God, this sounds like a property/civ. pro. exam.

That's what it was for me. ;) I think there are more criteria than just those two, but that's what came to mind. Like bon bon said, I think you will have to argue that the client didn't have the incentive, etc.

eta: so relieved to see that the real lawyers said the same thing.

Off the top of my head, I think Landlord can only use res judicata here if your client had a full opportunity and incentive to litigate this issue last time, which it doesn't sound like he/she did.

This is what I thought too, particulary the incentive part. Why should he litigate a landlord/tenant possession action on a property he hasn't had possession of in almost 3 years? But I can't find that incentive requirement spelled out anywhere.

Wolfram, can I ask a question as a non-lawyer?

What is the landlord upset about? He knew when your clients left, and he's been getting paid rent. Presumably, he could increase the rent with the new owners of the business should he so desire. Why is he suing?

TAR: I didn't get a chance to see all of the cbs.com insider videos this morning, but just from the clip blurbs, it looked like Brian and Greg got lost twice, in addition to getting distracted at the first water tower. That had to have added at least a half hour onto their lag time, and it looked like that was a half hour they were never going to get back. Too bad, 'cause I loved those dorks !

Why is he suing?

Maybe because he's a wanker?

Is morning. Right?

Here, is afternoon. But was morning. Or so they claimed.

Maybe because he's a wanker?

This was my guess. But I'm not a lawyer.

Much healthma to Jeff.

Timelies and birthdays! Has it really been a year, Susan?

Amazing, isn't it? When I think about where we were last year compared to now, how exhausted and overwhelmed and just plain wrecked I was, and now here I am, doing just fine, with Annabel, who's just as beautiful, smart, and happy a baby as anyone could wish for...amazing is the only word for it.

Thanks for all the birthday wishes! I was just coming here to post that it was her birthday, and y'all were already there.

Maybe because he's a wanker?

Ah, the old Wank Offensive maneuver.

You say there was no personal service in the eviction lawsuit. Does that mean that your client didn't have the opportunity to defend the action?

No, he had the opportunity. Knew all about it in fact. Just felt no reason to litigate a matter that he agreed with the landlord on, specifically, there was no existing lease. Now they're trying to say he should have litigated when the lease actually terminated, and the judgment makes it res judicata that the lease existed until the judgment. I can't put my finger on it, but it doesn't sound right.

(BTW, res judicata is now often called "issue preclusion." So you might want to look for that phrase in your research.)

Thanks. I thought issue preclusion was collateral estoppel, and claim preclusion was res judicata. But I may have the two confused.

Another thought is, if landlord could have raised the damages issues in the first lawsuit and didn't, there may be a claim preclusion defense there.

You mean, the landlord shouldn't be able to seek further damages on the breach claim for which they got possession. That's brilliant.