In Kowallek v. Rehm, 2016 Fla. App. LEXIS 433 (Fla. 4th DCA), Daniel Kowallek (“Appellant”) appealed an order dismissing his case with prejudice with regard to Florida Power and Light Company and Asplundh Tree Expert Company (“Defendants”), asserting that the trial court erred in granting the motion filed by Defendants on the bases of res judicata and collateral estoppel. Although the Fourth DCA agreed that the action should not have been dismissed pursuant to the doctrine of res judicata, the Court affirmed the decision of the trial court on the basis of collateral estoppel.
In a prior lawsuit, Appellant brought negligence claims against Defendants, alleging that they improperly trimmed a tree on a utility easement located on his property. In that prior case, Appellant sought to address tree trimming procedures to prevent future damage to his property. A final judgment was rendered ordering that Appellant had thirty days to remove the vegetation in the easement, and that if he did not, Defendants would have the right to remove the vegetation. The thirty-day period expired, in which Appellant took no action and Defendants removed the vegetation. Appellant then brought an action against Defendants and several other parties claiming negligence, trespass, destruction of private property, and alleged that Defendants did not remove vegetation in compliance with the final judgment. However, the trial court dismissed the action with prejudice on the bases of res judicata and collateral estoppel. Appellant appealed the dismissal to the Fourth DCA.
Res judicata, as defined by the Fourth DCA, is the concept that a judgment on the merits rendered in a former suit between the same parties (or their privies), upon the same cause of action, is conclusive as to every matter which was offered to sustain or defeat the claim, as well as to every other matter which might with propriety have been litigated and determined in that action. See Tyson v. Viacom, Inc., 890 So. 2d 1205, 1209 (Fla. 4th DCA 2005). Similarly, the doctrine of collateral estoppel bars relitigation of the same issue between the same parties which has already been determined by a valid judgment, even where the present and former cause of action are not the same. Zikofsky v. Mktg. 10, Inc., 904 So. 2d 520, 525 (Fla. 4th DCA 2005). While collateral estoppel and res judicata are affirmative defenses that may not ordinarily form the basis for a motion to dismiss, they may be permissible where a plaintiff specifically incorporates prior proceedings into his complaint. Duncan v. Prudential Ins. Co., 690 So. 2d 687, 688 (Fla. 1st DCA 1997).
In the subject case, dismissal of the action pursuant to res judicata was not appropriate because the causes of action alleged in the second complaint were different from the first. The causes of the action in the second complaint were different because they were based on events that happened after the entry of the final judgment in the first case and they involved extra parties. Thus, dismissal on res judicata grounds was improper. However, the Fourth DCA found that the trial court did not err in dismissing the motion on the grounds of collateral estoppel because in his second complaint, Appellant attempted to relitigate the same issue as the first (Defendants’ removal of vegetation on Appellant’s property). The Fourth DCA noted that Appellant may have attempted to pursue a course of action before the trial court that originally permitted entry onto his easement, alleging that Defendants were unreasonable in their entry, but Appellant did not allege such. This case serves as a stark reminder to all litigants, including probate litigants, not to hold back asserting potentially interrelated claims the first time around because arguably related claims later on may be barred on res judicata grounds.
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