Myrberg v. Snelgrove

2013 UT App 89_________________________________________________________
THE UTAH COURT OF APPEALS
ERIC MYRBERG,
Plaintiff and Appellant,
v.
MICHAEL W. SNELGROVE AND ANNETTE SNELGROVE,
Defendants and Appellees.
Per Curiam Decision
No. 20120275‐CA
Filed April 11, 2013
Second District, Farmington Department
The Honorable David R. Hamilton
No. 110700028
Keith M. Backman, Attorney for Appellant
Michael and Annette Snelgrove, Appellees Pro Se
Before JUDGES THORNE, ROTH, and CHRISTIANSEN.
PER CURIAM:
¶1 Eric Myrberg appeals the district court’s dismissal of his
case based upon principles of res judicata. We affirm.
¶2 The doctrine of res judicata has two distinct branches: claim
preclusion and issue preclusion. See Mack v. Division of Sec., 2009
UT 47, ¶ 29, 221 P.3d 194. Claim preclusion results in a cause of
action being barred and “is premised on the principle that a
controversy should be adjudicated only once.” Id. (citation and
internal quotation marks omitted). The determination whether a
claim is precluded is based upon a three‐part test.
Myrberg v. Snelgrove
First, both cases must involve the same parties or
their privies. Second, the claim that is alleged to be
barred must have been presented in the first suit or
be one that could and should have been raised in the
first action. Third, the first suit must have resulted in
a final judgment on the merits.
Snyder v. Murray City, 2003 UT 13, ¶ 34, 73 P.3d 325. “Whether res
judicata, and more specifically claim preclusion, ‘bars an action
presents a question of law’ that we review for correctness.” Mack,
2009 UT 47, ¶ 26 (quoting Macris & Assocs., Inc. v. Neways, Inc., 2000
UT 93, ¶ 17, 16 P.3d 1214).
¶3 The underlying case arose from a dispute between adjacent
property owners. In 2006, Myrberg filed his first action against
Michael and Annette Snelgrove. The parties entered into a
settlement agreement in March 2008 with the intention of resolving
all claims in the first action. In the first action, Myrberg filed
multiple motions seeking to enforce the settlement or to hold the
Snelgroves in contempt for an alleged failure to perform under the
settlement agreement. On August 6, 2010, the district court entered
findings of fact and conclusions of law and an order in the first
action. The district court found the Snelgroves to be in contempt of
a September 2009 order requiring them to pay $1,000 of Myrberg’s
fees and costs, which they belatedly paid in March 2010.
Accordingly, the district court imposed an additional sanction
requiring payment of another $1,000 toward Myrberg’s fees and
costs. However, the district court found that the Snelgroves were
not in contempt for failure to comply with the court’s order to
complete a french drain because “[t]he only french drain which
was started before the hearing in July of 2009 was the french drain
through the first berm and it is undisputed that this french drain
was completed.” The court rejected Myrberg’s claim that the
Snelgroves were required by the district court to complete a second
french drain.
20120275‐CA 2 2013 UT App 89Myrberg v. Snelgrove
¶4 In January 2011, Myrberg filed his second action against the
Snelgroves. In the second action, Myrberg alleged that the
Snelgroves breached the 2008 settlement agreement and an alleged
2010 oral agreement arising from the first action and that they
committed fraud in entering into those agreements without having
any intention to perform them. The Snelgroves moved to dismiss
the second action based upon res judicata. The Snelgroves
contended that Myrberg was “trying to cloak these previously
adjudicated claims and issues in a fraud claim” and that these
allegations were made during the first action and Myrberg either
pursued them or elected not to pursue them to judgment. Myrberg
argued that his fraud claims and breach of contract claims based
upon agreements reached in 2008 and 2010 “did not exist at the
time [he] filed his original complaint” in 2006, and therefore those
claims were not determined in the first action and could be
pursued in a second complaint. The Snelgroves countered that
Myrberg pursued his claims regarding compliance with the
settlement agreements through multiple motions filed in the first
action.
¶5 Following an evidentiary hearing, the district court granted
the motion to dismiss in the March 15, 2012 Order and Judgment
that Myrberg now appeals. The district court found that Myrberg
became aware of the alleged facts forming the basis for the second
action by 2009, during the first action. The district court found that
the information was known to Myrberg and available to him well
in advance of the July 2009 evidentiary hearing held in the first
action regarding the Snelgroves’ performance under the settlement
agreement, their completion of the french drain, and their alleged
contempt. The district court determined that the issues raised in the
second action were or could have been litigated in the first action
and that there was a final judgment on the merits in the first action.
It is undisputed that the parties were the same in the first and
second actions. Accordingly, the district court dismissed the second
action because “the claims are barred under the principles of res
judicata.”
20120275‐CA 3 2013 UT App 89Myrberg v. Snelgrove
¶6 On appeal, Myrberg argues that the claims alleging fraud
and breach of the agreements were not known to him when he filed
his 2006 complaint and therefore cannot be subject to claim
preclusion, relying upon Macris & Associates, Inc. v. Neways, 2000
UT 93, 16 P.3d 1214. However, Mack v. Division of Securities, 2009
UT 47, 221 P.3d 194, supports the application of the claim
preclusion branch of res judicata to this case. In Mack, the supreme
court stated,
Claims or causes of action are the same as those
brought or that could have been brought in the first
action if they arise from the same operative facts, or
in other words from the same transaction. See
Restatement (Second) of Judgments § 24 (1982).
Previously we have held that two causes of action are
the same if they rest on the same “state of facts,” and
the evidence “necessary to sustain the two causes of
action” is of the same kind or character. Shaer v. State,
657 P.2d 1337, 1340 (Utah 1983). More recently,
however, we have moved toward the transactional
theory of claim preclusion espoused by the
Restatement (Second).
Id. ¶ 30. The supreme court acknowledged that “[w]hile in some
cases we have still suggested that the evidence needed to sustain
the claims must be the same, this requirement was not dispositive
for these cases.” Id. Discussing Macris, the supreme court noted
that while it found there that claims in two cases brought by Macris
were based on different facts, “[c]ritical to [the court’s] holding was
the circumstance that the two claims arose out of different
transactions.” Id. Accordingly, the supreme court concluded that
“if a party raises claims based on the same operative facts or the
same transaction, it may be precluded if the other elements of claim
preclusion are met.” Id.
¶7 In the first action, Myrberg brought claims against the
Snelgroves for trespass, property damage, and infliction of
20120275‐CA 4 2013 UT App 89Myrberg v. Snelgrove
emotional distress arising from a property dispute. After the
parties reached a settlement agreement in the first action, Myrberg
accused the Snelgroves of failing to comply with the settlement
agreement, filing multiple motions seeking to enforce the
settlement and to find the Snelgroves in contempt of court orders.
After multiple hearings, discovery, depositions, and testimony at
evidentiary hearings, the district court entered a judgment in which
it concluded that the Snelgroves had not failed to comply with the
settlement and were not in contempt. Myrberg did not appeal.
¶8 Myrberg filed the second action, claiming that the
Snelgroves breached the settlement agreement and a subsequent
oral agreement, caused damages by the same alleged trespass,
caused emotional distress, and fraudulently entered into the
settlement agreement and subsequent oral agreement. The
Snelgroves persuasively argued that Myrberg’s claims were the
same claims that were or could have been pursued in the first
action. Characterizing the claims as fraud claims did not change the
essential character of allegations that were asserted in multiple
hearings regarding the Snelgrove’s compliance with the settlement
agreement and the efforts to achieve a workable drainage system.
Myrberg either raised or could have raised these claims in the first
action.
¶9 Because the claims made in the second action and the first
action arose from the same operative facts and the same
transaction, and Myrberg’s claims that the Snelgroves failed to
comply with the settlement and court orders were raised or could
have been raised in the first action, the district court did not err in
dismissing the second action brought against the Snelgroves based
upon the claim preclusion branch of res judicata.
20120275‐CA 5 2013 UT App 89