Brizendine v. Randall

Filing 42

MEMORANDUM AND ORDER denying without prejudice 28 Motion to Dismiss for Failure to State a Claim. Signed by Chief District Judge Julie A Robinson on 7/23/2018. (ydm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DANNY BRIZENDINE,
Plaintiff,
v.

Case No. 2:16-CV-2782-JAR-GEB

JENNIFER RANDALL,
Defendant.

MEMORANDUM AND ORDER
On November 27, 2016, Plaintiff Danny Brizendine filed this diversity suit against his
estranged wife, Defendant Jennifer Randall, alleging state law claims of quantum meruit and
fraud. This action arises out of a dispute regarding an investment property that was also at issue
in their California divorce proceeding. Before the Court is Defendant’s Motion to Dismiss (Doc.
28), in which she argues Plaintiff’s claims are barred by res judicata. The matter is fully briefed
and the Court is prepared to rule. For the reasons stated below, the Court denies without
prejudice to refiling Defendant’s motion to dismiss.
I.

Legal Standard
Defendant moves to dismiss under Fed. R. Civ. P. 12(b)(1) and (6). Neither rule applies

to this motion. The sole basis for Defendant’s motion to dismiss is res judicata, an affirmative
defense.1 Affirmative defenses are to be pled in a defendant’s answer.2 But “when all relevant
facts are shown by the court’s own records, of which the court takes notice, the defense may be

1

See Fed. R. Civ. P. 8(c)(1).

2
Fed. R. Civ. P. 8(c); see also Tri-State Truck Ins., Ltd. v. First Nat’l Bank of Wamego, 564 F. App’x 345,
347 (10th Cir. 2014).

upheld on a Rule 12(b)(6) motion without requiring an answer.”3 Here, Defendant filed her
motion to dismiss after she filed her answer asserting res judicata as an affirmative defense.4
Therefore, the Court construes it as a motion for judgment on the pleadings under Fed. R. Civ. P.
12(c), which is decided under the same standard as a motion to dismiss for failure to state a claim
under Rule 12(b)(6).5 The court must accept all facts pleaded by the non-moving party as true
and grants all reasonable inferences from the pleadings in favor of the non-moving party.6 A
motion for judgment on the pleadings should not be granted unless the movant has clearly
established that there are no material facts to be resolved and that the movant is entitled to
judgment as a matter of law.7 The court does not accept as true legal conclusions that are
couched as factual allegations,8 but rather determines whether the factual allegations “plausibly
give rise to an entitlement to relief.”9 To avoid dismissal, a plaintiff must state a plausible claim,
which requires “sufficient factual allegations to ‘raise a right to relief above the speculative
level.’”10
II.

Background
As an initial matter, the Court takes judicial notice of the documents attached to

Defendant’s motion from the California divorce proceeding.11 The following facts are taken

3

Tri-State Truck Ins., 564 F. App’x at 347 (quoting Day v. Moscow, 955 F.2d 807, 811 (9th Cir. 1992)).

4

See Doc. 23.

5

Colony Ins. v. Burke, 698 F.3d 1222, 1228 (10th Cir. 2012).

6

Id.

7

Id.

8

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

9

Id. at 679.

(2007)).
10

Id.

11
Fed. R. Evid. 201; Tal v. Hogan, 453 F.3d 1244, 1264 n.24 (10th Cir. 2006) (stating that a court can take
judicial notice of facts that are matters of public record without converting to a motion for summary judgment).

2

from those documents, and the Complaint. Plaintiff Danny Brizendine and his former partner
Jennifer Randall bought and sold over thirty properties together before, during, and after their
July 18, 2009 marriage. On or about August 29, 2005, they purchased a commercial property
(the “Investment Property”) together, located at 201 South Main Street in Hutchinson, Kansas.
From 2006 through 2015, Plaintiff estimates he spent thousands of hours remodeling the
Investment Property.12 He also served as a property manager from 2006 until about August
2015. Defendant believed he held this position and invested his labor in exchange for an equal
ownership interest in the Investment Property.
Plaintiff alleges in the Complaint that in December 2012, Defendant fraudulently induced
him to transfer his title to the Investment Property to B & Main, LLC, in which Defendant is the
only member. Defendant encouraged Plaintiff to continue to provide his services free of charge
without any intent to compensate him. Then in July 2015, Defendant fraudulently induced
Plaintiff to guarantee a loan for her benefit. Moreover, Defendant fraudulently persuaded
Plaintiff to build and develop an art museum as part of the Investment Property. These
misrepresentations were material and Plaintiff relied on them to his detriment. Plaintiff alleges
Defendant expressly and impliedly agreed to pay Plaintiff for the reasonable value of his
services, and was unjustly enriched because she refused to provide adequate compensation.
Defendant filed a Petition for Dissolution of Marriage in the San Luis Obispo Superior
Court of California on September 18, 2015, before this case was filed. Plaintiff did not learn
Defendant excluded him from any interest in the Investment Property until on or about
September 2016, prompting him to file the instant Complaint on November 27, 2016, alleging
claims against Defendant for quantum meruit and fraud stemming from Plaintiff’s alleged

12

Doc. 1 at 2.

3

misrepresentations to him concerning the Investment Property, causing him to provide unpaid
services with no compensation.
On October 30, 2017, the California state court decided the following issues in the
divorce proceeding: date of separation, spousal support, division of property and obligations, and
attorneys’ fees and costs.13 One of the properties addressed by the court was the Investment
Property at 201 South Main Street in Hutchinson, Kansas. The California court ordered this
property to be sold and directed the net proceeds placed in a trust account.14 It found that the
property was Defendant’s separate property, not community property, and rejected Plaintiff’s
arguments, raised again here, that his efforts at improving the property and working as a property
manager entitle him to compensation.15
III.

Discussion
Defendant moves to dismiss the Complaint in its entirety, arguing Plaintiff’s claims are

barred by the doctrine of res judicata. Plaintiff responds that the claims are not barred by res
judicata because fraud claims cannot be brought in California divorce proceedings and must be
asserted in a separate litigation. Plaintiff further contends the claims are different because he is
not seeking compensation for his value of the property, but rather the value of the services he
provided remodeling it.
In determining the preclusive effect of a state court judgment, the state law where the
judgment was entered applies.16 “In the absence of federal law modifying the operation of

13

Doc. 1, Ex. 3 at 2.

14

Id. at 5.

15

Id. at 5–7.

16

Hatch v. Boulder Town Council, 471 F.3d 1142, 1146 (10th Cir. 2006); see also Marrese v. Am. Acad. of
Orthopaedic Surgeons, 470 U.S. 373, 373-74 (1985) (“28 U.S.C. § 1738 . . . requires a federal court to look first to
state law in determining the preclusive effects of a state-court judgment.”).

4

U.S.C. § 1738 – which provides that state judicial proceedings shall have the same full faith and
credit in every court within the United States as they have in the courts of the State from which
they are taken – the preclusive effect in federal court of petitioner’s state-court judgment is
determined by [state] law.”17 Here, the parties’ divorce proceeding took place in the San Luis
Obispo Superior Court of California. Thus, the divorce decision’s preclusive effect must be
decided under California law.
Under California law, res judicata “describes the preclusive effect of a final judgment on
the merits.”18 The doctrine’s purpose is to prevent the same parties from relitigating the same
cause of action in a second suit.19 As a result, “all claims based on the same cause of action must
be decided in a single suit; if not brought initially, they may not be raised at a later date.”20
There are three prerequisite elements for applying res judicata: “(1) a claim or issue raised in the
present action is identical to a claim or issue litigated in a prior proceeding; (2) the prior
proceeding resulted in a final judgment on the merits; and (3) the party against whom the
doctrine is being asserted was a party or in privity with a party to the prior proceeding.”21
To determine whether two proceedings involve the same causes of action for purposes of
claim preclusion, California courts consistently apply the “primary rights theory.”22 Under the
primary rights theory, the invasion of one primary right gives rise to a single cause of action.23

17

Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 76 (1984).

18

Mycogen Corp. v. Monsanto Co., 51 P.3d 297, 301 (Cal. 2002).

19

Id.

20

Id. at 302.

21

Boeken v. Philip Morris USA, Inc., 230 P.3d 342, 348 (Cal. 2010) (quoting Cal. v. Barragan, 83 P.3d
480, 492 (Cal. 2004)).
22

Id. at 348 (quoting Slater v. Blackwood, 543 P.2d 593, 594 (Cal. 1975)).

23

Slater, 543 P.2d at 594.

5

The primary right is the right to be free from the particular injury suffered by the plaintiff.24 A
primary right is indivisible.25 Even if recovery could be predicated on multiple legal theories,
one injury gives rise to just one claim for relief.26 “A pleading that states the violation of one
primary right in two causes of action contravenes the rule against ‘splitting’ a cause of action.”27
To determine whether more than one primary right has been violated, California courts
look to the harm suffered by the plaintiff.28 The availability of several remedies for the violation
of one primary right does not create additional “causes of action.”29 How a plaintiff organizes
his or her claims within a complaint is “irrelevant to determining the number of causes of action
alleged under the primary right theory.”30 Therefore, when there is only one primary right at
issue, an adverse judgment in the first suit bars a second suit even if it is based on a different
legal theory or seeks a different remedy.31
In this case, the second and third elements are clearly met. The Statement of Decision
issued by the California court was a final judgment on the merits and the divorce proceeding
involved the same parties as this case. The motion turns on the the first element. Relying on
Tenth Circuit cases, Defendant asserts this suit is based on the same cause of action as the
divorce proceeding because it arises out of the “same transaction, event, or occurrence.”32
24

Crowley v. Katleman, 881 P.2d 1083, 1090 (Cal. 1994), as modified (Nov. 30, 1994) (citing Slater, 543
P.2d at 593).
25

Crowley, 881 P.2d at 1083.

26

Boeken, 230 P.3d at 348.

27

Crowley, 881 P.2d at 1090 (citing Wulfien v. Dolton, 151 P.2d 846 (Cal. 1944)).

28

Stoner v. Williams, 54 Cal. Rptr. 2d 243, 253 (Cal. Ct. App. 1996).

29

Sawyer v. First City Fin. Corp., 177 Cal. Rptr. 398, 403 (Cal. Ct. App. 1981).

30

Choi v. Sagemark Consulting, 266 Cal. Rptr. 3d 267, 289 (Cal. Ct. App. 2017), review denied (Mar. 21,
2018) (quoting Hindin v. Rust, 13 Cal. Rptr. 3d 668 (Cal. Ct. App. 2004)).
31

Crowley, 881 P.2d at 1090 (see, e.g., Johnson v. American Airlines, Inc., 203 Cal. Rptr. 638 (Cal. Ct. App.
1984); Stafford v. Yerge, 276 P.2d 649 (Cal. Ct. App. 1954)).
32

Doc. 29 at 6.

6

Plaintiff argues this suit could not have been brought in the California court because the superior
court has limited jurisdiction in domestic relations cases.
Neither party applies res judicata under California law. Defendant states that “both
Kansas and California law do not significantly differ from the federal law concerning the
doctrine of res judicata,” and proceeds with her analysis under Tenth Circuit law. But, the Tenth
Circuit applies a transactional approach to the cause of action element,33 whereas California
applies the primary rights theory. The Court declines to perform a primary rights analysis
without the benefit of briefing by the parties. This analysis requires careful consideration and
comparison of the primary rights involved in both lawsuits. And because res judicata is an
affirmative defense for which Defendant carries the burden of proof, given the lack of briefing
on the appropriate choice of law, the Court cannot find that she has carried her burden of
showing it is clearly established that she is entitled to judgment as a matter of law.
IT IS THEREFORE ORDERED BY THE COURT that Defendant’s Motion to
Dismiss (Doc. 28) is denied without prejudice.
IT IS SO ORDERED.
Dated: July 23, 2018
S/ Julie A. Robinson
JULIE A. ROBINSON
CHIEF UNITED STATES DISTRICT JUDGE

33

Nwosun v. Gen. Mills Rest., Inc., 124 F.3d 1255, 1257 (10th Cir. 1997).

7