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.

mmmm... Spicy legal braaaaaiiiiinnnnns

I am stuck in black hole of work been off allergy meds for almost two weeks need to go to the doctor to renew prescription don't have time head hurts ear hurts worse and want to cry.

Okay. Now I have to get back to work.

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.

It just seems like that if they were litigating something he felt they had an agreement on, he had an incentive to litigate it.

How could the landlord raise the damages issue in an in rem action?

Just felt no reason to litigate a matter that he agreed with the landlord on, specifically, there was no existing lease

If the client can argue/win on this, then the res judicata shouldn't apply. I'm leaving school now, but I can look it up in my notes when I get home. I'm pretty sure we read cases establishing this. At least it will give you a palce to start.

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?

Great question. It involves a complicated relationship between the landlord, the new owners and my client. The new owners owe my client money, in the form of a promissory note, on their purchase that they're supposed to pay monthly. The landlord wants to move the new owners to a smaller space and sign a lease with them. The landlord offered to lean on my client to forgive the balance of the note (which is substantial) to induce the new owners to keep their business on his premises and sign a new lease. Now the landlord is suing my client for alleged dry cleaning damages, and offering to dismiss the case with prejudice if my client waives the balance of the note.

Yes, he's a wanker.

This sounds like a very complicated case of blackmail, to me. Don't judges have the right to kick plaintiffs in the butt for pulling crap like that? Maybe only Judge Wapner could get away with doing that.

I have a question. Let's say one is looking for a bunch of toggle switches cheap for a purely non-functional use. Where could one get a bunch really cheap?

you can get 10 on ebay for probably a buck.

It just seems like that if they were litigating something he felt they had an agreement on, he had an incentive to litigate it.

No, the landlord's attorney told my client they wanted to terminate the lease. My client told him there was no lease. Landlord's attorney had court date posted on door of business which new owners forwarded to my client. My client figured, there's no reason to go to fight against a non-existent lease termination.

It would be like me filing an eviction action against bon bon for failing to pay rent on my basement. Since bon bon's never been to my house, much less rented my basement, why should she show up to court to defend herself against the action? Does that prove that until April 6, 2005 she was a tenant of mine?