Edmondson v. Green

• Decision Date: 04 August 1999
• Docket Number: No. 98-3290., No. 98-2636
• Parties: Thomas E. EDMONDSON, Appellant, v. Thomas I. GREEN and Thomas I. Green, P.A., a dissolved Florida professional corporation, Appellees.
• Court: Florida District Court of Appeals

755 So.2d 701

Thomas E. EDMONDSON, Appellant, v. Thomas I. GREEN and Thomas I. Green, P.A., a dissolved Florida professional corporation, Appellees.

Nos. 98-2636, 98-3290.

District Court of Appeal of Florida, Fourth District.

August 4, 1999.

Donald J. Freeman of Donald J. Freeman, P.A., and Jane Kreusler-Walsh of Jane Kreusler-Walsh, P.A., West Palm Beach, for appellant.

H. Michael Easley and Mark B. Kleinfeld of Jones, Foster, Johnston & Stubbs, P.A., West Palm Beach, for appellees.

POLEN, J.

In case number 98-3290, Thomas E. Edmondson ("Edmondson") appeals the trial court's final summary judgment in favor of Thomas I. Green and Thomas I. Green, P.A. ("Green"). In case number 98-2636, Green appeals after the trial court denied their motions to quash summons and vacate two default final summary judgments against them on Edmondson's second complaint. We sua sponte consolidate both appeals for purposes of this opinion. We hold that the court erred in dismissing three counts of the third complaint based on the two dismissal rule and, therefore, reverse on this basis. We affirm, however, on all the other points raised in both appeals.

Facts

The lawsuit giving rise to these appeals stemmed from a failed attorney/client relationship between Edmondson and Green. Edmondson first sued Green in 1996. His complaint alleged eight causes of action:¹ 1) replevin of files and documents; 2) accounting of $773,334 transferred from Edmondson to Green between May 7, 1993 and September 16, 1994; 3) constructive trust on real property that Green purchased using money Edmondson transferred to him; 4) cancellation and rescission of an appointment agreement regarding a biography; 5) constructive trust on $250,000 Edmondson paid to Green with respect to the appointment agreement; 6) conversion and replevin of $773,334; 7) damages for breach of fiduciary duty; and 8) civil theft of $773,334. Because Edmondson was unable to serve Green, despite a thirty-day extension granted by the trial court, he filed a notice of voluntary dismissal without prejudice.

Prior to this dismissal, however, Edmondson sent Green's attorney a copy of the second complaint, which he later filed that same day and affidavits of constructive service that he intended to file. (The second complaint alleged the same facts and counts as in the first complaint.) Also before this dismissal, Green's lawyer contacted Edmondson's lawyer about releasing the notice of lis pendens Edmondson had filed with the first complaint. Edmondson agreed to release the lis pendens in return for Green's signing an agreement whereby Green's lawyer would hold the sale proceeds in escrow pending resolution of this dispute. Green, Edmondson, and their lawyers signed such agreement after the second complaint was filed.

Edmondson constructively served Green on the replevin and constructive trust counts of the second complaint by filing and publishing the notice of action. He alleged in his affidavits of constructive service that Green had concealed his whereabouts and that his P.A. had closed its offices, had been involuntarily dissolved by the secretary of state, its telephone was disconnected, so that Edmondson could not effect process. He further alleged that the last known residence of Green was in Tequesta, Florida, and that the last known principal place of business of Green was in West Palm Beach.

Thereafter, Edmondson obtained a default against Green on the replevin and constructive trust counts of the second complaint. Green did not move to vacate the default, but instead, filed affidavits in opposition to Edmondson's motion for entry of judgment upon default. The court entered final judgments against Green on the replevin and constructive trust counts.

Green then moved to vacate the judgments and quash the summons, arguing that the constructive service of process was defective because Edmondson failed to comply with statute, and because Edmondson failed "to meet the due diligence requirements of applicable Florida law in his efforts to obtain service of process by a `constructive service.'" The court ruled that Green had notice of the proceedings, had appeared in court through his lawyer, and that Edmondson had proven due diligence. The motions to vacate and quash were denied.

Edmondson, despite another thirty-day extension, was unable to serve Green with the remaining counts of the second complaint. As such, he later filed his second notice of voluntary dismissal without prejudice as to these remaining counts.

The same day he voluntarily dismissed the second complaint, Edmondson filed a third complaint against Greene and personally served him with same. The third complaint alleged: 1) replevin of files and documents; 2) accounting of $2.1 + million that Edmondson transferred to Green between May 7, 1993 and September 14, 1994; 3) constructive trust on real property based on $2.1 + million Edmondson transferred to Green between May 7, 1993 and September 14, 1994; 4) cancellation and recission of the appointment agreement; 5) constructive trust on funds with respect to the appointment agreement; 6) replevin of $2.1 + million that Edmondson transferred to Greene between May, 1993 and September, 1994; 7) breach of fiduciary duty with respect to Green's procurement of $2.1 + million of funds; 8) civil theft of $1,275,000; 9) fraud committed by Green's causing Edmondson to transfer $1,275,000 in three installments to a Swiss bank account owned by Green on November 4, 1993, April 12, 1994, and September 2, 1994; 10) undue influence relating to Green's convincing Edmondson to transfer $1,275,000 to the Swiss bank; and 11) conversion with respect to the transfers of $1,275,000.²

Green then moved for summary judgment based on Edmondson's having twice voluntarily dismissed the action. The trial court, following a hearing, granted the motion, finding that

[e]ven though Plaintiff may have to prove some additional facts to obtain increased damages, Plaintiff's new amended complaint basically alleges all the same facts underlying the transactions for the first eight claims as his two prior actions. The pleading of different remedies does not circumvent the rule....

Two Dismissal Rule

On appeal, Edmondson argues his third (amended) complaint against Green was not barred by the "two dismissal" rule. "[A] notice of dismissal operates as an adjudication on the merits when served by a plaintiff who has once dismissed in any court an action based on or including the same claim." Fla.R.Civ.P. 1.420(a)(1). As used in rule 1.420(a)(1)(B), the word "action" denotes an entire controversy, whereas the word "claim" describes a "cause of action." Crump v. Gold House Restaurants, Inc., 96 So.2d 215 (Fla.1957). Thus, the primary focus of the two-dismissal rule is on identity of the causes of action. See id. Whether there is identity of causes of action depends upon a comparison of the facts constituting the underlying transaction. Variety Children's Hosp. v. Mt. Sinai Hosp. of Greater Miami, Inc., 448 So.2d 546, 547 (Fla. 3d DCA) (citations omitted), petition for review denied, 458 So.2d 274 (Fla.1984). In Variety, the court noted,

As the result of a single transaction or a connected series of transactions giving rise to a unitary claim, the plaintiff may be entitled to a number of alternative or cumulative remedies or forms of relief against the defendant. In a modern system of procedure it is ordinarily open to the plaintiff to pursue in one action all the possible remedies whether or not consistent, whether alternative or cumulative, and whether of the types historically called legal or equitable.

Id. at 548 (quoting Restatement (Second) of Judgments section 24 comment a (1982)). In sum, if the facts necessary to the maintenance of the latter suit are the same as in the...