Cole v. First Development Corp. of America, 76--377
| Decision Date | 24 November 1976 |
| Docket Number | No. 76--377,76--377 |
| Citation | 339 So.2d 1130 |
| Parties | E. W. COLE, Appellant, v. FIRST DEVELOPMENT CORPORATION OF AMERICA, a Florida Corporation, Appellee. |
| Court | Florida District Court of Appeals |
William H. Shields of Pavese, Shields, Garner, Haverfield & Kluttz, Fort Myers, for appellant.
F. Lynn Gerald, Jr. of Sheppard & Woolslair, Fort Myers, for appellee.
Appellant/plaintiff timely appeals a summary judgment entered in favor of appellee/defendant finding that appellant's action was barred by res judicata.
The complaint initiating this case sounded in tort alleging that appellee fraudulently agreed to sell a parcel of real estate which it did not own and prayed for money damages. Appellant had filed a prior suit against the same appellee, arising out of the same factual circumstances, seeking specific performance of a contract to convey that parcel. In the contract action the trial court granted a summary judgment to appellee finding that appellant had not submitted a written contract sufficient to withstand the statute of frauds.
It is not disputed that the contract and the tort actions arose from the same underlying facts. The doctrine of res judicata does not however bar a cause merely because the actions arose from the same factual situation. Seaboard Coast Line R. Co. v. Industrial Contracting Co., 260 So.2d 860 (Fla.4th DCA 1972). We point out that res judicata applies only when the four identities are present (1) identity of the thing sued for, (2) identity of the cause of action, (3) identity of the persons and parties, and (4) identity of the quality or capacity of persons for or against whom the claim is made. E.g., Matthews v. Matthews, 133 So.2d 91 (Fla.2d DCA 1961).
Identity of the causes of action is established where the facts which are required to maintain both actions are identical. Gordon v. Gordon, 160 Fla. 838, 36 So.2d 774 (1948). In the case before us the facts necessary to allege and prove the fraud and deceit action are contradictory to those necessary to sustain the contract action. This obvious difference between the facts essential to each of these two causes of action precludes the application of the doctrine of res judicata.
In addition the requirement of identity of the thing sued for is not satisfied. Appellant prayed for damages in the tort action and for specific performance in the contract action. We are aware that a difference in the relief sought does not...
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Tyson v. Viacom, Inc.
...861 So.2d 74, 76 (Fla. 4th DCA 2003)(same); Gold v. Bankier, 840 So.2d 395, 397 (Fla. 4th DCA 2003)(quoting Cole v. First Dev. Corp. of Am., 339 So.2d 1130, 1131 (Fla. 2d DCA 1976)(citing Gordon v. Gordon, 160 Fla. 838, 36 So.2d 774 (1948)))("`Identity of the causes of action is established......
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In re Residential Capital, LLC
...the Macks' counterclaims in the Foreclosure Action, so there is no identity of the causes of action. See Cole v. First Dev. Corp. of Am., 339 So.2d 1130, 1131 (Fla.Dist.Ct.App.1976) (“Identity of the causes of action is established where the facts which are required to maintain both actions......
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Beeders v. Gulf Coast Collection Bureau
...and the quality or capacity of the parties involved in the claim are all identical between the two cases. Cole v. First Development Corp.of Am., 339 So.2d 1130, 1131 (Fla. 2d DCA 1976). Causes of action are identical if the facts required to maintain the actions are identical. Gordon v. Gor......
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Bacardi v. Lindzon
...The operative question is whether the same facts are necessary to prove each cause of action. See Cole v. First Development Corp. of America, 339 So.2d 1130 (Fla. 2d DCA 1976). The facts necessary to establish Bacardi's rights under the trust, the violation of those rights, and any ensuing ......
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Legal theories & defenses
...3. Holt v. Brown’s Repair Service, Inc. , 780 So.2d 180, 181 (Fla. 2d DCA 2001). 4. Cole v. First Development Corporation of America , 339 So.2d 1130, 1131 (Fla. 2d DCA 1976). 5 . M.C.G. v. Hillsborough County School Board, 927 So.2d 224, 227 n.2 (Fla. 2d DCA 2006). 6 . Campbell v. State , ......