Nunn v. Fenswick CA1/5

Filed 9/27/13 Nunn v. Fenswick CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

WESLEY I. NUNN, Plaintiff and Appellant, A137415 v. MELISSA FENSWICK, (Del Norte County Super. Ct. No. CVUJ12-1104) Defendant and Respondent.

This is at least the fourth lawsuit brought by plaintiff and appellant Wesley I. Nunn against defendant and respondent Melissa Fenswick (née Melissa LeBlanc). The trial court granted defendant’s demurrer to the first amended complaint, concluding the claims were barred by the doctrine of res judicata. Plaintiff, representing himself, appeals from the judgment of dismissal, arguing the claims presented in this most recent case were never resolved on their merits. We affirm the judgment. FACTS AND PROCEDURAL HISTORY Plaintiff owned real property on Meridian Street in Crescent City, California. He and Jennifer Fenswick (who is not a party to this appeal) were romantically involved and lived together for several years. When the relationship ended in 2004, plaintiff agreed to deed the Meridian Street property to defendant, who is now Jennifer Fenswick’s daughter-in-law, in exchange for a release of Jennifer Fenswick’s claims against him. A grant deed transferring the property to defendant was signed by plaintiff on May 24, 2004, and recorded on June 15, 2004. A release of claims was signed by Jennifer Fenswick on June 15, 2004.

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A. Jennifer Fenswick v. Wesley Nunn (No. CVUJ05-1431) Jennifer Fenswick filed a lawsuit against plaintiff on September 15, 2005, alleging she was entitled to recompense under an oral agreement to pool resources and share equally in the benefits of property acquired during their relationship. (Jennifer Fenswick v. Nunn (No. CVUJ05-1431).) Plaintiff filed a cross-complaint against Jennifer Fenswick alleging, among other things, she had fraudulently induced him to transfer the Meridian Street property to defendant by signing a release of her claims. Following a bench trial, the court found in favor of plaintiff on the causes of action asserted by Jennifer Fenswick. It also ruled the release signed on June 15, 2004 was a valid release and settlement of all financial obligations of the parties up to that date, that neither party had fraudulently induced the other for any purpose, and that neither side had been unjustly enriched at the expense of the other. B. Nunn v. LeBlanc (No. CVUJ05-1527) On November 10, 2005, while the Jennifer Fenswick v. Nunn litigation was still pending, plaintiff filed a separate lawsuit against defendant (under her former surname, LeBlanc) seeking damages for fraud and rescission of the agreement to transfer the Meridian Street property to her. (Nunn v. LeBlanc (No. CVUJ05-1527).) Following the judgment in Jennifer Fenswick v. Nunn, defendant filed a motion to dismiss, arguing plaintiff’s claims against her were barred by principles of res judicata and collateral estoppel. The trial court agreed and issued the following written ruling: “[T]he court finds that the issues raised by the pleadings, as they are now framed, have been resolved by the findings necessarily made by the trial judge when reaching the decision in the [Jennifer] Fenswick v. Nunn case. Once having found that [Jennifer] Fenswick had not committed fraud as to Nunn, no subsequent finding to the contrary can be made regarding LeBlanc, as there are no independent allegations against LeBlanc. All allegations against her are premised on her association with [Jennifer] Fenswick, who has been held innocent of fraud towards Mr. Nunn.” A judgment dismissing the action was entered on August 31, 2009, and though Nunn filed a notice of appeal, that appeal was dismissed after he failed to designate the appellate record.