Lee v. Gadasa Corp., 96-476

• Decision Date: 11 October 1996
• Docket Number: No. 96-476,96-476
• Citation: 680 So.2d 1107
• Parties: 21 Fla. L. Weekly D2200 Charles Henry LEE, as the Personal Representative of the Estate of H. Julian Brock, Deceased, Appellant, v. GADASA CORPORATION, Appellee.
• Court: Florida District Court of Appeals

Page 1107

680 So.2d 1107

21 Fla. L. Weekly D2200

Charles Henry LEE, as the Personal Representative of the Estate of H. Julian Brock, Deceased, Appellant, v. GADASA CORPORATION, Appellee.

No. 96-476.

District Court of Appeal of Florida First District.

Oct. 11, 1996.

Bill A. Corbin, Blountstown, for Appellant.

Douglas L. Smith of Johnston, Harris, Gerde, Jelks & Smith, P.A., Panama City, for Appellee.

PER CURIAM.

In this appeal from final summary judgment, appellant asserts the trial court determined an issue of fact by erroneously applying the doctrine of collateral estoppel. We agree and reverse.

In granting summary judgment, the trial court took judicial notice of a ruling in another mortgage foreclosure case against Brock involving different plaintiffs. The trial court then applied the doctrine of collateral estoppel to resolve the question of the validity of a power of attorney allegedly used by Brock's wife to obtain the mortgages, and consequently rejected appellant's affirmative defenses and counterclaim in the present case. The trial court stated that identity of parties was not required for the doctrine to apply, relying on Verhagen v. Arroyo, 552 So.2d 1162 (Fla. 3d DCA 1989), and Dixie Auto Transport Co. v. Louttit, 588 So.2d 68 (Fla. 2d DCA 1991), as authority for that proposition. More recent case law convinces us that the trial court's interpretation of the doctrine of collateral estoppel in Florida is incorrect.

In Stogniew v. McQueen, 656 So.2d 917, 919 (Fla.1995), the supreme court rejected the contention that as a result of Zeidwig v. Ward, 548 So.2d 209 (Fla.1989), there was "no longer a requirement of mutuality for purposes of collateral estoppel. Zeidwig constituted a narrow exception in which collateral estoppel was permitted in a defensive context and then only under the compelling facts of that case." ¹ In Zeidwig, the court had approved "the use of defensive collateral estoppel to prevent a criminal defendant, as a plaintiff, from relitigating the same issue which has been litigated in prior criminal proceedings," holding that defensive collateral estoppel applied in that criminal-to-civil context despite the lack of identical parties. 548 So.2d at 209. The court determined that the findings on Zeidwig's motion for post-conviction relief as to his claim of ineffective assistance of counsel collaterally estopped him from suing his attorney for legal malpractice based on ineffective assistance. See generally Jones v. Upjohn Co., 661 So.2d 356 (Fla. 2d DCA 1995)(in Stogniew, court limited Zeidwig to its facts). ² The present case does not involve a comparable relationship among parties to the two suits, and thus does not fit within Zeidwig 's "narrow exception." See also The Florida Bar v. Clement, 662 So.2d 690 (Fla.1995); Starr Tyme, Inc. v. Cohen, 659 So.2d 1064 (Fla.1995)("[t]he rule in Florida has been that unless both parties are bound by the prior judgment, neither can use the judgment as an estoppel against the other in a subsequent action. This is particularly true when the doctrine is used offensively, that is, by a plaintiff to estop a defendant from relitigating issues that the defendant litigated and lost in a prior proceeding against another plaintiff"). ³

Appellant also contends the trial court erred in denying a motion to dismiss for failure to prosecute af...