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Johnson v. Samson Const.
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Decision:	1997 ME 220
Docket:	Cum-97-82
on Briefs:	September 16, 1997
Decided:	November  24, 1997



	[¶1]  Walter Johnson appeals from a judgment entered in the Superior
Court (Cumberland County, Brennan, J.) granting Samson Construction's
motion for a summary judgment.  Johnson argues on appeal that the court
erred in its determination that res judicata bars his suit.  We disagree and
affirm the judgment.
	[¶2]  In June 1988 Samson Construction executed and delivered to
Johnson a promissory note for $69,500 and a mortgage deed.  The note
required principal and interest to be paid in 240 equal monthly
installments, and it contained the following acceleration provision:  "If any
default be made in any payment under this Note, and if such default is not
made good within thirty (30) days after written notice of same, the entire
unpaid principal and accrued interest shall become immediately due and
payable without further demand."
	[¶3]  After Samson defaulted on its May 1990 payment and failed to
cure, Johnson initiated a foreclosure action against Samson in August 1990,
seeking a judgment against Samson "for the amount due under the Note." 
Four years later the court entered an order dismissing Johnson's suit with
prejudice unless he filed the Report of Conference of Counsel within ten
days.  Johnson did not file the report, and the court dismissed Johnson's
action with prejudice on December 1, 1994.
	[¶4]  In August 1995 Johnson initiated the present action, alleging a
failure to make any payment on the note since September 1990 and again
seeking a judgment "for the amount due under the Note."  Samson moved
for a summary judgment, arguing that Johnson's complaint was barred by
res judicata.  Johnson contended that dismissal of the prior case was res
judicata only with regard to any default that occurred before the filing of the
prior complaint, but was not a bar to a claim based upon any default which
may have occurred after the filing of the prior complaint.  Noting that "in
the prior case . . . the Plaintiff alleged that the Note had been accelerated
and that the Plaintiff was seeking the entire balance due under the Note,"
the court found that the dismissal with prejudice of the prior action barred
the instant suit and granted a summary judgment to Samson.  This appeal
	[¶5]  A party is entitled to a summary judgment if no genuine issue of
material fact exists and if the party is entitled to a judgment as a matter of
law.  Seashore Performing Arts Ctr., Inc. v. Town of Old Orchard Beach, 676
A.2d 482, 484 (Me. 1996).  We review the grant of a summary judgment for
an error of law, viewing the evidence in the light most favorable to the party
against whom the judgment has been granted.  Key Trust Co. of Maine v.
Nasson College, 1997 ME 145, ¶ 9, 697 A.2d 408, 409.
	[¶6]  "The doctrine of res judicata 'is a court-made collection of rules
designed to ensure that the same matter will not be litigated more than
once.'"  Machias Sav. Bank v. Ramsdell, 1997 ME 20, ¶ 11, 689 A.2d 595,
599 (quoting Beegan v. Schmidt, 451 A.2d 642, 643-44 (Me. 1982)). 
"Unlike the related rule of collateral estoppel or 'issue preclusion,' which
merely prevents the reopening in a second action of an issue of fact actually
litigated and decided in an earlier case, the doctrine of bar, or 'claim
preclusion,' prohibits relitigation of an entire 'cause of action.'"  Beegan v.
Schmidt, 451 A.2d 642, 644 (Me. 1982).  Claim preclusion bars the
relitigation of a claim "if:  (1) the same parties or their privies are involved
in both actions; (2) a valid final judgment was entered in the prior action;
and (3) the matters presented for decision in the second action were, or
might have been litigated in the first action."  Machias Sav. Bank, 1997 ME
20, ¶ 11, 689 A.2d at 599 (citations omitted).  To determine whether the
matters presented for decision in the instant action were or might have
been litigated in the prior action, we examine "whether the same 'cause of
action' was before the court in the prior case."  Connecticut Nat'l Bank v.
Kendall, 617 A.2d 544, 547 (Me. 1992).  We apply a transactional test to
define a cause of action, pursuant to which

the measure of a cause of action is the aggregate of connected
operative facts that can be handled together conveniently for purposes
of trial.  A prior judgment bars a later suit arising out [of] the same
aggregate of operative facts even though the second suit relies on a
legal theory not advanced in the first case, seeks different relief than
that sought in the first case, and involves evidence different from the
evidence relevant to the first case.

Id.  (citations omitted). 
	[¶7]  A plaintiff may not split a cause of action and prosecute each of
its parts in separate lawsuits.  Kradoska v. Kipp, 397 A.2d 562, 567 (Me.
1979).  "Judicial economy, fairness to litigants, and the strong public
interest favoring finality in judicial proceedings demand that a plaintiff
present all relevant aspects of his cause of action in a single lawsuit."  Id. 
Res judicata prevents a litigant from splintering his or her claim and
pursuing it "in a piecemeal fashion by asserting in a subsequent lawsuit
other grounds of recovery for the same claim" that the litigant had a
reasonable opportunity to argue in the prior action.  Id. at 569.  (citations
	[¶8]  The promissory note between Johnson and Samson required 240
equal monthly payments of principal and interest.  However, the note's
acceleration clause provided that "[i]f any default be made in any payment
under this Note, and if such default is not made good within thirty (30) days
after written notice of same, the entire unpaid principal and accrued
interest shall become immediately due and payable without further
demand."  (emphasis added).  Johnson's first cause of action alleged that
Samson "defaulted on its obligations to the Plaintiff under the Note" and
demanded payment of the entire unpaid principal balance.  This suit was an
action for the accelerated debt.  Once Johnson triggered the acceleration
clause of the note and the entire debt became due, the contract became
indivisible.  The obligations to pay each installment merged into one
obligation to pay the entire balance on the note.  See Stadler v. Cherry Hill
Developers, Inc., 150 So. 2d 468, 472 (Fla. Dist. Ct. App. 1963) ("While it is
axiomatic that a suit for one installment payment does not preclude suit for
a later installment on a divisible contract, . . . an election to accelerate puts
all future installment payments in issue and forecloses successive suits.");
Snyder v. Exum, 315 S.E.2d 216, 218 (Va. 1984) (finding "no valid
distinction between an acceleration clause in a lease and one contained in a
note," determining that lease's acceleration clause rendered "all the rent,
whether accrued or not" immediately due upon default, and concluding that
"'[a]ll installments having matured at the time the action was begun, under
well settled principles, those not embraced in that action are now barred'")
(citations omitted).  The court's dismissal with prejudice of the first action
operated "as an adjudication on the merits."  See 1 Field, McKusick &
Wroth, Maine Civil Practice  41.5 at 576 (2d ed. 1970).  That judgment
bars the complaint in this action which alleges precisely what the complaint
in the first action alleged:  that Samson defaulted on the note and that
Johnson is entitled to a judgment for the amount due under the note.{1} 
Johnson cannot avoid the consequences of his procedural default in this
second lawsuit by attempting to divide a contract which became indivisible
when he accelerated the debt in the first lawsuit.
	The entry is:
Judgment affirmed.
Attorney for plaintiff: Richard Golden, Esq. Clifford & Golden, P.A. P O Box 368 Lisbon Falls, ME 04252 Attorney for defendant: John S. Campbell, Esq. Poulos & Campbell. P.A. P O Box 369 Portland, ME 04412
FOOTNOTES******************************** {1} Johnson argues that if the dismissal with prejudice of his first suit bars a subsequent action on the note, Samson will receive a windfall. Such a windfall may occur in any case in which a party defaults on a procedural obligation. See, e.g., Terjelian v. Concord Group Ins. Co., 606 A.2d 197, 198 (Me. 1992) (dismissing with prejudice a fire loss victim's suit against his insurer for failure to file a report of conference of counsel).