Mitchell v. Edge

• Decision Date: 17 April 1992
• Docket Number: No. 91-00614,91-00614
• Citation: 598 So.2d 125
• Parties: Russell C. MITCHELL and Callie S. Mitchell, Appellants, v. Earl D. EDGE and Gary R. Battaglia, Appellees. 598 So.2d 125, 17 Fla. L. Week. D1001
• Court: Florida District Court of Appeals

Page 125

598 So.2d 125

Russell C. MITCHELL and Callie S. Mitchell, Appellants, v. Earl D. EDGE and Gary R. Battaglia, Appellees.

No. 91-00614.

598 So.2d 125, 17 Fla. L. Week. D1001

District Court of Appeal of Florida,

Second District.

April 17, 1992.

Jack McGill and H.G. Stivers of Law Offices of R. Jackson McGill, P.A., Venice, for appellants.

Michael Douglass of O'Connell, Berg & Douglass, P.A., Venice, for appellees.

CAMPBELL, Judge.

Appellants, Russell C. Mitchell and Callie S. Mitchell, challenge the trial court's entry of summary judgment for appellees, Earl D. Edge and Gary R. Battaglia, based on principles of res judicata and collateral estoppel. Appellants conceded at oral argument that the summary judgment as to Battaglia was correct. We, therefore, affirm the summary judgment as to appellee Battaglia but reverse the summary judgment as to appellee Edge and remand for further proceedings.

Appellants entered into a construction agreement with G & R Builders, Inc. for the construction of a residence.

Appellee Edge was vice president of G & R Builders, as well as the qualifying contractor for the company pursuant to section 489.119, Florida Statutes (1983). As qualifying contractor, his primary responsibility was to pull building permits. After pulling the permit for appellants' residence, appellee Edge was not present at the job daily. He relied on appellee Battaglia to supervise the construction and ensure that construction proceeded properly. Appellee Edge's involvement with the construction of appellants' residence was primarily supervising appellee Battaglia.

Appellee Battaglia was the president of G & R Builders. He was not a licensed contractor in the state of Florida, although his duties included supervision of construction. Appellee Battaglia was present during the construction of appellants' residence almost every day and would report back to appellee Edge as to the progress of the construction. Pursuant to the construction agreement, the residence was to be completed within an eight-month period. During the course of construction numerous defects were noted by appellants and by appellee Battaglia.

As a result of the defects, appellants requested that G & R Builders halt construction until the work could be inspected by independent consultants. The consultants compiled reports indicating what corrections were necessary to repair the defects. G & R Builders failed to make any of the recommended repairs. Appellants terminated the contract, alleging a breach of a specific provision dealing with unsound work or materials.

G & R Builders filed a two-count amended complaint. Count I was for foreclosure of a mechanic's lien, though it was subsequently withdrawn. Count II was for breach of a written contract. Appellants filed an answer which contained two affirmative defenses and a counterclaim for breach of a written contract.

Appellants' first defense was that G & R Builders was negligent in its construction practices. They alleged that G & R Builders furnished inferior, improper and unsound workmanship and that after notice of the deficiencies, G & R Builders failed to correct any of the defects. They also claimed that G & R Builders failed to complete the work set out in the construction agreement in a timely manner. In their counterclaim, appellants alleged that G & R Builders breached the construction agreement by certain acts and omissions to act. A jury trial ensued and a verdict was returned in favor of appellants on their counterclaim. Appellees were not parties to that action.

Appellants attempted to collect on their judgment through garnishment proceedings. They were unsuccessful and subsequently received a suggestion of bankruptcy giving them notice that G & R Builders had filed for bankruptcy pursuant to chapter 11. The record does not inform us of the disposition of the bankruptcy proceedings.

Appellants then filed a complaint against appellees based solely upon an alleged breach of appellee Edge's statutory duty to supervise pursuant to section 489.119. The complaint alleged that appellee Edge, a certified general building contractor, breached his nondelegable statutory duty to supervise the construction of appellants' home and that, as a result of his failure to supervise, the home was not built in a good and workmanlike manner and contained numerous defects and building code violations. The complaint also alleged that appellee Battaglia was the agent and construction superintendent for the construction of appellants' residence, and that he also failed to supervise the construction of the residence, resulting in the home not being built in a good and workmanlike manner and containing numerous defects and building code violations. As we have observed, appellants conceded at oral argument that there was no liability of appellee Battaglia growing out of appellee Edge's statutory duties to supervise.

Appellees filed a motion for summary judgment alleging that the previous action with G & R Builders barred the current action under the doctrines of merger, res judicata and collateral estoppel. The trial court granted the motion and subsequently denied appellants' motion for rehearing. Appellants filed a timely notice of appeal.

It does not appear that res judicata is a remedy available to appellee Edge and, since collateral estoppel is an equitable remedy, we find it similarly inapplicable to the circumstances present in this case except that appellants may not recover judgment against appellee Edge that exceeds the amount of appellants' judgment against G & R Builders. See Hinton v. Iowa National Mutual Insurance Company, 317 So.2d 832 (Fla. 2d DCA 1975).

Appellee Edge is attempting to use the judgment appellants acquired against G & R Builders but were unable to collect, as a defense to appellants' subsequent actions against appellees. Appellees were not parties to that action involving G & R Builders. While they argue they were in privity with G & R Builders, we conclude that the determination of that issue is not dispositive of this case. If appellants' judgment against G & R Builders had been satisfied, appellee Edge perhaps would have a viable defense based on the cases of Atlantic Cylinder Corp. v. Hetner, 438 So.2d 922 (Fla. 2d DCA 1983), rev. denied, 447 So.2d 885 (Fla.1984); Hinton; and Phillips v. Hall, 297 So.2d 136 (Fla. 1st DCA 1974). See also Restatement (Second) of Judgments Secs. 29, 49, 50 (1982).

On nearly identical facts, the court in Atlantic Cylinder Corp. held that a second action by the same plaintiff against two corporate officers was barred by an earlier judgment against the corporation where that judgment had been satisfied. That rule seems to be taken from an application of Restatement of Judgments Secs. 94-99 (1942), although the Restatement was not cited in that opinion or in Phillips. The Restatement is cited in Hinton, once with approval and once with disapproval. The result reached in those cases grows out of a concept that where there is a master-servant or principal-agent relationship and where the master or principal's liability derives solely from the acts of the servant or agent, a satisfied judgment for a plaintiff against one will bar an action by the same plaintiff against the other. Those cases also hold, citing the "weight of authority," that a plaintiff is barred from relitigating his claim against the second of two persons responsible for the wrong to plaintiff where the...