ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

CA03-242

October 22, 2003

JOHN E. ATKINS and JEANNETTE AN APPEAL FROM PULASKI COUNTY

W. ATKINS, His Wife CIRCUIT COURT

APPELLANTS [CV-2002-757]

v.

HONORABLE WILLARD PROCTOR, JR.

BOBBY E. FEWELL a/k/a CIRCUIT JUDGE

ROBERT E. FEWELL

APPELLEE AFFIRMED IN PART; REVERSED AND

REMANDED IN PART

Robert J. Gladwin, Judge

On February 1, 2002, appellants John and Jeanette Atkins sued appellee Robert Fewell in circuit court, alleging that Fewell had improperly adjusted the interest rate on promissory notes they had given him in 1984, had wrongfully withheld over $31,000 of their funds that should have been applied to the debts, and had damaged their credit. Fewell moved to dismiss on the ground that another action between the same parties was pending in the Pulaski County Circuit Court in Case No. OT96-2175, which is now on appeal to this court for the second time as Atkins v. Fewell, Case No. CA02-1286, and which is also decided today.1 In response, appellants pointed out that Mrs. Atkins was not a party to the other action, that Mr. Atkins had sought only an accounting in the other case, and that only corporate issues remained to be decided in it. Fewell again moved for dismissal on October 2, 2002, asserting that the parties and issues in both actions were identical and that the court had recently entered judgment, on August 20, 2002, for the defendants in the other action.

On November 4, 2002, the circuit court dismissed appellants' complaint in this lawsuit, stating:

Appellants assert on appeal that the court erred in dismissing their claims.

Mr. Atkins

We believe that the trial court correctly dismissed Mr. Atkins's claims, although we adopt a different line of reasoning than that stated by the trial court. In our view, the trial court erred in basing the dismissal of Mr. Atkins's claims on Arkansas Rule of Civil Procedure 12(b)(8). Rule 12(b)(8) provides that, when a suit is brought while another suit is pending between the same parties concerning the same subject matter, the trial court, where the second suit is brought, has no choice but to dismiss the second suit. Mark Twain Life Ins. Corp. v. Cory, 283 Ark. 55, 670 S.W.2d 809 (1984). When the trial court rendered its decision, Mr. Atkins's individual claims were no longer pending in the other lawsuit, and the only remaining claims were related to the shareholder derivative action.

Nevertheless, there is another basis upon which to affirm this aspect of the trial court's ruling. We will affirm the trial court's decision if it reached the correct result for any reason. Fritzinger v. Beene, 80 Ark. App. 416, 97 S.W.3d 440 (2003). It is clear to us that Mr. Atkins's claims were barred by the claim-preclusion aspect of res judicata. The purpose of the res judicata doctrine is to put an end to litigation by preventing a party who had one fair trial on a matter from relitigating the matter a second time. Brandon v. Arkansas Western Gas Co., 76 Ark. App. 201, 61 S.W.3d 193 (2001). The test in determining whether res judicata applies is whether matters presented in a subsequent suit were necessarily within the issues of the former suit andmight have been litigated therein. Van Curen v. Arkansas Prof'l Bail Bondsman Lic. Bd., 79 Ark. App. 43, 84 S.W.3d 47 (2002). Under the claim-preclusion aspect of the doctrine of res judicata, a valid and final judgment rendered on the merits by a court of competent jurisdiction bars another action by the plaintiff or his privies against the defendant or his privies on the same claim or cause of action. Brandon v. Arkansas Western Gas Co., supra. When a case is based on the same events as the subject matter of a previous lawsuit, res judicata will apply even if the subsequent lawsuit raises new legal issues and seeks additional remedies. Id. The key question regarding the application of res judicata is whether the party against whom the earlier decision is being asserted had a full and fair opportunity to litigate the issue in question. Id. Because Mr. Atkins's individual claims were decided by the trial court in the other action on May 27, 1997, and affirmed by this court, they are now res judicata.

Mrs. Atkins

The trial court also erred in dismissing Mrs. Atkins's claims on the basis of Rule 12(b)(8), because she was not a party to the other suit. Although there may be other possible defenses to Mrs. Atkins's claims on remand, they are not apparent as the record now stands. We therefore reverse and remand as to her claims.  

Clean-up Doctrine

Appellants also argue that the other court, which was a chancery court when the first suit was brought, had no jurisdiction to hear this action for damages. We disagree. Mr. Atkins sought an accounting in that action, over which the chancery court had jurisdiction. Under the clean-up doctrine, it would have had jurisdiction to hear his claim for damages. See Vowell v. Fairfield Bay Community Club, Inc., 346 Ark. 270, 58 S.W.3d 324 (2001). Appellants also argue that the rulings on Mr. Atkins's individual claims in the other action were without prejudice because they were not tried on the merits. Again, we disagree. The July 18, 2000, order entered by the other court in that suit dismissed the complaints "with prejudice."

Amendment 80

Appellants also argue, for the first time on appeal, that Amendment 80 of the Arkansas Constitution did not eliminate the distinction between law and equity. We need not consider for the first time on appeal an argument that was not raised and ruled on below. Ghegan & Ghegan, Inc. v. Barclay, 345 Ark. 514, 49 S.W.3d 652 (2001).

Affirmed in part; reversed and remanded in part.

Robbins and Bird, JJ., agree.

1 The lengthy history of litigation between Mr. Atkins and appellee is set forth in that decision and need not be repeated here.