Atlantic Cylinder Corp. v. Hetner

• Decision Date: 29 September 1983
• Docket Number: No. AR-310,AR-310
• Citation: 438 So.2d 922
• Parties: ATLANTIC CYLINDER CORP., Appellant, v. Edward HETNER and Valentin Peguero, Appellees.
• Court: Florida District Court of Appeals

Page 922

438 So.2d 922

ATLANTIC CYLINDER CORP., Appellant, v. Edward HETNER and Valentin Peguero, Appellees.

No. AR-310.

District Court of Appeal of Florida,

First District.

Sept. 29, 1983.

Rehearing Denied Oct. 31, 1983.

Gregory W. Johnson of Weil, Johnson & Benson, Jacksonville, for appellant.

Edward A. White, Jacksonville, for appellees.

WENTWORTH, Judge.

Appellant seeks review of an order entered in the circuit court for Duval County dismissing its complaint with prejudice. We affirm.

Appellees are the president and secretary of two U.S. Virgin Islands corporations. Acting in their corporate capacity, appellees contracted with appellant for the construction and delivery of a gas transport trailer by appellant. Upon delivery of the item appellant was paid by check, but a stop payment order was thereafter effected. Appellant sued the two corporations, upon a six count complaint, and obtained a jury verdict and judgment upon the counts alleging breach of contract and wrongful stopping payment of a check; a directed verdict was entered in the defendants' favor on other counts. This ruling was not appealed, and the judgment was satisfied by the defendant corporations.

Appellant then sued appellees individually for the same acts involved in the prior suit. The trial court, upon motion by appellees, dismissed the complaint with prejudice, finding that appellant seeks to relitigate issues on which it was denied recovery in the former action, and that the prior judgment on the merits for the employer bars an action against the employee in these circumstances.

Although multiple active tortfeasors may be sued separately in successive actions (see Gerardi v. Carlisle, 232 So.2d 36 (Fla. 1st DCA 1969)), when there is an active employee tortfeasor and respondeat superior liability of the employer then the prosecution of an action to judgment and satisfaction against the employer precludes a subsequent separate action against the employee for the same wrongful conduct. See Phillips v. Hall, 297 So.2d 136 (Fla. 1st DCA 1974). Phillips distinguishes Gerardi and suggests that the plaintiff may elect to treat the employee's act as that of the employer, or that of the employee himself, but not both. This "election of actions" theory of Phillips should apply in the present case. The wrongful conduct which appellant asserts on the part of the corporations is the action of appellees as officers of the corporation; such imputation of wrongful conduct should not distinguish Phillips.

In addition, the doctrine of estoppel by judgment bars the present action. In Akins v. Hudson Pulp & Paper Co., 330 So.2d 757 (Fla. 1st DCA 1976), in an alternative holding (the case also involved the exclusivity provision of the Workers' Compensation Law), the court quoted from Gordon v. Gordon, 59 So.2d 40 (Fla.1952), to the effect that:

The principle of estoppel by judgment is applicable where...