexian Bros. Medical Center, 272 Ill. App. 3d 246, 209 Ill. Dec. 303, 651 N.E.2d 231 (2d Dist. 1995). Mont.Poteat v. St. Paul Mercury Ins. Co., 277 Mont. 117, 918 P.2d 677 (1996). N.J.Perretti v. Ran-Dav's County Kosher, Inc., 289 N.J. Super. 618, 674 A.2d 647 (App. Div. 1996). [FN2] N.Y. Eldon Group America, Inc. v. Equiptex Indus. Products Corp., 236 A.D.2d 329, 654 N.Y.S.2d 23 (1st Dep't 1997). [FN3] N.Y.Rosenbaum v. Dane & Murphy, Inc., 189 A.D.2d 760, 592 N.Y.S.2d 391 (2d Dep't 1993). [FN4] Tex.Martinez v. Humble Sand & Gravel, Inc., 875 S.W.2d 311 (Tex. 1994). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 294 END OF DOCUMENT
CJS ACTIONS XI REF 1A C.J.S. Actions XI Refs.
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. XI. Commencement, Prosecution, and Termination Topic Summary Correlation Table Research References A.L.R. Library West's A.L.R. Digest, Action 61 to 71
A.L.R. Index: Abandonment of Action; Accrual of Cause of Action; Commencement of Action or Proceeding; Conditions Precedent; Election of Remedies; Stay of Action or Proceeding Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS XI REF END OF DOCUMENT
CJS ACTIONS XI A REF 1A C.J.S. Actions XI A Refs.
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. XI. Commencement, Prosecution, and Termination A. In General Topic Summary Correlation Table Research References A.L.R. Library West's A.L.R. Digest, Action 61 , 65 , 66
A.L.R. Index: Accrual of Cause of Action; Civil Procedure Rules; Conditions Precedent Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS XI A REF END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. XI. Commencement, Prosecution, and Termination A. In General 1. Course of Procedure Topic Summary References Correlation Table 295. Generally West's Key Number Digest West's Key Number Digest, Action 66 The course of an action runs through three stages: commencement, prosecution, and termination. Prescribed procedure should be followed in the prosecution of an action, and due diligence should be observed. Public policy favors the resolution of disputes by resort to the courts and judicial process.[1] The history of every action is comprehended in three stages: institution, pendency, and determination.[2] To commence an action is to demand something by the institution of process in a court of justice, and to prosecute an action is, according to the common acceptation of language, to continue that demand.[3] To "prosecute" an action means more than filing; it means carrying out a legal action to a conclusion.[4] An action is not pending until it is properly commenced,[5] but once instituted, an action remains pending until it is finally disposed of.[6] After it is instituted, a suit should be prosecuted with diligence.[7] Litigants assume the ordinary and reasonable burdens of litigation.[8] Parties to a lawsuit are free to chart their own course and direction,[9] and absent fraud or deception,[10] may fashion the basis upon which their particular controversy will be resolved.[11] However, a plaintiff is limited to only one opportunity to prove its claim.[12] CUMULATIVE SUPPLEMENT Cases: A plaintiff cannot invoke the jurisdiction and machinery of civil justice system, openly defy the court's authority to suit his own purposes, and expect to triumph. Gonzalez v. Safe and Sound Security Corp., 185 N.J. 100, 881 A.2d 719 (2005). [END OF SUPPLEMENT]
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[FN1] Ala.Ford Motor Credit Co. v. Byrd, 351 So. 2d 557, 22 U.C.C. Rep. Serv. 1294 (Ala. 1977). Day in court The accepted policy is to secure for the litigant his or her day in court. Conn.Rocco v. Garrison, 268 Conn. 541, 848 A.2d 352 (2004). [FN2] Mo.Ex parte Munford, 57 Mo. 603, 1874 WL 8578 (1874). [FN3] U.S.Cohens v. State of Virginia, 19 U.S. 264, 5 L. Ed. 257 (1821). [FN4] D.C.In re Kitchings, 779 A.2d 926 (D.C. 2001). Ill. Feerer v. North River Ins. Co., 102 Ill. App. 3d 1042, 58 Ill. Dec. 94, 430 N.E.2d 36 (1st Dist. 1981). To obtain right or redress wrong Implicit in term "prosecution" is institution and carrying on of suit in court of law or equity, to obtain some right, or to redress and punish some wrong. Pa. Krupinski v. Vocational Technical School, Eastern Northampton County, 544 Pa. 58, 674 A.2d 683, 108 Ed. Law Rep. 1208 (1996). [FN5] OhioDwelle v. Hinde, 8 Ohio C.D. 177, 1897 WL 707 (Ohio Cir. Ct. 1897). As to what proceedings constitute commencement, see 310 et seq. [FN6] 344, 345. [FN7] Tex. McCauley v. Northern Tex. Traction Co., 21 S.W.2d 309 (Tex. Civ. App. Fort Worth 1929), writ dismissed w.o.j., (Dec. 11, 1929). [FN8] Cal.Wisniewski v. Clary, 46 Cal. App. 3d 499, 120 Cal. Rptr. 176 (2d Dist. 1975). Ind.State ex rel. Murray v. Heithecker's Estate, 167 Ind. App. 156, 338 N.E.2d 313 (1st Dist. 1975). Plaintiff Primary responsibility for prosecution of case lies ultimately on the plaintiff. Kan.Coutts v. Crider, 219 Kan. 692, 549 P.2d 1019 (1976). [FN9] N.Y. Trustees of Union College v. Board of Assessment Review of City of Schenectady, 91 A.D.2d 713, 457 N.Y.S.2d 971, 8 Ed. Law Rep. 797 (3d Dep't 1982). Wash.State v. Hull, 78 Wash. 2d 984, 481 P.2d 902 (1971).
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[FN10] Wash.State v. Hull, 78 Wash. 2d 984, 481 P.2d 902 (1971). [FN11] N.Y.Trustees of Union College v. Board of Assessment Review of City of Schenectady, 91 A.D.2d 713, 457 N.Y.S.2d 971, 8 Ed. Law Rep. 797 (3d Dep't 1982). [FN12] Conn. City of Danbury v. Dana Inv. Corporation/Lot Number GO8065, 257 Conn. 48, 776 A.2d 438 (2001). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 295 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. XI. Commencement, Prosecution, and Termination A. In General 1. Course of Procedure Topic Summary References Correlation Table 296. Procedural rules West's Key Number Digest West's Key Number Digest, Action 66 Procedural requirements set out in statutes or rules must be followed. The procedure prescribed for invoking the power of a court must be observed,[1] and, where the transactions involved are not against public policy,[2] the procedure as set forth in the statutes or rules of the jurisdiction must be followed.[3] Such statutes or rules will also control procedure where the statute governing a particular proceeding or action does not provide a full mode of procedure,[4] but they do not apply where there is a contrary direction in a statute authorizing a particular proceeding.[5] In general, the policy or purpose of rules of procedure is to secure the just,[6] speedy,[7] and inexpensive[8] conduct of litigation, and to remove the barriers which prevent the trial of the case on its merits and to facilitate procedures to accomplish that end.[9] In general, the procedure that is to be followed in an action is that in force at the time the action is commenced[10] or at the time the procedural question arises,[11] not that existing at the time of the occurrences on which the proceedings are based.[12] Rights relative to procedural matters are determined by the law in force at the time an action is brought.[13] Furthermore, a lawsuit is governed by a change in procedural rules made during its pendency.[14]
[FN1] U.S.Rohauer v. Eastin-Phelan Corp., 499 F.2d 120 (8th Cir. 1974); Musifilm, B.V. v. Spector, 568 F. Supp. 578 (S.D. N.Y. 1983) (disapproved of on other grounds by, Joy Mfg. Co. v. National Mine Service Co., Inc., 810 F.2d 1127 (Fed. Cir. 1987)). Cal.Kass v. Young, 67 Cal. App. 3d 100, 136 Cal. Rptr. 469 (1st Dist. 1977). Ill.Matter of Rice's Estate, 77 Ill. App. 3d 641, 33 Ill. Dec. 73, 396 N.E.2d 298 (2d Dist. 1979).
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Ind.Board of Trustees of Town (Now City) of New Haven v. City of Fort Wayne, 268 Ind. 415, 375 N.E.2d 1112 (1978). Neb.Aetna Cas. & Sur. Co. v. Dickinson, 216 Neb. 660, 345 N.W.2d 8 (1984). N.Y.In re Braverman, 242 A.D. 634, 272 N.Y.S. 96 (2d Dep't 1934). OhioCarroll v. Burchett, 10 Ohio Misc. 123, 39 Ohio Op. 2d 218, 226 N.E.2d 353 (C.P. 1967). R.I.Marran v. West Warwick School Committee, 113 R.I. 42, 317 A.2d 455 (1974). S.D.Nelson v. Nelson, 82 S.D. 404, 147 N.W.2d 1 (1966). W.Va.Stevens v. Saunders, 159 W. Va. 179, 220 S.E.2d 887 (1975). Mandatory Procedural requirements set forth in the statutes providing for special proceedings are mandatory. Okla.Ward Petroleum Corp. v. Stewart, 64 P.3d 1113 (Okla. 2003). [FN2] Neb.Temple v. Cotton Transfer Co., 126 Neb. 287, 253 N.W. 349 (1934). [FN3] Cal.Loehr v. Ventura County Community College Dist., 147 Cal. App. 3d 1071, 195 Cal. Rptr. 576, 13 Ed. Law Rep. 1021 (2d Dist. 1983). Ga.Pittman v. McKinney, 135 Ga. App. 192, 217 S.E.2d 446 (1975). Ill.Perusky v. Industrial Commission, 72 Ill. 2d 299, 21 Ill. Dec. 192, 381 N.E.2d 270 (1978). Kan.Borggren v. Liebling, 198 Kan. 161, 422 P.2d 884 (1967). [FN4] Ind.White v. White, 98 Ind. App. 587, 186 N.E. 349 (1933). [FN5] Ark.Sosebee v. County Line School Dist., 320 Ark. 412, 897 S.W.2d 556, 100 Ed. Law Rep. 426 (1995). Ga.Brinson v. Ingram, 120 Ga. App. 271, 170 S.E.2d 39 (1969). Kan.Borggren v. Liebling, 198 Kan. 161, 422 P.2d 884 (1967). N.Y. Central Hudson Gas & Elec. Corp. v. Newman, 35 A.D.2d 989, 317 N.Y.S.2d 887 (2d Dep't 1970). [FN6] Ga.O'Kelley v. Alexander, 225 Ga. 32, 165 S.E.2d 648 (1969). Kan.Vickers v. Kansas City, 216 Kan. 84, 531 P.2d 113 (1975). Mo.Stacy v. Department of Public Health and Welfare, 468 S.W.2d 651 (Mo. Ct. App. 1971). N.Y.Lottridge v. Lottridge, 73 Misc. 2d 614, 342 N.Y.S.2d 251 (County Ct. 1973).
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[FN7] Colo.Hickam v. Colorado Real Estate Commission, 36 Colo. App. 76, 534 P.2d 1220 (1975). Fla.Manteiga v. City of Miami, 268 So. 2d 537 (Fla. Dist. Ct. App. 3d Dist. 1972). Ga.O'Kelley v. Alexander, 225 Ga. 32, 165 S.E.2d 648 (1969). Ill.Quinlan & Tyson, Inc. v. City of Evanston, 25 Ill. App. 3d 879, 324 N.E.2d 65 (1st Dist. 1975). IowaBoard of Directors of Larrabee Consol. School Dist. v. Cherokee County Bd. of Ed., 260 Iowa 210, 149 N.W.2d 304 (1967). N.Y.Lottridge v. Lottridge, 73 Misc. 2d 614, 342 N.Y.S.2d 251 (County Ct. 1973). As to abandonment of case through delay in prosecution, see 342. [FN8] Ga.O'Kelley v. Alexander, 225 Ga. 32, 165 S.E.2d 648 (1969). N.Y.Lottridge v. Lottridge, 73 Misc. 2d 614, 342 N.Y.S.2d 251 (County Ct. 1973). [FN9] Ill.Miller v. Enslen, 60 Ill. App. 3d 865, 18 Ill. Dec. 129, 377 N.E.2d 282 (1st Dist. 1978). Flexibility and justice Basic purpose of practice act is elimination of technicalities and liberalization of formal rules to achieve flexibility and justice. Ill.Gianinni v. Bluthart, 132 Ill. App. 2d 454, 270 N.E.2d 480 (1st Dist. 1971). [FN10] U.S.Executive Air Services, Inc. v. Beech Aircraft Corp., 254 F. Supp. 415 (D.P.R. 1966). Mich.Frosh v. Sportsman's Showcase, Inc., 4 Mich. App. 408, 145 N.W.2d 241 (1966). Pa.Com. v. Williams, 284 Pa. Super. 125, 425 A.2d 451 (1981). [FN11] D.C.Bredehoft v. Alexander, 686 A.2d 586 (D.C. 1996). [FN12] U.S.Executive Air Services, Inc. v. Beech Aircraft Corp., 254 F. Supp. 415 (D.P.R. 1966). No vested right A litigant is not entitled to pursue his or her cause of action in the exact mode prescribed by the legislature at the time the cause of action arose; no one has a vested right in any given mode of procedure. La.Naquin v. Titan Indem. Co., 779 So. 2d 704 (La. 2001). [FN13] Fla.Ratner v. Hensley, 303 So. 2d 41 (Fla. Dist. Ct. App. 3d Dist. 1974). [FN14] Cal.Olson v. Hickman, 25 Cal. App. 3d 920, 102 Cal. Rptr. 248 (3d Dist. 1972). Me.Batchelder v. Tweedie, 294 A.2d 443 (Me. 1972).
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. XI. Commencement, Prosecution, and Termination A. In General 1. Course of Procedure Topic Summary References Correlation Table 297. Disposition of litigation on its merits West's Key Number Digest West's Key Number Digest, Action 66 Public policy favors the disposition of litigation on its merits. Procedural requirements should be given a liberal construction[1] in order not to deprive a litigant of his or her day in court because of technical requirements.[2] Public policy favors the determination of litigation on the merits,[3] rather than on procedural grounds.[4] Thus, technical errors or defects in proceedings not affecting substantial rights of the parties should be disregarded.[5] CUMULATIVE SUPPLEMENT Cases: Missouri has a strong public policy in favor of disposing of cases upon the merits, when possible; this is because the purpose of all courts is to do justice, and justice is best served when all litigants have a chance to be heard. Black v. Rite Mortgage and Financial, Inc., 239 S.W.3d 165 (Mo. Ct. App. E.D. 2007). [END OF SUPPLEMENT]
[FN1] Cal.Savage v. State of California, 4 Cal. App. 3d 793, 84 Cal. Rptr. 650 (3d Dist. 1970). Colo.Moses v. Moses, 180 Colo. 397, 505 P.2d 1302 (1973). IowaBoard of Directors of Larrabee Consol. School Dist. v. Cherokee County Bd. of Ed., 260 Iowa 210, 149 N.W.2d 304 (1967). [FN2] Cal.Savage v. State of California, 4 Cal. App. 3d 793, 84 Cal. Rptr. 650 (3d Dist. 1970).
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[FN3] Ariz.Thunderbird Farms v. Hernandez, 11 Ariz. App. 383, 464 P.2d 829 (Div. 2 1970). Cal.Crown Coach Corp. v. Superior Court, 8 Cal. 3d 540, 105 Cal. Rptr. 339, 503 P.2d 1347 (1972) (disapproved of on other grounds by, Hocharian v. Superior Court, 28 Cal. 3d 714, 170 Cal. Rptr. 790, 621 P.2d 829 (1981)). Colo.Beeghly v. Mack, 20 P.3d 610 (Colo. 2001). Conn.Rocco v. Garrison, 268 Conn. 541, 848 A.2d 352 (2004). Ga.Ambler v. Archer, 230 Ga. 281, 196 S.E.2d 858 (1973). HawaiiBasque v. Yuk Lin Liau, 50 Haw. 397, 441 P.2d 636 (1968). Ill.Cook v. Britt, 8 Ill. App. 3d 674, 290 N.E.2d 908 (1st Dist. 1972). Minn.Independent School Dist. No. 273 v. Gross, 291 Minn. 158, 190 N.W.2d 651 (1971). N.Y.Andrea Raab Corp. v. Goodman Chemical N. Y. Corp., 40 A.D.2d 673, 336 N.Y.S.2d 121 (2d Dep't 1972). N.D.Ingalls v. Bakken, 167 N.W.2d 516 (N.D. 1969). OhioBaldine v. Klee, 14 Ohio App. 2d 181, 43 Ohio Op. 2d 391, 237 N.E.2d 905 (11th Dist. Trumbull County 1968). Tenn.State Dept. of Children's Services v. Owens, 129 S.W.3d 50 (Tenn. 2004). Vt.Altman v. Altman, 169 Vt. 562, 730 A.2d 583 (1999). [FN4] Cal.Kneeter v. Municipal Court, 30 Cal. App. 3d 633, 105 Cal. Rptr. 209 (2d Dist. 1973). Ga.Garnto v. Wheeler, 235 Ga. 405, 219 S.E.2d 721 (1975). Minn.Independent School Dist. No. 273 v. Gross, 291 Minn. 158, 190 N.W.2d 651 (1971). OhioBaldine v. Klee, 14 Ohio App. 2d 181, 43 Ohio Op. 2d 391, 237 N.E.2d 905 (11th Dist. Trumbull County 1968). [FN5] Cal.Fortenberry v. Weber, 18 Cal. App. 3d 213, 95 Cal. Rptr. 834 (1st Dist. 1971). Colo.Moses v. Moses, 180 Colo. 397, 505 P.2d 1302 (1973). N.Y.Goldman Bros. v. Forester, 62 Misc. 2d 812, 309 N.Y.S.2d 694 (N.Y. City Civ. Ct. 1970). N.D.Bartholomay v. St. Thomas Lumber Co., 148 N.W.2d 278 (N.D. 1966). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 297
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END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. XI. Commencement, Prosecution, and Termination A. In General 1. Course of Procedure Topic Summary References Correlation Table 298. Time from which rights are determined West's Key Number Digest West's Key Number Digest, Action 61, 66 As a general rule, the rights of the parties to an action at law are determined as of the time the action is commenced. Generally, the rights of the parties are determined according to the law in effect at the time of the beginning of the action.[1] The plaintiff must therefore recover, if at all, according to the status of his or her rights at the time of the commencement of the action,[2] and not in accordance with some change in the law following accrual of the right of action.[3] Ordinarily the same rule applies with regard to the rights and defenses of defendant.[4] The rule has, however, been held subject to exceptions.[5] For instance, in mandamus proceedings, the factual situation existing at the time the writ is to issue governs.[6]
[FN1] Conn.Christy Hill Builders, Inc. v. Hall, 184 Conn. 575, 439 A.2d 1065 (1981). Fla.Florida Power & Light Co. v. System Council U-4 of Intern. Broth. of Elec. Workers, AFL-CIO, 307 So. 2d 189 (Fla. Dist. Ct. App. 4th Dist. 1975). Me.Batchelder v. Tweedie, 294 A.2d 443 (Me. 1972). S.C.Bergstrom v. Palmetto Health Alliance, 358 S.C. 388, 596 S.E.2d 42 (2004). Wyo.Matney v. Webster, 808 P.2d 212 (Wyo. 1991). [FN2] U.S.Hodge v. Service Mach. Co., 438 F.2d 347 (6th Cir. 1971). Ariz.Perona v. Stark, 114 Ariz. 570, 562 P.2d 743 (Ct. App. Div. 2 1977).
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Fla.Orlando Sports Stadium, Inc. v. Sentinel Star Co., 316 So. 2d 607 (Fla. Dist. Ct. App. 4th Dist. 1975). Ind.McLendon v. Safe Realty Corp., 401 N.E.2d 80 (Ind. Ct. App. 4th Dist. 1980). Mich.Morgan v. McDermott, 382 Mich. 333, 169 N.W.2d 897 (1969) (overruled on other grounds by, Sziber v. Stout, 419 Mich. 514, 358 N.W.2d 330 (1984)). Neb.Gibreal Auto Sales, Inc. v. Missouri Val. Mach. Co., 186 Neb. 763, 186 N.W.2d 719, 9 U.C.C. Rep. Serv. 121 (1971). [FN3] Tex.Galveston, H. & S.A. Ry. Co. v. Mallott, 6 S.W.2d 432 (Tex. Civ. App. Galveston 1928), writ dismissed, (May 15, 1929). [FN4] Ark.Horner v. Hanks, 22 Ark. 572, 1861 WL 714 (1861). Kan.Reynolds v. Thomas, 28 Kan. 810, 1882 WL 1129 (1882). As to defenses accruing after commencement, see 299. [FN5] Kan.Robertson v. Howard, 83 Kan. 453, 112 P. 162 (1910), rev'd on other grounds, 229 U.S. 254, 33 S. Ct. 854, 57 L. Ed. 1174 (1913). Pa.Trustees of Methodist Episcopal Church in Borough of Franklin in Venango County v. Equitable Surety Co., 269 Pa. 411, 112 A. 551 (1921). [FN6] Conn.Gormley v. Panuzio, 166 Conn. 1, 347 A.2d 78 (1974). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 298 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. XI. Commencement, Prosecution, and Termination A. In General 1. Course of Procedure Topic Summary References Correlation Table 299. Time from which rights are determinedCauses, rights, and defenses accruing after commencement West's Key Number Digest West's Key Number Digest, Action 65 Want of a cause of action at the time the suit is commenced is not remedied by the later accrual of one, nor can recovery be had on a new or additional claim or right accruing after its commencement. As a plaintiff's rights are determined according to the facts and circumstances existing at the time of commencement of the suit, if he or she has no valid and subsisting cause of action at that time the defect is not remedied by the subsequent acquisition or accrual of a cause of action while the action is pending.[1] Likewise, even if a cause of action exists at the time suit is brought, recovery cannot be had in that suit on a new or additional claim accruing after commencement of the action,[2] even if it relates to the original subject matter of the action,[3] such as an additional amount or new installment subsequently becoming due.[4] Where performance of some condition precedent is essential to the right to maintain an action, performance after commencement will not suffice.[5] The law presumes at least nominal damages at the time a cause of action accrues, and the fact that substantial damages do not occur until later is immaterial to determining when action accrued or arose.[6] Where a plaintiff's right to maintain an action depends on his or her having title to particular property, he or she cannot rely on a title acquired after commencement of the action,[7] except where the plaintiff's lack of title was due to a mistake in conveyancing.[8] As the rights of the parties to an action are determined as of the time when the action was commenced, as a general rule, matters of defense arising after commencement of the action cannot avail the defendant for the purpose of determining the rights of the parties,[9] unless they are properly introduced by a supplemental answer.[ 10]
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[FN1] U.S.Archer Daniels Midland Co. v. Ralston Purina Co., 321 F. Supp. 262 (S.D. Ill. 1971). Colo.Empire Ranch & Cattle Co. v. McPherin, 26 Colo. App. 225, 142 P. 419 (1914). Conn.Walter H. Goodrich & Co. v. Friedman, 92 Conn. 262, 102 A. 607 (1917). Ga.U.S. Fidelity & Guaranty Co. v. Tucker, 165 Ga. 283, 140 S.E. 866 (1927). Mass.Judkins v. Tuller, 277 Mass. 247, 178 N.E. 540 (1931). Mich.Schwier v. Atlas Assur. Co., 227 Mich. 104, 198 N.W. 719 (1924). Mont.Billings Hardware Co. v. Bryan, 63 Mont. 14, 206 P. 418 (1922). N.Y.Burns v. Lopez, 256 N.Y. 123, 175 N.E. 537 (1931). Okla.American Inv. Co. v. Baker, 1926 OK 857, 122 Okla. 10, 250 P. 76 (1926). Pa.Summers v. Prudential Ins. Co. of America, 319 Pa. 270, 179 A. 78 (1935). Tenn.City of Knoxville v. Ryan, 13 Tenn. App. 186, 1929 WL 1708 (1929). [FN2] Cal.Kirk v. Culley, 202 Cal. 501, 261 P. 994 (1927). Ky.Continental Fuel Co. v. Haden, 182 Ky. 8, 206 S.W. 8 (1918). Neb.People's State Bank v. Smith, 120 Neb. 29, 231 N.W. 141 (1930). Tex.Moore v. Marland Oil Co. of Texas, 7 S.W.2d 59 (Tex. Comm'n App. 1928). [FN3] Conn.Dickerman v. New York, N. H. & H. R. Co., 72 Conn. 271, 44 A. 228 (1899). N.C.Metcalf v. Guthrie, 94 N.C. 447, 1886 WL 925 (1886). Pa.White v. Miller, 43 Pa. Super. 572, 1910 WL 4132 (1910). [FN4] Ga.Martin v. McLain, 51 Ga. App. 336, 180 S.E. 510 (1935). Mass.Dalton v. American Ammonia Co., 231 Mass. 430, 121 N.E. 407 (1918). N.J. Holzapfel v. Hoboken Manufacturers' R. Co., 92 N.J.L. 193, 104 A. 209 (N.J. Ct. Err. & App. 1918). [FN5] Fla.Stegemann v. Emery, 108 Fla. 672, 146 So. 650 (1933). Mass.De Nuccio v. Caponigro, 259 Mass. 365, 157 N.E. 159 (1927). [FN6] S.C.Stephens v. Draffin, 327 S.C. 1, 488 S.E.2d 307 (1997). [FN7] Mass.Judkins v. Tuller, 277 Mass. 247, 178 N.E. 540 (1931).
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N.Y.Ganger v. Grace Coffee Shop, 237 A.D. 838, 261 N.Y.S. 237 (2d Dep't 1932), aff'd, 262 N.Y. 487, 188 N.E. 32 (1933). [FN8] Mich. Soo Sand & Gravel Co. v. M. Sullivan Dredging Co., 259 Mich. 489, 244 N.W. 138 (1932). [FN9] Ind.Finch v. McClellan, 77 Ind. App. 533, 130 N.E. 13 (Div. 2 1921). La.New Orleans Public Service v. Stewart, 9 La. App. 519, 119 So. 435 (Orleans 1928). N.C.Williams v. Hutton & Buorbonnais Co., 164 N.C. 216, 80 S.E. 257 (1913). Pa.Pearlman v. Newburger, 117 Pa. Super. 328, 178 A. 402 (1935). [FN10] Cal.Bolander v. Gentry, 36 Cal. 105, 1868 WL 821 (1868). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 299 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. XI. Commencement, Prosecution, and Termination A. In General 2. Accrual of Cause of Action Topic Summary References Correlation Table 300. Generally West's Key Number Digest West's Key Number Digest, Action 61 A cause of action accrues when it comes into existence or becomes a present enforceable demand. The determination of the time of accrual of a cause of action is frequently a matter of prime importance, for the purpose of ascertaining if the action is prematurely brought[1] or whether, by reason of delay in its commencement, the action is barred by a statute of limitations.[2] Generally, a cause of action arises only once, and does not arise at one time and place for the purposes of a statute of limitations and at another time and place for the purpose of determining jurisdiction.[3] As applied to a cause of action, the term "to accrue" means to arrive, to commence, to come into existence, to become a present enforceable demand.[4] The right inherent in the accrual of a cause of action is a present right which has value, even if not it is easily measured monetarily.[5]
[FN1] N.C.Shoemaker v. Hale, 44 N.C. 411, Busb. 411, 1853 WL 1372 (1853). As to premature commencement of actions, see 306. [FN2] U.S.Byrne v. Autohaus On Edens, Inc., 488 F. Supp. 276 (N.D. Ill. 1980). HawaiiBasque v. Yuk Lin Liau, 50 Haw. 397, 441 P.2d 636 (1968). La. Wilson v. Hartzman, 373 So. 2d 204 (La. Ct. App. 4th Cir. 1979), writ denied, 376 So. 2d 961 (La. 1979). Break in continuity of original action
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Ill.Smith v. Kurtzman, 106 Ill. App. 3d 712, 62 Ill. Dec. 419, 436 N.E.2d 1 (1st Dist. 1982). [FN3] N.C.Marshville Rendering Corp. v. Gas Heat Engineering Corp., 10 N.C. App. 39, 177 S.E.2d 907 (1970). [FN4] Cal.Los Angeles County v. Metropolitan Cas. Ins. Co. of New York, 27 P.2d 914 (Cal. App. 2d Dist. 1933). Conn.Polizos v. Nationwide Mut. Ins. Co., 255 Conn. 601, 767 A.2d 1202 (2001). [FN5] Kan.Resolution Trust Corp. v. Fleischer, 257 Kan. 360, 892 P.2d 497 (1995). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 300 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. XI. Commencement, Prosecution, and Termination A. In General 2. Accrual of Cause of Action Topic Summary References Correlation Table 301. Time of accrual West's Key Number Digest West's Key Number Digest, Action 61 A cause of action accrues at the time when its owner may legally invoke the aid of a proper tribunal to enforce his or her demand, or when he or she has a present right to institute and maintain an action or a suit. A cause of action is deemed to have accrued when facts exist which authorize one party to institute and maintain an action against another, or at the moment when the party owning the cause of action has a legal right to sue on it,[1] or when the facts necessary to support all essential elements forming the basis for a claim have occurred,[2] or when the act complained of results in injury to the plaintiff,[3] rather than at the time the full extent of the damages is ascertained.[4] So, when a wrong has been committed or a breach of duty has occurred, the cause of action has accrued.[5] For purposes of the entire controversy doctrine, or the rule against splitting causes of action,[6] a professional malpractice claim accrues when the claimant suffers injury or damage and knows or should know that the injury is attributable to the professional malpractice.[7] For purposes of determining the applicability of a statutory provision, some courts have said that a cause of action arises at the time the injury occurs, rather than at the time the injury is discovered;[8] others, that the cause of action accrues at the time a latent disease is diagnosed or the plaintiff otherwise discovers the disease or illness, whichever occurs first.[9] Although a cause of action for specific performance of a contract to make a will does not arise until the death of the promisor,[10] the promisee may bring an action for an injunction to prevent the sale of property the promisor allegedly agreed to devise to promise upon his her death before the promisor's death.[11] A cause of action for indemnification or contribution does not accrue until judgment has been entered against the party seeking indemnification or contribution.[12] States and political subdivisions. As with causes of action against private parties, a cause of action against a state accrues at the time the plaintiff is injured.[13] A claimant's cause of action against a political subdivision does not accrue until the
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claimant possesses the legal right to be paid and to enforce its right to payment in court.[14] Accordingly, where a political subdivision's obligation to pay is contractually or statutorily conditioned on an audit, no suit can be brought by a claimant until the official charged with making the audit has done so, and has formally rejected all or part of the claim.[15] However, a political subdivision may not forever frustrate potential causes of action against it simply by failing to audit submitted claims,[16] and the facts of every such case will determine whether there has come a time when a claimant should view his claim as having been constructively rejected, thus giving rise to the accrual of a cause of action.[17] CUMULATIVE SUPPLEMENT Cases: A claim arises at the time of the underlying incident giving rise to the claim. Eck v. Godbout, 444 Mass. 724, 831 N.E.2d 296 (2005). [END OF SUPPLEMENT]
[FN1] U.S. Paris v. Profit Sharing Plan for Emp. of Howard B. Wolf, Inc., 637 F.2d 357 (5th Cir. 1981); Konecny v. U.S., 388 F.2d 59 (8th Cir. 1967). Cal.Collins v. Los Angeles County, 241 Cal. App. 2d 451, 50 Cal. Rptr. 586 (2d Dist. 1966). IowaDolezal v. Bockes, 602 N.W.2d 348 (Iowa 1999). Kan.Resolution Trust Corp. v. Fleischer, 257 Kan. 360, 892 P.2d 497 (1995). La.Prejean v. Dixie Lloyds Ins. Co., 660 So. 2d 836 (La. 1995). Neb. Sanitary and Imp. Dist. No. 57 of Douglas County v. City of Elkhorn, 248 Neb. 486, 536 N.W.2d 56 (1995) (disapproved of on other grounds by, Adam v. City of Hastings, 267 Neb. 641, 676 N.W.2d 710 (2004)). N.J. Tevis v. Tevis, 155 N.J. Super. 273, 382 A.2d 697 (App. Div. 1978), judgment rev'd on other grounds, 79 N.J. 422, 400 A.2d 1189 (1979). N.Y.Terry Contracting, Inc. v. State, 51 Misc. 2d 545, 273 N.Y.S.2d 528 (Ct. Cl. 1966), order rev'd on other grounds, 27 A.D.2d 499, 280 N.Y.S.2d 450 (3d Dep't 1967). OhioNationwide Mut. Ins. Co. v. Marcinko, 436 N.E.2d 551 (Ohio C.P. 1980). Okla.Loyal Order of Moose, Lodge 1785 v. Cavaness, 1977 OK 70, 563 P.2d 143, 93 A.L.R.3d 1234 (Okla. 1977). S.C.Stephens v. Draffin, 327 S.C. 1, 488 S.E.2d 307 (1997). Tex.General Motors Acceptance Corp. v. Howard, 487 S.W.2d 708 (Tex. 1972).
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Wash.Colwell v. Eising, 118 Wash. 2d 861, 827 P.2d 1005 (1992). Wis.Jadofsky v. Iowa Kemper Ins. Co., 120 Wis. 2d 494, 355 N.W.2d 550 (Ct. App. 1984). Wyo.Cantonwine v. Fehling, 582 P.2d 592, 24 U.C.C. Rep. Serv. 904 (Wyo. 1978). Right to available remedies Party's cause of action accrues when party can maintain cause to its legal conclusion, so that he or she has not only right to pursue cause, but also has right, if successful, to remedies available at time of accrual. Okla.Rivas v. Parkland Manor, 2000 OK 68, 12 P.3d 452 (Okla. 2000). [FN2] AlaskaWright v. Wright, 904 P.2d 403 (Alaska 1995). Wyo.Nowotny v. L & B Contract Industries, Inc., 933 P.2d 452 (Wyo. 1997). [FN3] Ala.Hood v. Slappey, 601 So. 2d 981 (Ala. 1992). Fla.Department of Transp. v. Soldovere, 519 So. 2d 616 (Fla. 1988). Md.Bozman v. Bozman, 146 Md. App. 183, 806 A.2d 740 (2002), cert. granted, 372 Md. 429, 813 A.2d 257 (2002) and judgment rev'd on other grounds, 376 Md. 461, 830 A.2d 450 (2003). Actual loss There must be actual loss to another's interest before cause of action accrues. IowaCollins v. Federal Land Bank of Omaha, 421 N.W.2d 136 (Iowa 1988). Applicability of statute Patient's cause of action against doctor accrued in April, 1989 when she suffered from appendicitis and was injured due to delay in treatment as result of doctor's alleged statements that he had previously removed her appendix, and thus 1987 medical liability statute applied, though doctor performed surgery on patient during which he allegedly removed her appendix in 1985, before effective date of statute. Ala.Hood v. Slappey, 601 So. 2d 981 (Ala. 1992). [FN4] U.S.In re Alvarez, 224 F.3d 1273 (11th Cir. 2000) (Florida law). [FN5] Va.Potomac Hosp. Corp. v. Dillon, 229 Va. 355, 329 S.E.2d 41 (1985). Wyo.Cantonwine v. Fehling, 582 P.2d 592, 24 U.C.C. Rep. Serv. 904 (Wyo. 1978). [FN6] Discussed in 224 et seq. [FN7] N.J.Mystic Isle Development Corp. v. Perskie & Nehmad, 142 N.J. 310, 662 A.2d 523 (1995).
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[FN8] Md.Owens-Illinois, Inc. v. Armstrong, 326 Md. 107, 604 A.2d 47 (1992). Statutory cap on damages Statute imposing cap on noneconomic damages awarded in personal injury action did not apply to plaintiff's personal injury action for injuries sustained due to exposure to asbestos if plaintiff's last exposure to defendant's asbestos-containing product was before effective date of statute, but if plaintiff's only exposure was undisputedly after that date, then cap applied as matter of law. Md.John Crane, Inc. v. Scribner, 369 Md. 369, 800 A.2d 727 (2002). [FN9] Cal. Buttram v. Owens-Corning Fiberglas Corp., 16 Cal. 4th 520, 66 Cal. Rptr. 2d 438, 941 P.2d 71 (1997). A.L.R. Library Limitation Of Actions: Time Of Discovery Of Defamation As Determining Accrual Of Action, 35 A.L.R. 4th 1002. [FN10] Ga.Wyrick v. Wyrick, 256 Ga. 408, 349 S.E.2d 705 (1986). Mo.Sartin v. Sartin, 349 S.W.2d 705 (Mo. Ct. App. 1961). [FN11] Ga.Wyrick v. Wyrick, 256 Ga. 408, 349 S.E.2d 705 (1986). [FN12] Md.Haupt v. State, 340 Md. 462, 667 A.2d 179 (1995). [FN13] Fla.Department of Transp. v. Soldovere, 519 So. 2d 616 (Fla. 1988). [FN14] N.Y.City of New York v. State, 40 N.Y.2d 659, 389 N.Y.S.2d 332, 357 N.E.2d 988 (1976). [FN15] N.Y. Memphis Const., Inc. v. Village of Moravia, 59 A.D.2d 646, 398 N.Y.S.2d 386 (4th Dep't 1977). [FN16] N.Y. Memphis Const., Inc. v. Village of Moravia, 59 A.D.2d 646, 398 N.Y.S.2d 386 (4th Dep't 1977). [FN17] N.Y. Memphis Const., Inc. v. Village of Moravia, 59 A.D.2d 646, 398 N.Y.S.2d 386 (4th Dep't 1977). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 301 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. XI. Commencement, Prosecution, and Termination A. In General 2. Accrual of Cause of Action Topic Summary References Correlation Table 302. Breach of contract or inability to perform; occurrence of event or contingency West's Key Number Digest West's Key Number Digest, Action 61 A cause of action on a contractual obligation accrues when the contract is breached or repudiated, or a party thereto has rendered performance impossible. When the existence of an obligation is conditioned upon some event or contingency, the cause of action accrues when, and only when, the event or contingency happens, unless by interference of one of the parties its occurrence is prevented. A cause of action arising out of contractual relations between the parties accrues as soon as the contract or agreement is breached,[1] irrespective of any knowledge on the part of plaintiff[2] or of any actual injury occasioned him or her.[3] Ordinarily, the time for performance of the agreement must have expired,[4] but where the agreement has been renounced or repudiated,[5] or a party has placed performance beyond his or her power, intentionally or otherwise,[6] there is such a breach as will at once give rise to a cause of action. When the performance of the contract is conditioned on the happening of some particular event or contingency, no cause of action accrues until after the event or contingency has happened,[7] unless its happening is prevented by the act of one of the parties.[8] The cause of action accrues immediately upon the happening of the contingency,[9] and having accrued, is not divested by a subsequent recurrence of the conditions previously existing.[10]
[FN1] Cal.Reichert v. General Ins. Co. of America, 68 Cal. 2d 822, 69 Cal. Rptr. 321, 442 P.2d 377 (1968). [FN2] Neb.In re Weinberger's Estate, 203 Neb. 674, 279 N.W.2d 849 (1979). [FN3] Neb.In re Weinberger's Estate, 203 Neb. 674, 279 N.W.2d 849 (1979). [FN4] N.C.Kelly v. Oliver, 113 N.C. 442, 18 S.E. 698 (1893).
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[FN5] Kan.Caley v. Mills, 79 Kan. 418, 100 P. 69 (1909). Damages ascertainable upon repudiation Claim accrues when it matures, i.e., when damages become ascertainable. N.Y. Morawski v. Board of Ed. of Greater Amsterdam School Dist., 85 A.D.2d 850, 446 N.Y.S.2d 482, 2 Ed. Law Rep. 498 (3d Dep't 1981). As to anticipatory breach by renunciation or repudiation before time for performance, see C.J.S., Contracts 534 to 540. [FN6] Kan.Caley v. Mills, 79 Kan. 418, 100 P. 69 (1909). Me.Crooker v. Holmes, 65 Me. 195, 1875 WL 3751 (1875). [FN7] Ill.Crandall v. Payne, 54 Ill. App. 644, 1894 WL 2592 (1st Dist. 1894), aff'd, 154 Ill. 627, 39 N.E. 601 (1895). [FN8] Tex.Gulf & B.V. Ry. Co. v. Barnett, 55 S.W. 986 (Tex. Civ. App. 1900), writ refused. [FN9] Cal.Green v. Robertson, 64 Cal. 75, 28 P. 446 (1883). Miss.Denney v. Wheelwright, 60 Miss. 733, 1883 WL 3913 (1883). [FN10] Miss.Denney v. Wheelwright, 60 Miss. 733, 1883 WL 3913 (1883). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 302 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. XI. Commencement, Prosecution, and Termination A. In General 2. Accrual of Cause of Action Topic Summary References Correlation Table 303. Maturity of debt and expiration of credit West's Key Number Digest West's Key Number Digest, Action 61 No cause of action accrues for the recovery of a debt, or the enforcement of an obligation incurred upon a definite term of credit, until the debt has matured or the term of credit has expired, unless the credit was secured by fraud or the parties have agreed otherwise. A creditor's legal right to sue his or her debtor accrues when the debt or demand is due[1] and not before.[2] Under an agreement that, on the happening of a certain contingency, a creditor may declare a debt due before maturity, the happening of the contingency does not of itself mature the debt but merely gives to the creditor a right of election to treat the debt as matured.[3] Thus, a cause of action on an entire debt owed under an installment sales contract with an optional acceleration clause arises when the option is exercised.[4] Acceptance of a check without objection as payment of interest on a note containing an acceleration clause operates as a postponement of the creditor's right to commence his or her action, where he or she retains the check and makes no effort to collect it.[5] An agreement to refrain from bringing suit on an obligation for a time after it has become due does not operate to prevent an action thereon before expiration of the time agreed on, the only remedy of the obligor being an action for breach of the agreement to forbear suit.[6]
[FN1] Ga.Lowry v. City Inv. Co., 174 Ga. 454, 163 S.E. 208 (1932). [FN2] Ark.Jones v. Dyer, 92 Ark. 460, 123 S.W. 757 (1909). [FN3] IowaJones v. De Moss, 151 Iowa 112, 130 N.W. 914 (1911). [FN4] Ark.United-Bilt Homes, Inc. v. Sampson, 315 Ark. 156, 864 S.W.2d 861 (1993).
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[FN5] Or.Hawkins v. Fuller, 116 Or. 433, 240 P. 549 (1925). [FN6] Ind.Durbin v. Northwestern Scraper Co., 36 Ind. App. 123, 73 N.E. 297 (Div. 1 1905). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 303 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. XI. Commencement, Prosecution, and Termination A. In General 2. Accrual of Cause of Action Topic Summary References Correlation Table 304. Debt payable in installments West's Key Number Digest West's Key Number Digest, Action 61 Where a debt is payable in installments, on default of a single installment a cause of action accrues for its recovery, but not for the recovery of the whole debt, in the absence of contractual stipulations to that effect. Where a debt is payable in installments, and the contract so provides, on failure to pay any or several installments the whole debt may be sued for although other installments are, by the terms of the agreement, not yet due.[1] In the absence of such a contractual provision, however, default in one installment will not authorize an action for the whole debt,[2] and an action will lie for the recovery of each installment as it matures.[3] Where one person agrees to pay a debt of another, payable in installments, a cause of action for breach of the agreement accrues in favor of the original debtor upon failure of the other to pay any single installment.[4]
[FN1] Ga.South Georgia Mercantile Co. v. Lance, 143 Ga. 530, 85 S.E. 749 (1915). Mich.Michaels v. Millish, 55 Mich. App. 374, 222 N.W.2d 247 (1974). [FN2] Ga.Thomas v. Richards, 124 Ga. 942, 53 S.E. 400 (1906). [FN3] S.C.Surety Realty Corp. v. Asmer, 249 S.C. 114, 153 S.E.2d 125 (1967). Tex. Great Southern Life Ins. Co. v. Johnson, 13 S.W.2d 424 (Tex. Civ. App. Amarillo 1928), writ granted, (May 8, 1929) and rev'd on other grounds, 25 S.W.2d 1093 (Tex. Comm'n App. 1930) (disapproved of on other grounds by, Provident Life and Acc. Ins. Co. v. Knott, 128 S.W.3d 211 (Tex. 2003)). [FN4]
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Recovery limited Recovery is limited to installments matured and unpaid at the time of the suit. Ga.Thomas v. Richards, 124 Ga. 942, 53 S.E. 400 (1906). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 304 END OF DOCUMENT
CJS ACTIONS XI B REF 1A C.J.S. Actions XI B Refs.
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. XI. Commencement, Prosecution, and Termination B. Commencement Topic Summary Correlation Table Research References A.L.R. Library West's A.L.R. Digest, Action 62 to 64
A.L.R. Index: Accrual of Cause of Action; Commencement of Action or Proceeding; Election of Remedies Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS XI B REF END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. XI. Commencement, Prosecution, and Termination B. Commencement 1. In General Topic Summary References Correlation Table 305. Generally West's Key Number Digest West's Key Number Digest, Action 64 An action or suit is commenced by invoking, in proper manner and form, the assistance of a competent court in enforcing some right or obtaining some remedy. Commencement of an action is defined as the suing out of process or originating proceedings whereby an action in a court of law or equity is instituted to establish some right or redress some wrong.[1] In order to commence an action, plaintiff must have legal capacity to sue at the time the complaint is filed,[2] and no action is commenced if such lack of capacity is not cured prior to the entry of final judgement.[3] CUMULATIVE SUPPLEMENT Cases: Service on foreign defendant is not completed when suit papers are delivered to Central Authority, designated authority through which documents could be served in countries belonging to Hague Convention, where plain language of state commencement of action statute indicates that action is commenced only if summons is delivered to sheriff or another county officer. In action against foreign defendant, delivery of complaint to Central Authority does not toll statute of limitations. Other methods of service are available under Hague Convention and plaintiff must show that it was prevented from using alternate means for service of process. Paracelsus Healthcare Corp. v. Philips Medical Systems, Nederland, B.V., 384 F.3d 492 (8th Cir. 2004) (applying North Dakota law). [END OF SUPPLEMENT]
[FN1] N.Y.Wilson v. Baptist Education Soc. of New York, 10 Barb. 308, 1851 WL 5250 (N.Y. Gen. Term 1851).
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[FN2] OhioGMS Management Co. v. Axe, 5 Ohio Misc. 2d 1, 449 N.E.2d 43 (Mun. Ct. 1982). [FN3] OhioGMS Management Co. v. Axe, 5 Ohio Misc. 2d 1, 449 N.E.2d 43 (Mun. Ct. 1982). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 305 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. XI. Commencement, Prosecution, and Termination B. Commencement 1. In General Topic Summary References Correlation Table 306. Premature commencement West's Key Number Digest West's Key Number Digest, Action 62 An action commenced before plaintiff's cause of action has accrued is premature and cannot be maintained against objection even though a cause of action accrues while the action is pending. As a general rule, in the absence of a statute providing a remedy for enforcement or protection of a demand not yet due, an action commenced before a cause of action has accrued is premature and cannot be maintained,[1 ] provided proper and timely objection is made.[2] An action is premature where the party seeking relief has not been damaged.[3] For instance, a lender cannot sue to recover money loaned until the loan is due and payable,[4 ] a legal malpractice action cannot be filed before a client's right to sue in the related or underlying judicial proceeding has expired,[5] and contentions that the provisions of an initiative are unconstitutional are justiciable only after the initiative has been enacted by the electorate.[6] A cause of action for legal malpractice which occurs during the course of litigation accrues when plaintiff knew or reasonably should have known of the malpractice and when plaintiff's damages are certain and not contingent upon the outcome of an appeal.[7] When a statute provides that proceedings are to be commenced after the expiration of a certain time, that time must fully expire before the proceedings can be instituted.[8] Dismissal of an action brought prematurely may be proper,[9] although it has also been ruled that the proper remedy for premature litigation is a stay of the claim until it has matured.[10] The facts and circumstances existing at the time of its commencement determine whether a particular action or suit is premature.[11] Thus, a complaint challenging a statute or ordinance does not become premature if different provisions on the same subject matter are later enacted.[12] An allegation of an additional form of damages does not necessarily constitute a premature assertion of a cause of action.[13] The error or defect of premature commencement may be cured by filing an amended or supplemental complaint after the cause of action has accrued, unless the amended complaint states a different cause of action.[14]
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[FN1] Ariz.Jahnke v. Palomar Financial Corp., 22 Ariz. App. 369, 527 P.2d 771 (Div. 1 1974). Ala.Federation of City Employees v. City of Birmingham, 492 So. 2d 1304 (Ala. 1986). AlaskaLamoreux v. Langlotz, 757 P.2d 584 (Alaska 1988). Cal.Langford v. Eckert, 9 Cal. App. 3d 439, 88 Cal. Rptr. 429 (2d Dist. 1970). La.Fairfield Development Co. v. Jackson, 438 So. 2d 664 (La. Ct. App. 2d Cir. 1983). Minn. Federated Mut. Ins. Co. v. Litchfield Precision Components, Inc., 456 N.W.2d 434 (Minn. 1990). Miss.Estate of Kidd v. Kidd, 435 So. 2d 632 (Miss. 1983). N.Y.American Ins. Ass'n v. Chu, 64 N.Y.2d 379, 487 N.Y.S.2d 311, 476 N.E.2d 637 (1985). N.D.Overboe v. Farm Credit Services of Fargo, 2001 ND 58, 623 N.W.2d 372 (N.D. 2001). Or. Investment Service Co. v. Martin Bros. Container & Timber Products Corp., 255 Or. 192, 465 P.2d 868, 7 U.C.C. Rep. Serv. 373 (1970). Tex.Philips v. Giles, 620 S.W.2d 750 (Tex. Civ. App. Dallas 1981). Wis.Matthies v. Positive Safety Mfg. Co., 244 Wis. 2d 720, 2001 WI 82, 628 N.W.2d 842 (2001). Obstacle to jurisdiction U.S.Socialist Labor Party v. Gilligan, 406 U.S. 583, 92 S. Ct. 1716, 32 L. Ed. 2d 317 (1972). [FN2] N.Y.Brescia Const. Co. v. Walart Const. Co., 238 A.D. 360, 264 N.Y.S. 862 (1st Dep't 1933). [FN3] Ariz.Fulton v. Woodford, 17 Ariz. App. 490, 498 P.2d 564 (Div. 1 1972). [FN4] N.Y.Burns v. Lopez, 256 N.Y. 123, 175 N.E. 537 (1931). Tex.Security Union Cas. Co. v. Peer Oil Corp., 1 S.W.2d 1112 (Tex. Civ. App. Beaumont 1928). [FN5] Fla.Blumberg v. USAA Cas. Ins. Co., 790 So. 2d 1061 (Fla. 2001). [FN6] AlaskaBrooks v. Wright, 971 P.2d 1025 (Alaska 1999). [FN7] Ariz.Amfac Distribution Corp. v. Miller, 138 Ariz. 152, 673 P.2d 792 (1983). [FN8] N.Y.People v. Florus, 67 Misc. 2d 809, 325 N.Y.S.2d 127 (Sup 1971). [FN9] Ga.Department of Transp. of Georgia v. Bonnett, 257 Ga. 189, 358 S.E.2d 245 (1987). Miss.McMillan v. Puckett, 678 So. 2d 652, 58 A.L.R.5th 917 (Miss. 1996).
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Prematurity not cured by later events Once losing candidate's private quo warranto action, challenging superior court election, was prematurely undertaken, it was not cured by later commencement of the term of office or amendment of the petition. Wash.State ex rel. Quick-Ruben v. Verharen, 136 Wash. 2d 888, 969 P.2d 64 (1998). [FN10] Fla.Blumberg v. USAA Cas. Ins. Co., 790 So. 2d 1061 (Fla. 2001). [FN11] U.S.Avery v. Fischer, 360 F.2d 719 (5th Cir. 1966). La.Sevier v. U.S. Fidelity & Guar. Co., 497 So. 2d 1380 (La. 1986). W.Va.Harless v. First Nat. Bank in Fairmont, 169 W. Va. 673, 289 S.E.2d 692 (1982). Consideration of evidence La.Fairfield Development Co. v. Jackson, 438 So. 2d 664 (La. Ct. App. 2d Cir. 1983). [FN12] Cal.Davis v. Superior Court, 169 Cal. App. 3d 1054, 215 Cal. Rptr. 721 (4th Dist. 1985). [FN13] Collateral estoppel effect of judgment To extent that insured alleged possible damage from collateral estoppel effect of judgment which allegedly resulted from mishandling of case by insurance company and attorney retained by it, claim for damages with respect thereto in connection with pending class action against insured could not be said to have been asserted prematurely. U.S.Outboard Marine Corp. v. Liberty Mut. Ins. Co., 536 F.2d 730 (7th Cir. 1976). [FN14] Kan.Thompson v. Meyers, 211 Kan. 26, 505 P.2d 680 (1973). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 306 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. XI. Commencement, Prosecution, and Termination B. Commencement 1. In General Topic Summary References Correlation Table 307. Premature commencementCauses of action accruing at different times West's Key Number Digest West's Key Number Digest, Action 62 Where a complaint states several causes of action, some of which have accrued before suit was brought and some of which have not, the action may be maintained only as to those that have accrued. Where several causes of action are stated in a complaint, and some of these have not accrued, while others have, the action generally cannot be maintained as to those not yet accrued[1] and is properly dismissed as to them.[2] Where the causes which have, and those which have not, accrued before the action was commenced are severable, the action may be maintained as to those that have accrued.[3] However, a cause of action which is premature may be allowed to stand, along with a cause which has accrued, in the interest of fairness and to promote judicial economy, where both claims involve similar factual issues.[4]
[FN1] Ga.Sanner v. Sayne, 78 Ga. 467, 3 S.E. 651 (1887). [FN2] Ill.Osburn v. McCartney, 121 Ill. 408, 12 N.E. 72 (1887). [FN3] Kan.Anthony v. Smithson, 70 Kan. 132, 78 P. 454 (1904). [FN4] N.Y.State v. Ehasz, 80 A.D.2d 671, 436 N.Y.S.2d 387 (3d Dep't 1981). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 307 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. XI. Commencement, Prosecution, and Termination B. Commencement 1. In General Topic Summary References Correlation Table 308. Delay in commencement West's Key Number Digest West's Key Number Digest, Action 63 The right to maintain an action at law is generally unaffected by delay in its commencement, at least in the absence of prejudice to defendant. Laches is a delay or lapse of time in commencing an action that works a disadvantage or prejudice to the adverse party because of a change in conditions during the delay.[1] Although it is a good defense in a proper case in equity, as a general rule laches is no defense in an action at law,[2] particularly where the action is commenced within the time limited by statute,[3] unless there are facts and circumstances attending the delay which have operated to the defendant's prejudice.[4] Special proceedings for which no period of limitations is provided can be maintained only if they are commenced within a reasonable time.[5] In cases where, because of the nature of the subject matter, absolute time limits must be observed, the law requires speedy resort to the courts by those who wish to prevent or modify contemplated transactions or procedures.[6]
[FN1] N.D.VND, LLC v. Leevers Foods, Inc., 2003 ND 198, 672 N.W.2d 445 (N.D. 2003). [FN2] C.J.S., Equity 128. [FN3] U.S.Sides v. Richard Mach. Works, Inc., 406 F.2d 445 (4th Cir. 1969). Colo.Pasternak v. Robin, 511 P.2d 529 (Colo. Ct. App. 1973). N.Y.Appleton v. National Park Bank of New York, 211 A.D. 708, 208 N.Y.S. 228 (1st Dep't 1925), aff'd, 241 N.Y. 561, 150 N.E. 555 (1925). Okla.Hanson v. Brannon, 1933 OK 20, 161 Okla. 265, 18 P.2d 517 (1933).
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Tex.Manes v. J.I. Case Threshing Mach. Co., 295 S.W. 281 (Tex. Civ. App. Eastland 1927), writ refused, (Oct. 26, 1927). Wash.White Pass Co. v. St. John, 71 Wash. 2d 156, 427 P.2d 398 (1967). W.Va.Condry v. Pope, 152 W. Va. 714, 166 S.E.2d 167 (1969). [FN4] Cal. California State Auto. Assn. Inter-Ins. Bureau v. Cohen, 44 Cal. App. 3d 387, 118 Cal. Rptr. 890 (1st Dist. 1975) (abrogated on other grounds by, Spear v. California State Auto. Assn., 2 Cal. 4th 1035, 9 Cal. Rptr. 2d 381, 831 P.2d 821 (1992)). [FN5] Kan.Cruse v. Chicago, R.I. & P. Ry. Co., 138 Kan. 117, 23 P.2d 471 (1933). [FN6] Mich.Bigger v. City of Pontiac, 390 Mich. 1, 210 N.W.2d 1 (1973). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 308 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. XI. Commencement, Prosecution, and Termination B. Commencement 1. In General Topic Summary References Correlation Table 309. Presumptions and evidence as to commencement West's Key Number Digest West's Key Number Digest, Action 64 The date when the necessary step is taken to commence an action is prima facie evidence of its commencement at that time. Where issuance of process commences an action, the date of the process is presumed to be, and is, prima facie evidence of the time of commencement,[1] but is not conclusive.[2] If the summons is deemed issued only when delivered to the officer who is required to indorse on it the date of its receipt, the summons is presumed to have been issued on the date so indorsed.[3] Where an action is commenced by the filing of the complaint, the evidence of the time of its commencement is the file mark on the complaint, of which the court should take judicial notice.[4] Where a complaint alleges that an event occurred or that an act was done at a particular time, the presumption is that the action was not commenced until after that time.[5]
[FN1] Mass.Krasnow v. Krasnow, 253 Mass. 528, 149 N.E. 321 (1925). N.J.Robb v. Shore Bus Transp. Co., 10 N.J. Misc. 458, 159 A. 527 (Sup. Ct. 1932). For purpose of priority In absence of evidence as to when action was commenced, presumption exists that it postdated action in other court shown to have been commenced on definite date. N.J.Grainger v. Farrell, 110 N.J.L. 585, 166 A. 292 (N.J. Ct. Err. & App. 1933). [FN2] Mass.Westminster Nat. Bank v. Graustein, 270 Mass. 565, 170 N.E. 621 (1930).
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[FN3] N.C.Smith v. Cashie & Chowan R. & Lumber Co., 142 N.C. 26, 54 S.E. 788 (1906). Delivery by clerk If summons is delivered by clerk to officer, without any intermediary, notation of officer on it as to date of his or her receipt of it must be controlling evidence as to when it was issued. N.C.Smith v. Cashie & Chowan R. & Lumber Co., 142 N.C. 26, 54 S.E. 788 (1906). [FN4] Mo.Chapman v. Currie, 51 Mo. App. 40, 1892 WL 1626 (1892). [FN5] Wis.Prentice v. Ashland County, 56 Wis. 345, 14 N.W. 297 (1882). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 309 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. XI. Commencement, Prosecution, and Termination B. Commencement 2. Proceedings Constituting Commencement a. In General Topic Summary References Correlation Table 310. Generally West's Key Number Digest West's Key Number Digest, Action 64 Proceedings proper and necessary to constitute commencement of an action generally are regulated by statutes, compliance with which, coupled with the intention to commence the action, is necessary. The proper procedure necessary to commence an action is generally regulated by statute or rules of procedure, and the practice varies accordingly.[1] An exception to the general rules governing the commencement of actions results from the legislative establishment of a specific procedure.[2] Even in the same jurisdiction, the steps necessary to constitute commencement of an action or suit may vary for different purposes[3] or in different courts,[4] or with regard to different forms of action or proceedings.[5] A plaintiff becomes bound by the procedural rules establishing the appropriate manner of commencement by availing himself or herself of the courts;[6] therefore, an action is not deemed commenced where the prescribed procedure is not followed.[7] In common parlance, an action may be said to be commenced when the first step in the proceedings is taken,[8] and, subject to particular statutory requirements, this may also be the legal and technical commencement of the action.[9] The plaintiff's intention to commence an action must be considered,[10] for while the intention is insufficient without actually doing the required act,[11] so also is the performance of the act without an actual, bona fide intention that it operate as a commencement of the action.[12] Ordinarily, and in the absence of statutory restrictions, the commencement of an action does not depend upon service of process on, or jurisdiction over, the defendant.[13] Nevertheless, an action is not commenced until the court has in some manner acquired jurisdiction of something relating to the controversy, either the person of the plaintiff or the subject matter of the action.[14] Under statutes so providing, an action is commenced by the acquisition of jurisdiction over the defendant.[15] Under a statute so providing, an attempt to commence an action is under some circumstances, or for some
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purposes, deemed equivalent to a commencement thereof.[16] Such a provision ordinarily refers to a commencement for the purpose of a statute of limitations, and, when so restricted, will not be extended to apply to other cases.[17]
[FN1] Ill.Abbott v. Abbott, 52 Ill. App. 3d 728, 10 Ill. Dec. 464, 367 N.E.2d 1073 (3d Dist. 1977). Mo.Freesmeier v. Hunt, 530 S.W.2d 1 (Mo. Ct. App. 1975). Ohio Howard v. Allen, 30 Ohio St. 2d 130, 59 Ohio Op. 2d 148, 283 N.E.2d 167 (1972) (holding modified on other grounds by, Vaccariello v. Smith & Nephew Richards, Inc., 94 Ohio St. 3d 380, 2002 -Ohio- 892, 763 N.E.2d 160 (2002)). [FN2] Pa.Com. v. Derry Tp., Westmoreland County, 10 Pa. Commw. 619, 314 A.2d 874 (1973), order aff'd, 466 Pa. 31, 351 A.2d 606 (1976) (abrogated on other grounds by, Chalkey v. Roush, 569 Pa. 462, 805 A.2d 491 (2002)). [FN3] IowaProska v. McCormick, 56 Iowa 318, 9 N.W. 289 (1881). Mo.Freesmeier v. Hunt, 530 S.W.2d 1 (Mo. Ct. App. 1975). [FN4] Mo.Freesmeier v. Hunt, 530 S.W.2d 1 (Mo. Ct. App. 1975). [FN5] U.S.Deepwater Ry. Co. v. Western Pocahontas Coal & Lumber Co., 152 F. 824 (C.C. S.D. W. Va. 1907). Tex.Travelers Ins. Co. v. Brown, 402 S.W.2d 500 (Tex. 1966). Mandamus Wash.State v. First Bank of Wilkeson, 125 Wash. 321, 216 P. 9 (1923). [FN6] N.J.Lawrence R. McCoy Co., Inc. v. S. S. Theomitor III, 133 N.J. Super. 308, 336 A.2d 80, 17 U.C.C. Rep. Serv. 207 (Law Div. 1975). [FN7] Ark.Scroggins v. Bowen, 249 Ark. 1155, 464 S.W.2d 79 (1971). S.D.Deno v. Oveson, 307 N.W.2d 862 (S.D. 1981). [FN8] OhioBurton v. Buckeye Ins. Co., 26 Ohio St. 467, 1875 WL 88 (1875). [FN9] Mo.McGrath v. St. Louis, K.C. & C.R. Co., 128 Mo. 1, 30 S.W. 329 (1895). [FN10] Ala.Ward v. Saben Appliance Co., 391 So. 2d 1030 (Ala. 1980). Mo.White v. Reed, 60 Mo. App. 380, 1895 WL 1833 (1895). R.I.Cross v. Barber, 16 R.I. 266, 15 A. 69 (1888).
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[FN11] Ala.Ward v. Saben Appliance Co., 391 So. 2d 1030 (Ala. 1980). [FN12] Ala.Ward v. Saben Appliance Co., 391 So.2d. 1030 (Ala. 1980). R.I.Cross v. Barber, 16 R.I. 266, 15 A. 69 (1888). Intention as prerequisite Tex.Texas Emp. Ins. Ass'n v. Baeza, 584 S.W.2d 317 (Tex. Civ. App. Amarillo 1979). [FN13] U.S.Taylor v. Southern Ry. Co., 6 F. Supp. 259 (E.D. Ill. 1934). Ill.Vincent v. McElvain, 304 Ill. 160, 136 N.E. 502 (1922). Ind.Northern Indiana Ry. Co. v. Lincoln Nat. Bank, 47 Ind. App. 98, 92 N.E. 384 (Div. 1 1910). N.J.Raskulinecz v. Raskulinecz, 141 N.J. Super. 148, 357 A.2d 330 (Law Div. 1976). [FN14] Ind. Northern Indiana Ry. Co. v. Lincoln Nat. Bank, 47 Ind. App. 98, 92 N.E. 384 (Div. 1 1910). [FN15] N.Y. Gimbel Bros., Inc. v. Swift, 62 Misc. 2d 156, 307 N.Y.S.2d 952, 7 U.C.C. Rep. Serv. 300 (N.Y. City Civ. Ct. 1970). [FN16] U.S.Hunt v. Broce Const., Inc., 674 F.2d 834, 33 Fed. R. Serv. 2d 1471 (10th Cir. 1982). Minn.Auerbach, Finch, Culbertson & Co. v. Maynard, 26 Minn. 421, 4 N.W. 816 (1880). [FN17] N.Y.Warner v. Warner, 6 Misc. 249, 27 N.Y.S. 160 (Sup 1893). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 310 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. XI. Commencement, Prosecution, and Termination B. Commencement 2. Proceedings Constituting Commencement a. In General Topic Summary References Correlation Table 311. Effect of amendment of pleadings West's Key Number Digest West's Key Number Digest, Action 64 An amended complaint which does not introduce a new cause of action relates back to the original commencement of the action, and does not constitute the commencement of a new action. An amended declaration or complaint introducing no new cause of action relates back to the original commencement of the action and cannot be construed to be the beginning of a new action as of the date of the amendment.[1] However, where the amendment states a new cause of action the action is commenced, as to the new cause, upon the filing of the amended declaration or complaint.[2] If the original complaint states defectively a good cause of action, an amendment curing the statement will relate back;[3] but the rule is otherwise if no cause of action is stated in the original complaint, and an amendment states for the first time a good cause of action.[4] Under some authority, amendment of the summons so as to direct it to the officer who effected service commences a new action.[5] An amendment bringing in new parties is not the commencement of a new action as regards the original plaintiff[6] or original defendant;[7] but the filing of the amendment is the commencement of the action as to the new party,[8] although not where the addition of a new party plaintiff did nothing toward changing the cause of action.[9] The action commences, as to parties who are added to an action as necessary or indispensable parties, at the time they are joined.[10] An amendment will not constitute commencement of a new action where it merely corrects the name or capacity in which a party sues,[11] or is sued,[12] or substitutes a plaintiff[13] or defendant.[14] However, an amendment effecting an entire change of parties plaintiff or defendant will be deemed a new action commenced by the filing of the amended complaint and the issuance of the summons.[15]
[FN1] Ark.Standard Lumber Co. of Pine Bluff v. Wilson, 173 Ark. 1024, 296 S.W. 27 (1927).
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[FN2] Ill.Walters v. City of Ottawa, 240 Ill. 259, 88 N.E. 651 (1909). Okla.Ruggles v. First Nat. Bank of Carmen, 1976 OK CIV APP 40, 558 P.2d 419 (Ct. App. Div. 1 1976). [FN3] D.C.Lewis v. Washington & G.R. Co., 17 D.C. 556, 6 Mackey 556 (D.C. 1888). Ill.Walters v. City of Ottawa, 240 Ill. 259, 88 N.E. 651 (1909). [FN4] D.C.Johnston v. District of Columbia, 12 D.C. 427, 1 Mackey 427 (D.C. 1882). Ill.Walters v. City of Ottawa, 240 Ill. 259, 88 N.E. 651 (1909). [FN5] U.S.Byrd v. Pawlick, 362 F.2d 390, 2 A.L.R. Fed. 504 (4th Cir. 1966). [FN6] Tex.East Line & Red River R. Co. v. Culberson, 72 Tex. 375, 10 S.W. 706 (1889). [FN7] Cal.Harrison v. McCormick, 122 Cal. 651, 55 P. 592 (1898). Mo.Smith v. Boese, 39 Mo. App. 15, 1890 WL 1738 (1890). [FN8] Cal.Warren v. Atchison, T. & S. F. Ry. Co., 19 Cal. App. 3d 24, 96 Cal. Rptr. 317 (4th Dist. 1971). Ga.Knox v. Laird, 92 Ga. 123, 17 S.E. 988 (1893). Tex.East Line & Red River R. Co. v. Culberson, 72 Tex. 375, 10 S.W. 706 (1889). Filing of complaint Mich.Amer v. Clarence A. Durbin Associates, Inc., 87 Mich. App. 62, 273 N.W.2d 588 (1978). [FN9] Kan.Hucklebridge v. Atchison, T. & S.F. Ry. Co., 66 Kan. 443, 71 P. 814 (1903). S.C.Suber v. Chandler, 36 S.C. 344, 15 S.E. 426 (1892). [FN10] Cal.Warren v. Atchison, T. & S. F. Ry. Co., 19 Cal. App. 3d 24, 96 Cal. Rptr. 317 (4th Dist. 1971). [FN11] Ga.Rutherford v. Hobbs, 63 Ga. 243, 1879 WL 2494 (1879). [FN12] Minn.McCormick v. Robinson, 139 Minn. 483, 167 N.W. 271 (1918). [FN13] Kan.Service v. Farmington Sav. Bank, 62 Kan. 857, 62 P. 670 (1900). [FN14] Mass.McLaughlin v. West End St. Ry. Co., 186 Mass. 150, 71 N.E. 317 (1904). N.J.Lehigh Coal & Navigation Co. v. Central R. Co., 42 N.J. Eq. 591, 8 A. 648 (Ch. 1887). [FN15] Ark.Edwin Schiele & Co. v. Dillard, 94 Ark. 277, 126 S.W. 835 (1910).
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. XI. Commencement, Prosecution, and Termination B. Commencement 2. Proceedings Constituting Commencement b. Procedural Elements Topic Summary References Correlation Table 312. Issuance of process West's Key Number Digest West's Key Number Digest, Action 64 Where actions are commenced by issuance of process, they are commenced as of the time when the writ or summons is properly issued, with a bona fide intention that it be served, even if service is not actually made. In instances where actions are commenced by writ or summons, the action is regarded as commenced when such process is sued out or issued,[1] and service of the process is not necessary for commencement of the action[2] except where required by statute.[3] Process has been issued when it passes from the office of a proper officer under his or her authority for the purpose of being served[4] and has been delivered or transmitted to the officer authorized to serve it[5] or given to any other person where the statutes so permit,[6] with a bona fide intention to have it properly served.[7] The commencement of the action is not dated as of the time of the issuance of the process where it is issued provisionally, as where it is not to be served until further instructions, or until a certain time or event.[8] An action may be commenced without the issuance of the original process, where defendant voluntarily appears and makes a defense;[9] but such appearance has no retrospective effect.[10] In instances where there is a substantial alteration of a writ before service, the action must be deemed to be commenced at the time of the alteration.[11] An action is not commenced by the issuance of invalid process.[12] Subsequent, alias, and pluries process. While an action is commenced by delivery of the process to the officer for service, unless such process is served it will not keep the action alive as a pending cause after the close of the period during which it was returnable.[13] In order that the issuance may serve as commencement of the action as of the time of the issuance, the writ must be executed or else kept alive by alias or by pluries writs until duly served.[14] If this is done, the issuance of the original process is regarded as the commencement of the action, and the subsequent process as a continuation of the original process.[15] If such processes are not properly issued, the commencement of the action will be related to the date of the new process,[16] except where a petition must be filed before issuance of
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process, in which case an alias writ cannot begin an action.[17]
[FN1] U.S.Hardy v. Green, 277 F. Supp. 958 (D. Mass. 1967). Ill.Randall Dairy Co. v. Pevely Dairy Co., 278 Ill. App. 350, 1935 WL 1499 (4th Dist. 1935). Mass.Alpert v. Mercury Pub. Co., 272 Mass. 39, 172 N.E. 221 (1930). N.C.Atkinson v. Greene, 197 N.C. 118, 147 S.E. 811 (1929). R.I.Byron v. Great American Indem. Co., 54 R.I. 405, 173 A. 546 (1934). Subsequent enactment of rules Where plaintiff successfully commenced action by causing summons to be issued against defendants, subsequent enactment of rules of civil procedure did not require that plaintiff recommence action. N.C.Williams v. Blount, 14 N.C. App. 139, 187 S.E.2d 464 (1972). [FN2] N.J.Burd v. Tilton, 11 N.J. Misc. 503, 167 A. 21 (Sup. Ct. 1933). Pa.Murta v. Reilly, 274 Pa. 584, 118 A. 563 (1922). [FN3] 316. [FN4] N.J.Burd v. Tilton, 11 N.J. Misc. 503, 167 A. 21 (Sup. Ct. 1933). N.C.Morrison v. Lewis, 197 N.C. 79, 147 S.E. 729 (1929). [FN5] U.S.Hardy v. Green, 277 F. Supp. 958 (D. Mass. 1967). Ind.State v. Eacret, 86 Ind. App. 662, 159 N.E. 473 (1928). Mass.Rosenblatt v. Foley, 252 Mass. 188, 147 N.E. 558 (1925). Mich.People's Mortg. Corporation v. Wilton, 234 Mich. 252, 208 N.W. 60 (1926). [FN6] Mich.People's Mortg. Corporation v. Wilton, 234 Mich. 252, 208 N.W. 60 (1926). [FN7] U.S.Hardy v. Green, 277 F. Supp. 958 (D. Mass. 1967). Mass.Westminster Nat. Bank v. Graustein, 270 Mass. 565, 170 N.E. 621 (1930). R.I.Byron v. Great American Indem. Co., 54 R.I. 405, 173 A. 546 (1934). [FN8] Notice of lis pendens
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Action is not "commenced" when attorney draws and seals summons with intent not to give it to sheriff until filing of notice of lis pendens, required as a condition precedent to right of action. N.J.Mutual Sav. Fund Harmonia v. Gunne, 110 N.J.L. 41, 164 A. 43 (N.J. Ct. Err. & App. 1933). [FN9] N.C.Fleming v. Patterson, 99 N.C. 404, 6 S.E. 396 (1888). [FN10] N.C.Etheridge v. Woodley, 83 N.C. 11, 1880 WL 3284 (1880). [FN11] R.I.Byron v. Great American Indem. Co., 54 R.I. 405, 173 A. 546 (1934). [FN12] Va.Noel v. Noel, 93 Va. 433, 25 S.E. 242 (1896). [FN13] Ind.Geisen v. Karol, 86 Ind. App. 653, 159 N.E. 469 (1928). [FN14] Ind.State v. Eacret, 86 Ind. App. 662, 159 N.E. 473 (1928). [FN15] Pa.Bovaird & Seyfang Mfg. Co. v. Ferguson, 215 Pa. 235, 64 A. 513 (1906). Purpose of alias summons True office of "alias summons" is to continue action referable to its original date of institution, when summons first issued has not been served. N.C.McGuire v. Montvale Lumber Co., 190 N.C. 806, 131 S.E. 274 (1925). [FN16] N.C.Neely v. Minus, 196 N.C. 345, 145 S.E. 771 (1928). Tenn.Hunter v. May, 161 Tenn. 155, 25 S.W.2d 580 (1930). [FN17] Mo.Weaver v. Woodling, 220 Mo. App. 970, 272 S.W. 373 (1925). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 312 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. XI. Commencement, Prosecution, and Termination B. Commencement 2. Proceedings Constituting Commencement b. Procedural Elements Topic Summary References Correlation Table 313. Filing of petition or complaint West's Key Number Digest West's Key Number Digest, Action 64 Where the filing of a declaration, petition, or complaint is the prescribed method of commencing an action, the action is commenced when the pleading is properly filed. In many jurisdictions, an action is commenced by the filing of a declaration, petition, or complaint[1] and payment of the required filing fee.[2] Strict compliance with a statute governing commencement of an action by filing the petition is required for commencement of an action, though noncompliance does not deprive the court of jurisdiction.[3] The pleading must be filed[4] in a regular and proper manner,[5] with a bona fide intention to prosecute the action,[6] and the action is deemed commenced as of the time of filing,[7] and, under some authority, only as of that time.[8] The action will be deemed commenced even when process has not been issued[9] or served,[10] but service must thereafter be had or waived for the filing to have this effect.[11] The commencement of the action will not be postponed beyond the filing of the complaint by the delay of the clerk in performing his or her duty to issue process,[12] unless the plaintiff was responsible for the delay.[13 ] For instance, an action is not commenced by the filing of a complaint where the plaintiff instructs the clerk not to issue[14] or serve[15] process immediately. However, the court will not presume that delay was pursuant to instructions from plaintiff.[16] An action is commenced against subsequently named defendants when they are added to the action by amendment to the complaint.[17] Commencement by praecipe, complaint, or agreement. Under some regulatory provisions, an action may be commenced only by filing either a praecipe for a writ of summons, a complaint, or an agreement for an amicable action,[18] and, generally, not by petition and rule.[ 19] However, proceeding by rule is permissible where authorized by statute, as auxiliary for the facilitation of jurisdiction already had, or as a means of correcting a court's own records.[20] Furthermore, in some instances, an improper commencement by petition and rule may be waived,[21] as by a failure to object to the procedure.[
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22] Filing a complaint with an administrative[23] or governmental[24] body may amount to the commencement of a suit for purposes of determining whether the action is abated by the complainant's subsequent death before he or she actually files suit.
[FN1] Ala.Ex parte Blanton, 463 So. 2d 162 (Ala. 1985). Ark.Forrest City Mach. Works, Inc. v. Lyons, 315 Ark. 173, 866 S.W.2d 372 (1993). Ga.Walker v. Yarus, 258 Ga. 346, 369 S.E.2d 32 (1988). La.Sims v. Sims, 247 So. 2d 602 (La. Ct. App. 3d Cir. 1971). Mich.Amer v. Clarence A. Durbin Associates, Inc., 87 Mich. App. 62, 273 N.W.2d 588 (1978). Mo.State ex rel. Linthicum v. Calvin, 57 S.W.3d 855 (Mo. 2001). Neb.Fox v. Nick, 265 Neb. 986, 660 N.W.2d 881 (2003). N.J.Raskulinecz v. Raskulinecz, 141 N.J. Super. 148, 357 A.2d 330 (Law Div. 1976). Tex.Lawler v. Neathery, 509 S.W.2d 453 (Tex. Civ. App. Amarillo 1974). Summons and complaint A civil action is not commenced until a summons and complaint is filed with the court. Wis.Matthies v. Positive Safety Mfg. Co., 244 Wis. 2d 720, 2001 WI 82, 628 N.W.2d 842 (2001). Application for contempt Application for contempt may not, standing alone, serve to commence civil action for damages, as it is not a complaint. Ga.Opatut v. Guest Pond Club, Inc., 254 Ga. 258, 327 S.E.2d 487 (1985). [FN2] N.Y.Fry v. Village of Tarrytown, 89 N.Y.2d 714, 658 N.Y.S.2d 205, 680 N.E.2d 578 (1997). Not jurisdictional requirement UtahDipoma v. McPhie, 2001 UT 61, 29 P.3d 1225 (Utah 2001). [FN3] N.Y.Fry v. Village of Tarrytown, 89 N.Y.2d 714, 658 N.Y.S.2d 205, 680 N.E.2d 578 (1997). [FN4] Kan.Seaton v. City of Coffeyville, 9 Kan. App. 2d 760, 688 P.2d 1240 (1984). [FN5] Ga.Jordan v. Bosworth, 123 Ga. 879, 51 S.E. 755 (1905).
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Mailing inappropriate N.C.Small v. Britt, 64 N.C. App. 533, 307 S.E.2d 771 (1983). [FN6] Tex.Russell v. Taylor, 121 Tex. 450, 49 S.W.2d 733 (Comm'n App. 1932). [FN7] U.S.Farmers Alliance Mut. Ins. Co. v. Jones, 570 F.2d 1384 (10th Cir. 1978); Dewey v. Farchone, 460 F.2d 1338, 16 Fed. R. Serv. 2d 730 (7th Cir. 1972). Cal.Davalos v. County of Los Angeles, 142 Cal. App. 3d 57, 190 Cal. Rptr. 711 (2d Dist. 1983). Ga.Sheffield v. Sheffield, 49 Ga. App. 215, 174 S.E. 925 (1934). Hawaii Yoshizaki v. Hilo Hospital, 50 Haw. 1, 427 P.2d 845 (1967), on reh'g on other grounds, 50 Haw. 150, 433 P.2d 220 (1967). N.Y.Unionmutual Stock Life Ins. Co. of New York v. Kliever, 83 A.D.2d 805, 442 N.Y.S.2d 6 (1st Dep't 1981). Wis.Hester v. Williams, 117 Wis. 2d 634, 345 N.W.2d 426 (1984). Ancillary proceedings Action is deemed to have been commenced when complaint is filed except that ancillary proceedings are deemed to have been commenced when initial pleading setting forth ancillary claim is filed. Fla.Theodorou v. Burling, 438 So. 2d 400 (Fla. Dist. Ct. App. 4th Dist. 1983). [FN8] La.Succession of Brown, 251 So. 2d 465 (La. Ct. App. 1st Cir. 1971). [FN9] Me.Kradoska v. Kipp, 397 A.2d 562 (Me. 1979). Or.Kelsay v. Taylor, 56 Or. 13, 107 P. 609 (1910). [FN10] U.S.Nash v. El Dorado Co., 24 F. 252 (C.C.D. Cal. 1885). N.Y.Unionmutual Stock Life Ins. Co. of New York v. Kliever, 83 A.D.2d 805, 442 N.Y.S.2d 6 (1st Dep't 1981). Death of defendant before service Plaintiff commenced action when she filed her complaint even though she was unable to effect service of process upon him due to his death. Fla.Notar v. State Farm Mut. Auto. Ins. Co., 438 So. 2d 531 (Fla. Dist. Ct. App. 2d Dist. 1983). [FN11] Ga.Franek v. Ray, 239 Ga. 282, 236 S.E.2d 629 (1977). Wis.Hester v. Williams, 117 Wis. 2d 634, 345 N.W.2d 426 (1984).
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Service without filing nullity Service of process without first paying filing fee and filing initiatory papers is a nullity, and action or proceeding is not properly commenced. N.Y.Gershel v. Porr, 89 N.Y.2d 327, 653 N.Y.S.2d 82, 675 N.E.2d 836 (1996). Filing and service Before subsequent service of summons can be said to relate back to date of filing petition for purpose of fixing that date as day action was commenced, plaintiff must have acted diligently in his efforts to complete service of process. Okla.State ex rel. Roacher v. Caldwell, 1974 OK 59, 522 P.2d 1031 (Okla. 1974). Service by publication For purposes of rule providing that civil action is commenced by filing complaint with court if service is obtained within specified time from such filing, service of notice by publication is obtained only upon last publication of notice. OhioPistner v. Baxter, 2 Ohio App. 3d 69, 440 N.E.2d 812 (10th Dist. Franklin County 1981). [FN12] U.S.Davidson v. Southern Pac. Co., 44 F. 476 (C.C.W.D. Tex. 1890). Tex.Tribby v. Wokee, 74 Tex. 142, 11 S.W. 1089 (1889). [FN13] Failure to file required information Miss.In re Stanback's Estate, 222 So. 2d 660 (Miss. 1969) (overruled on other grounds by, Estate of Schneider, 585 So. 2d 1275 (Miss. 1991)). Nullification of commencement Pa.Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976). [FN14] Mo.First Nat. Bank of Appleton City v. Griffith, 192 Mo. App. 443, 182 S.W. 805 (1916). Tex.Bates v. Smith, 80 Tex. 242, 16 S.W. 47 (1891). [FN15] Ga.Jordan v. Bosworth, 123 Ga. 879, 51 S.E. 755 (1905). [FN16] Tex.Tribby v. Wokee, 74 Tex. 142, 11 S.W. 1089 (1889). [FN17] Mo.State ex rel. Linthicum v. Calvin, 57 S.W.3d 855 (Mo. 2001). [FN18] Pa.Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976).
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[FN19] Pa.Floczak v. Nationwide Mut. Ins. Co., 289 Pa. Super. 438, 433 A.2d 885 (1981). Consent petition Pa.Com. by Creamer v. Rozman, 10 Pa. Commw. 133, 309 A.2d 197 (1973). Costs of occupational therapy and rehabilitation Petition and rule may be used under no-fault motor vehicle insurance act to recover costs of occupational therapy and rehabilitation treatment only where action for no-fault benefits was previously commenced by filing praecipe for writ of summons, complaint, or agreement for amicable action. Pa.Dambacher by Dambacher v. Commercial Union Assur. Companies, 313 Pa. Super. 34, 459 A.2d 396 (1983). [FN20] Pa.In re Correction of Official Records with Civil Action, 44 Pa. Commw. 511, 404 A.2d 741 (1979). Ancillary proceeding Pa.Dambacher by Dambacher v. Commercial Union Assur. Companies, 313 Pa. Super. 34, 459 A.2d 396 (1983). [FN21] Pa.Jones v. State Auto. Ins. Ass'n, 309 Pa. Super. 477, 455 A.2d 710 (1983). [FN22] Pa.Ralph v. Ohio Cas. Ins. Co., 320 Pa. Super. 262, 467 A.2d 29 (1983). [FN23] La.Nathan v. Touro Infirmary, 512 So. 2d 352 (La. 1987). [FN24] Ala.Groeschner v. Mobile County, 512 So. 2d 70 (Ala. 1987). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 313 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. XI. Commencement, Prosecution, and Termination B. Commencement 2. Proceedings Constituting Commencement b. Procedural Elements Topic Summary References Correlation Table 314. Filing of complaint and issuance of process West's Key Number Digest West's Key Number Digest, Action 64 Where a statute requires the filing of a pleading and the issuance of process to commence an action, compliance with the statute is necessary in order that an action may be commenced. Under some statutes and rules, an action is commenced by the filing of the pleading in the office of the clerk of the proper court and the issuance of process.[1] It is essential that the pleading be filed[2] in a regular and proper manner.[3] Likewise, the process must be valid,[4] but if it is not invalid, a mere irregularity will not defeat the commencement of the action.[5] As a general rule, the action is not commenced by the filing of the pleading,[6] or until process has issued[7 ] or the defendant has voluntarily appeared.[8] Issuance of the process marks the commencement of the action although the process is not then served[9] as long as service is subsequently made in due time so as to perfect the jurisdiction of the court.[10] Delay in the issuance of the summons at the request of plaintiff delays commencement until the date of the summons where the statute provides that an action is considered to have been commenced at the time of the filing of the declaration if summons is issued thereon.[11] Under some authority, the summons is not considered to be issued until delivered to the proper officer for service.[12]
[FN1] Ark.Cherry v. Falvey, 188 Ark. 827, 68 S.W.2d 98 (1934). Ky.Hudson's Adm'x v. Collins, 239 Ky. 131, 38 S.W.2d 975 (1931). MissEstate of Schneider, 585 So. 2d 1275 (Miss. 1991). Mo.State of Kan. ex rel. American Steel Works v. Hartford Acc. & Indem. Co., 426 S.W.2d 720 (Mo.
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Ct. App. 1968). Ohio Creager v. Creager, 22 Ohio App. 261, 5 Ohio L. Abs. 102, 154 N.E. 316 (2d Dist. Darke County 1926). Okla.Bankers' Mortg. Co. v. Leisure, 1935 OK 342, 172 Okla. 170, 42 P.2d 863 (1935). Time of filing, if service obtained Action is commenced at time of filing of petition with court clerk, if service of process is obtained within the required time after the petition is filed. Kan.Lindenman v. Umscheid, 255 Kan. 610, 875 P.2d 964 (1994). Warning order Action on constructive service is commenced on date warning order is made, and not date of first publication, or date when defendant receives notice from attorney ad litem. Ark.Booth v. Peoples Loan & Inv. Co., 248 Ark. 1213, 455 S.W.2d 868 (1970). [FN2] U.S.U.S. v. Eddy, 28 F. 226 (C.C.N.D. Ohio 1885). Kan.Wilkinson v. Elliott, 43 Kan. 590, 23 P. 614 (1890). [FN3] Kan.Wilkinson v. Elliott, 43 Kan. 590, 23 P. 614 (1890). [FN4] Ky.Kellar v. Stanley, 86 Ky. 240, 9 Ky. L. Rptr. 388, 5 S.W. 477 (1887). Premature process U.S.U.S. v. Eddy, 28 F. 226 (C.C.N.D. Ohio 1885). Waiver of defects Ind.Hust v. Conn, 12 Ind. 257, 1859 WL 4842 (1859). [FN5] Ky. Louisville & N.R. Co. v. Smith's Adm'r, 87 Ky. 501, 10 Ky. L. Rptr. 514, 9 S.W. 493 (1888). Miss.Kelly v. Harrison, 69 Miss. 856, 12 So. 261 (1892). [FN6] Ark.Clemmons v. Davis, 163 Ark. 452, 260 S.W. 402 (1924). [FN7] Miss.State ex rel. Pittman v. Griffin, 450 So. 2d 426 (Miss. 1984). [FN8] Ark.McLarren v. Thurman, 8 Ark. 313, 1848 WL 664 (1848). Nev.Rose v. Richmond Min. Co., 17 Nev. 25, 27 P. 1105 (1882), aff'd, 114 U.S. 576, 5 S. Ct. 1055, 29 L. Ed. 273 (1885).
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Withdrawal of appearance Ind.American Steel Foundries Co. v. Carbone, 60 Ind. App. 484, 109 N.E. 220 (1915). [FN9] Kan.Chicago, K. & W. R. Co. v. Harris, 42 Kan. 223, 21 P. 1071 (1889). [FN10] Neb. George P. Rose Sodding & Grading Co. v. Dennis, 195 Neb. 221, 237 N.W.2d 418 (1976). Okla.Drummond v. Drummond, 1916 OK 28, 49 Okla. 649, 154 P. 514 (1916). [FN11] Miss.Stewart v. Pettit, 94 Miss. 769, 48 So. 5 (1909). [FN12] Ind.Marshall v. Matson, 171 Ind. 238, 86 N.E. 339 (1908). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 314 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. XI. Commencement, Prosecution, and Termination B. Commencement 2. Proceedings Constituting Commencement b. Procedural Elements Topic Summary References Correlation Table 315. Filing of complaint or issuance of process West's Key Number Digest West's Key Number Digest, Action 64 Under some statutes or rules, an action is commenced either by the filing of a pleading or service of process. Under some regulatory provisions, an action may be commenced either by the filing of a pleading or by the service of process.[1] In accordance with such statutes, the action may be commenced by service of the summons before the complaint is prepared.[2] An action may be deemed to be commenced from the filing of the complaint if the complaint is filed first,[3] but under other authority the mere filing of the complaint will not be given this effect, unless defendant is personally served, or service by publication commenced within the specified time from the filing of the complaint,[4] and merely filing the complaint is not a commencement, but only a tentative commencement, of an action.[5] In some states, a civil action is commenced when a writ of summons is prepared with the present intention to complete service.[6]
[FN1] Colo.Johnson v. McCaughan, Carter & Scharrer, 672 P.2d 221 (Colo. Ct. App. 1983). Wash.Curtis Lumber Co. v. Sortor, 83 Wash. 2d 764, 522 P.2d 822 (1974). [FN2] UtahFarmers' Banking Co. v. Bullen, 62 Utah 1, 217 P. 969 (1923). Wash.Martin v. Ewing, 92 Wash. 525, 159 P. 755 (1916). [FN3] Colo.Flint v. Powell, 18 Colo. App. 425, 72 P. 60 (1903). UtahNeedham v. Salt Lake City, 7 Utah 319, 26 P. 920 (1891).
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[FN4] Wash.Northern Pac. Ry. Co. v. State, 144 Wash. 505, 258 P. 482 (1927). [FN5] Wash.Northern Pac. Ry. Co. v. State, 144 Wash. 505, 258 P. 482 (1927). [FN6] N.H.Arsenault v. Scanlon, 139 N.H. 592, 660 A.2d 1110 (1995). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 315 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. XI. Commencement, Prosecution, and Termination B. Commencement 2. Proceedings Constituting Commencement b. Procedural Elements Topic Summary References Correlation Table 316. Service of process or notice West's Key Number Digest West's Key Number Digest, Action 64 Where a statute provides for commencement of actions by service of notice or process, no action is commenced unless the terms of the statute are properly complied with. In some states, an action is commenced by serving the defendant with notice, signed by the plaintiff or his or her attorney, and containing certain information.[1] Compliance with a statute so requiring is necessary to the commencement of an action.[2] While the petition must be filed in accordance with the notice,[3] the action is not commenced by filing a petition without service of the notice[4] or where service has been quashed.[5] The notice must be in conformity with the statutory requirements,[6] and if invalid will not cause the commencement of an action.[7] The action is deemed commenced when the notice is actually served[8] except as otherwise provided by the statute of limitations. Where service of process is the prescribed method of commencing an action, the action is commenced when process is served on the defendant,[9] by acknowledgment of service if service is made by mail, by delivery of summons for service to the sheriff in the county where the defendant resides, followed by service of summons on the defendant or publication within 60 days,[10] or when the defendant appears voluntarily,[11] and not when the writ of summons is returned.[12] It cannot be commenced by filing a summons, complaint, or lis pendens in the clerk's office.[13] In cases where the service of summons commences the action, the filing of proof of service does not commence the action.[14] In order to commence the action, the service of process must be valid or effective.[15] Thus, no action is commenced by service of a summons alone, where the relevant regulatory provision requires that is contain or have attached to it notice of the nature of action and of the relief sought.[16] It may be required that service of a bare summons be followed by the proper filing and service of complaint in order to meet minimum procedural standards.[17] Although the service of a second summons and complaint after a previous service of a summons alone has been considered to be the commencement of a new action,[18] at least where the complaint includes a
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cause of action which had not accrued at the time of service of the prior summons,[19] the subsequent service of a previously improperly served summons, effected to obviate the jurisdictional defect, does not constitute the commencement of a second action.[20] Under some authority, the failure to commence an action by service of process may not be fatal to consideration of the case where the proceeding is regulated by a special statute.[21] Where an order of attachment is granted at the time summons is issued, the action is deemed commenced on the date the attachment is granted, provided the summons is served within the statutory period for service.[22] Under a statute providing that an action in which service of process by publication is proper is commenced on the date of the first publication, the first publication marks the commencement of the action.[23] However, in the absence of such a provision, the action has been regarded as not commenced until completion of publication.[24] CUMULATIVE SUPPLEMENT Cases: Store patron whose constitutional rights were allegedly violated when he was apprehended by security guards for shoplifting failed to properly serve corporate store owner, its chief executive officer, and store security guard, and, thus, dismissal of patron's civil rights action under 1983 was warranted on basis of insufficiency of process, where patron only attempted to serve defendants by sending copy of complaint by certified mail to store where the incident took place. Stanley v. Goodwin, 475 F. Supp. 2d 1026 (D. Haw. 2006). [END OF SUPPLEMENT]
[FN1] IowaRichards v. Iowa Dept. of Revenue, 362 N.W.2d 486 (Iowa 1985). [FN2] IowaBird v. Nelson, 216 Iowa 262, 249 N.W. 393 (1933). [FN3] IowaBrown v. Dickey, 208 Iowa 410, 226 N.W. 65 (1929). [FN4] IowaBird v. Nelson, 216 Iowa 262, 249 N.W. 393 (1933). [FN5] IowaNorth English Sav. Bank of North English v. Webber, 204 Iowa 958, 216 N.W. 10 (1927) . [FN6] IowaSioux County v. Kosters, 194 Iowa 1300, 191 N.W. 315 (1922). [FN7] IowaGardner v. Beck, 195 Iowa 62, 189 N.W. 962 (1922). [FN8] IowaLittlejohn v. Bulles, 136 Iowa 150, 113 N.W. 756 (1907). [FN9] Conn.Feldmann v. Sebastian, 261 Conn. 721, 805 A.2d 713 (2002). Minn.First Nat. Bank of Deerwood v. Gregg, 556 N.W.2d 214 (Minn. 1996). N.D.Zimmerman v. Newton, 1997 ND 197, 569 N.W.2d 700 (N.D. 1997).
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N.Y.Empire Sav. Bank v. Towers Co., 54 A.D.2d 574, 387 N.Y.S.2d 138 (2d Dep't 1976). OhioMason v. Waters, 6 Ohio St. 2d 212, 35 Ohio Op. 2d 337, 217 N.E.2d 213 (1966). S.C.Harris v. Harris, 279 S.C. 148, 303 S.E.2d 97 (1983). Relation back Valid service of process on one named as defendant relates back to date of filing as inception of pending suit. Ga.Rowe v. Citizens and Southern Nat. Bank, 129 Ga. App. 251, 199 S.E.2d 319 (1973). [FN10] Minn.First Nat. Bank of Deerwood v. Gregg, 556 N.W.2d 214 (Minn. 1996). [FN11] Minn. Seeger v. Young, 127 Minn. 416, 149 N.W. 735 (1914) (overruled in part on other grounds by, Application of Mitchell, 216 Minn. 368, 13 N.W.2d 20 (1944)). N.Y.Salitra v. Borson, 127 Misc. 173, 215 N.Y.S. 332 (Sup 1926). Consent to jurisdiction U.S.Frank B. Hall & Co., Inc. v. Rushmore Ins. Co., Ltd., 92 F.R.D. 743 (S.D. N.Y. 1981). N.Y.Gimbel Bros., Inc. v. Swift, 62 Misc. 2d 156, 307 N.Y.S.2d 952, 7 U.C.C. Rep. Serv. 300 (N.Y. City Civ. Ct. 1970). [FN12] Conn.Rocco v. Garrison, 268 Conn. 541, 848 A.2d 352 (2004). [FN13] Ga.Cherry v. Gilbert, 124 Ga. App. 847, 186 S.E.2d 319 (1971). N.Y.Potter v. Potter, 104 Misc. 2d 930, 430 N.Y.S.2d 201 (Fam. Ct. 1980). Service on attorney general When commission refused to accept applications for licenses, and applicants then filed complaint for mandate, applicants' action could not be deemed to have commenced until attorney general received service of copy of complaint. Ind.Smock v. State ex rel. Cohen, 257 Ind. 112, 272 N.E.2d 611 (1971). [FN14] Conn.Broderick v. Jackman, 167 Conn. 96, 355 A.2d 234 (1974). N.Y.Lancaster v. Kindor, 98 A.D.2d 300, 471 N.Y.S.2d 573 (1st Dep't 1984), order aff'd, 65 N.Y.2d 804, 493 N.Y.S.2d 127, 482 N.E.2d 923 (1985). [FN15] OhioMason v. Waters, 6 Ohio St. 2d 212, 35 Ohio Op. 2d 337, 217 N.E.2d 213 (1966). S.C.State v. Cohen, 13 S.C. 198, 1880 WL 5622 (1880).
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Wis.Mariner v. Town of Waterloo, 75 Wis. 438, 44 N.W. 512 (1890). [FN16] N.Y.Parker v. Mack, 61 N.Y.2d 114, 472 N.Y.S.2d 882, 460 N.E.2d 1316 (1984). [FN17] S.C. Don Shevey & Spires, Inc. v. American Motors Realty Corp., 279 S.C. 58, 301 S.E.2d 757 (1983). [FN18] N.Y.Ogoe v. New York Hosp., 99 A.D.2d 968, 473 N.Y.S.2d 5 (1st Dep't 1984). [FN19] N.Y.Lancaster v. Kindor, 98 A.D.2d 300, 471 N.Y.S.2d 573 (1st Dep't 1984), order aff'd, 65 N.Y.2d 804, 493 N.Y.S.2d 127, 482 N.E.2d 923 (1985). [FN20] N.Y.Heusinger v. Russo, 96 A.D.2d 883, 466 N.Y.S.2d 36 (2d Dep't 1983). [FN21] N.D.Diemert v. Johnson, 299 N.W.2d 546 (N.D. 1980). [FN22] U.S. Murray B. Marsh Co. v. Mohasco Industries, Inc., 326 F. Supp. 651 (C.D. Cal. 1971) (New York law). [FN23] Ind.Schaffner v. Voss, 46 Ind. App. 551, 93 N.E. 235 (Div. 1 1910). OhioDolan v. Fulkert, 30 Ohio App. 2d 165, 59 Ohio Op. 2d 277, 284 N.E.2d 179 (6th Dist. Lucas County 1972). [FN24] IowaLittlejohn v. Bulles, 136 Iowa 150, 113 N.W. 756 (1907). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 316 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. XI. Commencement, Prosecution, and Termination B. Commencement 2. Proceedings Constituting Commencement b. Procedural Elements Topic Summary References Correlation Table 317. Special and summary proceedings West's Key Number Digest West's Key Number Digest, Action 64 The manner of commencing special and summary proceedings is generally regulated by statute. The manner of commencing special proceedings is generally regulated by statute.[1] Under some statutes, the proceeding is commenced by the presentation of a petition[2] to the appropriate person,[3] while under others the issuance of process is necessary.[4] As to summary proceedings by notice and motion, it has been variously held that the proceeding is commenced by the notice,[5] or by the motion.[6] Where the notice commences the action, the action is deemed commenced not from the date of the notice but from the time it is returned to, and filed in, the office of the court clerk after service.[7] Under some authority, condemnation proceedings when regarded as summary have been held commenced when application is made to the court for appointment of commissioners,[8] while under other authority they are regarded as special proceedings, to be commenced by summons.[9]
[FN1] Effect of general rules General rule governing commencement of actions does not supersede rules applicable to special proceedings. Wash.Curtis Lumber Co. v. Sortor, 9 Wash. App. 762, 515 P.2d 554 (Div. 2 1973), judgment rev'd on other grounds, 83 Wash. 2d 764, 522 P.2d 822 (1974).
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[FN2] Minn.State by Spannaus v. Hopf, 323 N.W.2d 746 (Minn. 1982). N.Y.King v. Gregorie, 90 A.D.2d 922, 457 N.Y.S.2d 938 (3d Dep't 1982). Notice of petition or by order N.Y.Fensterheim v. Fensterheim, 96 Misc. 2d 108, 408 N.Y.S.2d 756 (Sup 1978). [FN3] County clerk N.Y. Mendon Ponds Neighborhood Ass'n. v. Dehm, 98 N.Y.2d 745, 751 N.Y.S.2d 819, 781 N.E.2d 883 (2002). [FN4] N.C.Carolina & N. W. Ry. Co. v. Penncarden Lumber & Mfg. Co., 132 N.C. 644, 44 S.E. 358 (1903). Wyo.Weiss v. State ex rel. Leimback, 435 P.2d 280 (Wyo. 1967). Consistency between papers filed and served Basic to statutory procedure for commencing special proceeding, is rule that papers served must conform in all important respects to papers filed. N.Y.Gershel v. Porr, 89 N.Y.2d 327, 653 N.Y.S.2d 82, 675 N.E.2d 836 (1996). [FN5] Ala.Stanley v. Bank of Mobile, 23 Ala. 652, 1853 WL 295 (1853). [FN6] Tenn.Bellanfont v. Coleman, 54 Tenn. 559, 7 Heisk. 559, 1872 WL 3797 (1872). [FN7] W.Va.Citizens' Nat. Bank of Philippi v. Auvil, 109 W. Va. 753, 156 S.E. 111 (1930). [FN8] U.S.Deepwater Ry. Co. v. Western Pocahontas Coal & Lumber Co., 152 F. 824 (C.C. S.D. W. Va. 1907). [FN9] N.C.Carolina & N. W. Ry. Co. v. Penncarden Lumber & Mfg. Co., 132 N.C. 644, 44 S.E. 358 (1903). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 317 END OF DOCUMENT
CJS ACTIONS XI C REF 1A C.J.S. Actions XI C Refs.
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. XI. Commencement, Prosecution, and Termination C. Stay of Proceedings Topic Summary Correlation Table Research References A.L.R. Library West's A.L.R. Digest, Action 68 to 69(7)
A.L.R. Index: Stay of Action or Proceeding Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS XI C REF END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. XI. Commencement, Prosecution, and Termination C. Stay of Proceedings 1. In General Topic Summary References Correlation Table 318. Generally West's Key Number Digest West's Key Number Digest, Action 68 A stay of proceedings is the suspension of an action or proceeding by order of the court. A stay of proceedings is an extraordinary[1] or provisional[2] remedy that delays the award of a permanent remedy,[3] and is defined as the act of stopping or arresting a judicial proceeding, by the order of a court or judge.[4] It is a suspension of a case or some designated proceedings within it, or a kind of injunction with which a court freezes proceedings at a particular point, and can be used to stop the prosecution of the action altogether, or to hold up only some phase of it, such as an execution about to be levied on a judgment.[5] It operates with relation to something within the usual course of judicial proceedings, and which the court, by its authority over the parties and their attorneys, can regulate and control without resort to an injunction.[6] Under certain circumstances, enforcement of an order pending appeal may be stayed without a court order.[ 7] A stay of proceedings may be waived,[8] and one who, having obtained a stay, notices the case for argument waives the stay.[9] CUMULATIVE SUPPLEMENT Cases: Appropriate remedy for Jury Selection and Service Act (JSSA) violation, consisting of federal Jury Administrator's failure to supplement resident lists to correct racial disparities when choosing jury for capital murder trial, was not dismissal of indictment, but nominal stay of jury selection proceedings, geographically-targeted second-round mailing of summonses to compensate for specific undeliverables and nonresponses, and submission of Court's findings and court-appointed expert's report to court authorities for systematic district-wide attention. U.S. v. Green, 389 F. Supp. 2d 29 (D. Mass. 2005).
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[END OF SUPPLEMENT]
[FN1] Kan.State ex rel. Stovall v. Meneley, 271 Kan. 355, 22 P.3d 124 (2001). Neb. Schuessler v. Benchmark Marketing and Consulting, Inc., 243 Neb. 425, 500 N.W.2d 529, 34 A.L.R.5th 907 (1993). [FN2] N.J.Housing Authority of Town of Morristown v. Little, 135 N.J. 274, 639 A.2d 286 (1994). [FN3] N.J.Housing Authority of Town of Morristown v. Little, 135 N.J. 274, 639 A.2d 286 (1994). [FN4] Ga.Bloomfield v. Liggett & Myers, Inc., 230 Ga. 484, 198 S.E.2d 144 (1973). [FN5] Ark.State Game and Fish Com'n v. Sledge, 344 Ark. 505, 42 S.W.3d 427 (2001). [FN6] Wis.Rossiter v. Aetna Life Ins. Co., 96 Wis. 466, 71 N.W. 898 (1897). Form of injunction Under unusual circumstances, stay order may be itself a form of injunction. U.S.Ferrara v. State of La., 443 F.2d 344 (5th Cir. 1971). [FN7] N.Y.Dworetzky v. Ball, 50 A.D.2d 615, 374 N.Y.S.2d 430 (3d Dep't 1975). [FN8] N.Y.Hill v. Muller, 53 Misc. 262, 103 N.Y.S. 96 (App. Term 1907). [FN9] N.Y.Hill v. Muller, 53 Misc. 262, 103 N.Y.S. 96 (App. Term 1907). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 318 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. XI. Commencement, Prosecution, and Termination C. Stay of Proceedings 1. In General Topic Summary References Correlation Table 319. Rights of parties and powers of court West's Key Number Digest West's Key Number Digest, Action 68 A stay of proceedings is a matter of convenience in practice, and is not a matter of right, but is granted or refused in the exercise of the sound discretion of the court. A stay of proceedings is a matter of convenience and order in practice, and not a matter of strict right.[1] The granting or refusing of a stay rests in the discretion of the court,[2] the exercise of which will not be disturbed absent a clear abuse,[3] though reversal of a stay order may be warranted where the court has capriciously exercised or abused its power.[4] While a court has the inherent power to stay proceedings in actions pending before it,[5] as part of its power to control its own docket,[6] such discretionary power should be exercised with caution,[7] after balancing the competing interests[8] of the judicial system and of the parties.[9] A stay may be granted if it is justified by circumstances which outweigh any potential harm to a party against whom it will operate,[10] and should not be ordered if it will work injustice.[11] The proper exercise of discretion on a motion for a stay to permit a change of venue contemplates an informed determination reached by a demonstrated application of reason to facts and circumstances appearing in the record.[12] On such motions, consideration of an improper factor may be an abuse of discretion,[13] and failure to consider relevant factors or a mistaken view of the law exceeds the limits of discretion.[14] Where there is no prior action pending in another forum and the rules of forum non conveniens are being applied, a court's discretion in granting a stay must be sparingly exercised.[15] A court retains jurisdiction over the parties and the cause where it stays an action on grounds of forum non conveniens.[16] The power to stay proceedings can be exercised only in the action before the court, as one court cannot, in an action before it, stay proceedings in another action,[17] even if it is between the same parties,[18] particularly where the other action is pending in a different court,[19] or a different jurisdiction.[20] Any relief obtainable in such a case is by injunction.[21] CUMULATIVE SUPPLEMENT
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Cases: Petitioner was not entitled to extension of stay pending outcome of process to amend Commonwealth's Constitution after Supreme Judicial Court invalidated ban on same-sex marriage and stayed entry of judgment for 180 days; the petitioner was not a party to the case, his claim that his right to participate in the constitutional amendment process would be diluted without a further stay was speculative and remote, and the request for a stay for a minimum of two years was unreasonable. Doyle v. Goodridge, 444 Mass. 1006, 827 N.E.2d 1255 (2005). [END OF SUPPLEMENT]
[FN1] U.S.Beck v. Communications Workers of America (C.W.A.), 468 F. Supp. 87 (D. Md. 1979), decision supplemented on other grounds, 468 F. Supp. 93 (D. Md. 1979). Cal.Clark's Fork Reclamation Dist. No. 2069 v. Johns, 259 Cal. App. 2d 366, 66 Cal. Rptr. 370 (1st Dist. 1968). Me.Cutler Associates, Inc. v. Merrill Trust Co., 395 A.2d 453 (Me. 1978). N.Y.De La Vergne Mach. Co. v. New York & Brooklyn Brewing Co., 125 A.D. 649, 110 N.Y.S. 24 (2d Dep't 1908). Distinguished from abatement A stay, being discretionary, is distinguished from an abatement, which is matter of right. HawaiiSolarana v. Industrial Electronics, Inc., 50 Haw. 22, 428 P.2d 411 (1967). [FN2] U.S. Itel Corp. v. M/S Victoria U (Ex Pishtaz Iran), 710 F.2d 199 (5th Cir. 1983); CTIContainer Leasing Corp. v. Uiterwyk Corp., 685 F.2d 1284, 34 Fed. R. Serv. 2d 1317 (11th Cir. 1982); Ohio Environmental Council v. U.S. Dist. Court, Southern Dist. of Ohio, Eastern Div., 565 F.2d 393 (6th Cir. 1977). Ark.May Const. Co. v. Riverdale Development Co., LLC, 345 Ark. 239, 45 S.W.3d 815 (2001). Cal.Stangvik v. Shiley Inc., 54 Cal. 3d 744, 1 Cal. Rptr. 2d 556, 819 P.2d 14 (1991). Del.Ezzes v. Ackerman, 43 Del. Ch. 420, 234 A.2d 444 (1967). Fla.Regan, Inc. v. Val-Ro, Ltd., 396 So. 2d 834 (Fla. Dist. Ct. App. 3d Dist. 1981). IowaFirst Midwest Corp. v. Corporate Finance Associates, 663 N.W.2d 888 (Iowa 2003). Kan.Henry v. Stewart, 203 Kan. 289, 454 P.2d 7 (1969). La.Hunter v. Health & Social & Rehabilitation Services-Division of Health, Maintenance and Ambulatory Patients Services, 372 So. 2d 577 (La. Ct. App. 2d Cir. 1979).
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Me.Society of Lloyd's v. Baker, 673 A.2d 1336 (Me. 1996). Md.Bancroft Information Group, Inc. v. Comptroller of Treasury, 91 Md. App. 100, 603 A.2d 1289 (1992). Mass. Travenol Laboratories, Inc. v. Zotal, Ltd., 394 Mass. 95, 474 N.E.2d 1070, 40 U.C.C. Rep. Serv. 487 (1985). Miss.Jackson v. City of Booneville, 738 So. 2d 1241 (Miss. 1999). Neb. Kelley v. Benchmark Homes, Inc., 250 Neb. 367, 550 N.W.2d 640 (1996) (disapproved of on other grounds by, Webb v. American Employers Group, 268 Neb. 473, 684 N.W.2d 33 (2004)). N.H.Johns-Manville Sales Corp. v. Barton, 118 N.H. 195, 385 A.2d 118 (1978). N.Y. Research Corp. v. Singer-General Precision, Inc., 36 A.D.2d 987, 320 N.Y.S.2d 818 (3d Dep't 1971). OhioState ex rel. Verhovec v. Mascio, 81 Ohio St. 3d 334, 1998 -Ohio- 431, 691 N.E.2d 282 (1998). Tenn.Sanjines v. Ortwein and Associates, P.C., 984 S.W.2d 907 (Tenn. 1998). Tex.Williamson v. Tucker, 615 S.W.2d 881 (Tex. Civ. App. Dallas 1981), writ refused n.r.e., (Oct. 7, 1981). Wis.Mayer v. Mayer, 91 Wis. 2d 342, 283 N.W.2d 591 (Ct. App. 1979). [FN3] Del.Ezzes v. Ackerman, 43 Del. Ch. 420, 234 A.2d 444 (1967). Md.Vaughn v. Vaughn, 146 Md. App. 264, 806 A.2d 787 (2002). OhioState ex rel. Verhovec v. Mascio, 81 Ohio St. 3d 334, 1998 -Ohio- 431, 691 N.E.2d 282 (1998). Tex.Williamson v. Tucker, 615 S.W.2d 881 (Tex. Civ. App. Dallas 1981), writ refused n.r.e., (Oct. 7, 1981). W.Va.Dunfee v. Childs, 59 W. Va. 225, 53 S.E. 209 (1906). [FN4] IowaFirst Midwest Corp. v. Corporate Finance Associates, 663 N.W.2d 888 (Iowa 2003). [FN5] U.S.Crown Cent. Petroleum Corp. v. Department of Energy, 102 F.R.D. 95 (D. Md. 1984). Cal.Muller v. Tanner, 2 Cal. App. 3d 438, 82 Cal. Rptr. 734 (1st Dist. 1969). Del.Insurance Co. of North America v. Steigler, 300 A.2d 16 (Del. Super. Ct. 1972), judgment aff'd, 306 A.2d 742 (Del. 1973). U.S.Ellsberg v. Mitchell, 353 F. Supp. 515 (D.D.C. 1973). Me.Cutler Associates, Inc. v. Merrill Trust Co., 395 A.2d 453 (Me. 1978).
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Miss.Jackson v. City of Booneville, 738 So. 2d 1241 (Miss. 1999). Neb. Schuessler v. Benchmark Marketing and Consulting, Inc., 243 Neb. 425, 500 N.W.2d 529, 34 A.L.R.5th 907 (1993). N.J.Devlin v. National Broadcasting Co., 47 N.J. 126, 219 A.2d 523 (1966). N.D.Matter of Bo, 365 N.W.2d 847 (N.D. 1985). OhioState v. Hochhausler, 76 Ohio St. 3d 455, 1996 -Ohio- 374, 668 N.E.2d 457 (1996). UtahLewis v. Moultree, 627 P.2d 94 (Utah 1981). [FN6] U.S.Clinton v. Jones, 520 U.S. 681, 117 S. Ct. 1636, 137 L. Ed. 2d 945 (1997). Ga.Bloomfield v. Liggett & Myers, Inc., 129 Ga. App. 141, 198 S.E.2d 906 (1973). Ill.Estate of Lanterman v. Lanterman, 122 Ill. App. 3d 982, 78 Ill. Dec. 330, 462 N.E.2d 46 (4th Dist. 1984). [FN7] U.S.Home Ins. Co. v. Coastal Lumber Co., 575 F. Supp. 1081 (N.D. Ga. 1983). N.J.Wallace, Muller & Co. v. Leber, 67 N.J.L. 26, 50 A. 586 (N.J. Sup. Ct. 1901). N.Y.In re Weinbaum's Estate, 51 Misc. 2d 538, 273 N.Y.S.2d 461 (Sur. Ct. 1966). [FN8] U.S.Landis v. North American Co., 299 U.S. 248, 57 S. Ct. 163, 81 L. Ed. 153 (1936); Wedgeworth v. Fibreboard Corp., 706 F.2d 541, 36 Fed. R. Serv. 2d 973, 37 Fed. R. Serv. 2d 879 (5th Cir. 1983); U.S. v. Georgia Pac. Corp., 562 F.2d 294 (4th Cir. 1977); Bechtel Corp. v. Local 215, Laborers' Intern. Union of North America, AFL-CIO, 544 F.2d 1207 (3d Cir. 1976). Ala.Ex parte Price, 707 So. 2d 1105 (Ala. 1997). Del.Pestolite, Inc. v. Cordura Corp., 456 A.2d 1235 (Del. Super. Ct. 1982). Ga.Bloomfield v. Liggett & Myers, Inc., 230 Ga. 484, 198 S.E.2d 144 (1973). N.M.Wood v. Millers Nat. Ins. Co., 96 N.M. 525, 632 P.2d 1163 (1981). S.C.Merritt Bros., Inc. v. Marine Midland Realty Credit Corp., 307 S.C. 213, 414 S.E.2d 167 (1992). [FN9] U.S.Howard v. Gutterman, 3 B.R. 393 (S.D. N.Y. 1980). Tenn.Logan v. Winstead, 23 S.W.3d 297 (Tenn. 2000). [FN10] S.C.Merritt Bros., Inc. v. Marine Midland Realty Credit Corp., 307 S.C. 213, 414 S.E.2d 167 (1992). [FN11] U.S.Adolph Coors Co. v. Davenport Mach. & Foundry Co., 89 F.R.D. 148 (D. Colo. 1981).
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Hardship (1) In deciding whether or not stay should be ordered in given case, court must evaluate possible damage, hardship and inequities to parties to lawsuit and relationship of stay to fulfillment of judicial objectives of simplification of issues in question and trial of case. U.S.United Merchants and Mfrs., Inc. v. Henderson, 495 F. Supp. 444 (N.D. Ga. 1980). (2) To order a stay of proceedings, it must be clear that the interests of justice require it, that adjudication of the claim would be a waste of judicial effort and that plaintiff will not be substantially harmed by delay. U.S.Hess v. Gray, 85 F.R.D. 15 (N.D. Ill. 1979). [FN12] Wis.Mayer v. Mayer, 91 Wis. 2d 342, 283 N.W.2d 591 (Ct. App. 1979). [FN13] Wis.Mayer v. Mayer, 91 Wis. 2d 342, 283 N.W.2d 591 (Ct. App. 1979). [FN14] Wis.Mayer v. Mayer, 91 Wis. 2d 342, 283 N.W.2d 591 (Ct. App. 1979). [FN15] Del.Pestolite, Inc. v. Cordura Corp., 456 A.2d 1235 (Del. Super. Ct. 1982). [FN16] Cal.Archibald v. Cinerama Hotels, 15 Cal. 3d 853, 126 Cal. Rptr. 811, 544 P.2d 947 (1976). [FN17] Ga.National Enterprises, Inc. v. Davis, 145 Ga. App. 198, 243 S.E.2d 563 (1978). N.Y.Barnes v. Midland R. Terminal Co., 153 A.D. 365, 138 N.Y.S. 546 (2d Dep't 1912). [FN18] N.Y.David Belasco Co. v. Klaw, 98 A.D. 74, 90 N.Y.S. 593 (1st Dep't 1904). [FN19] N.Y.Purdy v. Baker, 92 A.D. 242, 86 N.Y.S. 1065 (1st Dep't 1904). [FN20] N.Y. Johnson v. Victoria Chief Copper Mining & Smelting Co., 60 Misc. 464, 113 N.Y.S. 1021 (Sup 1908). [FN21] N.Y.Barnes v. Midland R. Terminal Co., 153 A.D. 365, 138 N.Y.S. 546 (2d Dep't 1912). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 319 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. XI. Commencement, Prosecution, and Termination C. Stay of Proceedings 1. In General Topic Summary References Correlation Table 320. Duration West's Key Number Digest West's Key Number Digest, Action 68 The duration and termination of a stay of proceedings depends on the terms upon which it was granted or ordered; if granted pending determination of another action, it terminates with the determination of that action. Where proceedings are stayed until a certain date, the stay becomes inoperative after that date unless it is extended,[1] and a temporary stay pending a hearing on application for a longer stay expires of its own limitation with the order of the court denying the longer stay.[2] A stay pending determination of another action ends with the termination of the other action, and the stayed action may proceed.[3] When a stay is granted by a higher court or when state court proceedings are stayed by a federal court, the duration of the stay is beyond the determination of the court whose actions have been stayed.[4]
[FN1] N.Y.Fassett v. Dorr, 11 Wend. 177, 1834 WL 2910 (N.Y. Sup 1834). Incompetency proceeding Where there was suggestion of donee's incompetency, order that defendant had no right to withhold stock would be stayed for specified period of time, during which time any person entitled to could institute incompetency proceeding; if such proceeding were brought, stay would continue until final determination thereof. N.Y.Price v. Calabro, 32 A.D.2d 634, 300 N.Y.S.2d 494 (1st Dep't 1969). A.L.R. Library
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Circumstances In Which Indefinite Stay Of Proceedings In Federal Civil Case Constitutes Abuse Of Discretion Or Is Otherwise Unlawful, 150 A.L.R. Fed. 577. [FN2] Minn.Graves v. Backus, 69 Minn. 532, 72 N.W. 811 (1897). N.Y.Dady v. O'Rourke, 71 A.D. 557, 75 N.Y.S. 821 (2d Dep't 1902). [FN3] Cal.Sacre v. Chalupnik, 188 Cal. 386, 205 P. 449 (1922). Or.Finney v. Egan, 43 Or. 1, 72 P. 136 (1903). [FN4] IowaWilimek v. Danker, 671 N.W.2d 25 (Iowa 2003). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 320 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. XI. Commencement, Prosecution, and Termination C. Stay of Proceedings 1. In General Topic Summary References Correlation Table 321. Operation and effect West's Key Number Digest West's Key Number Digest, Action 68 A stay of proceedings stops all progress in the action, but does not involve the merits of the action. Under some authority, an order staying proceedings ends all progress and prevents the taking of any further steps in the action during the continuance of the stay.[1] Thus, where a special proceeding has been stayed, an order made in it is improper.[2] Under other authority, however, a court that has ordered a stay of its own proceedings is free to operate within the stay order as circumstances dictate, and any action by the court inconsistent with the stay is an informal modification of the order creating the stay.[3] A stay tolls the running of any time period within which a particular act is to be done in the court in which the action is stayed.[4] A stay of proceedings is not a dismissal of a suit[5] or an abatement.[6] An order staying proceedings does not terminate the action but merely postpones it.[7] The stay does not involve the merits of the action,[8] but is intended to maintain the status quo until a determination can be made on the merits.[9] Upon termination of the stay, the action stayed may proceed.[10] The scope of relief provided by a stay is limited to those who are parties to the proceeding stayed.[11]
[FN1] Wis.In Interest of W.P., 153 Wis. 2d 50, 449 N.W.2d 615 (1990). No jurisdiction to entertain stipulation Trial court did not have jurisdiction to entertain stipulation where before stipulation was filed, Supreme Court had stayed all proceedings in case pending its ruling on mandamus petition concerning discovery issues. Ala.Ex parte Anderson, 789 So. 2d 190 (Ala. 2000).
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[FN2] N.Y.In re Robinson's Estate, 137 A.D. 939, 122 N.Y.S. 1050 (1st Dep't 1910). [FN3] IowaWilimek v. Danker, 671 N.W.2d 25 (Iowa 2003). [FN4] Wis.In Interest of W.P., 153 Wis. 2d 50, 449 N.W.2d 615 (1990). [FN5] N.M.Five Keys, Inc. v. Pizza Inn, Inc., 99 N.M. 39, 653 P.2d 870 (1982). [FN6] Ga.Bloomfield v. Liggett & Myers, Inc., 129 Ga. App. 141, 198 S.E.2d 906 (1973). HawaiiSolarana v. Industrial Electronics, Inc., 50 Haw. 22, 428 P.2d 411 (1967). [FN7] Conn.Prevedini v. Mobil Oil Corp., 164 Conn. 287, 320 A.2d 797 (1973). [FN8] IowaHanna v. State Liquor Control Commission, 179 N.W.2d 374 (Iowa 1970). Wis.Johnston v. Reiley, 24 Wis. 494, 1869 WL 3539 (1869). [FN9] IowaHanna v. State Liquor Control Commission, 179 N.W.2d 374 (Iowa 1970). [FN10] Colo.Monatt v. Pioneer Astro Industries, Inc., 42 Colo. App. 265, 592 P.2d 1352 (1979). Or.Finney v. Egan, 43 Or. 1, 72 P. 136 (1903). [FN11] Okla. Southwestern Bell Telephone Co. v. Oklahoma Corp. Com'n, 1994 OK 142, 897 P.2d 1116 (Okla. 1994). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 321 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. XI. Commencement, Prosecution, and Termination C. Stay of Proceedings 2. Application and Proceedings Topic Summary References Correlation Table 322. Generally West's Key Number Digest West's Key Number Digest, Action 68 While a court may stay proceedings on its own motion, ordinarily such relief must be applied for by a proper party to the action, or, in a proper case, by a third person. While the court may and should, in a proper case, stay the proceedings on its own motion,[1] ordinarily, such relief must be requested and will not be ordered except upon application[2] or motion[3] by a party interested in the proceedings. The mere filing of a complaint in an appellate court does not operate to stay lower court proceedings in a personal injury action.[4] Proceedings are seldom stayed on application of a third person, but the court has the power to do so,[5] and will stay proceedings on application of a committee of a party who becomes incompetent after the commencement of the action.[6] Ordinarily, and in the absence of statute otherwise providing, a stay will not be granted except upon notice to the opposite party.[7] A stay may be effected automatically, as by a statute providing that no action without leave of court shall be taken against a party whose attorney has died or has been otherwise disabled until a specified time after notice to appoint another attorney has been served on the party.[8]
[FN1] Tex.Latham v. Tombs, 32 Tex. Civ. App. 270, 73 S.W. 1060 (1903). [FN2] Ill.Crown Coal & Tow Co. v. Thomas, 177 Ill. 534, 52 N.E. 1042 (1898). IowaMusic v. De Long, 209 Iowa 1068, 229 N.W. 673 (1930). N.Y.Petrulla v. Broslin, 241 A.D. 771, 270 N.Y.S. 856 (2d Dep't 1934). [FN3] N.J.McBride v. Garland, 89 N.J. Eq. 314, 104 A. 435 (Ch. 1918).
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[FN4] Mich.Asmus v. Barrett, 30 Mich. App. 570, 186 N.W.2d 819 (1971). [FN5] U.S.Livingston v. D'Orgenoy, 108 F. 469 (Orleans 1809). [FN6] N.Y.Pogue v. Todd, 111 Misc. 296, 181 N.Y.S. 127 (Sup 1920). [FN7] Wis. In re Exercise of Original Jurisdiction of Supreme Court, 201 Wis. 123, 229 N.W. 643 (1930). Stay improperly granted Stay contained in order to show cause was improperly granted, since required notice was not given to adverse parties. N.Y.People by Greenberg v. Conway, 62 A.D.2d 1107, 404 N.Y.S.2d 170 (3d Dep't 1978). [FN8] Purpose Statute is designed to protect litigants who have been deprived of services of their counsel and to give them reasonable opportunity to obtain another lawyer before proceedings are taken against them in action. N.Y.Franklin Nat. Bank v. Lake Credit Corp., 58 Misc. 2d 981, 297 N.Y.S.2d 288 (Sup 1969). Disability final Command of statute is absolute where disability of attorney is sudden and certain to be final, as in case of death or disbarment. N.Y.Franklin Nat. Bank v. Lake Credit Corp., 58 Misc. 2d 981, 297 N.Y.S.2d 288 (Sup 1969). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 322 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. XI. Commencement, Prosecution, and Termination C. Stay of Proceedings 2. Application and Proceedings Topic Summary References Correlation Table 323. Time and place of motion West's Key Number Digest West's Key Number Digest, Action 68 A motion for stay should be made before trial in the court in which the action to be stayed is pending. A motion or application to stay proceedings must be made in the court in which the action sought to be stayed is pending,[1] and in the action sought to be stayed, since the power of a court to stay proceedings does not extend to proceedings not before it.[2] Where a stay is sought on the ground of pendency of another action, the motion should be made before trial and comes too late when made after verdict,[3] although it has been ruled that a motion to stay distribution following a decision in a surplus money proceeding pending an action to marshal securities was not made too late.[ 4] A showing of special or unusual circumstances will permit a deviation from the general rule that a stay of proceedings pending discovery and inspection of medical records will not be granted after the placing of the case on the trial calendar.[5] A renewed motion for a stay of proceedings, following an order denying a stay for purposes of instituting an action in another state, must be timely.[6]
[FN1] N.Y.Purdy v. Baker, 92 A.D. 242, 86 N.Y.S. 1065 (1st Dep't 1904). [FN2] N.Y.Grammer v. Greenbaum, 146 A.D. 3, 130 N.Y.S. 569 (1st Dep't 1911). [FN3] N.Y. Prudential Oil Corp. v. Phillips Petroleum Co., 83 A.D.2d 453, 445 N.Y.S.2d 438 (1st Dep't 1981). Okla.Farmers' Co-op. Gin Co. v. Harper, 1928 OK 418, 131 Okla. 224, 268 P. 256 (1928). Day of hearing
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Motion to stay proceedings, not filed until day of adoption hearing, did not comply with time requirements for serving motions, as provided in rules of procedure; thus, court did not abuse its discretion in refusing to stay proceedings. Ala.Ex parte Hicks, 451 So. 2d 324 (Ala. Civ. App. 1984). [FN4] N.Y.Bowery Sav. Bank v. Nosmo Realty Corporation, 218 A.D. 160, 218 N.Y.S. 48 (1st Dep't 1926). [FN5] N.Y.Ryan v. Collins, 33 A.D.2d 966, 306 N.Y.S.2d 777 (3d Dep't 1970). [FN6] Wis.Alexander v. Sloan, 73 Wis. 2d 145, 242 N.W.2d 904 (1976). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 323 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. XI. Commencement, Prosecution, and Termination C. Stay of Proceedings 2. Application and Proceedings Topic Summary References Correlation Table 324. Requisites and sufficiency West's Key Number Digest West's Key Number Digest, Action 68 An application for a stay must affirmatively show facts sufficient to justify the grant of a stay. An application for a stay of proceedings must affirmatively show facts sufficient to justify the court in granting it,[1] since the party seeking a stay has the burden of establishing the need for it.[2] An application should show that neither the public[3] nor another party[4] will suffer harm from entry of a stay order. A petitioner must demonstrate a clear case of hardship or inequity if there is even a fair possibility that the stay would work damage on another party.[5] In the federal courts, for purposes of motions to stay an action pending state court interpretation of state statutes, all well-pleaded and material allegations in the complaint are taken to be true.[6]
[FN1] Ind.Horman v. Hartmetz, 131 Ind. 558, 31 N.E. 81 (1892). Prejudice not demonstrated Excess liability insurer of manufacturer was not entitled to stay, as it failed to demonstrate that it would be prejudiced if pending personal injury actions against manufacturer were not stayed in that it never established that it would have an obligation to defend manufacturer. N.Y.Continental Cas. Co. v. Coleco Industries, Inc., 126 Misc. 2d 188, 481 N.Y.S.2d 568 (Sup 1984) . [FN2] U.S.Clinton v. Jones, 520 U.S. 681, 117 S. Ct. 1636, 137 L. Ed. 2d 945 (1997). Cal.Stangvik v. Shiley Inc., 54 Cal. 3d 744, 1 Cal. Rptr. 2d 556, 819 P.2d 14 (1991).
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Del.Texas City Refining, Inc. v. Grand Bahama Petroleum Co., Ltd., 347 A.2d 657 (Del. 1975). Kan.State ex rel. Stovall v. Meneley, 271 Kan. 355, 22 P.3d 124 (2001). Neb. Schuessler v. Benchmark Marketing and Consulting, Inc., 243 Neb. 425, 500 N.W.2d 529, 34 A.L.R.5th 907 (1993). [FN3] U.S. Ohio Environmental Council v. U.S. Dist. Court, Southern Dist. of Ohio, Eastern Div., 565 F.2d 393 (6th Cir. 1977). Pa.Young J. Lee, Inc. v. Com., Dept. of Revenue, Bureau of State Lotteries, 504 Pa. 367, 474 A.2d 266 (1983). [FN4] U.S.Dawn v. Mecom, 520 F. Supp. 1194 (D. Colo. 1981); Federal Deposit Ins. Corp. v. First Nat. Bank and Trust Co. of Oklahoma City, 496 F. Supp. 291 (W.D. Okla. 1978). [FN5] U.S.Gold v. Johns-Manville Sales Corp., 723 F.2d 1068 (3d Cir. 1983). Del.Sperry Rand Corp. v. United Engines, Inc., 261 A.2d 527 (Del. Super. Ct. 1969), order rev'd on other grounds, 269 A.2d 221 (Del. 1970). Outweighing potential harm Party seeking a stay must justify it by clear and convincing circumstances outweighing potential harm to party against whom it is operative. U.S.Williford v. Armstrong World Industries, Inc., 715 F.2d 124 (4th Cir. 1983). [FN6] U.S.Ciba-Geigy Corp. v. Local No. 2548, United Textile Workers of America, AFL-CIO, 391 F. Supp. 287 (D.R.I. 1975). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 324 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. XI. Commencement, Prosecution, and Termination C. Stay of Proceedings 2. Application and Proceedings Topic Summary References Correlation Table 325. Order West's Key Number Digest West's Key Number Digest, Action 68 A stay order must be framed so that its force will be spent within reasonable limits. Stay of proceedings should not be ordered for a period longer than applied for or necessary, or for an indefinite period. A stay order must be framed so that its force will be spent within reasonable limits.[1] The court should not grant a stay for a period longer than applied for,[2] or for an indefinite time, in the absence of a pressing need.[3 ] The court must grant the narrowest stay warranted and should restrain only those aspects of the case which give rise to the effects which justify the grant.[4] An order for stay of proceedings pending determination of another action should not be made before issue is joined in the action sought to be stayed.[5] Under a statutory provision applicable to injunction proceedings, an order allowing a stay should contain specific findings that irreparable damage would result to an employer.[6] The court may grant a stay of proceedings subject to conditions,[7] such as the giving of security,[8] or, in federal court, the allowance of discovery,[9] but the conditions imposed must not be unauthorized.[10] A stay may be denied subject to conditions imposed on the opposite party.[11] Where a trial court finds in the interest of substantial justice that an action should be heard in a forum outside the state, it may stay the action on any conditions that may be just.[12] The order staying proceedings is subject to modification or vacation by the court making it whenever modification or vacation is deemed necessary or proper in the exercise of sound discretion.[13] The stay may be vacated for inordinate delay on motion of the adverse party,[14] and a stay may be dissolved when the circumstances initially justifying it have changed in such a way as to render the stay no longer appropriate.[15] Provision for motion to vacate the stay may be made in the order granting it.[16] A federal court retains broad equity powers to undo a stay found inequitable if prospectively enforced.[17] The court may, in a proper case, extend a stay previously granted.[18]
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[FN1] U.S.Wedgeworth v. Fibreboard Corp., 706 F.2d 541, 36 Fed. R. Serv. 2d 973, 37 Fed. R. Serv. 2d 879 (5th Cir. 1983); Ohio Environmental Council v. U.S. Dist. Court, Southern Dist. of Ohio, Eastern Div., 565 F.2d 393 (6th Cir. 1977). [FN2] N.Y. Decauville Automobile Co. v. Metropolitan Bank, 124 A.D. 478, 108 N.Y.S. 1027 (1st Dep't 1908). [FN3] U.S.McSurely v. McClellan, 426 F.2d 664, 13 Fed. R. Serv. 2d 808 (D.C. Cir. 1970). Ind.Warren County Bank v. Keister, 80 Ind. App. 134, 138 N.E. 517 (Div. 2 1923), modified on other grounds, 80 Ind. App. 134, 139 N.E. 379 (Div. 2 1923). N.Y.Kirsner v. State Bank, 115 Misc. 404, 188 N.Y.S. 472 (App. Term 1921). Absence of reasons Where stay was indefinite but could last for many years, and where court gave no reason for such a protracted stay, nor weighed competing interests and maintained an even balance in ordering the stay, the stay of proceedings was improper. U.S.McKnight v. Blanchard, 667 F.2d 477, 33 Fed. R. Serv. 2d 999 (5th Cir. 1982). [FN4] U.S.U.S. v. Cargill, Inc., 508 F. Supp. 734 (D. Del. 1981). [FN5] N.Y.International Post Card Co. v. Lithograph & Mfg. Co. of United States, 144 A.D. 72, 128 N.Y.S. 780 (1st Dep't 1911). [FN6] AlaskaJohns v. State, Dept. of Highways, 431 P.2d 148 (Alaska 1967). [FN7] Del.Life Assur. Co. of Pennsylvania v. Associated Investors Intern. Corp., 312 A.2d 337 (Del. Ch. 1973). [FN8] N.Y.Gibbs v. Kahn, 71 Misc. 177, 128 N.Y.S. 253 (City Ct. 1911). [FN9] U.S.Conrac Corp. v. American Tel. and Tel. Co., 546 F. Supp. 429 (S.D. N.Y. 1982). [FN10] N.Y.Smith v. Ward, 125 Misc. 163, 210 N.Y.S. 502 (App. Term 1925). [FN11] Minn.Graves v. Backus, 69 Minn. 532, 72 N.W. 811 (1897). [FN12] Cal.Chavarria v. Superior Court, 40 Cal. App. 3d 1073, 115 Cal. Rptr. 549 (5th Dist. 1974). [FN13] Conn.Gores v. Rosenthal, 148 Conn. 218, 169 A.2d 639 (1961). Kan.Henry v. Stewart, 203 Kan. 289, 454 P.2d 7 (1969). Vacation not improper
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Where court stayed all proceedings and ordered defendant to post bond in amount of the judgment and defendant made no effort to have bond lowered or eliminated, later order vacating stay order for failure to post required bond was not improper. Pa.St. Paul Fire & Marine Ins. Co. v. Boscia, 231 Pa. Super. 165, 331 A.2d 696 (1974). [FN14] U.S.Panitch v. State of Wis., 70 F.R.D. 577 (E.D. Wis. 1976). [FN15] Ala.Ex parte Ebbers, 871 So. 2d 776 (Ala. 2003). [FN16] N.Y.Oppenheimer v. Carabaya Rubber & Navigation Co., 145 A.D. 830, 130 N.Y.S. 587 (1st Dep't 1911). [FN17] U.S.American Home Assur. Co. v. American Fidelity, 261 F. Supp. 734 (S.D. N.Y. 1966). [FN18] Minn.State ex rel. Leonard v. Searle, 81 Minn. 467, 84 N.W. 324 (1900). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 325 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. XI. Commencement, Prosecution, and Termination C. Stay of Proceedings 3. Grounds a. In General Topic Summary References Correlation Table 326. Generally West's Key Number Digest West's Key Number Digest, Action 68, 69(1), 69(5) The grounds on which a stay of proceedings may be granted depend largely on the facts and circumstances of the particular case. A stay will not be granted merely for purposes of delay. The granting of a stay of proceedings being largely a matter for the discretion of the court, the grounds on which a stay will be granted vary according to the requirements of the particular case in which the stay is sought.[1] Generally, proceedings may be stayed to ensure that justice is done or to provide for the efficient and economic use of judicial resources.[2] A stay should not be granted where its sole purpose is to delay the trial of the action.[3] However, especially in cases of extraordinary public importance, a plaintiff may be required to submit to moderate delay which is not oppressive in its consequences if the public welfare or convenience will be promoted as a result.[4] Considerations of judicial economy should rarely, if ever, lead to such broad curtailment of access to court as would be effected by a stay by one court of proceedings in a number of other courts.[5] A stay need not be granted where the court, because of lack of jurisdiction, cannot proceed with the case.[6] A stay may arise automatically.[7]
[FN1] U.S.Beck v. Communications Workers of America (C.W.A.), 468 F. Supp. 93 (D. Md. 1979). Kan.Henry v. Stewart, 203 Kan. 289, 454 P.2d 7 (1969). Disappearance
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Where wife had disappeared after husband had commenced dissolution of marriage proceeding and had not reappeared, court did not abuse its discretion in granting an indefinite stay of dissolution proceeding. Fla.Dussich v. Dussich, 449 So. 2d 395 (Fla. Dist. Ct. App. 4th Dist. 1984). UtahLewis v. Moultree, 627 P.2d 94 (Utah 1981). Forum selected by contract A court may stay action to permit commencement of action to determine same dispute in a foreign forum designated by a contract between parties. U.S. Wijsmuller BV v. Tug Benasque, 528 F. Supp. 1081 (D. Del. 1981); Hoes of America, Inc. v. Hoes, 493 F. Supp. 1205 (C.D. Ill. 1979). [FN2] Miss.Jackson v. City of Booneville, 738 So. 2d 1241 (Miss. 1999). [FN3] N.Y.E.B. Ficklen Tobacco Co. v. Friedberg, 196 A.D. 409, 187 N.Y.S. 561 (1st Dep't 1921). Or.Fry v. D. H. Overmyer Co., Inc., 269 Or. 281, 525 P.2d 140 (1974). [FN4] U.S.Clinton v. Jones, 520 U.S. 681, 117 S. Ct. 1636, 137 L. Ed. 2d 945 (1997). [FN5] U.S. Commodity Futures Trading Com'n v. Chilcott Portfolio Management, Inc., 713 F.2d 1477 (10th Cir. 1983). [FN6] N.Y.Deal v. Zarelli Realty Corp., 148 Misc. 865, 265 N.Y.S. 845 (City Ct. 1933). [FN7] Death of party Death of a party terminates his or her attorney's authority to act and stays action pending substitution of attorney. N.Y.Monteleone v. Hickey, 174 A.D.2d 940, 571 N.Y.S.2d 635 (3d Dep't 1991). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 326 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. XI. Commencement, Prosecution, and Termination C. Stay of Proceedings 3. Grounds a. In General Topic Summary References Correlation Table 327. Involvement of third persons West's Key Number Digest West's Key Number Digest, Action 68, 69(1) Proceedings may be stayed pending determination of the rights of third persons, or until such persons as are necessary or interested parties are brought into the action. A court may, in its discretion, stay an action pending the determination of the rights of third persons to the property in controversy,[1] or pending determination of an action between one of the parties and a third person, where the plaintiff's right to recovery depends on the outcome of that action.[2] Proceedings may be stayed until all parties necessary to the final disposition of the cause have been brought in,[3] until interested third persons are brought in,[4] or to effect a substitution of parties.[5] Proceedings need not be stayed on motion of a defendant until other named defendants are brought within the jurisdiction of the court where plaintiff's right to relief against movant does not depend on their presence.[6] Where the action is brought by one incapable of bringing or authorizing the bringing of the action, proceedings may be stayed pending appointment of a next friend to maintain it.[7]
[FN1] Minn.Graves v. Backus, 69 Minn. 532, 72 N.W. 811 (1897). [FN2] N.Y.Sears v. Leach, 185 A.D. 577, 173 N.Y.S. 301 (1st Dep't 1918). Tex.Holt v. Uvalde Co., 269 S.W. 73 (Tex. Comm'n App. 1925). Subrogated insurer In action arising out of collision between trucks, defendants' motion for order requesting insurer to become party plaintiff by virtue of its subrogated rights to recover for property damage of corporate
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plaintiff would be granted and all proceedings would be stayed until that insurer had entered its appearance as party plaintiff. U.S.Askey v. C. and M. Service, 45 F.R.D. 242 (M.D. Pa. 1968). [FN3] N.J.Commercial Trust Co. of New Jersey v. Zunni, 108 N.J. Eq. 435, 155 A. 456 (Ch. 1931), aff'd, 110 N.J. Eq. 569, 160 A. 634 (Ct. Err. & App. 1932). N.Y.Alpha Executive Planning Corp. v. Alan, 59 A.D.2d 548, 397 N.Y.S.2d 139 (2d Dep't 1977). Tex.Adams v. Bankers' Life Co., 36 S.W.2d 182 (Tex. Comm'n App. 1931). [FN4] N.Y.Irish Free State v. Guaranty Safe Deposit Co., 126 Misc. 269, 212 N.Y.S. 421 (Sup 1925). Wis.Frederick v. Great Northern Ry. Co., 207 Wis. 234, 241 N.W. 363 (1932). [FN5] N.Y.Thorburn v. Gates, 191 A.D. 506, 181 N.Y.S. 520 (1st Dep't 1920), aff'd, 232 N.Y. 544, 134 N.E. 565 (1921). [FN6] U.S.Shredded Wheat Co. v. Kellogg Co., 26 F.2d 284 (D. Conn. 1928). [FN7] N.J.Olson v. Piazza, 92 N.J. Eq. 475, 114 A. 330 (Ch. 1921). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 327 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. XI. Commencement, Prosecution, and Termination C. Stay of Proceedings 3. Grounds a. In General Topic Summary References Correlation Table 328. Forum non conveniens West's Key Number Digest West's Key Number Digest, Action 68, 69(1) A stay may be granted if a foreign forum is a more convenient forum for the dispute to be heard. Where all or most of the issues in a domestic action can be resolved in an action in another state, and parties and witnesses are available in the foreign state, a domestic action may be stayed on grounds of forum non conveniens until completion of an action in the foreign state, even though no such action has been commenced.[1] However, where inconvenience in the domestic forum is not substantial, a stay will not be granted.[2]
[FN1] Cal.Mathes v. National Utility Helicopters Ltd., 68 Cal. App. 3d 182, 137 Cal. Rptr. 104 (2d Dist. 1977). Del. McWane Cast Iron Pipe Corp. v. McDowell-Wellman Engineering Co., 263 A.2d 281 (Del. 1970). Factors considered Court looks to relative convenience and fairness to parties and witnesses in favoring one forum over another, which forum will best serve interests of judicial efficiency, which forum is most able to obtain jurisdiction over parties and compel witnesses to testify, and relative interest of each state in adjudicating issue. Cal.Dendy v. MGM Grand Hotels, Inc., 137 Cal. App. 3d 457, 187 Cal. Rptr. 95 (4th Dist. 1982). [FN2] Wis.U. I. P. Corp. v. Lawyers Title Ins. Corp., 82 Wis. 2d 616, 264 N.W.2d 525 (1978). Derivative actions
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Applications to stay derivative actions are not favorably received on ground of forum non conveniens, particularly where a prior companion suit is not pending in domiciliary courts of those charged with breach of fiduciary duty to their corporation. Del.Weisberg v. Hensley, 278 A.2d 334 (Del. Ch. 1971). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 328 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. XI. Commencement, Prosecution, and Termination C. Stay of Proceedings 3. Grounds b. Pendency of Another Proceeding Topic Summary References Correlation Table 329. Generally West's Key Number Digest West's Key Number Digest, Action 69(1) A court may in a proper case grant a stay of proceedings on the ground of pendency of another action, as where a decision in one will settle the issues in the other, or is essential to the decision of the other. A court may find it efficient for its own docket and the fairest course for the parties to stay an action before it pending resolution of independent proceedings, whether judicial, administrative, or arbitral, which bear upon the case.[1] Thus, in a proper case, a court has the power to grant a stay of proceedings on the ground that another action is pending.[2] The rule does not require that the independent proceedings necessarily be controlling of the action before the court.[3] Whether a stay should be granted in a particular case on the ground of the pendency of another action is a matter of judicial discretion.[4] Where two actions are pending, and a decision in the prior one will adequately determine the rights of the parties, the second action may be stayed until the first is determined,[5] and the same rule applies where the prior action is pending on appeal,[6] at least where the appellate decision is imminent,[7] if the actions have the requisite identity with respect to parties, subject matter, and relief.[8] An action will not be stayed merely because the cause of action could have been set up as a counterclaim in the prior action brought by the defendant in the action sought to be stayed.[9] A stay will not be granted where it would be prejudicial,[10] or where the other action was instituted merely for the purpose of causing expense, trouble, or delay,[11] or where the action in which the stay is sought is statutorily entitled to a preference in trial.[12] A court may, but need not,[13] stay an action before it pending determination of a related case by the Supreme Court of the United States or pending determination by the Supreme Court of a question which may be controlling in the case before the court.[14] Such a stay may be refused, however, where determination by the Supreme Court will be long delayed, or is unlikely to occur,[15] or may not resolve a crucial issue in the action before the court.[16]
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Proceedings will not be stayed pending determination of other proceedings in a court of doubtful jurisdiction.[17]
[FN1] U.S.Mediterranean Enterprises, Inc. v. Ssangyong Corp., 708 F.2d 1458 (9th Cir. 1983); Societe Nationale Pour La Recherche, La Production, Le Transport, La Transformation et La Commercialisation des Hydrocarbures v. General Tire & Rubber Co., 430 F. Supp. 1332 (S.D. N.Y. 1977). Avoidance of waste Every court has inherent power to stay causes on its docket to avoid duplicative litigation, inconsistent results, and waste of time and effort by itself, the litigants and counsel. U.S.Stern v. U.S., 563 F. Supp. 484 (D. Nev. 1983). [FN2] U.S. Rodgers v. U.S. Steel Corp., 508 F.2d 152, 19 Fed. R. Serv. 2d 749 (3d Cir. 1975) (rejected on other grounds by, Gardner v. Westinghouse Broadcasting Co., 559 F.2d 209, 23 Fed. R. Serv. 2d 548, 23 Fed. R. Serv. 2d 1107 (3d Cir. 1977)). N.Y.Post v. Banks, 67 A.D. 187, 73 N.Y.S. 596 (2d Dep't 1901). Inherent power U.S. U.S. v. Cargill, Inc., 508 F. Supp. 734 (D. Del. 1981); Janmort Leasing, Inc. v. Econo-Car Intern., Inc., 475 F. Supp. 1282 (E.D. N.Y. 1979). Del.Fast Foodmakers, Inc. v. Greisler, 290 A.2d 1 (Del. Super. Ct. 1972). [FN3] U.S.Mediterranean Enterprises, Inc. v. Ssangyong Corp., 708 F.2d 1458 (9th Cir. 1983); Societe Nationale Pour La Recherche, La Production, Le Transport, La Transformation et La Commercialisation des Hydrocarbures v. General Tire & Rubber Co., 430 F. Supp. 1332 (S.D. N.Y. 1977). [FN4] U.S.Thompson v. Kerr, 555 F. Supp. 1090 (S.D. Ohio 1982). Del. National Union Fire Ins. Co. of Pittsburgh, Pa. v. RLC Corp., 449 A.2d 257 (Del. Super. Ct. 1982). IdahoContinental Cas. Co. v. Brady, 127 Idaho 830, 907 P.2d 807 (1995). Ill.Venturi v. Bulk Petroleum Corp., 70 Ill. App. 3d 967, 27 Ill. Dec. 184, 388 N.E.2d 1147 (3d Dist. 1979). Me.Howell v. Howell, 418 A.2d 181 (Me. 1980). Miss.Prescott v. Leaf River Forest Products, Inc., 740 So. 2d 301 (Miss. 1999). N.J.Lumbermens Mut. Cas. Co. v. Carriere, 163 N.J. Super. 7, 394 A.2d 132 (App. Div. 1978). N.M.Wood v. Millers Nat. Ins. Co., 96 N.M. 525, 632 P.2d 1163 (1981).
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N.Y.Pierre Associates Inc. v. Citizens Cas. Co. of New York, 32 A.D.2d 495, 304 N.Y.S.2d 158 (1st Dep't 1969). OhioState ex rel. Smith v. Friedman, 22 Ohio St. 2d 25, 51 Ohio Op. 2d 41, 257 N.E.2d 386 (1970). Pa.Commonwealth v. Keenan, 94 Pa. Super. 84, 1928 WL 4485 (1928). Tex.Scott v. Scott, 554 S.W.2d 274 (Tex. Civ. App. Houston 1st Dist. 1977). Wyo.Southwestern Public Service Co. v. Thunder Basin Coal Co., 978 P.2d 1138 (Wyo. 1999). [FN5] U.S. Bechtel Corp. v. Local 215, Laborers' Intern. Union of North America, AFL-CIO, 544 F.2d 1207 (3d Cir. 1976). Colo.Wiltgen v. Berg, 164 Colo. 139, 435 P.2d 378 (1967). Ill.Medline Industries, Inc. v. Pascal, 23 Ill. App. 3d 346, 319 N.E.2d 310 (2d Dist. 1974). Mich.Bank of Com. v. Hulett, 82 Mich. App. 442, 266 N.W.2d 841 (1978). Miss.Prescott v. Leaf River Forest Products, Inc., 740 So. 2d 301 (Miss. 1999). Mont.Schara v. Anaconda Co., 187 Mont. 377, 610 P.2d 132 (1980). W.Va.Strother v. Morrison, 100 W. Va. 5, 130 S.E. 255 (1925). To avoid multiplicity N.Y.Trieber v. Hopson, 27 A.D.2d 151, 277 N.Y.S.2d 241 (3d Dep't 1967). To avoid trial of issues U.S.International Bank v. Price Waterhouse & Co., 85 F.R.D. 140 (S.D. N.Y. 1980). [FN6] U.S.Arco Polymers, Inc. v. Studiengesellschaft Kohle, 710 F.2d 798 (Fed. Cir. 1983). La. Burguieres v. Burguieres, 314 So. 2d 411 (La. Ct. App. 4th Cir. 1975), writ denied, 314 So. 2d 735 (La. 1975). Mass. Director of Div. of Employment Sec. v. Town of Mattapoisett, 392 Mass. 858, 467 N.E.2d 1363, 19 Ed. Law Rep. 1131 (1984). N.Y.Reynders v. Conway, 79 A.D.2d 863, 434 N.Y.S.2d 513 (4th Dep't 1980). S.C.Piedmont Press Ass'n v. Record Pub. Co., 156 S.C. 43, 152 S.E. 721 (1930). [FN7] N.Y.Miller v. Miller, 109 Misc. 2d 982, 441 N.Y.S.2d 339 (Sup 1981). [FN8] Discussed in 330. [FN9] N.Y.Burke v. Betts, 126 Misc. 601, 214 N.Y.S. 208 (Sup 1926).
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[FN10] U.S.Chrysler Corp. v. Fedders Corp., 519 F. Supp. 1252 (D.N.J. 1981), order rev'd on other grounds, 670 F.2d 1316 (3d Cir. 1982). U.S.Dellinger v. Mitchell, 442 F.2d 782 (D.C. Cir. 1971). N.Y.Croker v. New York Trust Co., 206 A.D. 11, 200 N.Y.S. 103 (1st Dep't 1923). [FN11] N.Y.Curlette v. Olds, 110 A.D. 596, 97 N.Y.S. 144 (3d Dep't 1906). Justification for delay Party seeking discretionary stay bears burden of justifying delay tagged to another legal proceeding. U.S. Wedgeworth v. Fibreboard Corp., 706 F.2d 541, 36 Fed. R. Serv. 2d 973, 37 Fed. R. Serv. 2d 879 (5th Cir. 1983). [FN12] N.Y.City of New York v. Interborough Rapid Transit Co., 109 A.D. 596, 96 N.Y.S. 314 (1st Dep't 1905). [FN13] Ala.Industrial Chemical & Fiberglass Corp. v. Chandler, 547 So. 2d 812, 75 A.L.R.4th 123 (Ala. 1988). [FN14] U.S.Marshel v. AFW Fabric Corp., 552 F.2d 471 (2d Cir. 1977); Griffin v. Richardson, 346 F. Supp. 1226 (D. Md. 1972), judgment aff'd, 409 U.S. 1069, 93 S. Ct. 689, 34 L. Ed. 2d 660 (1972). N.Y.State ex rel. William R v. New York State Family Court, Bronx County, 99 Misc. 2d 427, 416 N.Y.S.2d 960 (Fam. Ct. 1979). [FN15] Miss.Smith v. State, 434 So. 2d 212 (Miss. 1983). [FN16] U.S.Person v. Association of Bar of City of New York, 414 F. Supp. 133 (E.D. N.Y. 1975). [FN17] N.Y.St. John v. Putnam, 128 Misc. 714, 220 N.Y.S. 141 (Sup 1927). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 329 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. XI. Commencement, Prosecution, and Termination C. Stay of Proceedings 3. Grounds b. Pendency of Another Proceeding Topic Summary References Correlation Table 330. Prerequisites for grant of stay West's Key Number Digest West's Key Number Digest, Action 69(1), 69(4), 69(5) Stay of proceedings because of pendency of another action is authorized where in both actions there exists substantial identity of parties and subject matter and a decision in the one action will settle the controversies and bind the parties in the other. A stay of proceedings on the ground that another action is pending is proper where the same parties and the same subject matter are involved in both actions.[1] To authorize a stay, the two actions must present a substantial identity as to parties,[2] subject matter,[3] issues involved,[4] and relief demanded,[5] so that the trial of the one effectually disposes of the other.[6] However, substantial identity of the parties and issues is sufficient,[7] and a stay may be granted if the parties to the action stayed will be bound by the determination of or decree rendered in the other action,[8] and the judgment in that action will dispose of the controversies in the action stayed.[9] A stay of the second action should not be granted if a trial of that action will be necessary regardless of the outcome of the prior action,[10] nor should it be granted on the possibility that a decision in a pending suit might give the applicant a counterclaim in the proceeding sought to be stayed.[11] CUMULATIVE SUPPLEMENT Cases: Defendant's responses to the plaintiffs' interrogatories and requests for production did not result in waiver of defendant's right to stay of civil suit pending resolution of criminal investigation against defendant; the responses consisted mainly of objections and did not appear to divulge any potentially incriminating testimony. Ex parte Antonucci, 917 So. 2d 825 (Ala. 2005). [END OF SUPPLEMENT]
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[FN1] U.S.American Mfrs. Mut. Ins. Co. v. Edward D. Stone, Jr. & Assoc., 743 F.2d 1519, 40 Fed. R. Serv. 2d 199 (11th Cir. 1984); Blinder, Robinson & Co., Inc. v. U. S. S. E. C., 692 F.2d 102 (10th Cir. 1982); Walton v. Eaton Corp., 563 F.2d 66, 23 Fed. R. Serv. 2d 941 (3d Cir. 1977). Del.Coaxial Communications, Inc. v. CNA Financial Corp., 367 A.2d 994 (Del. 1976). Ill.Estate of Lanterman v. Lanterman, 122 Ill. App. 3d 982, 78 Ill. Dec. 330, 462 N.E.2d 46 (4th Dist. 1984). Kan.Henry v. Stewart, 203 Kan. 289, 454 P.2d 7 (1969). Miss.Prescott v. Leaf River Forest Products, Inc., 740 So. 2d 301 (Miss. 1999). N.Y. Hope's Windows v. Albro Metal Products Corp., 93 A.D.2d 711, 460 N.Y.S.2d 580 (1st Dep't 1983). Tex.Williamson v. Tucker, 615 S.W.2d 881 (Tex. Civ. App. Dallas 1981), writ refused n.r.e., (Oct. 7, 1981). UtahKeene Corp. v. R. W. Taylor Steel Co., 594 P.2d 889 (Utah 1979). Wis.North Central Dairymen's Co-op. v. Temkin, 86 Wis. 2d 122, 271 N.W.2d 890 (1978). [FN2] U.S.Dicar, Inc. v. L. E. Sauer Mach. Co., Inc., 530 F. Supp. 1083 (D.N.J. 1982); United Refining Co. v. Department of Energy, 486 F. Supp. 99 (W.D. Pa. 1980); Seigal v. Merrick, 422 F. Supp. 1213 (S.D. N.Y. 1976). Cal.Christensen v. Superior Court, 32 Cal. App. 3d 749, 108 Cal. Rptr. 459 (2d Dist. 1973). N.Y.State v. Ehasz, 80 A.D.2d 671, 436 N.Y.S.2d 387 (3d Dep't 1981). Pa.Pennsylvania Crime Commission v. Doty, 9 Pa. Commw. 328, 305 A.2d 921 (1973). [FN3] N.Y. Brooklyn Union Gas Co. v. State Bd. of Equalization and Assessment, 97 A.D.2d 897, 470 N.Y.S.2d 462 (3d Dep't 1983). Okla.Farmers' Co-op. Gin Co. v. Harper, 1928 OK 418, 131 Okla. 224, 268 P. 256 (1928). [FN4] U.S.Seigal v. Merrick, 422 F. Supp. 1213 (S.D. N.Y. 1976); Kistler Instrumente A. G. v. PCB Piezotronics, Inc., 419 F. Supp. 120 (W.D. N.Y. 1976); Harriman v. E. I. du Pont De Nemours and Co., 411 F. Supp. 133 (D. Del. 1975). IdahoWing v. Amalgamated Sugar Co., 106 Idaho 905, 684 P.2d 307 (Ct. App. 1984) (overruled on other grounds by, NBC Leasing Co. v. R & T Farms, Inc., 112 Idaho 500, 733 P.2d 721 (1987)). N.Y.Croker v. New York Trust Co., 206 A.D. 11, 200 N.Y.S. 103 (1st Dep't 1923). Okla.Farmers' Co-op. Gin Co. v. Harper, 1928 OK 418, 131 Okla. 224, 268 P. 256 (1928).
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Evasion by failure to plead A litigant may not evade substantial identity rule by eliminating or failing to plead related claims arising out of same circumstances. Cal.Thomson v. Continental Ins. Co., 66 Cal. 2d 738, 59 Cal. Rptr. 101, 427 P.2d 765 (1967). [FN5] N.Y. Medical Malpractice Ins. Ass'n v. Methodist Hospital of Brooklyn, 64 A.D.2d 558, 407 N.Y.S.2d 488 (1st Dep't 1978). Okla.Farmers' Co-op. Gin Co. v. Harper, 1928 OK 418, 131 Okla. 224, 268 P. 256 (1928). [FN6] U.S.Siemens Aktiengesellschaft v. Sonotone Corp., 370 F. Supp. 970, 18 Fed. R. Serv. 2d 463 (N.D. Ill. 1973); Witmar Salvage Corp. v. C. W. Blakeslee & Sons, Inc., 308 F. Supp. 395 (S.D. N.Y. 1969). Cal.Christensen v. Superior Court, 32 Cal. App. 3d 749, 108 Cal. Rptr. 459 (2d Dist. 1973). Fla.Rowell v. Smith, 342 So. 2d 149 (Fla. Dist. Ct. App. 1st Dist. 1977). N.Y. Hope's Windows v. Albro Metal Products Corp., 93 A.D.2d 711, 460 N.Y.S.2d 580 (1st Dep't 1983). [FN7] U.S. Commodity Futures Trading Com'n v. Chilcott Portfolio Management, Inc., 713 F.2d 1477 (10th Cir. 1983). Del. Life Assur. Co. of Pennsylvania v. Associated Investors Intern. Corp., 312 A.2d 337 (Del. Ch. 1973). N.Y.Gallo v. Mayer, 50 Misc. 2d 385, 270 N.Y.S.2d 295 (Sup 1966), order aff'd, 26 A.D.2d 773, 272 N.Y.S.2d 1007 (2d Dep't 1966). [FN8] Cal. Stearns v. Los Angeles City School Dist., 244 Cal. App. 2d 696, 53 Cal. Rptr. 482, 21 A.L.R.3d 164 (1st Dist. 1966). IowaWallace v. Farmers' Exch. Co., 197 Iowa 568, 197 N.W. 654 (1924). Or.Bonneville Auto. Ins. Co. v. Insurance Division, Dept. of Commerce, 53 Or. App. 440, 632 P.2d 796 (1981). [FN9] La.Succession of Stewart, 179 La. 87, 153 So. 29 (1934). N.Y.Lieberman v. Manfred Amusement Co., 211 A.D. 860, 206 N.Y.S. 875 (2d Dep't 1924). Tex. Cattlemen's Trust Co. v. Blasingame, 184 S.W. 574 (Tex. Civ. App. Amarillo 1915), writ refused, (Jan. 24, 1917). UtahLewis v. Moultree, 627 P.2d 94 (Utah 1981). [FN10] U.S.Equal Employment Opportunity Commission v. U. S. Pipe & Foundry Co., 375 F. Supp.
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237, 18 Fed. R. Serv. 2d 1121 (N.D. Ala. 1974). N.J.Fowler v. Westerhoff Bros. Co., 104 A. 198 (N.J. Ch. 1918). N.Y.Bicalky Fan Co. v. Mosier & Summers, 177 A.D. 372, 164 N.Y.S. 177 (4th Dep't 1917). Okla.Farmers' Co-op. Gin Co. v. Harper, 1928 OK 418, 131 Okla. 224, 268 P. 256 (1928). [FN11] Colo.Ozman v. Mohr, 76 Colo. 491, 233 P. 151 (1925). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 330 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. XI. Commencement, Prosecution, and Termination C. Stay of Proceedings 3. Grounds b. Pendency of Another Proceeding Topic Summary References Correlation Table 331. Significance of order in which actions filed West's Key Number Digest West's Key Number Digest, Action 69(1) The order in which actions were filed is generally not controlling in determining whether a stay is appropriate. Where the rights of the parties to an action cannot be determined until the questions raised in a previously filed action are settled, the second action should be stayed.[1] Where the facts and circumstances permit, it is proper to stay proceedings in the court in which the later action was instituted.[2] However, the order in which actions were filed is generally not controlling in determining whether a stay is appropriate,[3] and the judge hearing the later-filed case may conclude that it is a superior vehicle and decline to stay it.[4] Although proceedings in the first action will not ordinarily be stayed on account of the pendency of another action subsequently commenced,[5] they may properly be stayed where the second action will dispose of the entire controversy between the parties and the first will not.[6] Where an action has been commenced in a federal court and full and complete relief may be given therein, the action will not be stayed pending decision of a subsequent action in a state court.[7] Similarly, a state court will not ordinarily stay its action because of the pendency of an action later commenced in federal court.[8] Regardless of priority, where important issues in an action may be settled in another action, it is appropriate to stay the former action until a determination in the latter, in the interests of judicial economy.[9] Factors which should be considered in determining whether such a stay should be granted include, among others,[10] convenience of parties and witnesses,[11] damage, hardship or inequity to either party,[12] and the likelihood of prompt disposition of the controversy in one or the other action.[13]
[FN1] Cal. Stearns v. Los Angeles City School Dist., 244 Cal. App. 2d 696, 53 Cal. Rptr. 482, 21 A.L.R.3d 164 (1st Dist. 1966).
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Colo.Wiltgen v. Berg, 164 Colo. 139, 435 P.2d 378 (1967). Ill.Estate of Lanterman v. Lanterman, 122 Ill. App. 3d 982, 78 Ill. Dec. 330, 462 N.E.2d 46 (4th Dist. 1984). La.Pons v. Yazoo & M.V.R. Co., 137 La. 508, 68 So. 844 (1915). [FN2] U.S.De Carvalhosa v. Lindgren, 546 F. Supp. 228 (S.D. N.Y. 1982); Desert Outdoor Advertising, Inc. v. Riverside County, 302 F. Supp. 599 (C.D. Cal. 1967), judgment aff'd, 414 F.2d 832 (9th Cir. 1969). Fla.Koehlke Components, Inc. v. South East Connectors, Inc., 456 So. 2d 554 (Fla. Dist. Ct. App. 3d Dist. 1984). Ga.Bloomfield v. Liggett & Myers, Inc., 129 Ga. App. 141, 198 S.E.2d 906 (1973). Kan.Henry v. Stewart, 203 Kan. 289, 454 P.2d 7 (1969). Mo.Johnson v. American Surety Co., of New York, 292 Mo. 521, 238 S.W. 500 (1921). N.Y.Reliance Ins. Co. v. Tiger Intern., Inc., 91 A.D.2d 925, 457 N.Y.S.2d 813 (1st Dep't 1983). OhioState ex rel. Zellner v. Board of Ed. of City of Cincinnati, 34 Ohio St. 2d 199, 63 Ohio Op. 2d 310, 297 N.E.2d 528 (1973). Tex.Alpine Gulf, Inc. v. Valentino, 563 S.W.2d 358 (Tex. Civ. App. Houston 14th Dist. 1978), writ refused n.r.e., (May 10, 1978). Wash. Trust Fund Services v. Heyman, 15 Wash. App. 452, 550 P.2d 547 (Div. 1 1976), judgment aff'd, 88 Wash. 2d 698, 565 P.2d 805 (1977). Comity and judicial economy In interests of comity and judicial economy, court will normally stay after-filed suits when previously filed suits stating similar claims are pending in another court. Del.Prezant v. De Angelis, 636 A.2d 915 (Del. 1994). [FN3] U.S. Centronics Data Computer Corp. v. Merkle-Korff Industries, 503 F. Supp. 168 (D.N.H. 1980); Kistler Instrumente A. G. v. PCB Piezotronics, Inc., 419 F. Supp. 120 (W.D. N.Y. 1976). N.H.Johns-Manville Sales Corp. v. Barton, 118 N.H. 195, 385 A.2d 118 (1978). Knowledge of intent to sue as factor U.S.Creighton Omaha Regional Health Care Corp. v. Lomas & Nettleton Co., 486 F. Supp. 392 (D. Neb. 1980). [FN4] U.S. Central States, Southeast and Southwest Areas Pension Fund v. Paramount Liquor Co., 203 F.3d 442 (7th Cir. 2000).
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[FN5] Ga.Weldon v. Williams, 170 Ga. App. 589, 317 S.E.2d 570 (1984). [FN6] Del.Palmer v. Palmer, 409 A.2d 1050 (Del. 1979). N.Y.D.B.C.G., Inc. v. Town of Ramapo, 99 A.D.2d 502, 470 N.Y.S.2d 670 (2d Dep't 1984). N.C.Myers v. Myers, 62 N.C. App. 291, 302 S.E.2d 476 (1983). OhioState ex rel. Smith v. Friedman, 22 Ohio St. 2d 25, 51 Ohio Op. 2d 41, 257 N.E.2d 386 (1970). [FN7] U.S.Arnold Hoffman & Co. v. Mathieson Alkali Works, 269 F. 62 (D.R.I. 1920). [FN8] Del.Pestolite, Inc. v. Cordura Corp., 456 A.2d 1235 (Del. Super. Ct. 1982). Pa.Philco Corp. v. Sunstein, 429 Pa. 606, 241 A.2d 108 (1968). Same day Federal suit filed on same day but subsequent in time to filing of suit in state court was not filed "first" for purposes of application of statute staying state proceedings, and court erred in staying state court proceedings. La.Goldblum v. Boyd, 267 So. 2d 610 (La. Ct. App. 2d Cir. 1972), writ refused, 263 La. 243, 267 So. 2d 906 (1972). [FN9] Del.Walter Reade Organization, Inc. v. Crane, 332 A.2d 399 (Del. 1975). [FN10] U.S.Choat v. Rome Industries, Inc., 480 F. Supp. 387 (N.D. Ga. 1979); Brotherhood of Locomotive Firemen and Enginemen v. Reading Co., 279 F. Supp. 948 (E.D. Pa. 1968). [FN11] U.S.Creighton Omaha Regional Health Care Corp. v. Lomas & Nettleton Co., 486 F. Supp. 392 (D. Neb. 1980). [FN12] U.S.Choat v. Rome Industries, Inc., 480 F. Supp. 387 (N.D. Ga. 1979). [FN13] U.S.Lewis v. Dansker, 357 F. Supp. 636 (S.D. N.Y. 1973). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 331 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. XI. Commencement, Prosecution, and Termination C. Stay of Proceedings 3. Grounds b. Pendency of Another Proceeding Topic Summary References Correlation Table 332. Administrative proceedings West's Key Number Digest West's Key Number Digest, Action 69(7) A court may exercise its discretion to decline judicial consideration by staying an action before it until a determination in an administrative proceeding has been made. Where the doctrine of primary jurisdiction applies, so that both a court and an administrative agency have jurisdiction,[1] and administrative resolution of the matter will promote uniformity, agency expertise is required, and subsequent judicial consideration will be facilitated, the court may exercise its discretion to decline judicial consideration by staying an action before it until an administrative determination has been made.[2] Thus, a stay may be granted pending an administrative decision on an antitrust matter;[3] an agency determination whether a plaintiff is entitled to worker's compensation benefits,[4] unless the claim of worker's compensation coverage is insubstantial,[5] or a party to the action would be prejudiced by the delay;[6] or administrative proceedings to determine the validity of a trade mark or patent.[7] The principle applies where an administrative proceeding involving similar parties and issues is in progress,[8] and where it appears that such a proceeding will be promptly commenced and completed.[9] A stay pending an administrative decision is preferable to dismissal of the action where it is anticipated that significant issues will remain to be determined in the action after the administrative proceeding is completed, especially where the rights of the parties might, in case of dismissal, be affected by a statute of limitations or some other bar.[10] A stay should not be granted where the rights of a party to the action would be prejudiced as a result,[11] or where the administrative determination will not significantly affect the action.[12] Whether a stay should be granted is a matter for the discretion of the court,[13] and depends on the extent and amount of regulatory powers vested in the agency.[14] No stay is required where the issues in question do not require expert determination,[15] where determinations which could be made by the agency would not be useful to the court,[16] or where the rights of parties
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would be prejudiced by the delay of the action.[17]
[FN1] Primary jurisdiction is discussed, generally, in C.J.S., Public Administrative Law and Procedure 72 to 78. [FN2] U.S. U. S. v. Anthony Grace & Sons, Inc., 384 U.S. 424, 86 S. Ct. 1539, 16 L. Ed. 2d 662 (1966); Biotics Research Corp. v. Heckler, 710 F.2d 1375 (9th Cir. 1983); Sprint Spectrum L.P. v. AT&T Corp., 168 F. Supp. 2d 1095 (W.D. Mo. 2001); New York State Elec. and Gas Corp. v. New York Independent System Operator, Inc., 168 F. Supp. 2d 23 (N.D. N.Y. 2001). Ala.Fraternal Order of Police, Strawberry Lodge No. 40 v. Entrekin, 294 Ala. 201, 314 So. 2d 663 (1975). Cal.Vargas v. Municipal Court, 22 Cal. 3d 902, 150 Cal. Rptr. 918, 587 P.2d 714 (1978). Mass.Lowell Gas Co. v. Attorney General, 377 Mass. 37, 385 N.E.2d 240 (1979). Mich.Grevers v. Michigan Bell Tel. Co., 18 Mich. App. 422, 171 N.W.2d 476 (1969). N.Y.Herald Co. v. Irving, 35 A.D.2d 905, 317 N.Y.S.2d 68 (4th Dep't 1970). Okla.Stipe v. Theus, 1979 OK 153, 603 P.2d 347 (Okla. 1979). Declaratory judgment action U.S.Murphy v. Colonial Federal Sav. & Loan Ass'n, 388 F.2d 609 (2d Cir. 1967). [FN3] U.S. Industrial Communications Systems, Inc. v. Pacific Tel. & Tel. Co., 505 F.2d 152 (9th Cir. 1974). [FN4] D.C.Harrington v. Moss, 407 A.2d 658 (D.C. 1979). Mich.Dixon v. Sype, 92 Mich. App. 144, 284 N.W.2d 514 (1979). Under Federal Employees Compensation Act U.S.Reep v. U.S., 557 F.2d 204, 43 A.L.R. Fed. 417 (9th Cir. 1977). [FN5] UtahLewis v. Moultree, 627 P.2d 94 (Utah 1981). [FN6] U.S.DiPippa v. U.S., 687 F.2d 14 (3d Cir. 1982); Concordia v. U.S. Postal Service, 581 F.2d 439 (5th Cir. 1978). N.Y.Shine v. Duncan Petroleum Transport, Inc., 60 N.Y.2d 22, 466 N.Y.S.2d 672, 453 N.E.2d 1089 (1983). [FN7] U.S.Gould v. Control Laser Corp., 705 F.2d 1340 (Fed. Cir. 1983).
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[FN8] U.S.Marnell v. United Parcel Service of America, Inc., 260 F. Supp. 391 (N.D. Cal. 1966). [FN9] U.S. Industrial Communications Systems, Inc. v. Pacific Tel. & Tel. Co., 505 F.2d 152 (9th Cir. 1974). [FN10] Ala.Fraternal Order of Police, Strawberry Lodge No. 40 v. Entrekin, 294 Ala. 201, 314 So. 2d 663 (1975). [FN11] U.S.Sid Richardson Carbon & Gasoline Co. v. Internorth, Inc., 595 F. Supp. 497 (N.D. Tex. 1984). N.Y.Pierre Associates Inc. v. Citizens Cas. Co. of New York, 32 A.D.2d 495, 304 N.Y.S.2d 158 (1st Dep't 1969). [FN12] U.S. U.S. v. Langley, 587 F. Supp. 1258 (E.D. Cal. 1984); Kosiorek v. First Nat. Monetary Corp., 577 F. Supp. 1006 (W.D. Pa. 1984). Cal.Shernoff v. Superior Court, 44 Cal. App. 3d 406, 118 Cal. Rptr. 680 (2d Dist. 1975). [FN13] U.S.Ratner v. Chemical Bank New York Trust Co., 309 F. Supp. 983 (S.D. N.Y. 1969). [FN14] U.S.Industrial Communications Systems, Inc. v. Pacific Tel. & Tel. Co., 505 F.2d 152 (9th Cir. 1974). [FN15] U.S.Aloha Airlines, Inc. v. Hawaiian Airlines, Inc., 58 F.R.D. 429 (D. Haw. 1973). Airlines U.S.Breen Air Freight, Ltd. v. Air Cargo, Inc., 470 F.2d 767 (2d Cir. 1972). Prior administrative consideration U.S.ITT World Communications Inc. v. Western Union Telephone Co., 524 F. Supp. 702 (S.D. N.Y. 1981). [FN16] Carrier rates and practices U.S.Marnell v. United Parcel Service of America, Inc., 260 F. Supp. 391 (N.D. Cal. 1966). [FN17] U.S.City of Mishawaka, Ind. v. Indiana & Michigan Elec. Co., 560 F.2d 1314 (7th Cir. 1977) ; City of Newark v. Delmarva Power & Light Co., 467 F. Supp. 763 (D. Del. 1979). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 332 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. XI. Commencement, Prosecution, and Termination C. Stay of Proceedings 3. Grounds b. Pendency of Another Proceeding Topic Summary References Correlation Table 333. Administrative proceedingsExhaustion of administrative remedies West's Key Number Digest West's Key Number Digest, Action 69(7) An action may be stayed pending required exhaustion of administrative remedies. Where a claim presented in an action is initially cognizable exclusively by an administrative agency, the requirement of the doctrine of exhaustion of administrative remedies,[1] that judicial relief must be withheld until relevant administrative proceedings have been concluded, may be satisfied by a stay of the action.[2] Where, by statute, administrative action is a mandatory prerequisite to an action with respect to a particular matter, a stay of an action may be proper to permit fulfillment of the prerequisite.[3] Thus, an action to obtain redress for unlawful discriminatory employment practices may, in the discretion of the court, be stayed pending administrative proceedings[4] or efforts to conciliate.[5] However, such a stay is improper where no administrative proceeding has been commenced, and it does not appear that conciliation would be productive.[6] A claimant is not required to take affirmative action to continue a case upon the expiration of a courtordered stay after the exhaustion of administrative remedies, and instead, the case continues after the stay expires.[7]
[FN1] Discussed, generally, in C.J.S., Public Administrative Law and Procedure 79 to 97. [FN2] U.S. Lynes v. Young, 376 F. Supp. 725 (W.D. Mo. 1974); Turner v. Callaway, 371 F. Supp. 188 (D.D.C. 1974). Md.Arroyo v. Board of Educ. of Howard County, 381 Md. 646, 851 A.2d 576, 189 Ed. Law Rep. 274 (2004). Mass.Frank J. Linhares Co., Inc. v. Reliance Ins. Co., 4 Mass. App. Ct. 617, 357 N.E.2d 313 (1976).
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Tex. Subaru of America, Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212 (Tex. 2002), reh'g of cause overruled, (Aug. 29, 2002). To avoid bar of limitations U.S.Von Hoffburg v. Alexander, 615 F.2d 633 (5th Cir. 1980). [FN3] Election commission U.S.Federal Election Com'n v. National Rifle Ass'n of America, 553 F. Supp. 1331 (D.D.C. 1983). [FN4] U.S.Stringer v. Nosef, 388 F. Supp. 1389 (N.D. Miss. 1975). State commission U.S.Tooles v. Kellogg Co., 336 F. Supp. 14 (D. Neb. 1972). [FN5] U.S.Mead v. U. S. Fidelity & Guaranty Co., 442 F. Supp. 109 (D. Minn. 1977); E.E.O.C. v. Canadian Indem. Co., 407 F. Supp. 1366 (C.D. Cal. 1976); McMiller v. Bird & Son, Inc., 376 F. Supp. 1086 (W.D. La. 1974). [FN6] U.S.Hines v. D'Artois, 531 F.2d 726, 21 Fed. R. Serv. 2d 961 (5th Cir. 1976). [FN7] U.S.Aguilar v. F.D.I.C., 63 F.3d 1059 (11th Cir. 1995). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 333 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. XI. Commencement, Prosecution, and Termination C. Stay of Proceedings 3. Grounds b. Pendency of Another Proceeding Topic Summary References Correlation Table 334. Civil actions and criminal proceedings West's Key Number Digest West's Key Number Digest, Action 69(5) In the exercise of its discretion, a court may stay a civil proceeding to prevent interference with a pending criminal proceeding. There is no constitutional requirement that a civil action be stayed pending the disposition of a related criminal proceeding,[1] but courts have discretion to grant such a stay[2] where there is a substantial identity of parties[3] or the two actions are nearly identical in scope,[4] or where the effect of the civil proceeding may be to interfere with the criminal proceeding,[5] as by exposing the criminal defendant to a heightened risk of selfincrimination.[6] A court deciding whether to stay a civil proceeding pending the outcome of a criminal one must favor the constitutional privilege against self-incrimination over the interest in avoiding the delay of a civil proceeding.[7] In determining whether to stay a civil proceeding in response to a pending or potential criminal proceedings, courts consider (1) interest of other parties in proceeding expeditiously with action, or any aspect of it, and potential prejudice of delay; (2) private interest of moving party and burden any aspect of action may impose; (3) extent to which moving party's Fifth Amendment rights are implicated, and extent to which issues in criminal and civil case overlap; (4) convenience of court in management of its cases, and efficient use of judicial resources; (5) interest of persons not parties to civil action; (6) interest of public in pending civil and criminal actions; (7) status of criminal case, including whether moving party has been indicted; and (8) timing of motion to stay.[8] A court may grant a stay of the civil proceedings when there is no strong public interest in proceeding expeditiously on the civil case;[9] however, where civil relief is sought to a prevent continued injury to public, such as that caused by continued dissemination of unapproved drugs, the civil proceedings should not be stayed except in the most unusual circumstances.[10] It may also be proper to grant such a stay where the civil and criminal cases involve substantial matters of the same nature so that the resolution of the criminal case may affect the contentions in the civil action,[11] or
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where a party to the civil action who is involved in the criminal case might improperly exploit discovery in the civil action to advance his or her position in the criminal case,[12] or where there is a need to protect a party or other person from annoyance, embarrassment, oppression, or undue burden or expense.[13] A stay is particularly appropriate where no substantial hardship will result from it.[14] A stay of this kind may be properly denied, however, where there will be no denial of elementary fairness in the absence of a stay.[15] While a civil investigation or proceeding by a federal regulatory agency and a criminal investigation or proceeding by the Justice Department of the same transaction may ordinarily proceed simultaneously,[16] if special circumstances may prejudice a party, one proceeding may be stayed.[17] Grant or denial of a stay of a criminal proceeding where it is suggested that the pendency of the criminal proceeding might hamper a civil suit should be resolved on a case-by-case basis by weighing all the circumstances.[18] CUMULATIVE SUPPLEMENT Cases: When state concerns for judicial economy conflict with federal constitutional rights, the state concerns must give way when deciding whether to stay civil case pending resolution of criminal case. Ex parte Antonucci, 917 So. 2d 825 (Ala. 2005). A defendant's participation in discovery can result in the waiver of the right to a stay of civil suit pending resolution of criminal investigation, if a party's participation divulges incriminating testimony. Ex parte Antonucci, 917 So. 2d 825 (Ala. 2005). In balancing the interests of the parties in response to request for stay of civil suit pending resolution of criminal investigation, courts must favor the constitutional privilege against self-incrimination over the interest in avoiding the delay of a civil proceeding. Ex parte Antonucci, 917 So. 2d 825 (Ala. 2005). Although there does not have to be an existing criminal investigation to stay a civil proceeding on Fifth Amendment grounds, there must be some evidence presented from which the trial court can determine that the person claiming the privilege has a reasonable apprehension of criminal prosecution. Ex parte Antonucci, 917 So. 2d 825 (Ala. 2005). Balancing test, in which trial court would consider Fifth Amendment rights of plaintiff in defamation action and his right of access to courts against defendant's interest in timely resolution of proceedings against him and how stay would prejudice him, was required to determine whether plaintiff was entitled to stay of proceedings pending resolution of related criminal case in which plaintiff was charged with felony possession and distribution of child pornography; test was required to protect plaintiff's right against self-incrimination and his right to due process, but not at cost of right of defendant in defamation action to defend himself. U.S.C.A. Const.Amend. 5. Armstrong v. Tanaka, 228 P.3d 79 (Alaska 2010). Superior court must expressly consider all parties' interests before ruling on a motion to stay civil proceedings pending resolution of related criminal proceedings. Armstrong v. Tanaka, 228 P.3d 79 (Alaska 2010). [END OF SUPPLEMENT]
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[FN1] U.S.De Vita v. Sills, 422 F.2d 1172 (3d Cir. 1970); Fidelity Bankers Life Ins. Co. v. Wedco, Inc., 586 F. Supp. 1123 (D. Nev. 1984). Ark.Hathcock v. Arkansas Dept. of Human Services, 347 Ark. 819, 69 S.W.3d 6 (2002). Ala.Ex parte Oliver, 864 So. 2d 1064 (Ala. 2003). N.J.National Freight, Inc. v. Ostroff, 133 N.J. Super. 554, 337 A.2d 647 (Law Div. 1975). Adverse inference A defendant has no absolute right not to be forced to choose between testifying in a civil matter and asserting his Fifth Amendment privilege; not only is it permissible to conduct a civil proceeding at the same time as a related criminal proceeding, even if that necessitates invocation of the Fifth Amendment privilege, but it is even permissible for the trier of fact to draw adverse inferences from the invocation of the Fifth Amendment in a civil proceeding. Kan.State ex rel. Stovall v. Meneley, 271 Kan. 355, 22 P.3d 124 (2001). [FN2] U.S.U.S. v. Little Al, 712 F.2d 133, 37 Fed. R. Serv. 2d 482 (5th Cir. 1983); De Vita v. Sills, 422 F.2d 1172 (3d Cir. 1970). Ark.Hathcock v. Arkansas Dept. of Human Services, 347 Ark. 819, 69 S.W.3d 6 (2002). N.J.Shaw v. Riverdell Hospital, 150 N.J. Super. 585, 376 A.2d 228 (Law Div. 1977). [FN3] N.Y.Lazarus v. Yorkview Theater Corp., 74 Misc. 2d 729, 345 N.Y.S.2d 413 (Sup 1973). [FN4] N.J.State v. Kobrin Securities, Inc., 111 N.J. 307, 544 A.2d 833 (1988). [FN5] Federal intrusion U.S.Zurek v. Woodbury, 446 F. Supp. 1149 (N.D. Ill. 1978). [FN6] U.S.General Dynamics Corp. v. Selb Mfg. Co., 481 F.2d 1204, 17 Fed. R. Serv. 2d 1221 (8th Cir. 1973); Bruner Corp. v. Balogh, 819 F. Supp. 811 (E.D. Wis. 1993); U.S. v. Spanish Foods, Inc., 22 Ct. Int'l Trade 1062, 30 F. Supp. 2d 571 (1998). Ala.Ex parte Williams, 775 So. 2d 146 (Ala. 2000). AlaskaResek v. State, 706 P.2d 288 (Alaska 1985). Del.Steigler v. Insurance Co. of North America, 306 A.2d 742 (Del. 1973). Criminal charges not necessary Actual criminal charges are not necessary to justify the assertion of the Fifth Amendment privilege against self-incrimination, in civil actions when parallel criminal investigations are underway, so long
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as the party moving for the stay clearly demonstrates to the trial judge that he or she is the subject of an ongoing, and overlapping, criminal investigation. Ala.Ex parte Ebbers, 871 So. 2d 776 (Ala. 2003). [FN7] Ala.Ex parte Ebbers, 871 So. 2d 776 (Ala. 2003). [FN8] U.S.In re Mid-Atlantic Toyota Antitrust Litigation, 92 F.R.D. 358, 32 Fed. R. Serv. 2d 309 (D. Md. 1981); Golden Quality Ice Cream Co., Inc. v. Deerfield Specialty Papers, Inc., 87 F.R.D. 53, 31 Fed. R. Serv. 2d 1193 (E.D. Pa. 1980). Ala.Ex parte Ebbers, 871 So. 2d 776 (Ala. 2003). Kan.State ex rel. Stovall v. Meneley, 271 Kan. 355, 22 P.3d 124 (2001). Balancing test In deciding whether to stay civil proceeding pending outcome of criminal investigation, trial court should balance competing needs of parties, taking into account, among other things, interest of courts, probability that proceeding will work constitutional violation on movant, presence or absence of hardship or inequity, and burden of proof. Neb. Schuessler v. Benchmark Marketing and Consulting, Inc., 243 Neb. 425, 500 N.W.2d 529, 34 A.L.R.5th 907 (1993). [FN9] Okla.State ex rel. Oklahoma Bar Ass'n v. Gasaway, 1993 OK 133, 863 P.2d 1189 (Okla. 1993) . [FN10] N.J.State v. Kobrin Securities, Inc., 111 N.J. 307, 544 A.2d 833 (1988). [FN11] U.S.Parkhurst v. State of Wyo., 641 F.2d 775 (10th Cir. 1981); U.S. v. Mellon Bank, N. A., 545 F.2d 869 (3d Cir. 1976). [FN12] U.S.Afro-Lecon, Inc. v. U.S., 820 F.2d 1198 (Fed. Cir. 1987); U.S. v. Mellon Bank, N. A., 545 F.2d 869 (3d Cir. 1976); U.S. v. Spanish Foods, Inc., 22 Ct. Int'l Trade 1062, 30 F. Supp. 2d 571 (1998). [FN13] Ala.Ex parte Ebbers, 871 So. 2d 776 (Ala. 2003). [FN14] U.S.Philadelphia Housing Authority v. American Radiator & Standard Sanitary Corp., 269 F. Supp. 540 (E.D. Pa. 1967). [FN15] U.S.Gordon v. Federal Deposit Ins. Corp., 427 F.2d 578, 13 Fed. R. Serv. 2d 811 (D.C. Cir. 1970); Paine, Webber, Jackson & Curtis Inc. v. Malon S. Andrus, Inc., 486 F. Supp. 1118 (S.D. N.Y. 1980); Golden Quality Ice Cream Co., Inc. v. Deerfield Specialty Papers, Inc., 87 F.R.D. 53, 31 Fed. R. Serv. 2d 1193 (E.D. Pa. 1980). [FN16] U.S. Securities and Exchange Commission v. Jos. Schlitz Brewing Co., 452 F. Supp. 824 (E.D. Wis. 1978).
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[FN17] U.S.Securities and Exchange Commission v. First Financial Group of Texas, Inc., 659 F.2d 660, 32 Fed. R. Serv. 2d 1311 (5th Cir. 1981). [FN18] U.S.Shim v. Kikkoman Intern. Corp., 509 F. Supp. 736 (D.N.J. 1981), aff'd, 673 F.2d 1304 (3d Cir. 1981). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 334 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. XI. Commencement, Prosecution, and Termination C. Stay of Proceedings 3. Grounds b. Pendency of Another Proceeding Topic Summary References Correlation Table 335. Actions in state and federal courts West's Key Number Digest West's Key Number Digest, Action 69(2), 69(3), 69(5) As between state and federal courts, the pendency of an action in one does not require a stay of proceedings in an action in the other, except for the avoidance of unseemly conflict. Ordinarily, as between state and federal courts of concurrent jurisdiction, the tribunal where jurisdiction first attaches should be permitted to retain it without interference from the other, but the second action is to be stayed rather than dismissed, even if it involves the same parties and subject matter.[1] While it has been broadly stated that, as between state and federal courts with concurrent jurisdiction over the same parties and subject matter, the court in which a second action is commenced will stay proceedings until the prior action has been determined to avoid unseemly conflict in jurisdiction between such courts,[2] the pendency of a prior action in one of such courts is no ground for a stay in the other, where there is no conflict as to the custody or dominion of property.[3] An in personam action in the federal court will not be stayed for pendency of a prior action in a state court, as the plaintiff in such an action has an absolute right to proceed in the federal court without interference by granting a stay.[4] Where the action is in rem or quasi in rem, that court, whether state or federal, which first takes possession or control, actual or potential, of the res will exercise its power to completion, and the other court should stay proceedings before it pending the determination in the other court.[5] The crucial point in each particular case is whether the prosecution of the second action during the pendency of the first would create an unseemly or improper conflict between the different courts,[6] and no stay will be granted in cases which would not involve a conflict of authority.[7] Even where the first court has acquired possession of property involved, the other may proceed as far as is possible without creating any conflict,[8] and should then stay proceedings pending determination of the prior action in the other court.[9] In any case where a stay might properly be allowed, it is a matter for the discretion of the court and is not
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required as a matter of law because of the pending action in the other court.[10] Regardless of which action was filed first, a state action may be stayed pending completion of a federal action which will provide a more complete or expeditious disposition of the claims of the parties than the state action.[11] CUMULATIVE SUPPLEMENT Cases: District Court was required to stay claims brought by operator of methadone clinic against township, alleging discrimination and entitlement to damages, under the Americans with Disabilities Act (ADA), and the Rehabilitation Act, in connection with township zoning board's denial of change of use permit, pending outcome of state court proceeding brought by operator challenging the zoning board's decision, where it was questionable whether damages were available in pending state court proceeding. Addiction Specialists, Inc. v. Township of Hampton, 411 F.3d 399 (3d Cir. 2005). When state concerns for judicial economy conflict with federal constitutional rights, the state concerns must give way when deciding whether to stay civil case pending resolution of criminal case. Ex parte Antonucci, 917 So. 2d 825 (Ala. 2005). [END OF SUPPLEMENT]
[FN1] U.S.National Ass'n for the Advancement of Colored People v. Gallion, 368 U.S. 16, 82 S. Ct. 4, 7 L. Ed. 2d 85 (1961); Evans Transp. Co. v. Scullin Steel Co., 693 F.2d 715 (7th Cir. 1982); McGreghar Land Co. v. Meguiar, 521 F.2d 822 (9th Cir. 1975). Fla.Lawyers Professional Liability Ins. Co. v. Shand, Morahan & Co., Inc., 394 So. 2d 238 (Fla. Dist. Ct. App. 1st Dist. 1981). N.Y.Pine Plains Lumber Corp. v. Messina, 78 A.D.2d 271, 435 N.Y.S.2d 381 (3d Dep't 1981). [FN2] U.S.Stansbury v. Koss, 10 F. Supp. 477 (S.D. N.Y. 1931). Fla.State ex rel. Sherrill v. Milam, 116 Fla. 492, 156 So. 497 (1934). [FN3] U.S.American Mfrs. Mut. Ins. Co. v. Edward D. Stone, Jr. & Assoc., 743 F.2d 1519, 40 Fed. R. Serv. 2d 199 (11th Cir. 1984); Graziano v. Pennell, 371 F.2d 761 (2d Cir. 1967). [FN4] U.S. Microsoftware Computer Systems, Inc. v. Ontel Corp., 686 F.2d 531 (7th Cir. 1982); Bandag Inc. v. Saliga, 314 F. Supp. 432 (D. Md. 1970); Motors Ins. Corp. v. Michigan Propane Gas Co., 292 F. Supp. 369 (W.D. Mich. 1968). Action vexatious because duplicative Fact that an action may be duplicative and therefore vexatious does not require that it be stayed. U.S.Sheetz v. Kares, 534 F. Supp. 278 (E.D. Pa. 1982). [FN5] U.S. Safeco Ins. Co. of America v. Miller, 591 F. Supp. 590 (D. Md. 1984); 1st Nat. Credit
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Corp. v. Von Hake, 511 F. Supp. 634 (D. Utah 1981); Tweel v. Frankel, 444 F. Supp. 1071 (S.D. W. Va. 1978). [FN6] U.S.Lamar v. Spalding, 154 F. 27 (C.C.A. 3d Cir. 1907). [FN7] U.S.Lamar v. Spalding, 154 F. 27 (C.C.A. 3d Cir. 1907). Ill.Robinson v. Ruprecht, 191 Ill. 424, 61 N.E. 631 (1901). [FN8] U.S.Boatmen's Bank of St. Louis v. Fritzlen, 135 F. 650 (C.C.A. 8th Cir. 1905). [FN9] U.S.Boatmen's Bank of St. Louis v. Fritzlen, 135 F. 650 (C.C.A. 8th Cir. 1905). [FN10] U.S.Southern Pac. Co. v. Klinge, 65 F.2d 85 (C.C.A. 10th Cir. 1933); Mars, Inc. v. Standard Brands, Inc., 386 F. Supp. 1201 (S.D. N.Y. 1974). Ala.Western Union Telegraph Co. v. Howington, 198 Ala. 311, 73 So. 550 (1916). Cal.Thomson v. Continental Ins. Co., 66 Cal. 2d 738, 59 Cal. Rptr. 101, 427 P.2d 765 (1967). Fla.ITT-Community Development Corp. v. Halifax Paving, Inc., 350 So. 2d 116 (Fla. Dist. Ct. App. 1st Dist. 1977). Kan.Henry v. Stewart, 203 Kan. 289, 454 P.2d 7 (1969). N.Y.Barron v. Bluhdorn, 68 A.D.2d 809, 414 N.Y.S.2d 15 (1st Dep't 1979). Wash. State v. Superior Court of Washington In and For Spokane County, 147 Wash. 615, 266 P. 1054 (1928). [FN11] N.Y.Barron v. Bluhdorn, 68 A.D.2d 809, 414 N.Y.S.2d 15 (1st Dep't 1979). As to the significance of the order in which the actions were filed, see 331. Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 335 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. XI. Commencement, Prosecution, and Termination C. Stay of Proceedings 3. Grounds b. Pendency of Another Proceeding Topic Summary References Correlation Table 336. Actions in state and federal courtsStay of federal action West's Key Number Digest West's Key Number Digest, Action 69(3) Federal courts have discretion to stay an action pending a parallel action in state court in the interests of judicial economy. A federal court decision to stay an action in deference to a pending action in a state court may rest on considerations of wise judicial administration, considering conservation of judicial resources and comprehensive disposition of litigation.[1] Such a decision is proper, however, only in exceptional circumstances, and will be warranted only by the clearest of justifications,[2] except where both actions are brought by the same plaintiff.[3 ] Factors which should be considered in assessing the appropriateness of such a stay include a federal court's obligation to exercise jurisdiction,[4] considerations of comity,[5] the relative convenience of the federal and state forums,[6] the desirability of avoiding piecemeal litigation,[7] the avoidance of wasteful duplication of effort,[8] the extent of disputed factual issues,[9] the avoidance of maneuvers designed to clog efficient judicial machinery,[10] the relative appropriateness of the state and federal forums for disposition of the issues,[11] the priority of the different forums,[12] identity of parties and issues in the actions,[13] the adequacy and extent of relief available in the state court,[14] and the likelihood of prompt disposition.[15] No one factor is necessarily determinative.[16] The court must make a carefully considered judgment, taking into account both the obligation to exercise jurisdiction and the combination of factors counseling against that exercise.[17] The determination calls for the exercise of discretion.[18]
[FN1] U.S.Moses H. Cone Memorial Hosp. v. Mercury Const. Corp., 460 U.S. 1, 103 S. Ct. 927, 74 L. Ed. 2d 765 (1983).
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[FN2] U.S.Gunther v. Dinger, 547 F. Supp. 25 (S.D. N.Y. 1982); Cleveland Lumber Co. v. Proctor & Schwartz, Inc., 397 F. Supp. 1088, 17 U.C.C. Rep. Serv. 1148 (N.D. Ga. 1975); Kroger Co. v. Adkins Transfer Co., 284 F. Supp. 371, 12 Fed. R. Serv. 2d 174 (M.D. Tenn. 1968), judgment aff'd, 408 F.2d 813 (6th Cir. 1969). Stay rather than dismissal U.S.Moses H. Cone Memorial Hosp. v. Mercury Const. Corp., 460 U.S. 1, 103 S. Ct. 927, 74 L. Ed. 2d 765 (1983); PPG Industries, Inc. v. Continental Oil Co., 478 F.2d 674 (5th Cir. 1973). [FN3] U.S. Burrows v. Sebastian, 448 F. Supp. 51 (N.D. Ill. 1978) (rejected on other grounds by, Voktas, Inc. v. Central Soya Co., Inc., 689 F.2d 103 (7th Cir. 1982)). [FN4] U.S. Illinois Bell Telephone Co. v. Illinois Commerce Com'n, 740 F.2d 566 (7th Cir. 1984); U.S. v. Cargill, Inc., 508 F. Supp. 734 (D. Del. 1981). [FN5] U.S.Simmons v. Wetherell, 472 F.2d 509 (2d Cir. 1973); Alameda Room, Inc. v. Pitta, 538 F. Supp. 1072 (S.D. N.Y. 1982); Manchester Bank v. Connecticut Bank and Trust Co., 497 F. Supp. 1304 (D.N.H. 1980); Daugherty v. Popick, 89 F.R.D. 642, 31 Fed. R. Serv. 2d 1345 (S.D. N.Y. 1981). [FN6] U.S.Moses H. Cone Memorial Hosp. v. Mercury Const. Corp., 460 U.S. 1, 103 S. Ct. 927, 74 L. Ed. 2d 765 (1983); American Mfrs. Mut. Ins. Co. v. Edward D. Stone, Jr. & Assoc., 743 F.2d 1519, 40 Fed. R. Serv. 2d 199 (11th Cir. 1984); Illinois Bell Telephone Co. v. Illinois Commerce Com'n, 740 F.2d 566 (7th Cir. 1984). Access to proof, unwilling witnesses, and view U.S.Gilbane Bldg. Co. v. Nemours Foundation, 568 F. Supp. 1085 (D. Del. 1983). Convenience of parties, counsel, and witnesses U.S. Alameda Room, Inc. v. Pitta, 538 F. Supp. 1072 (S.D. N.Y. 1982); Manchester Bank v. Connecticut Bank and Trust Co., 497 F. Supp. 1304 (D.N.H. 1980). [FN7] U.S.Moses H. Cone Memorial Hosp. v. Mercury Const. Corp., 460 U.S. 1, 103 S. Ct. 927, 74 L. Ed. 2d 765 (1983); American Mfrs. Mut. Ins. Co. v. Edward D. Stone, Jr. & Assoc., 743 F.2d 1519, 40 Fed. R. Serv. 2d 199 (11th Cir. 1984); Illinois Bell Telephone Co. v. Illinois Commerce Com'n, 740 F.2d 566 (7th Cir. 1984). [FN8] U.S. Klein v. Walston & Co., 432 F.2d 936 (2d Cir. 1970); Gilbane Bldg. Co. v. Nemours Foundation, 568 F. Supp. 1085 (D. Del. 1983); Trimmel v. General Elec. Credit Corp., 555 F. Supp. 264 (D. Conn. 1983); Alameda Room, Inc. v. Pitta, 538 F. Supp. 1072 (S.D. N.Y. 1982). [FN9] U.S.Adolph Coors Co. v. Davenport Mach. & Foundry Co., 89 F.R.D. 148 (D. Colo. 1981). [FN10] U.S.Adolph Coors Co. v. Davenport Mach. & Foundry Co., 89 F.R.D. 148 (D. Colo. 1981). [FN11] U.S.Brown v. Chaffee, 612 F.2d 497, 28 Fed. R. Serv. 2d 833 (10th Cir. 1979).
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Outcome governed by state or federal law U.S.American Mfrs. Mut. Ins. Co. v. Edward D. Stone, Jr. & Assoc., 743 F.2d 1519, 40 Fed. R. Serv. 2d 199 (11th Cir. 1984); Illinois Bell Telephone Co. v. Illinois Commerce Com'n, 740 F.2d 566 (7th Cir. 1984). [FN12] U.S.Safeco Ins. Co. of America v. Miller, 591 F. Supp. 590 (D. Md. 1984); Aro v. Lichtig, 537 F. Supp. 599 (E.D. N.Y. 1982); Adolph Coors Co. v. Davenport Mach. & Foundry Co., 89 F.R.D. 148 (D. Colo. 1981); Bryant Elec. Co., Inc. v. Joe Rainero Tile Co., Inc., 84 F.R.D. 120, 28 Fed. R. Serv. 2d 1083 (W.D. Va. 1979). Consideration of progress made In determining whether to stay federal suit out of deference to parallel litigation brought in state court, "priority" element of governing balancing test should not be measured exclusively by which complaint was filed first, but rather in terms of how much progress has been made in the two actions. U.S.Moses H. Cone Memorial Hosp. v. Mercury Const. Corp., 460 U.S. 1, 103 S. Ct. 927, 74 L. Ed. 2d 765 (1983). [FN13] 330. [FN14] U.S.Illinois Bell Telephone Co. v. Illinois Commerce Com'n, 740 F.2d 566 (7th Cir. 1984); Thompson v. Boyle, 417 F.2d 1041 (5th Cir. 1969); Safeco Ins. Co. of America v. Miller, 591 F. Supp. 590 (D. Md. 1984); Alameda Room, Inc. v. Pitta, 538 F. Supp. 1072 (S.D. N.Y. 1982). Issues exclusively federal A federal case involving a cause of action over which federal jurisdiction is exclusive should not be stayed. U.S. Silberkleit v. Kantrowitz, 713 F.2d 433 (9th Cir. 1983); Cotler v. Inter-County Orthopaedic Ass'n, P. A., 526 F.2d 537 (3d Cir. 1975), opinion supplemented on other grounds, 530 F.2d 536 (3d Cir. 1976); McGough v. First Arlington Nat. Bank, 519 F.2d 552 (7th Cir. 1975). [FN15] U.S.Herrington v. Sonoma County, 706 F.2d 938 (9th Cir. 1983); Irving Trust Co. v. Nationwide Leisure Corp., 562 F. Supp. 960 (S.D. N.Y. 1982); Alameda Room, Inc. v. Pitta, 538 F. Supp. 1072 (S.D. N.Y. 1982); Nigro v. Blumberg, 373 F. Supp. 1206 (E.D. Pa. 1974); Lewis v. Marine Midland Grace Trust Co. of New York, 63 F.R.D. 39, 17 Fed. R. Serv. 2d 1517 (S.D. N.Y. 1973). [FN16] U.S.Moses H. Cone Memorial Hosp. v. Mercury Const. Corp., 460 U.S. 1, 103 S. Ct. 927, 74 L. Ed. 2d 765 (1983). [FN17] U.S.Illinois Bell Telephone Co. v. Illinois Commerce Com'n, 740 F.2d 566 (7th Cir. 1984); U.S. v. Cargill, Inc., 508 F. Supp. 734 (D. Del. 1981). Factors held against stay Court abused its discretion in staying action seeking order compelling arbitration under United States
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Arbitration Act, pending resolution of state court suit, absent showing of requisite exceptional circumstances; factors of avoidance of piecemeal litigation, order in which current forums obtained jurisdiction, presence of federal issues and probable inadequacy of state court proceeding to protect contractor's rights counseled against stay. U.S.Moses H. Cone Memorial Hosp. v. Mercury Const. Corp., 460 U.S. 1, 103 S. Ct. 927, 74 L. Ed. 2d 765 (1983). [FN18] U.S.Illinois Bell Telephone Co. v. Illinois Commerce Com'n, 740 F.2d 566 (7th Cir. 1984); Knaefler v. Mack, 680 F.2d 671 (9th Cir. 1982); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Haydu, 637 F.2d 391 (5th Cir. 1981); Amdur v. Lizars, 372 F.2d 103, 5 A.L.R. Fed. 1 (4th Cir. 1967). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 336 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. XI. Commencement, Prosecution, and Termination C. Stay of Proceedings 3. Grounds b. Pendency of Another Proceeding Topic Summary References Correlation Table 337. Actions in different federal courts West's Key Number Digest West's Key Number Digest, Action 69(2), 69(5) Proceedings in one federal court may be stayed where an action involving the same parties and subject matter is pending in another federal court. One federal court may properly grant a stay of proceedings in an action brought in that court pending the outcome of an action involving the same parties and subject matter in another federal court of concurrent jurisdiction.[1] An action may also be stayed pending the outcome of an action in another federal court if the parties be different, where the determination will aid in narrowing the issues in the action stayed.[2] Proceedings in a district court may be stayed pending a decision in the court of appeals on review.[3] Whether such a stay should be granted is a matter for the discretion of the court.[4] The court must consider the convenience of the parties and the interests of justice.[5] A stay should not be granted where it would cause unwarranted delay,[6] or where the advantages of staying the action are outweighed by prejudice resulting to a party.[7] Ordinarily, the federal court whose action was filed later will defer to the court in which the action was filed first,[8] but may decline to do so in special circumstances.[9] Similarly, a court whose action was first filed will not generally grant a stay in favor of one filed later where there is no compelling reason to do so.[10] Where an action in one federal court is further advanced, a parallel action in another federal court may be stayed in the interests of judicial comity and economy even though it was filed earlier.[11] Where it appears that an action in a federal court involves a claim that should be a compulsory counterclaim in another pending federal suit, the court should stay its own proceedings where it does not dismiss the claim.[12 ] CUMULATIVE SUPPLEMENT
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Cases: Under the "first-filed rule," a New Jersey state court ordinarily will stay or dismiss a civil action in deference to an already pending, substantially similar lawsuit in another state, unless compelling reasons dictate that it retain jurisdiction. Sensient Colors Inc. v. Allstate Ins. Co., 193 N.J. 373, 939 A.2d 767 (2008). [END OF SUPPLEMENT]
[FN1] U.S.New Haven Inclusion Cases, 399 U.S. 392, 90 S. Ct. 2054, 26 L. Ed. 2d 691 (1970); Acton Corp. v. Borden, Inc., 670 F.2d 377 (1st Cir. 1982); O'Hare Intern. Bank v. Lambert, 459 F.2d 328 (10th Cir. 1972). Infringement of patent U.S.Filtrol Corp. v. Kelleher, 467 F.2d 242, 16 Fed. R. Serv. 2d 897 (9th Cir. 1972). [FN2] U.S.Taunton Gardens Co. v. Hills, 557 F.2d 877 (1st Cir. 1977). [FN3] U.S.Fuller v. Hurley, 559 F. Supp. 313 (W.D. Va. 1983); Mattern v. Schweiker, 524 F. Supp. 1089 (E.D. Pa. 1981); Peck v. U.S., 522 F. Supp. 245, 10 Fed. R. Evid. Serv. 761 (S.D. N.Y. 1981); Gerner v. Warehouse Service, Inc., 258 F. Supp. 316 (W.D. Okla. 1966). [FN4] U.S. Rodgers v. U.S. Steel Corp., 508 F.2d 152, 19 Fed. R. Serv. 2d 749 (3d Cir. 1975) (rejected on other grounds by, Gardner v. Westinghouse Broadcasting Co., 559 F.2d 209, 23 Fed. R. Serv. 2d 548, 23 Fed. R. Serv. 2d 1107 (3d Cir. 1977)); Ainsworth v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 298 F. Supp. 479 (W.D. Okla. 1969); Rosenfeld v. Schwitzer Corp., 251 F. Supp. 758 (S.D. N.Y. 1966). [FN5] U.S.ACF Industries, Inc. v. Guinn, 384 F.2d 15, 11 Fed. R. Serv. 2d 123 (5th Cir. 1967). [FN6] U.S.Balfour v. Gutstein, 547 F. Supp. 147 (E.D. Pa. 1982); Struthers Scientific & Intern. Corp. v. General Foods Corp., 290 F. Supp. 122, 12 Fed. R. Serv. 2d 750 (S.D. Tex. 1968). [FN7] U.S.Williford v. Armstrong World Industries, Inc., 715 F.2d 124 (4th Cir. 1983). [FN8] U.S. Omni-Exploration, Inc. v. McGookey, 520 F. Supp. 36 (E.D. Pa. 1981); Carter v. Clark Equipment Co., Inc., 512 F. Supp. 412 (E.D. Tenn. 1978). [FN9] Rule not absolute U.S.Private Medical Care Foundation, Inc. v. Califano, 451 F. Supp. 450 (W.D. Okla. 1977). Jurisdiction over parties doubtful U.S.Jefferson Ward Stores, Inc. v. Doody Co., 560 F. Supp. 35 (E.D. Pa. 1983).
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[FN10] U.S.Levin v. Mississippi River Corp., 289 F. Supp. 353 (S.D. N.Y. 1968). [FN11] U.S.Private Medical Care Foundation, Inc. v. Califano, 451 F. Supp. 450 (W.D. Okla. 1977). [FN12] U.S.Republic Precious Metals, Inc. v. Republic Precious Metals Corp., 575 F. Supp. 1256 (D. Minn. 1984); Manchester Bank v. Connecticut Bank and Trust Co., 497 F. Supp. 1304 (D.N.H. 1980). Jurisdiction reserved U.S.Agrashell, Inc. v. Bernard Sirotta Co., 281 F. Supp. 704 (E.D. N.Y. 1968). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 337 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. XI. Commencement, Prosecution, and Termination C. Stay of Proceedings 3. Grounds b. Pendency of Another Proceeding Topic Summary References Correlation Table 338. Actions in courts of different states or countries West's Key Number Digest West's Key Number Digest, Action 69(2), 69(5) A court may, but need not, stay proceedings before it because of the pendency of an action in a court of another state or country, but cannot stay the proceedings in the other jurisdiction. Where an action is pending in one state, the court of another state in which another action involving the same parties and subject matter is brought may grant a stay of proceedings in the action before it.[1] Such a stay is not a matter of right[2] and is not required,[3] but rests within the discretion of the court.[4] Ordinarily, the only question to be resolved on motion for a stay of proceedings to permit trial in a different state is whether, as a matter of substantial justice, a particular case should be tried to another forum.[5] A stay should not be ordered if it appears that the foreign suit was instituted merely to forestall the domestic suit.[6] Each case must be considered on its own merits.[7] The court must weigh the various factors involved, including comity, the prevention of multiplicity, vexation, and harassment, the likelihood of obtaining complete relief in foreign jurisdiction, and the res judicata effect of a foreign judgment in a local forum,[8] and determine where the controversy can be most economically and expeditiously determined.[9] Where there is a prior action pending elsewhere in a court capable of doing prompt and complete justice, involving the same parties and the same issues, the court should freely exercise its discretion in favor of a stay.[10] While the court may do so,[11] it is not required to stay proceedings because of the pendency of a suit between the same parties involving the same subject matter in a court of a foreign country.[12] A court may satisfy its obligation to refrain from taking jurisdiction of an action under the doctrine of forum non conveniens by granting a stay of the action pending determination of an action pending in another state.[13] An action may be stayed pending completion of a subsequently commenced action in another state[14] or nation[15] on grounds of forum non conveniens. Factors to be considered in determining a motion to stay based on the forum non conveniens doctrine are the applicability of state law, the relative ease of access to proof, the
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availability of compulsory process for witnesses, and all other practical problems that would make trial easy, expeditious and inexpensive.[16] To justify a stay, it must be shown that the controversy can best and most economically be determined in the foreign state.[17] However, the fact that an alternative jurisdiction's law is less favorable to a litigant than the law of the forum should not be accorded any weight in deciding a motion to stay for forum non conveniens, as long as some remedy is afforded.[18]
[FN1] Cal.Thorley v. Superior Court, 78 Cal. App. 3d 900, 144 Cal. Rptr. 557 (4th Dist. 1978). Del.Coaxial Communications, Inc. v. CNA Financial Corp., 367 A.2d 994 (Del. 1976). Ill.Wiseman v. Law Research Service, Inc., 133 Ill. App. 2d 790, 270 N.E.2d 77 (4th Dist. 1971). Ky.Wilson v. Wilson, 511 S.W.2d 201 (Ky. 1974). La.Waters v. Waters, 264 So. 2d 275 (La. Ct. App. 4th Cir. 1972). Me.Fitch v. Whaples, 220 A.2d 170 (Me. 1966). Miss.Stowers v. Humphrey, 576 So. 2d 138 (Miss. 1991). N.J.Zullo Lumber v. King Const., 146 N.J. Super. 88, 368 A.2d 987 (Law Div. 1976). UtahPower Train, Inc. v. Stuver, 550 P.2d 1293 (Utah 1976). Stay preferable to dismissal Domestic action need not be dismissed pending action in foreign state on same issues, but should merely be stayed where dismissal would surrender jurisdiction of domestic court, and impede its ability to lend its aid if some unforeseen difficulty arose in connection with the foreign state action. N.Y.Flintkote Co. v. American Mut. Liability Ins. Co., 103 A.D.2d 501, 480 N.Y.S.2d 742 (2d Dep't 1984), order aff'd, 67 N.Y.2d 857, 501 N.Y.S.2d 662, 492 N.E.2d 790 (1986). [FN2] Or.Rorvik v. North Pacific Lumber Co., 99 Or. 58, 195 P. 163 (1921). Pa.German Trust Co. of Davenport, Iowa v. Plotke, 274 Pa. 483, 118 A. 508 (1922). [FN3] Fla.Sun Ins. Office, Limited v. Noel, 254 So. 2d 7 (Fla. Dist. Ct. App. 3d Dist. 1971). Ky. Brooks Erection Co. v. William R. Montgomery & Associates, Inc., 576 S.W.2d 273 (Ky. Ct. App. 1979). [FN4] Fla.Sun Ins. Office, Limited v. Noel, 254 So. 2d 7 (Fla. Dist. Ct. App. 3d Dist. 1971). La.Waters v. Waters, 264 So. 2d 275 (La. Ct. App. 4th Cir. 1972). Me.Fitch v. Whaples, 220 A.2d 170 (Me. 1966).
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N.Y.Levy v. Pacific Eastern Corp., 154 Misc. 655, 277 N.Y.S. 659 (Sup 1935). N.C. Motor Inn Management, Inc. v. Irvin-Fuller Development Co., Inc., 46 N.C. App. 707, 266 S.E.2d 368 (1980). Or.Fry v. D. H. Overmyer Co., Inc., 269 Or. 281, 525 P.2d 140 (1974). Tex.Quiroz v. McNamara, 585 S.W.2d 859 (Tex. Civ. App. Tyler 1979). UtahPower Train, Inc. v. Stuver, 550 P.2d 1293 (Utah 1976). [FN5] Wis.Alexander v. Sloan, 73 Wis. 2d 145, 242 N.W.2d 904 (1976). [FN6] N.Y.Argonaut Ins. Co. v. Occidental Petroleum Corp., 106 Misc. 2d 5, 430 N.Y.S.2d 982 (Sup 1980). [FN7] Del. McWane Cast Iron Pipe Corp. v. McDowell-Wellman Engineering Co., 263 A.2d 281 (Del. 1970). [FN8] Ill.Zurich Ins. Co. v. Baxter Intern., Inc., 173 Ill. 2d 235, 218 Ill. Dec. 942, 670 N.E.2d 664 (1996). IowaFirst Midwest Corp. v. Corporate Finance Associates, 663 N.W.2d 888 (Iowa 2003). [FN9] Del.National Union Fire Ins. Co. of Pittsburgh, Pa. v. RLC Corp., 449 A.2d 257 (Del. Super. Ct. 1982). [FN10] Del.Walter Reade Organization, Inc. v. Crane, 332 A.2d 399 (Del. 1975). [FN11] U.S. Allianz Versicherungs-Aktiengesellschaft Munich Reinsurance Co. v. S. S. Eskisehir, 353 F. Supp. 84 (S.D. N.Y. 1972); Saemann v. Everest and Jennings, Intern., 343 F. Supp. 457 (N.D. Ill. 1972). N.Y.Oppenheimer v. Carabaya Rubber & Navigation Co., 145 A.D. 830, 130 N.Y.S. 587 (1st Dep't 1911). [FN12] U.S.Gibbons v. Udaras na Gaeltachta, 549 F. Supp. 1094 (S.D. N.Y. 1982); Reavis v. Gulf Oil Corp., 85 F.R.D. 666 (D. Del. 1980). Del.Chadwick v. Gill, 16 Del. Ch. 127, 141 A. 618 (1928). N.Y. ABKCO Industries, Inc. v. Lennon, 85 Misc. 2d 465, 377 N.Y.S.2d 362 (Sup 1975), aff'd in part, modified in part on other grounds, 52 A.D.2d 435, 384 N.Y.S.2d 781 (1st Dep't 1976). Foreign appeal pending U.S.Landegger v. Bayerische Hypotheken Und Wechsel Bank, 357 F. Supp. 692 (S.D. N.Y. 1972). [FN13] N.Y.Azarian v. Ettinger, 87 A.D.2d 980, 450 N.Y.S.2d 115 (4th Dep't 1982).
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[FN14] Del. McWane Cast Iron Pipe Corp. v. McDowell-Wellman Engineering Co., 263 A.2d 281 (Del. 1970). [FN15] Cal.Stangvik v. Shiley Inc., 54 Cal. 3d 744, 1 Cal. Rptr. 2d 556, 819 P.2d 14 (1991). [FN16] Del.National Union Fire Ins. Co. of Pittsburgh, Pa. v. RLC Corp., 449 A.2d 257 (Del. Super. Ct. 1982). [FN17] Del.Moore Golf, Inc. v. Ewing, 269 A.2d 51 (Del. 1970). [FN18] Cal.Stangvik v. Shiley Inc., 54 Cal. 3d 744, 1 Cal. Rptr. 2d 556, 819 P.2d 14 (1991). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 338 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. XI. Commencement, Prosecution, and Termination C. Stay of Proceedings 3. Grounds b. Pendency of Another Proceeding Topic Summary References Correlation Table 339. Actions in courts of different states or countriesChild custody actions West's Key Number Digest West's Key Number Digest, Action 69(2), 69(5) If a court in one state has properly taken jurisdiction of a child custody proceeding, a court in which a second such action is brought must stay the proceeding before it. Where it appears in an action or proceeding with respect to child custody that a court of another state has taken jurisdiction of the question of custody of the child in accordance with the provisions of the Uniform Child Custody Jurisdiction Act or the Uniform Child Custody Jurisdiction and Enforcement Act,[1] the court should stay its proceeding and communicate with the foreign court.[2] Where statutory law requires exercise of jurisdiction by the court, no stay will be granted.[3] CUMULATIVE SUPPLEMENT Cases: Chancellor did not abuse his discretion by failing to decline to exercise jurisdiction over child custody case involving father who resided in Mississippi and mother who resided in Texas on the basis of forum non conveniens. West's A.M.C. 9327201. White v. White, 26 So. 3d 342 (Miss. 2010). [END OF SUPPLEMENT]
[FN1] Discussed in C.J.S., Divorce 612. [FN2] AlaskaMorgan v. Morgan, 666 P.2d 1026 (Alaska 1983). Cal.Palm v. Superior Court, 97 Cal. App. 3d 456, 158 Cal. Rptr. 786 (4th Dist. 1979).
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N.D.Wintz v. Crabtree, 1999 ND 85, 593 N.W.2d 355 (N.D. 1999). Okla.Rector v. Kimes, 2002 OK CIV APP 121, 60 P.3d 1068 (Div. 1 2002). Pa.Carpenter v. Carpenter, 326 Pa. Super. 570, 474 A.2d 1124 (1984). Tex.In re E.K.N., 24 S.W.3d 586 (Tex. App. Fort Worth 2000). Determination as to effect of divorce decree Ga.Youmans v. Youmans, 247 Ga. 529, 276 S.E.2d 837 (1981). [FN3] Tex.Continental Oil Co. v. P. P. G. Industries, 504 S.W.2d 616 (Tex. Civ. App. Houston 1st Dist. 1973), writ refused n.r.e., (May 8, 1974) and (disapproved of on other grounds by, In re Smith Barney, Inc., 975 S.W.2d 593 (Tex. 1998)). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 339 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. XI. Commencement, Prosecution, and Termination C. Stay of Proceedings 3. Grounds b. Pendency of Another Proceeding Topic Summary References Correlation Table 340. Declaratory relief West's Key Number Digest West's Key Number Digest, Action 69(6) Courts generally have discretion to stay declaratory judgment proceedings pending other proceedings. A federal court has discretion to stay an action for declaratory judgment[1] pending completion of parallel proceedings in state courts.[2] This power is part of the general discretionary power of courts of equity,[3] and is based on the terms of the federal declaratory judgment statute, which are permissive as to the exercise of jurisdiction, unlike the positive terms of other jurisdictional provisions.[4] According to some authority, a federal court also may stay a declaratory judgment action in deference to an action in a state court, even though the federal action is also for damages.[5] In addition, a federal court may stay a declaratory judgment action where there is another action before the same or another federal court involving the identical subject matter, to prevent duplication of the efforts of the courts and of litigants.[6] However, actions for damages are not inherently preferable to declaratory judgment actions,[7] and denial of a stay is justified where the circumstances make the action before the court the more efficient one.[8] A state court will generally stay a declaratory judgment action pending determination of an action in a federal court based on the same facts.[9] However, refusal of such a stay is proper where the state action is broader in scope so that it will result in a more complete disposition of the controversy.[10] Similarly, while a state court may stay a declaratory judgment action before it pending the disposition of an action in a court of another state,[ 11] it will not do so where its action will provide a more complete resolution of the issues.[12] A court will ordinarily stay a declaratory judgment action with respect to liability of an insurance company pending determination of an action which will decide significant issues or make the declaratory judgment unnecessary.[13] Conversely, a stay of an action for damages pending determination of an insurer's action for declaratory judgment as to coverage may be granted in proper circumstances.[14] Proceedings for declaration of the validity or invalidity of a patent will generally be stayed until the comple-
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tion of another action involving the issue of validity or infringement of the same patent.[15] Such a stay will be refused, however, where the declaratory proceeding is more convenient,[16] is much further advanced,[17] or is necessary to determine additional issues,[18] or where, other factors being equal in weight, it was commenced earlier.[19] In some circumstances, an infringement action will be stayed pending the outcome of the declaratory action.[20] CUMULATIVE SUPPLEMENT Cases: Equity warranted transfer of Oregon Internet marketing firm's breach of contract action from California to New Jersey, where defendant's declaratory judgment action was already pending; firm's pre-suit relocation to its attorney's California address was illusory at best, New Jersey local law was implicated, majority of witnesses were located there, and New Jersey district court had personal jurisdiction over firm. Inherent.com v. Martindale-Hubbell, 420 F. Supp. 2d 1093 (N.D. Cal. 2006). [END OF SUPPLEMENT]
[FN1] U.S.Wilton v. Seven Falls Co., 515 U.S. 277, 115 S. Ct. 2137, 132 L. Ed. 2d 214 (1995). [FN2] U.S.PPG Industries, Inc. v. Continental Oil Co., 478 F.2d 674 (5th Cir. 1973); Amerada Petroleum Corp. v. Marshall, 381 F.2d 661 (5th Cir. 1967). [FN3] U.S.PPG Industries, Inc. v. Continental Oil Co., 478 F.2d 674 (5th Cir. 1973). [FN4] U.S.Weiner v. Shearson, Hammill & Co., Inc., 521 F.2d 817 (9th Cir. 1975); PPG Industries, Inc. v. Continental Oil Co., 478 F.2d 674 (5th Cir. 1973); Glenmont Hill Associates v. Montgomery County, MD, 291 F. Supp. 2d 394 (D. Md. 2003). [FN5] U.S.Weiner v. Shearson, Hammill & Co., Inc., 521 F.2d 817 (9th Cir. 1975). [FN6] U.S. Creighton Omaha Regional Health Care Corp. v. Lomas & Nettleton Co., 486 F. Supp. 392 (D. Neb. 1980); Deering Milliken, Inc. v. Koratron Co., 293 F. Supp. 518 (S.D. N.Y. 1968). [FN7] U.S.SW Industries, Inc. v. Aetna Cas. & Sur. Co., 653 F. Supp. 631 (D.R.I. 1987). [FN8] U.S.Gilbane Bldg. Co. v. Nemours Foundation, 568 F. Supp. 1085 (D. Del. 1983); Architectural Floor Products Co. v. Don Brann & Associates, Inc., 551 F. Supp. 802 (N.D. Ill. 1982); Creighton Omaha Regional Health Care Corp. v. Lomas & Nettleton Co., 486 F. Supp. 392 (D. Neb. 1980); Federal Deposit Ins. Corp. v. Moore, 448 F. Supp. 493, 24 U.C.C. Rep. Serv. 176 (D.S.C. 1978). [FN9] Mass. Municipal Lighting Commission of Peabody v. Stathos, 13 Mass. App. Ct. 990, 433 N.E.2d 95 (1982). [FN10] N.Y.Grand Central Bldg., Inc. v. New York & Harlem R. Co., 59 A.D.2d 207, 398 N.Y.S.2d 888 (1st Dep't 1977).
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Additional causes of action, parties, and objects La.Goldblum v. Boyd, 267 So. 2d 610 (La. Ct. App. 2d Cir. 1972), writ refused, 263 La. 243, 267 So. 2d 906 (1972). Just and expeditious determination Ind.Volkswagenwerk, A. G. v. Watson, 181 Ind. App. 155, 390 N.E.2d 1082 (1st Dist. 1979). [FN11] La.Transamerica Ins. Co. v. Whitney Nat. Bank of New Orleans, 251 La. 800, 206 So. 2d 500 (1968). [FN12] Del.National Union Fire Ins. Co. of Pittsburgh, Pa. v. RLC Corp., 449 A.2d 257 (Del. Super. Ct. 1982). [FN13] U.S.State Farm Mut. Auto. Ins. Co. v. Scholes, 601 F.2d 1151 (10th Cir. 1979); State Farm Mut. Auto. Ins. Co. v. Travelers Indem. Co., 272 F. Supp. 803 (D. Colo. 1967). Issues resoluble only in tort action N.Y.Argonaut Ins. Co. v. Continental Ins. Co., 63 A.D.2d 927, 406 N.Y.S.2d 96 (1st Dep't 1978). [FN14] U.S.Westhemeco Ltd. v. New Hampshire Ins. Co., 82 F.R.D. 702 (S.D. N.Y. 1979). N.Y.Dionisio v. Auto Hire Inc., 67 A.D.2d 996, 413 N.Y.S.2d 727 (2d Dep't 1979). Wis.Newhouse by Skow v. Citizens Sec. Mut. Ins. Co., 176 Wis. 2d 824, 501 N.W.2d 1 (1993). [FN15] U.S.Geni-Chlor Intern., Inc. v. Multisonics Development Corp., 580 F.2d 981 (9th Cir. 1978) ; Milton Roy Co. v. Bausch & Lomb Inc., 418 F. Supp. 975 (D. Del. 1976); Formflex Foundations, Inc. v. Cupid Foundations, Inc., 383 F. Supp. 497 (S.D. N.Y. 1974). Patent and trade mark U.S.Piedmont Shirt Co. v. Snap-Tab Corp., 236 F. Supp. 975 (S.D. N.Y. 1964). Pending outcome of appeal U.S.Deering Milliken, Inc. v. Koratron Co., 293 F. Supp. 518 (S.D. N.Y. 1968). [FN16] U.S.Transmation, Inc. v. Gay Engineering & Sales Co., 336 F. Supp. 959 (S.D. Tex. 1971); Ashland Oil & Refining Co. v. Hooker Chemical Corp., 51 F.R.D. 512 (S.D. Ohio 1970). [FN17] U.S.Transmation, Inc. v. Gay Engineering & Sales Co., 336 F. Supp. 959 (S.D. Tex. 1971). [FN18] U.S.General Tire & Rubber Co. v. Jefferson Chemical Co., 50 F.R.D. 112 (S.D. N.Y. 1970). [FN19] U.S.Columbia Boiler Co. of Pottstown, Inc. v. Manville Boiler Co., 188 F. Supp. 520 (S.D. N.Y. 1960).
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[FN20] U.S.Riso Kagaku Corp. v. A.B. Dick Co., 300 F. Supp. 1007 (S.D. N.Y. 1969). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 340 END OF DOCUMENT
CJS ACTIONS XI D REF 1A C.J.S. Actions XI D Refs.
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. XI. Commencement, Prosecution, and Termination D. Abandonment; Pendency and Termination Topic Summary Correlation Table Research References A.L.R. Library West's A.L.R. Digest, Action 70 , 71
A.L.R. Index: Abandonment of Action; Termination and Expiration Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS XI D REF END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. XI. Commencement, Prosecution, and Termination D. Abandonment; Pendency and Termination Topic Summary References Correlation Table 341. Abandonment West's Key Number Digest West's Key Number Digest, Action 70 A cause of action, a proceeding to enforce it, a count, or a cause against any of several defendants may be abandoned, and abandonment may be express or implied from plaintiff's acts or omissions. A plaintiff may abandon a cause of action,[1] a particular proceeding to enforce a cause of action,[2] any of several counts or causes of action without abandonment of the entire action,[3] a claim as to any of several parties defendant,[4] or a potential issue in the case.[5] A plaintiff may abandon an action by announcing in open court his or her intention to do so,[6] or abandonment may be implied from the plaintiff's acts and conduct or omissions.[7] For instance, a counterclaim may be abandoned where the counterclaimant fails to seek a definitive ruling on it before the trial court.[8] However, a legal client does not abandon his or her cause of action for legal malpractice by voluntarily dismissing an appeal from the underlying case, where the appeal would be futile.[9] Where a plaintiff files a complaint against a defendant, but does nothing more, and subsequently begins another action against the same defendant, the defendant cannot, by voluntary appearance, revive the dormant first action.[10]
[FN1] U.S.Battig v. Hartford Acc. and Indem. Co., 608 F.2d 119 (5th Cir. 1979). Cal.In re Mercantile Guaranty Co., 263 Cal. App. 2d 346, 69 Cal. Rptr. 361 (1st Dist. 1968). Md.Moore v. Avocet Development Corp., 292 Md. 593, 440 A.2d 386 (1982). Mo.Laux v. Motor Carriers Council of St. Louis, Inc., 499 S.W.2d 805 (Mo. 1973). [FN2] N.Y.La Rue v. Smith, 153 N.Y. 428, 47 N.E. 796 (1897).
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[FN3] Wis.Ady v. Barnett, 142 Wis. 18, 124 N.W. 1061 (1910). Accounting abandoned by seeking damages U.S.Mamlin v. Fairfield-Noble Corp., 433 F. Supp. 317 (N.D. Tex. 1977). [FN4] Kan.Kansas Pac. Ry. Co. v. Hopkins, 18 Kan. 494, 1877 WL 1089 (1877). Tex.Wood v. Spears, 62 S.W.2d 550 (Tex. Civ. App. Galveston 1933), writ dismissed. [FN5] Informed consent In medical malpractice action against hospital and surgeon, issue of informed consent was abandoned in lower court where, during hearing on surgeon's motion for summary judgment, patient stated to court that lawsuit was not concerned with informed consent and then proceeded to argue doctrine of res ipsa loquitur. Ga.Fox v. Cohen, 160 Ga. App. 270, 287 S.E.2d 272 (1981). [FN6] Md.Moore v. Avocet Development Corp., 292 Md. 593, 440 A.2d 386 (1982). Tex.Spiritual Temple v. Wheeler, 28 S.W.2d 253 (Tex. Civ. App. Fort Worth 1930), writ dismissed w.o.j., (Oct. 15, 1930). Wis.Ady v. Barnett, 142 Wis. 18, 124 N.W. 1061 (1910). [FN7] U.S.Universal Credit Co. v. Fortinberry, 63 F.2d 71 (C.C.A. 5th Cir. 1933). Ill.Consolidated Coal Co. of St. Louis v. Peers, 205 Ill. 531, 68 N.E. 1065 (1903). Ky.Seeley v. Mitchell's Assignee, 85 Ky. 508, 9 Ky. L. Rptr. 86, 4 S.W. 190 (1887). Wash.St. Romaine v. City of Seattle, 5 Wash. App. 181, 486 P.2d 1135 (Div. 1 1971). Counsel leaving courtroom Where plaintiff's counsel left courtroom after trial court's refusal to allow voluntary nonsuit against remaining defendants, who were proceeding with their testimony, plaintiff had abandoned his action against such defendants. Wash.Jackson v. Standard Oil Co. of California, 8 Wash. App. 83, 505 P.2d 139 (Div. 2 1972). [FN8] Va.K-B Corp. v. Gallagher, 218 Va. 381, 237 S.E.2d 183 (1977). [FN9] Nev.Hewitt v. Allen, 118 Nev. 216, 43 P.3d 345 (2002). [FN10] Wash.Northern Pac. Ry. Co. v. State, 144 Wash. 505, 258 P. 482 (1927).
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. XI. Commencement, Prosecution, and Termination D. Abandonment; Pendency and Termination Topic Summary References Correlation Table 342. AbandonmentDelay in prosecution West's Key Number Digest West's Key Number Digest, Action 70 While mere delay in prosecuting an action is not an abandonment unless it is intended as such, generally an unexplained delay of a sufficient length raises a rebuttable presumption of abandonment. While mere delay in the prosecution of the action has been regarded as insufficient of itself to constitute an abandonment of the action[1] in the absence of any intention to abandon,[2] it is generally held that a long and unexplained delay raises a presumption of abandonment which may justify the court in refusing to allow further prosecution of the action, even though there is no intention to abandon.[3] However, this presumption is rebuttable.[4] Generally, the facts and circumstances of the particular case will determine whether there is an abandonment.[5] Where, however, a delay of a certain length of time without taking any steps in the prosecution of the action is by statute declared to be an abandonment, an action is abandoned by delay beyond the time specified.[6 ] This provision is self-executing.[7] Even under such a statute, however, the failure to prosecute an action within the statutory period does not constitute a conclusive presumption of an intent to abandon the action,[8] and a plaintiff is excused from the application of the presumption if he or she can show that the failure to prosecute was due to circumstances beyond his or her control,[9] but where it is within the plaintiff's power to act in furtherance of prosecution and he or she fails to do so through negligence or inaction, he or she will be deemed to have abandoned the suit.[10] Any formal action before the trial court intended to hasten the suit to judgment interrupts the statutory abandonment period and commences its running anew.[11] Under other statutes, the failure to restore an action to the trial calendar within the statutory period after it has been marked off, results in a presumption of abandonment,[12] which may be rebutted by showing a valid and reasonable excuse for the delay.[13] A defendant may waive his or her right to assert abandonment by taking actions inconsistent with an intent to treat the case as abandoned.[14] Waiver may be shown by extrinsic evidence.[15] Once the case is submitted to the court for decision, the rule providing that an action is abandoned where the plaintiff fails to take any steps in its prosecution in the trial court is inapplicable.[16]
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[FN1] Mich.McKenzie v. A.P. Cook Co., 113 Mich. 452, 71 N.W. 868 (1897). W.Va.Taylor v. Taylor, 76 W. Va. 469, 85 S.E. 652 (1915). [FN2] W.Va.Hough v. Watson, 91 W. Va. 161, 112 S.E. 303 (1922). [FN3] U.S.Bowen v. Wilson, 15 F.2d 733 (App. D.C. 1926). Fla.Morris v. Phifer State Bank, 90 Fla. 55, 105 So. 150 (1925). N.Y.Ace Mail Advertising v. Newgold, 265 N.Y. 298, 192 N.E. 483 (1934). Tex.Hermann (Hermann Hospital Estate) v. Higgins Oil & Fuel Co., 260 S.W. 1094 (Tex. Civ. App. Galveston 1924), writ refused, (May 7, 1924). Delayed service of complaint N.Y.Lancaster v. Kindor, 98 A.D.2d 300, 471 N.Y.S.2d 573 (1st Dep't 1984), order aff'd, 65 N.Y.2d 804, 493 N.Y.S.2d 127, 482 N.E.2d 923 (1985). [FN4] N.Y.Pirnak v. Savino, 96 A.D.2d 857, 465 N.Y.S.2d 773 (2d Dep't 1983). [FN5] Tex.Carr v. Cleveland, 86 S.W.2d 858 (Tex. Civ. App. Beaumont 1935), writ refused. [FN6] La.Gravois v. Uniroyal, Inc., 458 So. 2d 949 (La. Ct. App. 1st Cir. 1984). [FN7] La.Clark v. State Farm Mut. Auto. Ins. Co., 785 So. 2d 779 (La. 2001). [FN8] La.Clark v. State Farm Mut. Auto. Ins. Co., 785 So. 2d 779 (La. 2001). [FN9] La.Clark v. State Farm Mut. Auto. Ins. Co., 785 So. 2d 779 (La. 2001). [FN10] La. Pounds v. Yancy, 224 So. 2d 1 (La. Ct. App. 1st Cir. 1969), writ refused, 254 La. 810, 227 So. 2d 145 (1969). [FN11] La.Clark v. State Farm Mut. Auto. Ins. Co., 785 So. 2d 779 (La. 2001). [FN12] N.Y.Pirnak v. Savino, 96 A.D.2d 857, 465 N.Y.S.2d 773 (2d Dep't 1983). [FN13] N.Y.Catalfamo v. Flushing Nat. Bank, 91 A.D.2d 967, 457 N.Y.S.2d 337 (2d Dep't 1983). [FN14] La.Clark v. State Farm Mut. Auto. Ins. Co., 785 So. 2d 779 (La. 2001). [FN15] La.Clark v. State Farm Mut. Auto. Ins. Co., 785 So. 2d 779 (La. 2001). [FN16] La.Succession of Moody, 306 So. 2d 869 (La. Ct. App. 1st Cir. 1974), writ denied, 310 So. 2d 639 (La. 1975). W.Va.Taylor v. Taylor, 76 W. Va. 469, 85 S.E. 652 (1915).
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. XI. Commencement, Prosecution, and Termination D. Abandonment; Pendency and Termination Topic Summary References Correlation Table 343. AbandonmentEffect West's Key Number Digest West's Key Number Digest, Action 70 Abandonment of a particular proceeding does not ordinarily affect the cause of action, but abandonment of the cause of action precludes any subsequent action on the same cause of action. Abandonment of a particular proceeding does not ordinarily amount to abandonment of the cause of action so as to preclude the bringing of another action on the same cause,[1] and the effect of such abandonment is merely to restore conditions as they were and as if the action had never been brought.[2] However, abandonment of the entire cause of action precludes any subsequent action for the same cause.[3] The abandonment of a claim entails the abandonment of any reliance on the statute from which the claim arises,[4] and abandonment of a divorce action will preclude the use of the date the petition was filed in that action as the date for the termination of the community in a subsequent action.[5] It is error to enter judgment against one defendant based on several liability where the plaintiff has abandoned his or her claim against the other defendant based on several liability, but not his or her claim against both parties based on joint and several liability, and the jury, in essence, finds both parties liable.[6]
[FN1] La.Pounds v. Yancy, 224 So. 2d 1 (La. Ct. App. 1st Cir. 1969), writ refused, 254 La. 810, 227 So. 2d 145 (1969). [FN2] Ky. Dahlem v. Holbert, 461 S.W.2d 539 (Ky. 1970) (overruled in part on other grounds by, Barrett v. Barrett, 474 S.W.2d 74 (Ky. 1971)). La.Wells v. Goss, 110 La. 347, 34 So. 470 (1903). [FN3] U.S.Casto v. Arkansas-Louisiana Gas Co., 597 F.2d 1323 (10th Cir. 1979). [FN4]
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Adverse possession statute IowaState v. Simmons, 290 N.W.2d 589 (Iowa 1980). [FN5] La.Burger v. Burger, 357 So. 2d 1178 (La. Ct. App. 4th Cir. 1978). [FN6] Md.Traylor v. Grafton, 273 Md. 649, 332 A.2d 651 (1975). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 343 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. XI. Commencement, Prosecution, and Termination D. Abandonment; Pendency and Termination Topic Summary References Correlation Table 344. Pendency West's Key Number Digest West's Key Number Digest, Action 71 An action is to be regarded as pending from the time of its commencement until its final termination. An action is pending from the date of its commencement[1] until a determination has been made,[2] or until its final termination[3] by final judgment or decree,[4] judgment of dismissal, or some other action of the trial court.[5] Rendition of the judgment is not regarded as terminating an action in all jurisdictions,[6] and it has been said that an action remains pending so long as it is still open to modification, appeal, or rehearing, until final judgment is rendered[7] and all posttrial motions have been disposed of,[8] until the expiration of the trial court's plenary power over the proceeding,[9] or there is a final determination on appeal.[10] As against tort-feasors, an action continues after judgment for the purpose of enforcing contribution between codefendants.[11] An action remains pending notwithstanding the death of the presiding judge before granting an interlocutory judgment,[12] and even if the only matter before the court is a motion for attorney's fees.[13] The plaintiff's right to keep an action alive until service can be made on the defendant is not absolute for any particular period of time,[14] but an action commenced by service of the summons without complaint is still viable even where a statutory period for complaint service has expired, where the defendant does not move to dismiss the action before late service of the complaint.[15]
[FN1] Colo.Johnson v. McCaughan, Carter & Scharrer, 672 P.2d 221 (Colo. Ct. App. 1983). Conn.Iffland Lumber Co. v. Tucker, 33 Conn. Supp. 692, 368 A.2d 606 (Super. Ct. Appellate Sess. 1976). Fla.Bonis v. Bonis, 420 So. 2d 104 (Fla. Dist. Ct. App. 3d Dist. 1982).
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Tex.Pan American Bank of Brownsville v. Nowland, 650 S.W.2d 879 (Tex. App. San Antonio 1983), writ refused n.r.e., (Jan. 4, 1984) and (disapproved of on other grounds by, Crimmins v. Lowry, 691 S.W.2d 582, 40 U.C.C. Rep. Serv. 1779 (Tex. 1985)). Baldwin v. Moses, 182 W. Va. 120, 386 S.E.2d 487 (1989). [FN2] AlaskaIn re MacKay, 416 P.2d 823 (Alaska 1964). [FN3] N.M.Baldonado v. Navajo Freight Lines, Inc., 90 N.M. 284, 562 P.2d 1138 (Ct. App. 1977), decision rev'd on other grounds, 90 N.M. 264, 562 P.2d 497 (1977). [FN4] Cal.Cain v. French, 29 Cal. App. 725, 156 P. 518 (1st Dist. 1916). Ill.People v. Gilbert, 281 Ill. 619, 118 N.E. 196 (1917). Tex.Pan American Bank of Brownsville v. Nowland, 650 S.W.2d 879 (Tex. App. San Antonio 1983), writ refused n.r.e., (Jan. 4, 1984) and (disapproved of on other grounds by, Crimmins v. Lowry, 691 S.W.2d 582, 40 U.C.C. Rep. Serv. 1779 (Tex. 1985)). W.Va.Baldwin v. Moses, 182 W. Va. 120, 386 S.E.2d 487 (1989). Decision on merits Ala.Ex parte Blanton, 463 So. 2d 162 (Ala. 1985). [FN5] Ala.Ex parte Blanton, 463 So. 2d 162 (Ala. 1985). La. Jobson v. Hodge, 347 So. 2d 57 (La. Ct. App. 2d Cir. 1977), writ denied, 350 So. 2d 674 (La. 1977). [FN6] 345. [FN7] U.S.Knights of the Ku Klux Klan Realm of Louisiana v. East Baton Rouge Parish School Bd., 679 F.2d 64, 4 Ed. Law Rep. 710 (5th Cir. 1982); Perzinski v. Chevron Chemical Co., 503 F.2d 654 (7th Cir. 1974); Mendoza v. Blum, 560 F. Supp. 284 (S.D. N.Y. 1983). Ark.Skelton v. B. C. Land Co., Inc., 260 Ark. 122, 539 S.W.2d 411 (1976). U.S.Doe v. Secretary of Air Force, 587 F. Supp. 1540 (D.D.C. 1984). Fla.Bonis v. Bonis, 420 So. 2d 104 (Fla. Dist. Ct. App. 3d Dist. 1982). Mich.Bull v. Bull, 109 Mich. App. 328, 311 N.W.2d 768 (1981) (overruled on other grounds by, In re Clausen, 442 Mich. 648, 502 N.W.2d 649 (1993)). [FN8] Tex. Tuthill v. Southwestern Public Service Co., 614 S.W.2d 205 (Tex. Civ. App. Amarillo 1981), writ refused n.r.e. [FN9] Tex.Thomas v. Oldham, 895 S.W.2d 352 (Tex. 1995). [FN10] Cal. Hardy v. Western Landscape Construction, 141 Cal. App. 3d 1015, 190 Cal. Rptr. 766
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(4th Dist. 1983). Fla.Wilson v. Clark, 414 So. 2d 526 (Fla. Dist. Ct. App. 1st Dist. 1982). Nev.Braddock v. Braddock, 91 Nev. 735, 542 P.2d 1060 (1975). Determination on appeal Under common law, civil case is deemed pending until final determination on appeal. Colo.In re Custody of Rector, 39 Colo. App. 111, 565 P.2d 950 (1977). [FN11] N.Y.Ohlquist v. Nordstrom, 143 Misc. 502, 257 N.Y.S. 711 (Sup 1932), aff'd, 238 A.D. 766, 261 N.Y.S. 1039 (4th Dep't 1933), aff'd, 262 N.Y. 696, 188 N.E. 125 (1933). [FN12] N.Y.Smith v. Smith, 130 Misc. 905, 225 N.Y.S. 606 (Sup 1927). [FN13] U.S. Knights of the Ku Klux Klan Realm of Louisiana v. East Baton Rouge Parish School Bd., 679 F.2d 64, 4 Ed. Law Rep. 710 (5th Cir. 1982). [FN14] Pa.Peterson v. Philadelphia Suburban Transp. Co., 435 Pa. 232, 255 A.2d 577 (1969). [FN15] N.Y.Weinstein v. General Motors Corp., 51 A.D.2d 335, 381 N.Y.S.2d 283, 19 U.C.C. Rep. Serv. 143 (1st Dep't 1976). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 344 END OF DOCUMENT
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. XI. Commencement, Prosecution, and Termination D. Abandonment; Pendency and Termination Topic Summary References Correlation Table 345. Termination West's Key Number Digest West's Key Number Digest, Action 71 Depending on the jurisdiction in which it is brought, an action duly prosecuted is regarded as terminated upon rendition of judgment, satisfaction of the judgment, or expiration of the time for appeal. Where an action is duly prosecuted, the time when it terminates differs in different jurisdictions, some of which consider it terminated on rendition of the judgment.[1] In other jurisdictions, however, an action does not terminate on rendition of the judgment,[2] and is not regarded as terminated until the judgment is satisfied,[3] or until the time for taking an appeal has expired,[4] unless the judgment is satisfied sooner.[5] Under some authority, a suit is not legally terminated until it has been finally decided by the court of appeals to which it is finally submitted, and its opinion certified in the trial court.[6] An action may be terminated in different ways prior to the time at which it would logically terminate if duly prosecuted through its successive stages,[7] but there is no termination of litigation until, where required, the court enters an appropriate order.[8] Termination on a nonprejudicial procedural matter is held in extreme disfavor.[9] A dismissal of the complaint after findings of all facts and law for the defendant terminates the case,[10] but dismissal of the complaint with leave to amend does not terminate the action.[11] Once a case is terminated, no further action can be taken without issuance of service of process,[12] and an action which is no longer pending is absolutely dead even if it is still on file with the clerk of the court.[13] Generally, a court is to apply the law in effect at the time it renders its decision,[14] unless doing so would result in manifest injustice,[15] or there is statutory direction or legislative history to the contrary.[16] In determining whether it would be unjust to apply a change in law to a pending case, the court should consider the nature and identity of the parties,[17] the nature of their rights,[18] and the nature of the impact of the change in the law on those rights.[19]
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[FN1] N.Y.White v. White, 224 A.D. 355, 231 N.Y.S. 146 (1st Dep't 1928). [FN2] Cal.Anderson v. Schloesser, 153 Cal. 219, 94 P. 885 (1908). [FN3] U.S.Becker Steel Co. of America v. Hicks, 66 F.2d 497 (C.C.A. 2d Cir. 1933). [FN4] S.D.Brown v. Christensen, 50 S.D. 474, 210 N.W. 668 (1926). [FN5] Cal.Vermont Marble Co. v. Black, 123 Cal. 21, 55 P. 599 (1898). [FN6] Ind.Commercial Credit Corp. v. Ensley, 148 Ind. App. 151, 264 N.E.2d 80 (Div. 2 1970). [FN7] Ark.General Elec. Credit Corp. v. Bankers Commercial Corp., 249 Ark. 106, 458 S.W.2d 143 (1970). Del.Rice v. McCaulley, 12 Del. 226, 7 Houst. 226, 31 A. 240 (Ct. Err. & App. 1885). Ga.Lindsay v. Lindsay, 241 Ga. 166, 244 S.E.2d 8 (1978). Mo.Hanchett Bond Co. v. Glore, 208 Mo. App. 169, 232 S.W. 159 (1921). N.Y.Zurich Ins. Co. v. Evans, 90 Misc. 2d 286, 394 N.Y.S.2d 539 (N.Y. City Civ. Ct. 1977). [FN8] Va.Nash v. Jewell, 227 Va. 230, 315 S.E.2d 825 (1984). [FN9] Pa.Croom v. Selig, 318 Pa. Super. 206, 464 A.2d 1303 (1983). [FN10] S.C.Drennan v. Brown, 114 S.C. 491, 103 S.E. 889 (1920). [FN11] Fla.Wilson v. Clark, 414 So. 2d 526 (Fla. Dist. Ct. App. 1st Dist. 1982). [FN12] Ark.General Elec. Credit Corp. v. Bankers Commercial Corp., 249 Ark. 106, 458 S.W.2d 143 (1970). [FN13] Cal.Mason & Associates, Inc. v. Guarantee Sav. & Loan Ass'n of Livermore Valley, 269 Cal. App. 2d 132, 74 Cal. Rptr. 669 (1st Dist. 1969). [FN14] U.S.Perrine v. Montone, 76 F.R.D. 444 (E.D. Pa. 1977). Ill.Naramore v. Colquitt, 15 Ill. App. 3d 954, 305 N.E.2d 662 (1st Dist. 1973). Kan.Murray v. State, 226 Kan. 26, 596 P.2d 805 (1979). Rule applicable to appellate courts U.S. Bradley v. School Bd. of City of Richmond, 416 U.S. 696, 94 S. Ct. 2006, 40 L. Ed. 2d 476 (1974). [FN15] U.S. Natural Resources Defense Council, Inc. v. U.S. Nuclear Regulatory Commission, 580
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F.2d 698 (D.C. Cir. 1978). [FN16] U.S.Memorial Hosp. v. Heckler, 706 F.2d 1130 (11th Cir. 1983). [FN17] U.S.Bradley v. School Bd. of City of Richmond, 416 U.S. 696, 94 S. Ct. 2006, 40 L. Ed. 2d 476 (1974). [FN18] U.S.Bradley v. School Bd. of City of Richmond, 416 U.S. 696, 94 S. Ct. 2006, 40 L. Ed. 2d 476 (1974). [FN19] U.S.Bradley v. School Bd. of City of Richmond, 416 U.S. 696, 94 S. Ct. 2006, 40 L. Ed. 2d 476 (1974). Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS 345 END OF DOCUMENT
CJS ACTIONS COR 1A C.J.S. Actions Correlation Table
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Corpus Juris Secundum Database updated May 2010 Actions by John Dvorske, J.D.; John R. Kennel, J.D., of the staff of the National Legal Research Group, Inc.; Jack K. Levin, J.D.; Carmela Pellegrino, J.D.; Elizabeth Williams, J.D. Topic Summary Correlation Table ACTIONS ............................................................................ 1................................................................................. Deleted 2................................................................................. 1, 2, 4, 5 3................................................................................. 3, 4, 5, 11, 14 4................................................................................. 6, 7, 8, 9, 10 5................................................................................. 11, 12, 13, 14, 16, 18 6................................................................................. 17, 18, 19 7................................................................................. 22, 23, 24, 25, 26 8................................................................................. 20 9................................................................................. 21 10............................................................................... 27, 28, 29 11............................................................................... 31, 32, 33, 34 12............................................................................... 35 13............................................................................... 30 14............................................................................... 36, 37 15............................................................................... 38 16............................................................................... 39 17............................................................................... 34 18............................................................................... 41 19............................................................................... 41, 44, 45, 46, 48, 49, 50, 51, 52, 53 20............................................................................... 41, 42, 43 21............................................................................... 54, 55 22............................................................................... 56 23............................................................................... 57 24............................................................................... 62 25............................................................................... 63, 64 26............................................................................... 65 27............................................................................... 66 28............................................................................... 67 29............................................................................... 68
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30............................................................................... 69 31............................................................................... 58 32............................................................................... 59, 60, 61 33............................................................................... 70 34............................................................................... 71 35............................................................................... 71 36............................................................................... 72 37............................................................................... 73 38............................................................................... 74, 75, 76 39............................................................................... 76, 77 40............................................................................... 78 41............................................................................... 81 42............................................................................... 82 43............................................................................... 83 44............................................................................... 79 45............................................................................... 80 46............................................................................... 84 47............................................................................... 85 48............................................................................... 86 49............................................................................... 88 50............................................................................... 89 51............................................................................... 90 52............................................................................... 87 53............................................................................... 91 54............................................................................... 95, 96 55............................................................................... 92 56............................................................................... 93, 94 57............................................................................... 97 58............................................................................... 98 59............................................................................... 101, 102, 103, 104 60............................................................................... 105, 106 61............................................................................... 108 62............................................................................... 112, 113 63............................................................................... 109, 110, 111 64............................................................................... 99 65............................................................................... 100 66............................................................................... 114 67............................................................................... 115 68............................................................................... 116 69............................................................................... 117 70............................................................................... 118 71............................................................................... 119 72............................................................................... 120 73............................................................................... 121 74............................................................................... 122
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75............................................................................... 123 76............................................................................... 124 77............................................................................... 125 78............................................................................... 126 79............................................................................... 127 80............................................................................... 128 81............................................................................... 129 82............................................................................... 130 83............................................................................... 131 84............................................................................... 132, 133 85............................................................................... 134 86............................................................................... 135 87............................................................................... 136 88............................................................................... 137 89............................................................................... 138 90............................................................................... 139 91............................................................................... 140 92............................................................................... 141 93............................................................................... 143 94............................................................................... 147 95............................................................................... 148 96............................................................................... 149 97............................................................................... 150 98............................................................................... 151 99............................................................................... 152 100.............................................................................. 153 101.............................................................................. 154 102.............................................................................. 155 103.............................................................................. 156 104.............................................................................. 157 105.............................................................................. 158 106.............................................................................. Deleted 107.............................................................................. 159 108.............................................................................. 160 109.............................................................................. 161 110.............................................................................. 162 111.............................................................................. 163 112.............................................................................. 164 113.............................................................................. 165 114.............................................................................. 166 115.............................................................................. 167 116.............................................................................. 168 117.............................................................................. 169 118.............................................................................. 170 119.............................................................................. 171
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120.............................................................................. 172 121.............................................................................. 173 122.............................................................................. 174 123.............................................................................. 175 124.............................................................................. 176 125.............................................................................. 177 126.............................................................................. 178 127.............................................................................. 179 128.............................................................................. 180 129.............................................................................. 181 130.............................................................................. 182 131.............................................................................. 183 132.............................................................................. 184 133.............................................................................. 185 134.............................................................................. 186 135.............................................................................. 187 136.............................................................................. 188 137.............................................................................. 189, 190, 191, 192, 193 138.............................................................................. 194 139.............................................................................. 193 140.............................................................................. Deleted 141.............................................................................. 195 142.............................................................................. 196 143.............................................................................. Deleted 144.............................................................................. Deleted 145.............................................................................. Deleted 146.............................................................................. Deleted 147.............................................................................. Deleted 148.............................................................................. Deleted 149.............................................................................. Deleted 150.............................................................................. Deleted 151.............................................................................. Deleted 152.............................................................................. Deleted 153.............................................................................. Deleted 154.............................................................................. 197 155.............................................................................. 198 156.............................................................................. 199, 200 157.............................................................................. 201 158.............................................................................. Deleted 159.............................................................................. 202 160.............................................................................. Deleted 161.............................................................................. Deleted 162.............................................................................. 205 163.............................................................................. 206 164.............................................................................. 207, 221
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165.............................................................................. Deleted 166.............................................................................. 208 167.............................................................................. 210 168.............................................................................. 211 169.............................................................................. Deleted 170.............................................................................. 209 171.............................................................................. 212, 213, 214 172.............................................................................. 216 173.............................................................................. 217 174.............................................................................. 218 175.............................................................................. 219, 220 176.............................................................................. 222, 223 177.............................................................................. 224, 225, 226, 227 178.............................................................................. 231, 232 179.............................................................................. 225, 229, 230 180.............................................................................. 228 181.............................................................................. 233 182.............................................................................. 234 183.............................................................................. 235 184.............................................................................. 232 185.............................................................................. 236, 237, 238 186.............................................................................. 239 187.............................................................................. 242 188.............................................................................. 247, 248, 249 189.............................................................................. 241 190.............................................................................. 243 191.............................................................................. 240 192.............................................................................. 244 193.............................................................................. 245 194.............................................................................. 246 195.............................................................................. 250 196.............................................................................. 251 197.............................................................................. 252 198.............................................................................. 253 199.............................................................................. 254 200.............................................................................. 255 201.............................................................................. 256 202.............................................................................. 257 203.............................................................................. 258 204.............................................................................. 259 205.............................................................................. 261, 262, 280, 283 206.............................................................................. 259, 263, 264, 265 207.............................................................................. 260, 262, 263, 264, 265, 266 208.............................................................................. 263, 267 209.............................................................................. 268, 269, 270, 271, 272
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210.............................................................................. 273 211.............................................................................. 279 212.............................................................................. 278, 280 213.............................................................................. 278, 283, 284 214.............................................................................. 285 215.............................................................................. 281 216.............................................................................. 274, 275, 276, 277 217.............................................................................. Deleted 218.............................................................................. Deleted 219.............................................................................. 282 220.............................................................................. 286 221.............................................................................. 287 222.............................................................................. 291 223.............................................................................. 292 224.............................................................................. 293 225.............................................................................. 294 226.............................................................................. 288, 289 227.............................................................................. 288 228.............................................................................. 290 229.............................................................................. 295, 296, 297 230.............................................................................. 300, 301 231.............................................................................. 302 232.............................................................................. 303 233.............................................................................. 304 234.............................................................................. 298 235.............................................................................. 299 236.............................................................................. Deleted 237.............................................................................. 305 238.............................................................................. 306, 307 239.............................................................................. 308 240.............................................................................. 310, 311 241.............................................................................. 312, 313, 314, 315, 316, 317 242.............................................................................. 309 243.............................................................................. 318 244.............................................................................. 319 245.............................................................................. 322, 323, 324, 325 246.............................................................................. 320, 321 247.............................................................................. 322, 326, 327, 328, 329 248.............................................................................. 332, 333 249.............................................................................. 329, 330, 331 250.............................................................................. 334 251.............................................................................. 331, 335, 336 252.............................................................................. 337 253.............................................................................. 338, 339 254.............................................................................. 340
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255.............................................................................. 341 256.............................................................................. 342 257.............................................................................. 343 258.............................................................................. 344 259.............................................................................. 345 Westlaw. 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. CJS ACTIONS COR END OF DOCUMENT

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[FN1] 17. [FN2] 16. [FN3] 22.

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