Smith v. Perry, 93-495

Decision Date22 April 1994
Docket NumberNo. 93-495,93-495
Citation635 So.2d 1019
Parties19 Fla. L. Weekly D946 Elizabeth Dorothy SMITH, Appellant, v. Patrick PERRY, Appellee.
CourtFlorida District Court of Appeals

James C. Cumbie, Cumbie & Cumbie, P.A., Jacksonville, for appellant.

Rodney D. McGalliard, Gainesville, for appellee.

PER CURIAM.

This case is before us on appeal from the trial court's order granting summary judgment in favor of appellee and defendant below Patrick Perry based on the doctrine of collateral estoppel. We reverse because Perry failed to establish all of the elements of that doctrine.

In July of 1989, Richard Smith, husband of appellant Elizabeth Dorothy Smith, was injured in a serious automobile accident. Patrick Perry was hired by Richard to represent him in a personal injury lawsuit. Although Perry had no personal contact with Elizabeth, he filed a loss of consortium claim on her behalf in Richard's lawsuit. Shortly thereafter, Richard and Elizabeth began experiencing marital difficulties. The evidence is in dispute as to whether Perry was aware of the extent of the couple's problems. On November 21, 1990, Perry met Elizabeth for the first time at a mediation conference between Richard and Elizabeth and the defendants in the personal injury lawsuit. Following lengthy negotiations, the suit was settled for $110,000.

In preparation for a settlement conference with Richard and Elizabeth, Perry's law firm made out a trust fund check payable to both in the amount of $64,942.85 ($110,000 less a 40-percent fee and costs advanced). The day before conference, Richard requested the settlement check be made payable only to him. According to Perry, he complied with the request but only after Richard assured him that Elizabeth would be at the settlement conference. Richard and Elizabeth then met with Perry at the settlement conference, where they executed a settlement statement, and Richard was given the settlement check. It is also disputed as to whether Elizabeth gave approval for the distribution to be made only to Richard. Richard and Elizabeth then went to the bank, where Richard cashed the check. Richard gave Elizabeth $1,000, paid off some marital debts, and kept the rest of the money.

One week later, Richard filed for divorce. Elizabeth filed an answer, admitting the allegations and waiving notice of appearance at the final hearing. She was not represented by counsel. Richard and Elizabeth subsequently entered into a marital settlement agreement that addressed all the issues presented by the dissolution action, including the division of real property and personal assets. A final judgment of dissolution incorporating the settlement agreement was entered by the circuit court on December 10, 1990. Neither the settlement agreement nor the dissolution order mentioned the proceeds from the personal injury settlement.

On July 24, 1991, Elizabeth filed a complaint against Perry, alleging attorney malpractice arising out of Perry's representation of Elizabeth in her loss of consortium claim. The malpractice complaint alleged that Perry had failed to enter into a fee agreement with Elizabeth; Perry failed to provide Elizabeth with a copy of a client's bill of rights; Perry disbursed the settlement check made payable to Richard without Elizabeth's consent and with the knowledge that she and Richard were experiencing marital problems; and Perry failed to inform Elizabeth of her participation in the settlement agreement. Elizabeth prayed for the court to apportion the amount of the settlement proceeds to which she was entitled but did not receive.

In response, Perry filed a motion for summary judgment which was granted by the trial court. The trial court found the circuit court had authority and jurisdiction to effectuate the personal injury settlement proceeds of Richard and Elizabeth in the prior dissolution proceeding. As such, Elizabeth was bound by the final judgment in that case and was collaterally estopped from asserting a claim against Perry seeking the same remedy and damages. This appeal followed.

This case is before the court from an order granting summary judgment. Notwithstanding the trial court's presumption of correctness, appellate courts...

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9 cases
  • Villas of Lake Jackson, Ltd. v. Leon County
    • United States
    • U.S. District Court — Northern District of Florida
    • 10 d5 Fevereiro d5 1995
    ...estoppel that the question common to both causes of action be actually adjudicated in the prior litigation." Smith v. Perry, 635 So.2d 1019, 1021 (Fla. 1st DCA 1994). As noted in United Services Automobile Association v. Selz, 637 So.2d 320 (4th DCA 1993), "it is a violation of due process ......
  • Villas of Lake Jackson, Ltd. v. Leon County
    • United States
    • U.S. District Court — Northern District of Florida
    • 20 d1 Novembro d1 1995
    ...estoppel that the question common to both causes of action be actually adjudicated in the prior litigation." Smith v. Perry, 635 So.2d 1019, 1021 (Fla. 1st DCA 1994). Further, "it is a violation of due process to collaterally estop a party who has never had an opportunity to present evidenc......
  • Virginia Ins. Reciprocal v. Walker, 1D99-2426.
    • United States
    • Florida District Court of Appeals
    • 1 d2 Agosto d2 2000
    ...the party against whom the summary judgment was rendered. See Wills v. Sears, Roebuck & Co., 351 So.2d 29 (Fla.1977); Smith v. Perry, 635 So.2d 1019 (Fla. 1st DCA 1994); Williams v. Bevis, 509 So.2d 1304 (Fla. 1st DCA 1987). The second question is a pure question of law. Assuming there is n......
  • Carter v. United of Omaha Life Ins., 95-3916
    • United States
    • Florida District Court of Appeals
    • 15 d2 Outubro d2 1996
    ...DCA 1995). "If material issues of fact exist and the slightest doubt remains, summary judgment must be reversed." Smith v. Perry, 635 So.2d 1019, 1020 (Fla. 1st DCA 1994). The statute applicable to the misrepresentation defense asserted by the insurer in this case is section 627.409, Florid......
  • Request a trial to view additional results
1 books & journal articles
  • 4-2 Estoppel
    • United States
    • Full Court Press Florida Legal Malpractice Law Title Chapter 4 Defenses
    • Invalid date
    ...Winston v. Brogan, 844 F. Supp. 753 (S.D. Fla. 1994).[19] Winston v. Brogan, 844 F. Supp. 753, 757 (S.D. Fla. 1994).[20] Smith v. Perry, 635 So. 2d 1019 (Fla. 1st Dist. Ct. App. 1994).[21] Smith v. Perry, 635 So. 2d 1019, 1020 (Fla. 1st Dist. Ct. App. 1994) (citations omitted).[22] Smith v.......

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