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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. McDowell v State of Alaska (06/08/2001) sp-5417

McDowell v State of Alaska (06/08/2001) sp-5417

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.


McDOWELL,                     )
                              )    Supreme Court No. S-9101
             Appellants,      )
                              )    Superior Court No.
     v.                       )    3KN-98-784 CI
STATE OF ALASKA,              )    O P I N I O N
             Appellee.        )    [No. 5417 - June 8, 2001]

          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Kenai,
                     Jonathan H. Link, Judge.

          Appearances: Phillip Paul Weidner, Weidner &
Associates, Inc., Anchorage, for Appellant.  Craig J. Tillery,
Assistant Attorney General, Elise M. Hsieh, Assistant Attorney
General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau,
for Appellee.

          Before:   Matthews, Chief Justice, Eastaugh,
          Fabe, Bryner, and Carpeneti, Justices.  

          CARPENETI, Justice.

          Sam and Joyce McDowell sued the state for trespass
alleging that the state permitted petroleum contamination to
migrate from its Sterling Highway right-of-way onto the McDowell's
property.  The superior court granted the state's motion to dismiss
the trespass claim because the court had previously dismissed a
trespass claim regarding the same event in a pending case between
the McDowells and the state.  We affirm.
          Sam and A. Joyce McDowell own residential and investment
property in Sterling.  Their property is adjacent to the Sterling
          During the winter of 1988-89, the state conducted a
right-of-way acquisition survey of land located across the Sterling
Highway from the McDowells.  John and Carol Cook owned the surveyed
land and operated "Cook's Tesoro," a gas station, on it.  The state
sought to acquire this property by eminent domain for a Sterling
Highway expansion project.  During this survey, the state
discovered petroleum contamination under Cook's Tesoro.  The state
conducted remediation work at the site in October and November 1990 
and subsequently acquired the Cook's Tesoro property as a right-of-
way for the Sterling Highway.
          In December 1991 the McDowells discovered that a large
portion of their property, including their drinking water well, was
contaminated with petroleum.  After conducting a groundwater
investigation of the area, the Department of Environmental
Conservation concluded in January 1993 that this contamination had
migrated to the McDowells' property from Cook's Tesoro.  
          The McDowells filed a complaint against Cook's Tesoro
Service Station, Tesoro Alaska Petroleum Company, and the state in
August 1993.  The complaint asserted a number of claims including
negligence, trespass, and nuisance arising out of the Cook's Tesoro
contamination and remediation. 
          The state filed a summary judgment motion in response to
the McDowells' complaint, arguing that the negligence claim against
it should be dismissed under the doctrine of discretionary immunity
and that the nuisance and trespass claims should consequently be
dismissed because the act underlying the claims was a discretionary
function.  In March 1996 the superior court granted the state's
motion, dismissing the negligence, trespass, and nuisance claims
against the state. [Fn. 1]  The McDowells moved for
reconsideration, but the motion was denied under Alaska Rule of
Civil Procedure 77(k)(4).  
          In October 1998 the McDowells filed a new complaint for
trespass against the state alleging, among other things, that the
state (1) owned property (the Sterling Highway and its accompanying
right of way) that was contaminated with subsurface petroleum; (2)
had failed to adequately clean up the contamination; and (3) had
failed to act reasonably with respect to the petroleum
contamination of which it had actual knowledge at the time of
purchase.  The complaint also alleged that the contamination had
migrated from the state's property to the McDowells' property, or
constituted a threat thereto. 
          In January 1999 the state moved for preclusion of issues
and for dismissal under Alaska Rule of Civil Procedure 12(b)(6). 
The trial court granted the state's motion based upon its previous
ruling that the state was entitled to discretionary immunity from
the trespass claim.  In March 1999 the trial court entered final
judgment on the McDowells' 1998 trespass claim.  The McDowells
moved for reconsideration, but the motion was denied pursuant to
Civil Rule 77(k)(4). 
          The McDowells appeal.
          We review de novo a trial court's decision to dismiss a
case under Rule 12(b)(6). [Fn. 2]

     The McDowells' Trespass Claim Constitutes an Impermissible
Splitting of a Cause of Action and Cannot Therefore Be Litigated.
          The McDowells may not litigate their 1998 trespass
complaint because to do so would violate the longstanding rule
prohibiting the "splitting" of a claim by advancing one part of the
claim in an initial suit and reserving the remaining parts for a
later suit. [Fn. 3]  The rule against claim splitting provides that
"all claims arising out of a single transaction must be brought in
a single suit, and those that are not become extinguished by the
judgment in the suit in which some of the claims were brought."
[Fn. 4]  
           The McDowells' first and second trespass complaints
arose from the same transaction: the petroleum contamination on the
Cook's Tesoro property.  In their 1993 complaint, the McDowells
sued the state for negligence, nuisance, and trespass arising out
of the Cook's Tesoro remediation.  The trial court granted summary
judgment on all three issues.  The McDowells then moved for
reconsideration on the ground that the state should have been held
liable for trespass as the landowner of the Sterling Highway right-
of-way, a theory the McDowells did not raise in their original
opposition to the state's summary judgment motion.  The superior
court denied the motion under Alaska Civil Rule 77(k).  Rather than
seeking a Rule 54(b) final judgment and appealing the summary
judgment grant to this court, the McDowells waited nearly three
years and then filed a new complaint against the state based upon
the same initial facts, but on a different theory, the landowner
liability argument advanced in their motion to reconsider.  Both
the McDowells' 1993 and 1998 complaints grow out of the same core
set of operative facts: that contamination existed under the Cook's
Tesoro property, that this contamination migrated onto the
McDowells' property, and that the state negligently allowed this
migration to occur.  As such, they must be brought in the same
action. [Fn. 5]  Because the 1993 claims were dismissed by summary
judgment, any claims originating in the same underlying facts were
also extinguished. [Fn. 6]  Consequently, the McDowells' filing of
the 1998 trespass complaint, which arises out of the same set of
facts and is based on a claim that has been extinguished by summary
judgment, constitutes an impermissible splitting of a cause of
action and is therefore barred.
          Although the McDowells argue that the trespass claim in
the second complaint is different from the first because it treats
the state as a landowner rather than as a regulatory agency as it
did in the first complaint, this variation is irrelevant to our
analysis.  As discussed above, the relevant inquiry is not whether
the two claims are grounded in different theories, but whether they
arise out of the same transaction or core set of facts.  In fact,
the rationale behind the rule against splitting causes of action is
that parties cannot use different theories of recovery as separate
bases for multiple suits when the underlying claims are part of the
same transaction. [Fn. 7]  The McDowells' characterization of the
first claim as agency liability and the second as landowner
liability cannot circumvent the rule prohibiting splitting causes
of action because both claims arise out of the same occurrence.  In
Tolstrup, we stated that "[a] mere change in the legal theory is
not sufficient to prevent the operation of res judicata." [Fn. 8] 
Similarly, the McDowells' change in their legal theory of the
state's trespass liability is not sufficient to overcome the
prohibition against claim splitting. [Fn. 9] 
          The McDowells could have asserted their statutory and
common law trespass claims against the state as landowner in their
1993 complaint.  The grant of the state's motion for summary
judgment on the McDowells' first complaint extinguished the
McDowells' right to proceed later against the state under another
theory of trespass liability.  The McDowells' claims against the
state as owner of the Sterling Highway were part of the same
transaction as the prior action, and they cannot now revive that
extinguished claim.
          The McDowells' remedy for the superior court's decision
on the issue of the state's liability for trespass is limited to
appeal.  Following the grant of summary judgment, the proper remedy
for the McDowells is either to seek a Civil Rule 54(b) final
judgment on the claims against the state and then appeal that
decision to this court, or to appeal the summary judgment grant
          Since the McDowells' 1998 trespass claim constitutes
impermissible claim splitting and cannot be relitigated, we AFFIRM
the trial court's grant of the state's Rule 12(b)(6) motion.


Footnote 1:

     The remaining issues in the McDowells' 1993 complaint were
tried in summer 1999.  On August 18, 1999, a jury determined that
the remaining defendants were liable to the McDowells for $23,000
in compensatory damages and that Tesoro Petroleum was liable to the
McDowells for $1 million in punitive damages.  Final judgment has
not yet been entered. 

Footnote 2:

     See Roach v. Caudle, 954 P.2d 1039, 1040 n.1 (Alaska 1998). 

Footnote 3:

     See Osborne v. Buckman, 993 P.2d 409, 412 (Alaska 1999); 
Jackinsky v. Jackinsky, 894 P.2d 650, 656 (Alaska 1995); Tolstrup
v. Miller, 726 P.2d 1304, 1307 (Alaska 1986); 18 Charles Alan
Wright et al., Federal Practice and Procedure sec. 4402, at 8

Footnote 4:

     Osborne, 993 P.2d at 412.

Footnote 5:

     See id.

Footnote 6:

     See id.

Footnote 7:

     See 18 Charles Alan Wright et al., Federal Practice and
Procedure sec. 4411 (1981) (citing Brztostowski v. Laidlaw Waste
Systems, Inc., 49 F.3d 337, 339 (7th Cir. 1995)).

Footnote 8:

     Tolstrup, 726 P.2d at 1307.

Footnote 9:

     The rule against claim splitting that we describe in this case
is a conventional application of the doctrine of res judicata
because the McDowells named the state in their original and
subsequent actions.  The rule does not necessarily extend more
broadly to require that claims against all conceivable parties
arising out of a single transaction be joined in a single action.