res judicata

[willing to pay]

What is the name of your state? NJ
There are two cases, the second case was filed by the defendant of the first case against the plaintiff of the first case, but not filed as a counter claim. The two cases were consolidated. The second case was dismissed with prejudice ending all of its claims.
A new case was filed by the same estate which filed the original second case, different executor, but with the same claims as the dismissed case.
The cases were again consolidated and went to trial. Final judgement was granted in favor of the second case. I had the first case and that went nowhere at trial.
I want to claim res judicata against the second case within my appeal, my attorney says since both cases were not originally dismissed prior to the refiling of the new claim after case was dismissed with prejudice, there was not a final judgement in all cases which is needed to claim res judicata.
Wasn't there a final dismissal in the case I want to claim res j. against. And must my case have to have had a final judgement also.
Is the claim of res judicata permissable in this instance.

Thank you

 

[ForFun]

There are two cases, the second case was filed by the defendant of the first case against the plaintiff of the first case, but not filed as a counter claim. The two cases were consolidated. The second case was dismissed with prejudice ending all of its claims.

A new case was filed by the same estate...with the same claims as the dismissed case.

Final judgement was granted in favor of the second case.

my attorney says since both cases were not originally dismissed prior to the refiling of the new claim after case was dismissed with prejudice, there was not a final judgement in all cases which is needed to claim res judicata.

Wasn't there a final dismissal in the case I want to claim res j. against. And must my case have to have had a final judgement also.

I would have thought res judicata is appropriate, although I'm not positive. What would be the point of the court dismissing the second claim with prejudice if the claim can be refiled?

I'll see if I can find some case law with similar facts. Maybe somebody else can respond who knows for sure, though.

 

[seniorjudge]

I would have thought res judicata is appropriate, although I'm not positive. What would be the point of the court dismissing the second claim with prejudice if the claim can be refiled?

I'll see if I can find some case law with similar facts. Maybe somebody else can respond who knows for sure, though.

Please do not encourage double posters.

This is the SIXTH thread this poster has started about litigation.

 

[willing to pay]

The argument against the availability of the res judicata defense is,
Once the two cases were consolidated, they became one case.
The dismissal order with prejudice noted the estate could file a NEW complaint.
The executor filed an amended complaint with the original case number of the estate's first case. So machanically he got back in the consolidated case, which is as I understand becomes only one case via consolidation. And until there is a decision on all the issues in all the originally consolidated cases, there is not a final decision, which would allow a claim of res judicata.
It seems like because my case lived on after the dismissal w/ prejudice, I lost my right to the res judicata defense, due to the actions of the court by consolidating. Why should I lose a viable defense because of a court consolidation. It was not a judicial decision that bars the res J. defense.
Thanks,

 

[ForFun]

The dismissal order with prejudice noted the estate could file a NEW complaint.

This is where it's confusing. Generally, when a case is dismissed with prejudice, a new complaint cannot be refiled. Yet you're saying the judge specifically told them they could file a new complaint.

Let's forget the term "with prejudice" for a moment. The point behind res judicata is that it's unfair for parties to have to keep defending against the same action repeatedly. Therefore, cases that were decided based on their merits cannot be refiled, while cases that were not decided on their merits usually can be. Was the second case dismissed based on the merits, or was it dismissed because of something else?

 

[willing to pay]

For Fun,

It is more complicated than anyone can imagine.
The original second case was by the original co-executrix. After that case was filed she made a motion in chancery to remove her co-executor, that triggered a cross motion to remove her. The order on these removal motions stated that the executor(by name) was removed and a substitute executor was appointed. The order never stated (by name)that she was removed. The new executor stayed out of getting involved for a year and a half.
The last motion that resulted in the dismissal was based on a claim of Lack of Standing, it was unopposed, because the party (the original executrix) did not want to continue. Hence when this motion was ruled on, the newly appointed executor showed up in the court with interest and an attempt to "step in". It was objected to, and the ruling stated he could file a New complaint.
The new executor did not file a new complaint because of statute of limitations issues, he was trying to preserve the original filing date, because by this time the S.O. L. had run out.
WHEW!!
So, the second case was dismissed for Lack of Standing because she was no longer executrix, which in itself says that the proper party, (a new party), is coming, hence a new complaint.

This case should be on the bar exam.
Thanks,
P.S. are you a lawyer or judge? I notice you have posted a lot.