Exclusionary effect of the withdrawal of the claim in the case of a positive declaratory action and subsequent performance action

Facts

Parties and procedural history:

The plaintiff (appellant) filed a claim with the District Court of Horgen on 6 April 2017 against the defendant (respondent), initially seeking payment of CHF 1,688,200.-- plus VAT and interest (claim 1). In addition, the plaintiff filed a declaratory action seeking a finding that it was entitled to 40% of all commissions and similar income arising from real estate transactions of [C. GmbH] or in connection with the establishment of a Swiss real estate portfolio for Mr [D.] . In its reply of 15 May 2018, the plaintiff withdrew the declaratory action, stating that the court had made it clear during the instruction hearing on 9 November 2017 that this claim had little prospect of success. The District Court of Horgen took note of the withdrawal of the declaratory action and dismissed the claim with costs. On appeal by the plaintiff, the Higher Court of the Canton of Zurich ordered the defendant to pay CHF 1,688,200.-- plus interest and VAT. The appeal against this decision to the Federal Supreme Court was unsuccessful (Judgment 4A_633/2020 of 24 June 2021).

On 7 September 2022, the plaintiff filed a new claim with the District Court of Höfe, seeking CHF 72,000.-- plus VAT and interest from the defendant. The subject matter of the dispute was a claimed commission entitlement arising from the real estate transaction "[X.] " in the Canton of Zurich, in which [C. GmbH] was involved. This claim had already been the subject of the earlier declaratory action. The defendant applied for the claim to be dismissed or, in the alternative, for it to be dismissed with costs. The presiding judge of the District Court of Höfe declined to enter into the claim by order of 18 April 2023, as the withdrawal of the claim had been made without reservation and without the defendant’s consent after the obligation to continue the proceedings had arisen (service of the claim on the defendant). The claimed commission entitlement was substantively and temporally covered by the withdrawn declaratory action, meaning that a subsequent performance action was excluded.

The plaintiff appealed this order to the Cantonal Court of Schwyz, which confirmed the order in its decision of 14 December 2023. The Cantonal Court held that the identity of the subject matter of the dispute was undisputed and that the exclusionary effect of the withdrawal of the claim precluded a subsequent performance action. The Cantonal Court left open the question of whether a withdrawal of the claim without exclusionary effect was possible if a procedural requirement was lacking. The plaintiff had neither argued that the declaratory action had been withdrawn due to a lack of declaratory interest nor that it wished to "reintroduce" the claim in this regard. Accordingly, there was no withdrawal of the claim "as appropriate".

The plaintiff then filed an appeal in civil matters with the Federal Supreme Court, seeking to have the Cantonal Court’s order set aside and the claim referred back to the District Court for substantive consideration. The respondent applied for the appeal to be dismissed with costs.

Considerations

Admissibility of the appeal and standard of review:

The Federal Supreme Court examines the appeal ex officio, but is limited to the grounds raised, unless the legal deficiencies are obvious (Art. 106 para. 1 FSCA, Art. 42 paras. 1 and 2 FSCA). The appeal is only admissible if the cantonal instances have been exhausted in substance, i.e. the grounds have already been raised before the lower court (BGE 143 II 283 E. 1.1; 140 III 86 E. 1.3). The Federal Supreme Court bases its judgment on the facts as established by the lower court (Art. 105 para. 1 FSCA). A correction of the findings of fact is only possible if they are obviously incorrect or based on a legal error (Art. 105 para. 2 FSCA).

Identity of the subject matter of the dispute and substantive res judicata:

The substantive res judicata of a judgment has both positive and negative effects. In positive terms, it binds the court in subsequent proceedings to the facts established in the earlier judgment (preclusive effect). In negative terms, it prohibits the re-examination of a dispute that has already been finally adjudicated (res iudicata), unless there is a legitimate interest in repetition (BGE 142 III 210 E. 2 and E. 2.1). The identity of the subject matter of the dispute is determined by the procedural claims and the underlying factual circumstances. A new procedural claim is not different if it was already contained in the earlier proceedings or represents the contradictory opposite (BGE 142 III 210 E. 2.1).

Withdrawal of the claim and its effects:

The withdrawal of the claim is governed by Art. 241 para. 2 CPC, Art. 208 para. 2 CPC and Arts. 63 and 65 CPC. Pursuant to Art. 241 para. 2 CPC, a withdrawal of the claim has the effect of a final decision. Art. 65 CPC governs the consequences of the withdrawal of the claim and provides that, after service of the claim on the defendant, the plaintiff may not, without the defendant’s consent, bring a second action on the same subject matter (obligation to continue the proceedings). There are two views on the relationship between Art. 241 para. 2 CPC and Art. 65 CPC: on the one hand, Art. 65 CPC is considered…