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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Smith v. CSK Auto, Inc. (03/10/2006) sp-5995

Smith v. CSK Auto, Inc. (03/10/2006) sp-5995, 132 P3d 818

     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,


) Supreme Court No. S- 11791
) Superior Court No.
v. ) 4FA-04-2053 CI
Appellees. ) No. 5995 - March 10, 2006
          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks, Charles R. Pengilly, Judge.

          Appearances:    Terry  L.  Smith,   pro   se,
          Fairbanks.   James  H.  Juliussen,  Eric   J.
          Jenkins,    Davis   Wright   Tremaine    LLP,
          Anchorage, for Appellee CSK Auto, Inc., d/b/a
          Schucks Auto Supply.

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

          MATTHEWS, Justice.

          This  appeal  centers around the dismissal  of  pro  se
appellant   Terry  Smiths  second  lawsuit  against  his   former
employer,  CSK  Auto.   The superior court found  all  of  Smiths
claims  barred  by collateral estoppel.  We affirm  the  superior
courts  ruling in all but one respect.  The dismissal  of  Smiths
wrongful  termination claim is reversed because it constitutes  a
different cause of action than his other claims.
          Smiths  lawsuits are mostly based on an injury that  he
claims  to have suffered while working as a driver for  CSK.   He
traces the injury to a back-support belt provided to him by CSK.
          Smith  sued CSK in superior court in April  2004.   His
complaint  stated claims for (1) negligence, (2) fraud,  (3)  bad
faith, (4) breach of contract, (5) violations of AS 18.60.075(a),
(6)  strict products liability, and (7) breach of warranty.   The
complaint substantively alleged that CSK knowingly gave  Smith  a
defective  support  belt and failed to warn him  of  the  dangers
associated  with the belt.  It also alleged that CSK fraudulently
interfered  with  the distribution of medical  benefits  owed  to
Smith after his injury.
          Citing  diversity of citizenship, CSK removed the  case
to  the  United States District Court for the District of Alaska.
CSK  then  successfully  moved to dismiss Smiths  complaint  with
prejudice,  and  the court  entered judgment  against  him.   The
court  found  Smiths claims to be barred by the exclusive  remedy
provisions  of  the  Alaska  Workers  Compensation  Act  and  the
relevant statutes of limitations.
          Not long after losing in federal court, Smith filed the
complaint  at  issue  here.   Most of  the  second  complaint  is
identical to the first.  It states claims for (1) negligence, (2)
fraud, (3) bad faith, (4) breach of contract,1 and (5) violations
of  AS 18.60.075(a).  Again these claims are based on allegations
that CSK knowingly gave Smith a defective support belt, failed to
warn him of the dangers associated with that belt, and interfered
with  his  medical benefits after the injury.   There  are  three
additional claims in the second complaint that do not  appear  in
the  first.   They are (1) a claim for intentional infliction  of
emotional distress, (2) violation of certain unnamed Occupational
Health  and  Safety Administration rules, and  (3)  a  claim  for
wrongful termination in violation of the Medical Leave Act.
          CSK   successfully  moved  to  dismiss  Smiths   second
complaint for failure to state a claim upon which relief  can  be
granted.  The superior court found the entire second complaint to
be   barred  by  res  judicata  and/or  collateral  estoppel  and
dismissed it with prejudice.  Smith appeals.
          Smith contends that neither res judicata nor collateral
estoppel precludes the claims in his second complaint.
     A.   Res Judicata
          The  doctrine  of res judicata provides  that  a  final
judgment in a prior action bars a subsequent action if the  prior
judgment was (1) a final judgment on the merits, (2) from a court
of  competent  jurisdiction, (3) in a dispute  between  the  same
parties  (or  their  privies) about the same  cause  of  action.2
There  is  no  question that the federal  court  is  a  court  of
competent  jurisdiction or that Smiths two lawsuits were  between
the  same parties.  Therefore, the res judicata effect of  Smiths
first  complaint depends on two things: (1) whether the dismissal
of  the complaint constitutes a final judgment on the merits  and
(2)  whether the claims in the second complaint can be considered
part  of the same causes of action as those brought in the  first
          Whether res judicata applies is a question of law  that
we review de novo.3
          1.   Final judgment on the merits
          A  final  judgment  on  the  merits  for  res  judicata
purposes  does  not  require a full trial on  the  merits.4   The
defense  of  res judicata may be based upon a prior dismissal  on
the   merits  of  plaintiffs  action  against  [the]  defendant.5
Additionally,  a  dismissal  with  prejudice  is  treated  as   a
dismissal  on the merits and is, therefore, a final  judgment  on
the   merits.6   Put  differently,  [t]he  term  with  prejudice,
expressed in a judgment of dismissal, has a well-recognized legal
import; and it indicates an adjudication of the merits, operating
as res judicata.7
          The  status  of  an  appeal from a preclusive  judgment
typically  has  no  effect  on  the finality  of  that  judgment.
Specifically, the act of taking an appeal does nothing to  defeat
the  preclusive effect of a judgment.8  Nor does the  failure  to
appeal a judgment render that judgment non-final.9
          Here, the federal district court dismissed Smiths first
complaint  with  prejudice.   Therefore,  although  the  judgment
against  Smith  did not result from a trial, it  operates  as  an
adjudication  on the merits nonetheless.  Smiths  appeal  to  the
Ninth Circuit does not change this result.10
          2.   Same cause of action
          Res judicata prevents a party from bringing a cause  of
action that has already been litigated and decided.11  A cause of
action  in this realm includes more than the exact claim  already
litigated.   New  claims arising from the  same  transactions  as
those  in the first suit are also barred from litigation  in  the
second suit.12
               a.   Repeat claims
          The  inquiry into many of Smiths claims in  his  second
complaint  is  straightforward  because  they  are  nearly  exact
replicas  of  those  in  his first complaint  and  are  therefore
plainly barred.  The second complaint contains ten counts.   Each
count  contains  at  least one claim for  recovery.   The  claims
within  each count that are similar enough to those in his  first
complaint to be considered the same, on their face, are  detailed
          Count I
          Count  I  alleges that CSK used fraud and  coercion  to
interfere  with medical benefits owed to Smith under  an  implied
contract  between  the  parties.   These  are  exactly  the  same
allegations that appear on page three of Smiths first complaint.
          Count  I in the second complaint also alleges that  CSK
violated  AS  18.60.075  by failing to provide  safety  equipment
without  a reasonable justification or excuse.  This matches  the
allegations  on  page  four of Smiths first  complaint  that  CSK
violated  AS  18.60.075 by sending plaintiff out  on  a  delivery
without protective safety equipment.
          Counts II, VI, & VII
          Count II is several paragraphs long, but each paragraph
simply  rephrases  the  general allegation  that  CSK  wrongfully
failed  to warn Smith of the dangers associated with the  support
belt  provided  to  him.   Counts  VI  and  VII  state  the  same
allegation.  This claim appears almost verbatim on page  four  of
Smiths first complaint, where he charges CSK with failing to warn
employee  of  hazard  of wearing employer supplied  back  support
          Count III
          Count   III  is  also  several  paragraphs   long   and
purportedly  charges  CSK with negligent concealment.   In  fact,
this is a reiteration of Smiths argument in the first action that
the discovery rule should have tolled the statutes of limitations
on his tort claims.  In other words, we take his point here to be
that CSKs alleged concealment efforts delayed Smiths discovery of
his   claims.   Therefore,  he  believes  that  the  statute   of
limitations  began to run only upon his actual discovery  of  his
claims.   This  point  was litigated and  decided  in  the  first
          Count IV
          Count  IV repeats the allegations on page four  of  the
first complaint, as well as Count I of the second complaint, that
CSK violated AS 18.60.075 by failing to provide Smith with proper
safety equipment.

          Count V
          Count  V  charges  CSK with violating AS  18.60.075  by
failing  to keep the employee safe.  This corresponds  with  page
four  of Smiths first complaint, where he claims that CSK  failed
to protect employee in violation of AS 18.60.075.
          Because  each  of  these claims is a duplicate  of  one
already  adjudicated in Smiths first action, the  superior  court
did not err in ruling that they are all barred by res judicata.13
               b.   New claims
          There are three claims in Smiths second complaint  that
do  not  appear  in the first.  They are his allegations  of  (1)
intentional  infliction of emotional distress, (2) the  violation
of  certain Occupational Safety and Health Administration  rules,
and   (3)  wrongful  termination.   Because  they  are  new,  the
preclusive  effect  of  the first action on  these  three  claims
depends  on  whether they stem from the same transaction  as  the
claims made in the first complaint.14
          What factual grouping constitutes a transaction in this
setting  is determined by whether the facts are related in  time,
space,  origin, or motivation, and whether they form a convenient
trial  unit.  15   The  inquiry is a pragmatic  one,  which  also
compares  the  evidence and witnesses that may be  relied  on  to
prove  each  claim16  and  the  expectations  of  the  parties.17
Importantly,  the  legal theories on which  multiple  claims  are
based  are  not considered when determining whether those  claims
arise from the same transaction.  One cannot avoid the preclusive
effect of an earlier judgment by alleging the same facts under  a
new legal theory.18
          Intentional  Infliction of Emotional Distress  &  Rules
          Smiths  claims for intentional infliction of  emotional
distress and Occupational Safety and Health Administration (OSHA)
rules  violations plainly stem from the same transaction  as  the
claims  in  his  first complaint.  At the core of each  claim  in
Smiths  first  complaint  is either his injury  or  CSKs  alleged
interference  with  his  medical benefits.   His  new  claim  for
intentional infliction of emotional distress is based on  extreme
and  outrageous  behavior exhibited by CSK in its  dealings  with
Smith regarding the injury and medical treatment.19  The emotional
distress claim is therefore just a new legal theory derived  from
the  same  facts alleged in the first complaint.  Similarly,  the
OSHA  claim  charges CSK with contributing to  Smiths  injury  by
improperly  packing cases of antifreeze.  It  thus  involves  the
same  transaction  his injury  as his earlier claims against  CSK
for  failing  to  provide  proper safety  equipment.   For  these
reasons, we agree with the superior courts conclusion that Smiths
new emotional distress and OSHA claims are precluded.20
          Wrongful Termination
          Smiths second complaint alleges for the first time that
CSK  secretly terminated employee while employee was under worker
compensation  system in violation of Medical Leave Act.   Whether
this   claim  is  precluded  because  it  stems  from  the   same
transaction as Smiths earlier claims depends on the breadth  with
which  the  relevant  transaction is  defined.   CSK  offers  two
theories  of  the  transaction.   First,  it  contends  that  the
transaction  should be defined to include the  entire  employment
relationship between the parties.  CSK alternatively defines  the
transaction  to include all of the dealings between  the  parties
after Smiths injury.  We do not agree with either theory.
          Preliminarily,  it is not clear from  Smiths  complaint
that  he was able to bring his wrongful termination claim in  the
first  action.21   That alone may be enough to  withstand  a  res
judicata attack.22  More importantly, Smiths wrongful termination
claim stems from a different injury, caused a different harm, and
would  require  different  proof than the  claims  in  his  first
complaint.   His contention appears to be that CSK  violated  the
Medical  Leave  Act by terminating his employment  while  he  was
somehow protected by the workers compensation system.  The injury
and harm  the loss of his job and the damages caused thereby  are
different  than those at issue in his earlier claims that  sought
recovery  for  damages  caused by physical  injury  and  hampered
medical  treatment.   It  is also likely that  Smiths  claim  for
wrongful  termination requires different proof  than  his  claims
stemming  from his physical injury.  Therefore, we conclude  that
the   complaint  does  not  conclusively  establish  that  Smiths
wrongful termination claim stems from the same transaction as his
earlier claims.  It is thus not precluded.23
          According  to  CSK,  the superior courts  dismissal  of
Smiths  wrongful termination claim for failure to state  a  claim
upon which relief can be granted should remain intact in spite of
our  conclusion  that it is not precluded by res  judicata.   CSK
correctly notes that Smith has not identified the exact  law  CSK
is  alleged  to have violated.  CSK argues that, as a  matter  of
          law, neither the federal Family and Medical Leave Act24 nor the
Alaska medical leave laws support Smiths claim.  It is true  that
AS  39.20.305  only guarantees medical leave to public  employees
and  so  cannot  support Smiths claim for wrongful termination.25
Yet  we  disagree with CSKs position that the federal law cannot,
as a matter of law, support Smiths claim.
          According to CSK, Smith cannot state a claim under  the
federal act because the law only guarantees twelve weeks of leave
and  Smith has not been able to work for nearly four years.  This
presumes  Smiths  allegation to be that CSK  allowed  him  twelve
weeks  of  leave and then refused his request to return to  work.
However,  our inquiry here is limited to the allegations  in  the
pleadings,26  and  the  wrongful  termination  claim  in   Smiths
complaint  does  not limit itself in the way that  CSK  suggests.
For example, the date on which Smith was allegedly terminated  is
not  evident  from the pleadings.  It is therefore possible  that
Smiths claim is based on actions taken by CSK before the relevant
twelve-week   period  lapsed.   Under  that   scenario,   it   is
conceivable  that the federal medical leave law  supports  Smiths
claim.   We  do not suggest that this must be the crux of  Smiths
wrongful  termination claim, or even that his claim may withstand
a  motion for summary judgment.  Instead, we merely conclude that
the  pleadings  in  their  current  state  do  not  support  CSKs
contention that Smith has not, as a matter of law, stated a claim
for wrongful termination.
     B.   Collateral Estoppel
          Smith  also  challenges the superior courts alternative
conclusion  that  collateral estoppel barred the  claims  in  his
second  complaint.   To the extent that we  affirm  the  superior
courts  dismissal  of Smiths claims, we do so  because  they  are
precluded by res judicata.  Therefore, we do not need to consider
the courts alternative grounds for dismissal.
     C.   Smiths Additional Claims
          Smiths remaining points on appeal challenge the federal
courts  decision on the merits and allege that he was denied  due
          1.   The federal courts decision
          Smith  contends  that the federal court  erred  in  its
conclusion that his tort claims were time-barred.  That issue  is
not  properly before this court.  A partys remedy for an  alleged
erroneous  decision in an earlier action is limited to an  appeal
from that action.27  Relitigation of the issues or claims is  not
permissible simply because the party alleges error in  the  first
          2.   Due process
          Smith claims that because he was refused an opportunity
to  conduct discovery, he was also denied the essential  elements
of  due process law.  It is not clear whether this contention  is
aimed   at  the  federal  court  proceedings,  the  state   court
proceedings,  or  both.  However, to the  extent  that  he  again
attacks the validity of the federal courts decision then his only
redress lies with his appeal to the Ninth Circuit.29  In addition,
the  proceedings  in  the  superior court  appear  to  have  been
adequate.   Smith initiated the proceeding, had  notice  of  CSKs
          motion to dismiss, and had a fair opportunity to (and in fact
did)  present his case before the court dismissed it for  failure
to state a claim.
          The  superior courts dismissal of all but Smiths  claim
for  wrongful  termination is AFFIRMED.   The  dismissal  of  the
wrongful termination claim is REVERSED and that claim is REMANDED
for further adjudication.
     1     In  his  second complaint, Smith labels his breach  of
contract  claim as one for tortious interference with contractual
relations.   Yet,  as he did in his first complaint,  he  alleges
that  CSK  denied him certain benefits owed under  an  employment
contract.  Therefore, the contract claim is best taken as one for

     2    Plumber v. Univ. of Alaska Anchorage, 936 P.2d 163, 166
(Alaska 1997).

     3     DeNardo  v. Calista Corp., 111 P.3d 326,  329  (Alaska

     4     See  id. at 332 (stipulation to dismiss with prejudice
is final and on the merits).

     5     Shepherd  v. Bering Sea Originals, 578 P.2d  587,  589
(Alaska 1978).

     6     See  Tolstrup v. Miller, 726 P.2d 1304,  1307  (Alaska
1986)  (stipulated dismissal with prejudice amounts  to  a  final
judgment on the merits for res judicata purposes).

     7     46  Am.  Jur.  2d  Judgments   609  (2005)  (citations

     8     Holmberg v. State, Div. of Risk Mgmt., 796  P.2d  823,
829  (Alaska 1990); 18A Charles Alan Wright & Arthur  R.  Miller,
Federal Practice & Procedure  4433 (2d ed. 2002).

     9     Myers v. Bull, 599 F.2d 863, 865 (8th Cir. 1979);  see
Holmberg,  796 P.2d at 829 (pendency of appeal does  not  deny  a
judgment its res judicata effects).

     10    See Holmberg, 796 P.2d at 829.

     11     Alderman v. Iditarod Props., Inc., 104 P.3d 136,  141
(Alaska 2004).

     12    Id.

     13    See Alderman, 104 P.3d at 141.

     14    Plumber, 936 P.2d at 166.

     15     Id. at 167 (quoting Restatement (Second) of Judgments
24(2) (1980)).

     16    Id.

     17    Alderman, 104 P.3d at 141.

     18    White v. State, Dept of Natural Res., 14 P.3d 956, 959-
60 (Alaska 2000).

     19     Smiths  claim for intentional infliction of emotional
distress   does  not  make  any  specific  factual   allegations.
Instead, it states that [t]he behavior and conduct on the part of
[CSK]  as described herein above caused Smith emotional distress.
The  behavior  described . . . above in  the  complaint  is  CSKs
actions related to the support belt and Smiths medical treatment.
Therefore,  it  is appropriate to conclude that  the  intentional
infliction of emotional distress claim stems from those facts.

     20     See  White, 14 P.3d at 960 (new legal theory  arising
from same facts as earlier claim barred by res judicata).

     21     The complaint does not allege a date on which he  was
fired, for example.

     22    See Finch v. Greatlands Foods, Inc., 21 P.3d 1282, 1290
(Alaska  2001) (res judicata inapplicable where new  claim  could
not have been asserted in the earlier action).

     23    See id.

     24    29 U.S.C.  2612 (West 2005).

     25    AS 39.20.305 (applies only to officers or employees of
the state).

     26     See  Kollodge v. State, 757 P.2d 1024,  1026  (Alaska
1988)  (motion  to dismiss for failure to state a  claim  inquiry
generally limited to the material contained in the pleadings).

     27    McDowell v. State, 23 P.3d 1165, 1167 (Alaska 2001).

     28    See id.

     29    See id.

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