KAREN ANN VOSSLER V. RICHARD JANSEN and STEPHANIE RENAKER-JANSEN
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RENDERED: March 6, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
NO.
96-CA-2805-MR
KAREN ANN VOSSLER
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE DOUGLAS M. STEPHENS, JUDGE
ACTION NO. 96-CI-1327
V.
RICHARD JANSEN and STEPHANIE RENAKER-JANSEN
APPELLEES
OPINION
AFFIRMING
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BEFORE:
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COMBS, DYCHE, and HUDDLESTON, Judges.
COMBS, JUDGE:
The appellant, Karen Ann Vossler, appeals from the
order of the Kenton Circuit Court dismissing her complaint
against the appellees, Richard Jansen and Stephanie RenakerJansen (the Jansens).
Finding no error, we affirm the order of
the circuit court.
On July 15, 1996, Vossler filed an action in the Kenton
Circuit Court seeking to have the Jansens ejected from the
property located at 506 East 21st Street, Covington, Kentucky.
She also sought to recover that property.
On September 25, 1996,
the Kenton Circuit Court ordered Vossler's complaint dismissed
with prejudice.
The court held that the issues raised anew had
already been litigated and disposed of by judgment of the Kenton
Circuit Court in Case No. 94-CI-00807.
The court also ordered
Vossler to pay the Jansens' attorney's fees and any court costs
they may have incurred.
In Case No. 94-CI-00807, Vossler had
filed a complaint alleging that the Jansens' title to the
property on 21st Street was defective and that she was the legal
owner.
However, on March 29, 1996, the Kenton Circuit Court
dismissed Vossler's claim and declared the Jansens' deed valid
and enforceable.
Vossler did not appeal from the circuit court's
judgment in Case No. 94-CI-00807; rather, she initiated the
current action, which lead to this appeal.
The doctrine of res judicata holds that a judgment on
the merits in a prior suit involving the same parties or their
privies precludes a subsequent suit based upon the same cause of
action.
Napier v. Jones By and Through Reynolds, Ky. App., 925
S.W.2d 193 (1996).
For the doctrine of res judicata to apply,
both identity of parties and identity of issues must exist, and
the prior action must have resulted in a judgment on the merits.
Id., at 195.
Furthermore, res judicata applies "not only to the
issues disposed of in the first action, but to every point which
properly belonged to the subject of the litigation of the first
action."
Egbert v. Curtis, Ky. App., 695 S.W.2d 123 (1985).
Vossler's second suit against the Jansens centered
around her claim that she was the legal owner of the property on
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21st Street -- as did the first action against the Jansens.
The
issues raised in the second suit are the same issues disposed of
by the circuit court's judgment in the earlier action.
Moreover,
issues regarding the validity of the Jansens' title and Vossler's
claim of ownership "properly belonged" in the earlier litigation
and should have been raised in the first action.
In the case sub
judice, the identity of the parties and the issues are the same
as in the first action, which produced a judgment on the merits.
Thus, Vossler's second action is wholly barred by the doctrine of
res judicata.
The circuit court properly dismissed Vossler's
complaint.
For the foregoing reasons, we affirm the order of the
Kenton Circuit Court dismissing Vossler's complaint and ordering
her to pay the Jansens' attorney's fees and court costs.
HUDDLESTON, JUDGE, CONCURS.
DYCHE, JUDGE, CONCURS IN RESULT AND FILES A SEPARATE
OPINION.
DYCHE, JUDGE, CONCURRING:
the majority.
I concur with the opinion of
I would, however, hold that this appeal is
frivolous and require appellant to pay appellee's attorney fees
and costs for defending same.
CR 73.02(4).
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BRIEFS FOR APPELLANT PRO SE:
BRIEF FOR APPELLEES:
Karen Ann Vossler
Fort Thomas, KY
Robert W. Carran
Covington, KY
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