Department of Health and Rehabilitative Services v. Griffin, 92-4305

• Decision Date: 22 June 1993
• Docket Number: No. 92-4305,92-4305
• Citation: 620 So.2d 241
• Parties: 18 Fla. L. Week. D1493 DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Individually and as next best friend and on behalf of Donald Griffin, a Minor, Appellant, v. Donald GRIFFIN, Appellee.
• Court: Florida District Court of Appeals

Page 241

620 So.2d 241

18 Fla. L. Week. D1493

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES Individually and as next best friend and on behalf of Donald Griffin, a Minor, Appellant, v. Donald GRIFFIN, Appellee.

No. 92-4305.

District Court of Appeal of Florida First District.

June 22, 1993.

Joseph R. Boyd and William H. Branch, Boyd & Branch, P.A., and Chriss Walker, Dept. of HRS, Tallahassee, for appellant.

No appearance for appellee.

SHIVERS, Senior Judge.

Appellant, the Department of Health and Rehabilitative Services (HRS), appeals the trial court's order granting appellee's motion to dismiss a paternity action against him and granting his request to assess a reasonable attorney's fee and taxable costs against HRS, pursuant to section 57.105, Florida Statutes. We reverse and remand for further proceedings.

Acting as next friend and on behalf of Donald Griffin, a minor, in May 1992, HRS filed a complaint against appellee, pursuant to section 742.011, Florida Statutes, to determine paternity and establish support. Attached to the complaint was a paternity affidavit, signed by Mary Saulters, the mother of the minor, attesting that only appellee could be the father of the child.

Appellee moved to dismiss the complaint and requested that he be awarded attorney's fees and costs because a 1980 judgment of the Circuit Court of Okaloosa County, which is contained in the record, shows that a complaint for paternity determination against appellee, filed by Mary Saulters and HRS, resulted in judgment being rendered in favor of appellee when that complaint was dismissed with prejudice. In granting appellee's motion to dismiss and dismissing this action, the trial judge relied upon the decision in Department of Health and Rehabilitative Services v. Ricks, 530 So.2d 370 (Fla. 2d DCA1988), in which the court affirmed the dismissal of a paternity action brought by the children. In that case, the court found that a previous paternity action brought by the mother on behalf of the same children had resulted in a final judgment being entered finding the evidence insufficient to establish paternity. On that basis, the court distinguished the decision in Department of Health and Rehabilitative Services v. Wyatt, 475 So.2d 1332 (Fla. 5th DCA1985), and found that, on those facts, the action by the children was barred.

In Wyatt, HRS filed a complaint on behalf of the mother, seeking a declaration that Wyatt was the father of the child and seeking child support on behalf of the minor child. Twelve years previously, the mother had filed an action against the father seeking a declaration of paternity but that action had ended in a stipulation that the cause be dismissed with prejudice and the trial court had dismissed that action with prejudice. In the later action, Wyatt asserted the affirmative defense of res judicata; the trial judge held that the action was barred by application of the doctrine of res judicata and thereupon entered summary judgment in favor of the father. The appellate court reversed, declaring:

Whatever effect the earlier dismissal had on the right of the...