Massey v. David

• Decision Date: 30 October 2002
• Docket Number: No. 1D01-4950.,1D01-4950.
• Citation: 831 So.2d 226
• Parties: Gary MASSEY, Appellant, v. Calvin F. DAVID, Appellee.
• Court: Florida District Court of Appeals

831 So.2d 226

Gary MASSEY, Appellant, v. Calvin F. DAVID, Appellee.

No. 1D01-4950.

District Court of Appeal of Florida, First District.

October 30, 2002.

Rehearing Denied December 4, 2002.

Joseph W. Little, Esquire, Gainesville, for Appellant.

John H. Pelzer, of Ruden, McClosky, Smith, Schuster & Russell, P.A., Ft. Lauderdale and John A. DeVault, III, of Bedell, Dittmar, DeVault, Pillans & Coxe, Jacksonville, for Appellee.

BENTON, J.

Gary Massey appeals the final summary judgment, entered against him on Calvin F. David's motion, that denied him relief on res judicata and collateral estoppel theories. We reverse and remand for further proceedings.

I.

Mr. Massey brought suit against Mr. David, as well as Ruden, McClosky, Smith, Schuster, and Russell, P.A. (Ruden McClosky), stating various claims in connection with their earlier representation of him while he was the plaintiff in a separate, "toxic tort" lawsuit. Six theories are alleged: breach of fiduciary duty, deceit, intentional infliction of emotional distress, deprivation of property without due process of law, trespass to property, and negligence. Ruden McClosky is not a party to the present appeal, having earlier prevailed on its own motion for summary judgment, and on the ensuing appeal.

Mr. David filed his motion for summary judgment on August 30, 2001, arguing res judicata and collateral estoppel. The motion proceeds on the theory that the issues raised in Mr. Massey's second amended complaint are the same as the issues resolved by the summary judgment in favor of Ruden McClosky, and in a still earlier charging lien proceeding in the original toxic tort litigation.

For purposes of decision, we assume that the issues raised in the present proceeding were all raised (defensively) in the charging lien proceeding in the underlying toxic tort case, and that all the issues raised by the claims against Mr. David were raised against Ruden McClosky and disposed of as to Ruden McClosky by the judgment entered in Ruden McClosky's favor earlier in the present proceeding.

On October 24, 2001, Mr. Massey filed a memorandum in opposition to summary judgment,¹ asserting that Mr. David was not a party either to the summary judgment entered in Ruden McClosky's favor in the present case or to the charging lien proceeding in the underlying toxic tort case. We find merit in Mr. Massey's position. Mr. David was not a party, actual or virtual, either to the charging lien proceeding or to the present proceeding at the time the summary judgment was entered in favor of Ruden McClosky. The record does not establish that he was in privity with Ruden McClosky as regards either proceeding.

II.

Injured by exposure to toxic chemicals, Mr. Massey originally employed Merkle & Magri, P.A., to represent him in a suit he brought against those responsible for the exposure.² Later he discharged Merkle & Magri, P.A., and contracted for legal representation with Ruden McClosky and Mr. David, who "was authorized to and functioned as a partner, employee or agent of Ruden [McClosky]." (Denying vicarious liability, Mr. David and Ruden McClosky each admitted that Mr. David "had an of counsel relationship with Ruden McClosky.")

Mr. David and Ruden McClosky agreed to represent Mr. Massey, but insisted on terms that included the following:

The Client and Lawyer shall take into account all facts and circumstances surrounding this case in making decisions as to litigation tactics. In the event a dispute arises, in this regard, the Client and Lawyer shall not make arbitrary decisions, but shall make decisions based on all facts reasonably available. In the event any dispute can not be resolved between Lawyer and Client, the dispute will be resolved by Russell Peavyhouse after joint consultation with the Client and the Lawyer and Russell Peavyhouse's decision as an arbitrator will be binding on both the Client and the Lawyer. This provision includes all manner of things that could be in dispute, including but not limited to, pleadings, discovery, settlement, trial tactics and all other things related to the representation of the Client by the Lawyer.

The trial court approved the representation agreement between Mr. Massey and his new lawyers on March 29, 1996.

Settlement negotiations ensued between Mr. David and the defendants in the underlying litigation then pending. Mr. Peavyhouse also participated in these negotiations. When a dispute arose between Messrs. Massey and David about a possible settlement, Mr. David submitted the dispute to Mr. Peavyhouse as an arbitrator, albeit without following the requirements for binding arbitration set out in Chapter 682, Florida Statutes (1995). Mr. Peavyhouse decided on August 30, 1996, that Mr. Massey had to accept the settlement.

On September 3, 1996, contrary to Mr. Massey's wishes, Mr. David filed a motion to approve settlement³ with the trial court. Aware of the conflict of interest, he appeared as attorney for Mr. Massey at a hearing on the motion. Instead of advocating Mr. Massey's position, Mr. David represented his own interests and those of Ruden McClosky, and did so without informing Mr. Massey that he should obtain independent counsel. At the hearing, the trial court orally granted the motion to enforce settlement, and directed Mr. Massey to sign a general release, indicating that, if Mr. Massey refused to follow the court's directions, it would enter a written order.

On September 9, 1996, Mr. Massey discharged Mr. David and Ruden McClosky. On September 11, 1996, nevertheless, Mr. David mailed Mr. Massey a copy of a general release, with a cover letter directing him to sign the release, but Mr. Massey refused to execute the release. Mr. David then renewed the motion to approve settlement, which the trial court granted on September 16, 1996. As contemplated by the order entered on September 16, 1996,⁴ Mr. Peavyhouse executed a release on October 18, 1996.

III.

On October 23, 1996, Ruden McClosky filed a notice of charging lien in the toxic tort proceeding.⁵ Mr. David signed the notice as attorney for Ruden McClosky, but was not named as a party to the charging lien. On October 25, 1996, Ruden McClosky filed a motion to enforce charging lien. Again, although Mr. David signed the motion as attorney for Ruden McClosky, he was not named as a party. Mr. David signed other documents as attorney for Ruden McClosky in the course of the charging lien proceedings, but never as a party. (Under the terms of the agreement between Mr. David and Ruden McClosky, fees "generated" by Mr. David were the property of Ruden McClosky.)

On April 30, 1997, the trial court entered an order denying Mr. Massey's motion for rehearing⁶ and granting the law firms' motions to enforce charging lien. The court found that Ruden McClosky's contract with Mr. Massey was valid, that he terminated the representation without cause, and that both law firms were entitled to attorney's fees. From settlement proceeds of $795,000.00, the order awarded fees and costs to Ruden McClosky in the amount of $188,025.51 and fees and costs in the amount of $420,396.75 to Merkle & Magri, P.A.

After denying a motion for rehearing addressed to the April 30, 1997 order on May 8, 1997, the trial court entered a final judgment on the charging lien in favor of Ruden McClosky in the aggregate amount of $193,824.59⁷ and a final judgment on the charging lien in favor of Merkle & Magri, P.A., for $420,396.75, on June 2, 1997. On June 3, 1997, the trial court entered a final judgment in the main suit directing Mr. Massey to accept the settlement.⁸ On December 3, 1997, the trial court entered an order distributing fees and costs in the amounts listed in the final judgments of June 2, 1997.⁹

IV.

In the present case, originally unable to perfect service on Mr. David (despite several 120-day extensions), Mr. Massey took steps to serve him by publication. In response, on November 5, 1999, Ruden McClosky filed a motion to quash service by publication on Mr. David. The trial court denied this motion on December 8, 1999, on grounds that Ruden McClosky "did not represent Defendant David at the time of the hearing."

Mr. David then made a limited appearance for the purpose of contesting service, filing a motion to quash service on grounds that constructive service by publication "is not available in in personam actions." On February 4, 2000, the trial court granted Mr. David's motion and quashed the attempted service by publication.

On June 14, 2000, Mr. Massey filed a motion for leave to file a second amended complaint in order to add allegations that would permit service of Mr. David under sections 48.181(1) and 48.193, Florida Statutes (2000), viz., that Mr. David conducted wrongful acts in relation to business conducted in Florida, that he had become a non-resident of Florida, and that he was concealing his whereabouts. The motion also sought an order directing the clerk to issue an alias summons. On June 29, 2001, after the trial court had granted summary judgment for Ruden McClosky on the amended complaint, the trial court entered an order granting Mr. Massey leave to file the second amended complaint. The order also directed the clerk to issue an alias summons for Mr. David.

On July 18, 2001, almost a month after entry of summary judgment for Ruden McClosky on the amended complaint,¹⁰ Mr. Massey filed an affidavit of compliance indicating that he had met the requirements for service under section 48.181(1). Following service pursuant to section 48.181(1), Mr. David answered the second amended complaint on August 29, 2001 (over two months after entry of summary judgment for Ruden McClosky).

V.

In order for res judicata or collateral estoppel (also known as estoppel by judgment) to apply,¹¹ Florida requires "mutuality" and "identity of parties." See E.C. v. Katz, 731 So.2d 1268, 1269-70 (Fla. 1999). Identity of parties and mutuality do not exist unless the same parties or their privies...