Couch Const. Co. for Use and Benefit of Kimmins Corp., Inc. v. Florida Dept. of Transp., 88-329

• Decision Date: 29 December 1988
• Docket Number: No. 88-329,88-329
• Court: Florida District Court of Appeals
• Parties: 14 Fla. L. Weekly 83 COUCH CONSTRUCTION COMPANY, for the Use and Benefit of KIMMINS CORPORATION, INC., Appellant, v. The FLORIDA DEPARTMENT OF TRANSPORTATION and City of Tampa, Appellees.

Page 631

537 So.2d 631

14 Fla. L. Weekly 83

COUCH CONSTRUCTION COMPANY, for the Use and Benefit of KIMMINS CORPORATION, INC., Appellant, v. The FLORIDA DEPARTMENT OF TRANSPORTATION and City of Tampa, Appellees.

No. 88-329.

District Court of Appeal of Florida,

First District.

Dec. 29, 1988.

Rehearing Denied Feb. 17, 1989.

F. Alan Cummings of Cummings & Lawrence, P.A., Tallahassee; Alan C. Sundberg and Donald E. Hemke of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tallahassee, for appellant.

Gregory G. Costas, Dept. of Transp., Tallahassee, for appellees.

SMITH, Chief Judge.

Appellant, Couch Construction Company (Couch), appeals the summary judgment finding no issues of fact and that as a matter of law, the cause was barred by res judicata. We reverse.

Couch contracted with the appellee, Department of Transportation (DOT), to widen Dale Mabry Highway in Tampa, Florida. Among other things, the contract provided that DOT was to relocate water and sewer utilities at the project site. Couch subcontracted with Kimmins to lay a drainage system in the improved area. This contract also provided that Couch would present on Kimmins' behalf any claims it had against DOT. DOT failed to timely remove the utilities, and Couch brought suit (Circuit Court Case No. 85-696), seeking declaratory relief, termination of its contract with DOT, and compensatory damages for the delays caused by DOT's breach. Although the trial court found that DOT had in fact breached the contract, it refused to terminate the contract. Instead, the trial court modified the contract by extending the time allotted for Couch to complete its work. The trial court also awarded Couch damages for the delay.

Subsequently, Couch filed the instant suit against DOT, this time for the benefit of Kimmins (Circuit Court Case No. 86-2204). Like Couch, Kimmins had incurred damages due to DOT's failure to relocate utilities. Among others, DOT raised the defense of res judicata. Couch filed a motion for partial summary judgment on the affirmative defenses raised; DOT likewise filed a motion for summary judgment, asserting the doctrines of collateral estoppel and res judicata. The trial court took these filings and stipulations as indicating no genuine issues of material fact regarding the defense of res judicata existed. This was in error.

Cross-motions for summary judgment do not mean in themselves that no genuine issue of fact exists. West Shore Restaurant Corp. v. Turk, 101 So.2d 123 (Fla.1958). While it is true that a party may not seek summary judgment asserting there is no issue of fact with regards to a specific question and then take a contrary position on appeal, Daniel Laurent, Inc. v. Coral Television Corp., 431 So.2d 1047 (Fla. 3rd DCA 1983), neither party in this appeal is taking a position contrary to that taken in their respective motions for summary judgment.

Furthermore, the summary judgment was also improper in this case because not all of the four essential requirements of res judicata are present. In order for a suit to serve as a bar against a later one, four identities must be shown: (1) identity of the persons or parties; (2) identities of the quality or capacity of the person for whom the claim is made; (3) identity of the causes of action; and (4) identity of the things sued for in each suit. Albrecht v. State, 444 So.2d 8 (Fla.1984).

Although dealing with parties having status or relationships differing from those present here, a number of cases have found a lack of identity of the quality or capacity of the parties suing sufficient to defeat the...