Stogniew v. McQueen, 93-00436

• Decision Date: 03 June 1994
• Docket Number: No. 93-00436,93-00436
• Citation: 638 So.2d 114
• Parties: 19 Fla. L. Weekly D1229 Rosemary STOGNIEW, Appellant/Cross-Appellee, v. Thomas J. McQUEEN, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

Page 114

638 So.2d 114

19 Fla. L. Weekly D1229

Rosemary STOGNIEW, Appellant/Cross-Appellee, v. Thomas J. McQUEEN, Appellee/Cross-Appellant.

No. 93-00436.

District Court of Appeal of Florida,

Second District.

June 3, 1994.

Murray B. Silverstein of Silverstein & Snyder, P.A., Tampa, for appellant/cross-appellee.

Charles W. Hall and William A. Kebler of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., St. Petersburg, for appellee/cross-appellant.

DANAHY, Acting Chief Judge.

In an action by a client against her therapist for negligence, the plaintiff appeals a final judgment entered on a jury verdict for the defendant and the defendant cross-appeals. We affirm the final judgment and thus do not address the issue on cross-appeal.

The appellee (McQueen) is a licensed marriage and family therapist. The appellant (Stogniew) sought counseling from McQueen to help her deal with the sudden and unexpected death of her 21-year-old son in 1986. Stogniew first saw McQueen in his office on January 30, 1986. The counseling sessions ended unhappily for Stogniew, leading her to take two actions. She filed a complaint against McQueen with the Department of Professional Regulation (DPR). She also brought this action against McQueen on April 3, 1990, to recover damages for negligence.

During the pendency of this action in the trial court, a final decision was reached in the DPR proceedings on Stogniew's complaint against McQueen. DPR issued a final order concluding that McQueen violated Florida Statutes governing his profession by failing to meet the minimum standards of performance in his professional activities when measured against generally prevailing peer performance in his relationship with Stogniew.

Asserting that the facts underlying the DPR determination were the exact same facts underlying Stogniew's action for negligence against McQueen, Stogniew moved for partial summary judgment on the theory of offensive collateral estoppel, requesting the trial court to rely on the DPR final order to preclude relitigation of the issue of whether McQueen failed to meet the minimum standards of his profession in his counseling relationship with Stogniew. The trial court denied Stogniew's motion and all of her subsequent efforts to introduce the outcome of the DPR proceedings in her negligence action. At the conclusion of a jury trial, the jury returned a verdict finding McQueen not negligent in his counseling relationship with Stogniew. Stogniew vigorously asserts that the trial court should have allowed her to use the DPR decision to preclude McQueen from disputing the facts underlying this action when those facts are the same facts considered by DPR. We write to address this important question.

Two decisions of our supreme court are applicable here. The first is Trucking Employees of North Jersey Welfare Fund, Inc. v. Romano, 450 So.2d 843 (Fla.1984). In that case limited partners brought an action against their general partners and business managers alleging breach of fiduciary duty, conspiracy to defraud, and breach of the limited partnership contract. Subsequently, a federal criminal indictment was filed charging the defendants with twenty-one counts of fraud and misrepresentation. The plaintiffs were named in the indictment as victims of the specific acts which had been alleged in their complaint. The defendants were found guilty on all counts.

Thereafter, the plaintiffs filed a motion for summary judgment on the strength of the guilty verdict returned by the jurors in the federal criminal action. The trial court granted summary judgment on the issue of liability. The Fourth District...