Page 2 of 2 FirstFirst 1 2
Results 11 to 14 of 14
  1. #11
    Join Date
    Mar 2013
    Posts
    18,172

    Default Re: Can I Still Sue for Rent/Damages; Eviction Process is Near Over

    Quote Quoting latigo
    View Post

    The law does not permit the splitting causes of action and trying lawsuits piecemeal. In such case the first action may be pleaded in abatement of the subsequent suit. (Vol. 1 C. J. S. Section 102 p. 1306)
    This is not the splitting of a cause of action. It is a separate cause of action for rent and damage that could not have been included in the first lawsuit because they could not have been quantified until the tenant was out.

    In Strekal v. Espe the court wrote:

    Res judicata is the doctrine of claim preclusion. Byrd v. People, 58 P.3d 50, 53 n. 3 (Colo.2002). The doctrine bars claims that were litigated, or could have been litigated, in an earlier action that resulted in a final judgment on the merits. Pomeroy v. Waitkus, 183 Colo. 344, 350, 517 P.2d 396, 399 (1973). Under this doctrine, a final judgment is considered conclusive in any subsequent litigation that involves (1) the same claim for relief, (2) the same subject matter, and (3) the same parties or those in privity with them. Foley Custom Homes, Inc. v. Flater, 888 P.2d 363, 364 (Colo.App.1994).
    The word "and" requires that all three elements be met. A second lawsuit would involve the same subject matter (landlord-tenant issue) and the same parties (OP and his tenant) but it does not include the same claim for relief.

    https://scholar.google.com/scholar_c...=en&as_sdt=4,6

  2. #12
    Join Date
    Jul 2018
    Posts
    138

    Default Re: Can I Still Sue for Rent/Damages; Eviction Process is Near Over

    Dear adjuster:

    Oddly you are ignoring the very import of your cited authorities; i. e. case law that totally conflict with your argument. (That argument being that the OP is not precluded from bring a second cause of action for a money judgment. )

    For instance in Pomeroy v. Waitkus enunciating that one of the decisive factors to be considered in applying the doctrines of res judicata and collateral estoppel (claim and issue preclusion - and please note that the doctrines are used interchangeably by the Colorado courts) is:

    " . . . did the party against whom the plea is asserted have a full opportunity to litigate the issue in the prior adjudication".

    Again in Foley Custom Homes, Inc. v. Flater, 888 P.2d 363, 364 (Colo.App.1994):

    "Under the doctrine of res judicata, a final judgment on the merits is considered conclusive in any subsequent litigation involving either the same parties or those in privity with them, the same subject matter, and the same claims for relief. The preclusive effect of the doctrine applies not only to the claims and issues that were actually decided, but also to any claims or issues that could have been raised in the first proceeding. "

    And Manka v. Martin, 200 Colo. 260, 614 P.2d 875 (Colo.1980) "The preclusive effect of the doctrine applies not only to the claims and issues that were actually decided, but also to any claims or issues that could have been raised in the first proceeding." Also Byrd v. People, 58 P.3d 50, 53 n. 3 (Colo.2002). "The doctrine bars claims that were litigated, or could have been litigated, in an earlier action that resulted in a final judgment on the merits".

    Again, Denver v. Block 173 Associates, 814 P.2d 824 (Colo.1991). The preclusive effect of the doctrine applies not only to the claims and issues that were actually decided, but also to any claims or issues that could have been raised in the first proceeding.

    The test is not the nature of the cause of action or claim for relief sought to be abated but whether it arises from the same transaction or occurrence. And as your own authorities confirm could have been litigated in an earlier action between the same parties.

    Here the same transaction or occurrences that gave rise to the OP's complaint for unlawful detention would be identical to those generating a subsequent lawsuit for a money judgment.

    In sum, unless you can show some legal reason as to why the OP could not have properly joined her cause of action for rent with that of her claim for restoration of the rental property and have both claims litigated in the same proceeding then your present argument favoring a subsequent lawsuit is indefensible.

    (All emphasis added)

    Cordially, lawyer.

  3. #13
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    98,846

    Default Re: Can I Still Sue for Rent/Damages; Eviction Process is Near Over

    Some jurisdictions allow landlords to pursue summary eviction proceedings with no demand for damages, then to later make a separate demand for damages. Others do not, but would typically allow the possible adjournment of a hearing on damages until the landlord could reasonably evaluate the unit for damage.

    I do not see any Colorado authority that indicates that they allow the splitting of the eviction action; but I will admit that I did only cursory research. To be certain, a landlord who evicts without seeking damages should inquire with a Colorado real estate lawyer about the possibility of either amending the current action to include damages, and whether a subsequent lawsuit would be possible under Colorado law.

  4. #14
    Join Date
    Jul 2014
    Posts
    26

    Default Re: Can I Still Sue for Rent/Damages; Eviction Process is Near Over

    When I filed the initial complaint (after the 3 day notice was posted), there was an amount specified, so I was seeking monetary damages as well as possession. The amount that is due now is obviously different, but I included what was owed at the time. I have asked the forum about seeking a monetary judgement now, in a separate suit perhaps, because as I understood it, the fact that my complaint for possession and money was only posted and never served personally meant that I could not try to collect based on that suit. I've read conflicting posts about collecting now under a new or an amended suit. It appears that filing an amended suit would violate statutes, but that maybe I could file a new suit as I have sought monetary damages from the beginning.

    I'm in a steep learning curve in all of this and I thank all of you for your input.

    I'd like to seek monetary damages, if possible, but I don't want to chase my tail. So at this point I ask...

    If possible, what steps do I need to follow to finally arrive at a money judgement? It may not be worth the while because of the headache involved, but if I can get a personal service and thereby most likely receive a monetary judgement, would I have to go down another rabbit hole to seek the money?

    Finally, I don't have possession yet and from my conversation with the Sheriff's dept., we need to formally move things out. After that, for how long does the tenant have this on his/her record? Also, does a name change affect the credit or whatever report? How can I make sure that this/these individuals cannot do this to another landlord-as I would not like this done to me, I prefer to not let this happen to another?

    I appreciate all of your help. I've learned too much from the process and the forum and I don't wish this on anyone.

    My lesson- give the 3-day notice from the first day possible and don't look back.

    1. Sponsored Links
       

Page 2 of 2 FirstFirst 1 2

Similar Threads

  1. Collection Lawsuits: How Long After Eviction Can a Landlord Still Seek Money Damages
    By williamw in forum Debts and Collections
    Replies: 3
    Last Post: 11-08-2018, 07:31 PM
  2. Breaking a Lease: Landlord's Duty to Mitigate Damages for Lost Rent
    By pbk2006 in forum Landlord-Tenant Law
    Replies: 3
    Last Post: 06-02-2015, 09:52 AM
  3. Modifying a Lease: Landlord is Raising Rent and Threatening Eviction
    By daughtertomag in forum Landlord-Tenant Law
    Replies: 2
    Last Post: 09-11-2013, 02:09 PM
  4. Defenses to Eviction: Eviction when Landlord Refused to Accept Rent
    By Nymphaea in forum Landlord-Tenant Law
    Replies: 1
    Last Post: 06-23-2011, 08:22 AM
  5. Eviction Process: Landlord Trying To Collect Rent Three Years After Eviction
    By jColmes in forum Landlord-Tenant Law
    Replies: 9
    Last Post: 09-16-2007, 12:52 PM
 
 
Sponsored Links

Legal Help, Information and Resources