In Bryan v. Fernald, No. 2D15-4830, 2017 WL 694578 (Fla. 2nd DCA 2017), Audrey Bryan appealed an order on her petition to determine beneficiaries in the probate proceedings of her deceased mother’s estate.
In 2007, Edward John began probate proceeding of the decedent’s estate. The decedent’s children were not served with any pleadings or orders in the probate case. The probate court entered an order of discharge in March 2009, finding that the estate had been properly distributed and discharged John as the personal representative. John reopened the estate in June 2009, to pursue a medical malpractice claim against Dr. Scott Plantz, a doctor who treated the decedent before she died. The decedent’s four children were served with the petition. The estate was reopened and the medical malpractice lawsuit was filed against Dr. Plantz.
In 2012 Gary Fernald was appointed as administrator ad litem for the estate. In 2015, Bryan filed a petition to determine intestate beneficiaries pursuant to Florida Statue 733.105. In her petition, she alleged that she and the decedent’s children were not properly notified of the administration of their mother’s estate. Bryan also alleges that she and her siblings are entitled to an equal share of at least fifty percent of their mother’s estate and if the decedents husband John cannot produce a valid marriage certificate, then Bryan and her siblings are entitled to an equal share of one hundred percent of their mother’s estate. John and Fernald filed a response to Bryan’s petition asserting that Dr. Plantz was behind Bryans petition and that John was lawfully married to the decedent at the time of her death as determined in a 2013 order in the medical malpractice case.
On August 26, 2015 a hearing was held for Bryan’s petition. John, Fernald, and Dr. Plantz all agreed that Bryan and her siblings are beneficiaries of the estate. Bryan’s counsel argued that the order in the medical malpractice case did not control this issue because that order was not a final order. The estate alleged that the order constituted a factual finding on the validity of the marriage at the time of decedents death. The trial judge stated that he did not “know how [he could] go beyond that,” and he wondered why he would “go back and reinvent the wheel that
[the other judge]
apparently spent considerable time and judicial energy on.” The trial judge agreed with Bryan’s response that she and her siblings did not have the opportunity to argue this issue to any court and therefore it is a due process issue. The estate’s counsel argued that in depositions, Bryan and her sisters did not “dispute that this was a valid and legal marriage.” Bryan’s counsel rebutted these claims by arguing that although Bryan was a witness to the wedding ceremony, Bryan was not aware that her mother had obtained the marriage certificate under a false name and identity. The trial court judge determined that he was not going to reverse the judge in the medical malpractice case and found that the order is “res judicata on the issue.” The trial judge stated that “[T]his isn’t a factual issue as I contemplated when I reviewed the file and prepared for the hearing today. I think that I make a determination based upon the uncontested part of it with regard to the four adult children of the decedent and I make a ruling based on the findings of [the medical malpractice] order directly on point that I think is res judicata on the issue of the marriage and find that Mr. John was the spouse of the decedent.”
The trial court determined in a written order that Bryan and her three siblings are beneficiaries and that John is also a beneficiary as the decedent’s spouse. Based on the earlier order in the medical malpractice case, res judicata applies and controls the issue of the validity of the marriage between John and the decedent, therefore making John also a beneficiary to the decedent’s estate.
The issue Bryan argues on appeal is that the doctrine of res judicata does not apply because the requirements for res judicata were not satisfied. Under the doctrine of res judicata, [a] judgment on the merits rendered in a former suit between the same parties or their privies, upon the same cause of action, by a court of competent jurisdiction, is conclusive not only as to every matter which was offered and received to sustain or defeat the claim, but as to every other matter which might with propriety have been litigated and determined in that action.
Thus, res judicata applies when the following four identities are present: “(1) identity of the thing sued for; (2) identity of the cause of action; (3) identity of persons and parties to the action; and (4) identity of the quality of the persons for or against whom the claim is made.” Topps v. State, 865 So.2d 1253, 1255 (Fla. 2004). This court reviews de novo the trial court’s application of res judicata. See Campbell v. State, 906 So.2d 293, 295 (Fla. 2d DCA 2004).
Presently, the first two elements were not satisfied because the cause of action and the things sued for are different. In the medical malpractice case, the decedent’s estate was seeking damages and the cause of action is based on medical negligence. In the probate case, Bryan is asking for a determination of the decedent’s beneficiaries and the proper administration of the estate. “The determining factor in deciding whether the cause of action is the same is whether the facts or evidence necessary to maintain the suit are the same in both actions.”, superseded by statute on other grounds as stated in Bowen v. Fla. Dep’t of Envtl. Regulation, 448 So.2d 566 (Fla. 2d DCA 1984). Secondly, the parties are not identical in the two cases since Bryan was not a part of the medical malpractice proceedings and Bryan was not in privity with the estate when it was asserting the validity of the marriage in the medical malpractice case. See Wildflower, LLC v. St. Johns River Water Mgmt. Dist., 179 So.3d 369, 374 (Fla. 5th DCA 2015) (“Res judicata binds the parties in the former action and their privies. A ‘privy is one who is identified with the litigant in interest.”
“Moreover, res judicata does not apply in this case because “[a] final order is necessary for application of res judicata.” Thomson v. Petherbridge, 472 So.2d 773, 774 (Fla. 1st DCA 1985); Accent Realty of Jacksonville, Inc. v. Crudele, 496 So.2d 158, 160 (Fla. 3d DCA 1986) (“The entry of a final judgment or order is the common element that invokes the doctrines of both res judicata and collateral estoppel.”). The order entered in the medical malpractice case is not a final order because it merely denied Dr. Plantz’s motion for partial summary judgment.3 See Better Gov’t Ass’n of Sarasota Cty., Inc. v. State, 802 So.2d 414, 415 (Fla. 2d DCA 2001) (recognizing that an order denying summary judgment is not a final order). The medical malpractice case is still ongoing.”
The appellate court held that the trial court erred in ruling that “[t]he application of res judicata prevents [the court] from disturbing” the order in the medical malpractice case. It must be noted that in its order, the trial court further ruled that it would not “rule contrary” to the prior order because “the presented deposition testimony of [Bryan,] who recognized in her testimony the validity of the marriage between [John] and [the decedent,] is contrary to the position advocated by her attorney.”
The appellate court found that the trial court did not engage it independent research to determine the validity of the marriage under the applicable law. Therefore, the appellate court reversed the order and remanded for further proceedings.
NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
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