Norwich v. Global Financial Associates, LLC, 4D03-4689.

• Decision Date: 22 September 2004
• Docket Number: No. 4D03-4689.,4D03-4689.
• Citation: 882 So.2d 535
• Parties: Walter Thomas NORWICH, Appellant, v. GLOBAL FINANCIAL ASSOCIATES, LLC, a Florida Limited Liability Company, Appellee.
• Court: Florida District Court of Appeals

882 So.2d 535

Walter Thomas NORWICH, Appellant, v. GLOBAL FINANCIAL ASSOCIATES, LLC, a Florida Limited Liability Company, Appellee.

No. 4D03-4689.

District Court of Appeal of Florida, Fourth District.

September 22, 2004.

John N. Buso, West Palm Beach, for appellant. Jane Kreusler-Walsh of Jane Kreusler-Walsh, P.A., West Palm Beach, and Melinda Penney Gamot of The Gamot Law Firm, P.L., West Palm Beach, for appellee.

MAY, J.

The plaintiff appeals an order dismissing his complaint for negligence and breach of fiduciary relationship against the defendant, Global Financial Services. He argues the trial court erred in taking judicial notice of a final judgment in a dissolution proceeding and dismissing his complaint on the grounds of res judicata and collateral estoppel. We agree and reverse.

The plaintiff and Grace Norwich, the sole owner and manager of Global, were husband and wife.¹ The complaint alleged that Global served as plaintiff's "agent" concerning management and operation of certain properties, investment accounts, and preparation and filing of tax returns. He claimed a fiduciary relationship between himself and Global, and that Global breached its fiduciary duty with regard to certain properties, accounts, and tax returns.

Global moved to dismiss the complaint and argued that both res judicata and collateral estoppel barred the action. Global argued that the judge in the prior dissolution of marriage proceeding had determined that Global was solely owned and operated by the plaintiff's former wife. Thus, the parties in the dissolution and in this case were really the same. Further, Global asserted that the judge in the dissolution found there was no professional relationship between the plaintiff and his wife or her companies, including Global. There could, therefore, be no breach of a fiduciary duty. Global attached a copy of the final judgment of dissolution of marriage to its motion to dismiss.

By separate motion, the defendant asked the court to take judicial notice of the final judgment of dissolution of marriage, and attached another copy of the judgment of dissolution. The trial court took judicial notice of the dissolution proceedings, and found the judge had addressed the issues "at length in the divorce action between Walter and Grace Norwich...." The court then granted the defendant's motion to dismiss the complaint with prejudice.

We review a final order dismissing a complaint with prejudice de novo. Siegle v. Progressive Consumers Ins., 819 So.2d 732 (Fla.2002). The purpose of a motion to dismiss is to test the legal sufficiency of the complaint. Ramos v. Mast, 789 So.2d 1226 (Fla. 4th DCA 2001). The trial court may not look beyond the four corners of a complaint when ruling on a motion to dismiss. Id. at 1227.

[G]enerally, collateral estoppel is an affirmative defense which must be raised in an answer. See Palmer v. McCallion, 645 So.2d 131, 133 (Fla. 4th DCA 1994)("Res judicata and collateral estoppel are affirmative defenses that ordinarily must be pled in an answer or similar

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