Gilbertson v. Boggs, 98-4385, 99-1005.

• Decision Date: 22 September 1999
• Docket Number: No. 98-4385, 99-1005.,98-4385, 99-1005.
• Citation: 743 So.2d 123
• Parties: Richard David GILBERTSON, individually, and on behalf of his biological daughter, H.L.G. n/k/a H.L.B., Appellant, v. Alison A. BOGGS, Appellee.
• Court: Florida District Court of Appeals

743 So.2d 123

Richard David GILBERTSON, individually, and on behalf of his biological daughter, H.L.G. n/k/a H.L.B., Appellant, v. Alison A. BOGGS, Appellee.

No. 98-4385, 99-1005.

District Court of Appeal of Florida, Fourth District.

September 22, 1999.

Rehearing Denied October 18, 1999.

Marina Garcia Wood of Montero, Finizio, Velasquez, Weissing & Reyes, P.A., Fort Lauderdale, for appellant.

John D. Boykin of Boose, Casey, Ciklin, Lubitz, Martens, McBane & O'Connell, West Palm Beach, for appellee.

SHAHOOD, J.

This opinion addresses consolidated appeals in case numbers 98-4385 and 99-1005. In case number 98-4385, appellant, Richard David Gilbertson, individually, and on behalf of his biological daughter, H.L.G., n/k/a H.L.B. (Gilbertson), appeals from an Order Granting Motion to Dismiss and to Seal Record, which order dismissed appellant's complaint to establish paternity. In case number 99-1005, Gilbertson appeals from the trial court's non-final Order on Motion for Temporary Appellate Fees.

We affirm in part and reverse in part the dismissal of Gilbertson's complaint with prejudice, and remand for proceedings consistent with this opinion. We also reverse the order entered by the court granting appellee's temporary appellate attorneys fees.

Gilbertson claims that he and appellee, Alison Boggs, had a four and one-half year relationship which resulted in the conception and birth of their daughter on June 4, 1996. At all times during this alleged affair, Alison Boggs was married to Benjamin Boggs, the legal father of the minor child. During Alison Boggs' pregnancy, she purportedly informed Gilbertson that he was the father of the then unborn child and that her husband was impotent and incapable of fathering a child. Alison Boggs intimated to Gilbertson that she was going to leave her husband and seek a divorce. Since the birth of the minor child, Alison Boggs allegedly encouraged and fostered a father-daughter relationship between Gilbertson and his family with the minor child. Shortly after the birth of the minor child, Gilbertson filed a Complaint to Establish Paternity, custody, visitation, and support of the minor child, against Alison Boggs and her husband. In the complaint, Gilbertson alleged that Alison Boggs repeatedly told him that he was the natural father of the minor child and had allegedly represented this fact to her husband Benjamin Boggs. Gilbertson further contended that he and Boggs continued their relationship throughout Boggs' pregnancy and that he was involved in the pregnancy process.

Gilbertson sought blood tests from the parties to affirmatively establish paternity and for the court to declare him the legal father of the minor child under Florida Law. Gilbertson sought shared parental responsibility and to be designated the primary residential parent.

Boggs and her husband filed a Motion to Dismiss and to Seal Record alleging that pursuant to section 742.011, Gilbertson lacked standing to bring the paternity action on the grounds that he could not overcome the presumption of legitimacy given to the minor child by her legal father, Benjamin Boggs.

Gilbertson moved to set Petitioner's Request for Blood Test on Trial Docket and to appoint a Guardian Ad Litem. Benjamin Boggs then filed an affidavit claiming that he was the legal father of the minor child as indicated on her birth certificate and did not want her legitimacy questioned in any way. As such, he objected to any blood test seeking to establish whether anyone else might be the biological father.

The trial court entered an Order Appointing Guardian Ad Litem on October 15, 1996, without naming a specific individual as guardian ad litem for H.L.G. n/k/a H.L.B. The form order merely stated that the "State of Florida Guardian Ad Litem Program for the Fifteenth Circuit, is hereby appointed for the minor child in this matter." Because the court entered a "blank" order without naming an individual as guardian ad litem, no action was ever taken, or any pleadings filed, by anyone on behalf of H.L.G. n/k/a H.L.B.

A hearing was held on Boggs' Motion to Dismiss and Seal Record. The trial court granted the motion pursuant to section 742.011. In his Motion for Rehearing, Gilbertson claimed that the trial court erred in dismissing his complaint without holding an evidentiary hearing and that the court violated his constitutional right to access to the courts and equal protection. The motion was denied and Gilbertson filed a notice of appeal. In January 1997, Gilbertson entered a voluntary dismissal of the appeal.

In September 1998, Gilbertson, individually, and on behalf of his biological daughter, filed a new four-count complaint against Alison Boggs. The complaint alleged an independent action for fraud and a petition to establish paternity and visitation on behalf of Gilbertson, individually, and on behalf of the minor child, under sections 742.011 and 61.13.

In his complaint, Gilbertson maintained that he was the biological father of the minor child that resulted from an affair he had with Boggs and that he had maintained a father-daughter relationship with the child. Gilbertson sought to set aside the trial court's order dismissing the earlier case based upon a fraud upon the court under rule 1.540(b), Florida Rules of Civil Procedure. Gilbertson claimed that Boggs and her husband falsely stated that Benjamin Boggs was the legal father of the minor child and failed to disclose that he was not the natural and biological father of the minor child. He maintained that prior to the court's dismissal of his complaint for paternity, Alison Boggs failed to inform the court that Gilbertson was the putative father of the minor child and that blood testing under Chapter 742 was appropriate. Gilbertson claimed that Boggs represented to Gilbertson that if he dismissed his appeal, she would acknowledge that he was the biological father of the minor child. Hence, a fraud was perpetrated upon the court. Gilbertson requested that the court set aside the earlier order of the court and order the parties to submit to blood testing.

Following Boggs' Motion to Dismiss and to Seal Record, the trial court dismissed Gilbertson's complaint with prejudice. In its order of dismissal, the court held that:

9. Count III seeks to establish paternity and visitation pursuant to Chapter 742 and section 61.13 of the Florida Statutes. The predecessor case (Case No. CD 96-3714 FC) involved a petition to establish the paternity of the minor child which asserted almost exactly the same cause of action on behalf of the Petitioner. As a matter of law, the prior involuntary dismissal is an "adjudication on the merits." Smith v. St. Vil, 714 So.2d 603 (Fla. 4th DCA 1998); Hardee v. Gordon Thompson Chevrolet, Inc., 154 So.2d 174 (Fla. 1st DCA 1963). The four identities are present: 1) identity of the thing sued for; 2) identity of action; 3) identity of persons and parties; and 4) identity of the quality or capacity of the persons for or against whom the claim is made. See State of Wisconsin v. Martorella, 670 So.2d 1161, 1162 (Fla. 4th DCA 1996)

; Youngblood v. Taylor, 89 So.2d 503, 505 (Fla.1956)(res judicata bars not only later suits on the same causes of action, but also matters that "could have been raised"; the test of identity of cause of action is "identity of the facts essential to the maintenance of the actions"). Therefore, the final order of dismissal in Case No. CD 96-3714 FC is res judicata and bars Count III of this Complaint. Martorella, 670 So.2d at 1162.

While Gilbertson contends that the trial court's dismissal of his paternity claim brought in his individual capacity was not barred by res judicata, we hold that the "identities" requirement has been met. See Martorella. The "thing sued for" and "the cause of action" did not differ from the paternity action in the predecessor case since the only claim being appealed was the paternity claim. Likewise, the identity of persons and parties did not differ between the two cases. In the prior action Gilbertson sued both Alison Boggs and her husband. In the present action, he sued only Boggs. Gilbertson cannot avoid the pitfalls of res judicata by electing to eliminate one of the parties being sued. Moreover, the only party necessary to be joined in this action was the mother of the minor child.

In addition to the four identities necessary to establish res judicata, under Martorella, the party claiming the benefit of the former adjudication has the burden of establishing, with sufficient certainty by the record or by extrinsic evidence, that the matter was formerly adjudicated. See Martorella, 670 So.2d at 1162

. This court has held that an order finally dismissing a complaint for failure to state a cause of action is an adjudication on the merits. See Smith v. St. Vil, 714 So.2d 603, 605 (Fla. 4th DCA 1998). Gilbertson voluntarily dismissed with prejudice his appeal of that determination. By dismissing his appeal, Gilbertson waived any claim of error, and thus, pursuant to St. Vil, the dismissal for failure to state a cause of action is a final adjudication on the merits for which res judicata attaches.

Finally, we reject Gilbertson's argument that in equity, applying res judicata to the present action would work an injustice and deprive him and his family of their developed relationship with the minor child. See generally deCancino v. Eastern Airlines, Inc., 283 So.2d 97 (Fla.1973)

. He submits that Boggs would benefit to the detriment of him and the minor child from her alleged false representations which induced him to dismiss his appeal in the prior case. See State, Dep't of Revenue, Office of Child Support Enforcement v. Redding, 685 So.2d 1000 (Fla. 3d DCA 1997).

Gilbertson argues that there is a distinction between "legitimacy" and "paternity" and that due to the trial court's dismissal in the prior action, there has been no adjudication as to the child's paternity, only as to her legitimacy....