Defendants answered with general denials. They also counterclaimed for damage caused to their land when the fence was constructed. Before trial, Plaintiffs dismissed Count I. They presented evidence on both Counts II and III and then submitted their case without electing or being forced to elect between their alternative theories. Defendants moved for summary judgment, claiming that the doctrine of res judicata precluded this second action. The trial court agreed and entered summary judgment favorable to Defendants.
Plaintiffs appeal from that judgment.
When considering appeals from summary judgments, an appellate court reviews the record in the light most favorable to the party against whom judgment was entered. Review is essentially de novo and our criteria on appeal for testing the propriety of summary judgment are no different than those used by the trial court to determine if summary judgment was appropriate. The propriety of summary judgment is purely an issue of law. As the trial court's judgment is based on the record submitted and the law, the appellate court need not defer to the trial court's decision. In advancing their argument, Plaintiffs recognize the doctrine of res judicata precludes parties from contesting matters the parties have had a full and fair opportunity to litigate.