§ 26 Exceptions to the General Rule Concerning Splitting
When any of the following circumstances exists, the general rule of §
24 does not apply to extinguish the claim, and part or all of the claim
subsists as a possible basis for a second action by the plaintiff
against the defendant:
(a) The parties have agreed in terms or
in effect that the plaintiff may split his claim, or the defendant has
acquiesced therein; or
(b) The court in the first action has expressly reserved the plaintiff's right to maintain the second action; or
The plaintiff was unable to rely on a certain theory of the case or to
seek a certain remedy or form of relief in the first action because of
the limitations on the subject matter jurisdiction of the courts or
restrictions on their authority to entertain multiple theories or
demands for multiple remedies or forms of relief in a single action,
and the plaintiff desires in the second action to rely on that theory
or to seek that remedy or form of relief; or
(d) The judgment in
the first action was plainly inconsistent with the fair and equitable
implementation of a statutory or constitutional scheme, or it is the
sense of the scheme that the plaintiff should be permitted to split his
(e) For reasons of substantive policy in a case
involving a continuing or recurrent wrong, the plaintiff is given an
option to sue once for the total harm, both past and prospective, or to
sue from time to time for the damages incurred to the date of suit, and
chooses the latter course; or
(f) It is clearly and convincingly
shown that the policies favoring preclusion of a second action are
overcome for an extraordinary reason, such as the apparent invalidity
of a continuing restraint or condition having a vital relation to
personal liberty or the failure of the prior litigation to yield a
coherent disposition of the controversy.
(2) In any case described in (f) of Subsection (1), the plaintiff is required to follow the procedure set forth in §§ 78- 82.
Example of 26(1)(a)
After a collision in which A suffers personal injuries and property
damage, A commences in the same jurisdiction one action for his
personal injuries and another for the property damage against B. B does
not make known in either action his objection (usually called “other
action pending”) to A's maintaining two actions on parts of the same
claim. After judgment for A for the personal injuries, B requests
dismissal of the action for property damage on the ground of merger.
Dismissal should be refused as B consented in effect to the splitting
of the claim.
Example of 26(1)(c)
2. A Co. brings an
action against B Co. in a state court under a state antitrust law and
loses on the merits. It then commences an action in a federal court
upon the same facts, charging violations of the federal antitrust laws,
of which the federal courts have exclusive jurisdiction. The second
action is not barred.
Example of 26(1)(d)
6. A et al.,
black pupils and parents, bring suit against the B board of education
to invalidate and enjoin the operation of a state school “tuition
grant” law on the ground that it fosters racial discrimination and is
therefore unconstitutional. The court holds the law constitutional as
applied and enters judgment for the defendant. Appeal is not taken, and
is not warranted by the state of the law at the time of the judgment.
Thereafter the United States Supreme Court in another action between
different parties strikes down as unconstitutional a similar tuition
grant law of another state. A et al. then commence a new action against
the B board seeking the relief that was denied in the previous action.
Whether or not the claims in the two actions by A et al. are regarded
as the same, the second action is not barred by the first judgment. In
a matter of such public importance the policy of nationwide adherence
to the authoritative constitutional interpretation overcomes the
policies supporting the law of res judicata.
Example of 26(1)(f)
A wife, A, sues her husband, B, for separate maintenance on the basis
of desertion, and secures a judgment. A later commences another action
for divorce against B on grounds which existed when she sued for
maintenance. A should not be precluded, for it is unwise to compel her
to demand the most drastic remedy against B in the first action, and
also unwise to deprive her of a divorce if she is now prepared to make
the case for it.
§ 34 Parties to an Action
(1) A person who is named as a party to an action and subjected to the jurisdiction of the court is a party to the action.
A party is bound by and entitled to the benefits of the rules of res
judicata with respect to determinations made while he was a party,
except as stated in [§ 36].
(3) A person who is not a party to
an action is not bound by or entitled to the benefits of the rules of
res judicata, except as stated ... in this Chapter.
§ 36 Party Appearing in Different Capacities
A party appears in his individual capacity unless, in his designation
as a party or by other manifestation, it is made evident that he
appears in some other capacity.
(2) A party appearing in an
action in one capacity, individual or representative, is not thereby
bound by or entitled to the benefits of the rules of res judicata in a
subsequent action in which he appears in another capacity.
§ 41 Person Represented by a Party
A person who is not a party to an action but who is represented by a
party is bound by and entitled to the benefits of a judgment as though
he were a party. A person is represented by a party who is:
(a) The trustee of an estate or interest of which the person is a beneficiary; or
(b) Invested by the person with authority to represent him in an action; or
The executor, administrator, guardian, conservator, or similar
fiduciary manager of an interest of which the person is a beneficiary;
(d) An official or agency invested by law with authority to represent the person's interests; or
The representative of a class of persons similarly situated, designated
as such with the approval of the court, of which the person is a member.
A person represented by a party to an action is bound by the judgment
even though the person himself does not have notice of the action, is
not served with process, or is not subject to service of process.
§ 43 Effect of Judgment Determining Interests in Property on Successors to the Property
A judgment in an action that determines interests in real or personal property:
(1) With respect to the property involved in the action:
(a) Conclusively determines the claims of the parties to the action regarding their interests; and
(b) Has preclusive effects upon a person who succeeds to the interest of a party to the same extent as upon the party himself.
With respect to other property held by a party to the action, does not
preclude a person who is a successor in interest thereof from
subsequently litigating issues determined in the action.
A, the owner of Blackacre, brings an action against B, the owner of
Whiteacre, asserting an easement over Whiteacre by reason of a certain
conveyance from B. Judgment is given for B on the ground that the
conveyance did not give A an easement. A thereafter conveys Blackacre
to S. S is precluded from asserting an easement over Whiteacre by
virtue of A's long adverse passage over the course of the claimed
§ 27 Issue Preclusion—General Rule
an issue of fact or law is actually litigated and determined by a valid
and final judgment, and the determination is essential to the judgment,
the determination is conclusive in a subsequent action between the
parties, whether on the same or a different claim.