Romano v. Trucking Employees of North Jersey Welfare Fund, Inc. on Behalf of Romano Bros., Ltd.

• Decision Date: 09 March 1983
• Docket Number: No. 82-896,82-896
• Citation: 427 So.2d 802
• Parties: Thomas ROMANO and Frank Romano, Appellants, v. TRUCKING EMPLOYEES OF NORTH JERSEY WELFARE FUND, INC., individually and on Behalf of ROMANO BROTHERS, LTD., a Florida limited partnership, Appellees.
• Court: Florida District Court of Appeals

Page 802

427 So.2d 802

Thomas ROMANO and Frank Romano, Appellants, v. TRUCKING EMPLOYEES OF NORTH JERSEY WELFARE FUND, INC., individually and on Behalf of ROMANO BROTHERS, LTD., a Florida limited partnership, Appellees.

No. 82-896.

District Court of Appeal of Florida Fourth District.

March 9, 1983.

Arthur M. Simon of Goodwin, Ryskamp, Welcher & Carrier, P.A., Miami, for appellants.

Maurice M. Garcia and Bradford J. Beilly of Abrams, Anton, Robbins, Resnick, Schneider & Mager, P.A., Hollywood, for appellees.

DOWNEY, Judge.

Appellants seek review of a partial summary judgment on liability in this civil case, which was based solely upon a judgment of conviction in a criminal case that arose out of the same facts and circumstances.

It appears that appellants, Thomas and Frank Romano, were general partners and appellee, Trucking Employees of North Jersey Welfare Fund, Inc., was a limited partner in Romano Brothers, Ltd., a Florida limited partnership. The partnership was engaged in the construction of several hundred condominium units in Inverrary, in Lauderhill, Florida. Appellees sued the Romano brothers, charging them with breach of fiduciary duty, breach of contract, and conspiracy to defraud. In due course, prior to trial, appellees filed a motion for partial summary judgment on the question of liability based on a judgment of conviction in the United States District Court for the Southern District of Florida, which proceeding arose out of the same facts and circumstances that are involved in this civil suit. From an order granting appellee's motion for partial summary judgment the Romano brothers have perfected this appeal.

The Romanos contend that the trial court erred in granting partial summary judgment on liability based upon the doctrine of collateral estoppel because there was no identity of parties in the two proceedings. The United States, of course, prosecuted the criminal case and this suit is being prosecuted by the Welfare Fund. In addition, say the Romanos, a judgment of conviction in a criminal case is not admissible in a civil case to establish the truth of the facts on which it was rendered.

The Supreme Court of Florida has held on several occasions that a judgment of conviction is not admissible in a subsequent civil case to prove the truth of the facts in question. Thus, in Stevens v. Duke, 42 So.2d 361, 363 (Fla.1949), the Court said:

"It is a general rule supported by the great weight of authority that a judgment of conviction in a criminal prosecution cannot be given in evidence in a civil action to establish the truth of facts on which it was rendered. Though the rule is not without its exceptions, the facts of the case at bar do not come within any of the recognized exceptions."

This holding was reconfirmed in Mosely v. Ewing, 79 So.2d 776 (Fla.1955), and in Boshnack v. World Wide Rent-A-Car, Inc., 195 So.2d 216 (Fla.1967). The reasons for the rule and the exceptions thereto are set forth in 46 Am.Jur.2d, Judgments, §§ 617, 618. Thus, it appears to us that the evidentiary support for the partial summary judgment was inadequate.

Appellee discussed the appellate point entirely in the context of collateral estoppel and the rules applicable thereto. Recognizing the long standing rule that collateral estoppel requires identity of parties in the two proceedings, appellee concedes that, if this court adheres to that rule and does not find privity between the United States and appellee, the order appealed from must be reversed. However, appellee makes a...