Kowallek v. Lee Rehm

• Decision Date: 13 January 2016
• Docket Number: No. 4D14–4581.,4D14–4581.
• Parties: Daniel E. KOWALLEK, Appellant, v. LEE REHM, Port St. Lucie Police Department, City of Port St. Lucie, Florida Power and Light Company, and Asplundh Tree Expert Company, Appellees.
• Court: Florida District Court of Appeals

183 So.3d 1175

Daniel E. KOWALLEK, Appellant,

v.LEE REHM, Port St. Lucie Police Department, City of Port St. Lucie, Florida Power and Light Company, and Asplundh Tree Expert Company, Appellees.

No. 4D14–4581.

District Court of Appeal of Florida, Fourth District.

Jan. 13, 2016.

Rehearing Denied Feb. 12, 2016.

Daniel E. Kowallek, Port St. Lucie, pro se.

No brief filed on behalf of appellees.

CIKLIN, C.J.

Daniel Kowallek ("Kowallek") appeals an order dismissing his case with prejudice as to two defendants, Florida Power and Light Company and Asplundh Tree Expert Company ("the defendants"), contending that the trial court erred in granting the motion filed by the defendants on the bases of res judicata and collateral estoppel. Although we agree that the action should not have been dismissed pursuant to the doctrine of res judicata, we affirm on the basis of collateral estoppel.

In a prior lawsuit, Kowallek asserted negligence claims against the defendants, alleging that they improperly trimmed a tree on a utility easement located on his property. In that prior case, Kowallek sought to address tree trimming procedures to prevent future damage to Kowallek's property. A final judgment was rendered ordering that Kowallek had thirty days to remove the vegetation in the easement, and that if he did not do so, the defendants then had a right to remove the vegetation. The thirty-day period expired and because Kowallek took no action, the defendants removed the vegetation, as permitted by the final judgment.

Kowallek then filed the action below against the defendants and several other parties claiming negligence, trespass, destruction of private property, and alleged that the defendants did not remove vegetation in compliance with the final judgment.

Looking to the instant complaint, the prior complaint, and the final judgment (the latter two of which were incorporated into the complaint by reference), the trial court dismissed the instant action with prejudice on the bases of res judicata and collateral estoppel.

This court has defined res judicata as follows:

"A judgment on the merits rendered in a former suit between the same parties or their privies, upon the same cause of action, by a court of competent jurisdiction, is conclusive not only as to every matter which was offered and received to sustain or defeat the claim, but as to every other matter which might with propriety have been litigated and determined in that action."

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