Thoman v. Ashley, 4548

• Decision Date: 18 December 1964
• Docket Number: No. 4548,4548
• Citation: 170 So.2d 332
• Parties: Stanley B. THOMAN and Norman Jackson, individually, and as partners d/b/a Thoman-Jackson Construction, a/k/a Jackson-Thoman Construction, Petitioners, v. Timmothy ASHLEY a/k/a Timmothy Sindell, a minor, by his mother and next friend, Ethel Ashley Sindell, and Ethel Ashley Sindell, individually, Respondents.
• Court: Florida District Court of Appeals

Page 332

170 So.2d 332

Stanley B. THOMAN and Norman Jackson, individually, and as partners d/b/a Thoman-Jackson Construction, a/k/a Jackson-Thoman Construction, Petitioners, v. Timmothy ASHLEY a/k/a Timmothy Sindell, a minor, by his mother and next friend, Ethel Ashley Sindell, and Ethel Ashley Sindell, individually, Respondents.

No. 4548.

District Court of Appeal of Florida, Second District.

Dec. 18, 1964.

Rehearing Denied Jan. 14, 1965.

Fleming, O'Bryan & Fleming, Fort Lauderdale, for petitioners.

Frates, Fay & Floyd, Miami, for respondents.

SMITH, Chief Judge.

By this petition for certiorari the petitioners endeavor to present for the Court's determination the interesting and important question of whether nonsuits are still in existence in view of the 1962 amendment to Rule 1.35(b), Florida Rules of Civil Procedure, 30 F.S.A. However, we are unable to reach the nonsuit question because he record on its face shows the striking by the Court of the defense of res judicata, the order here sought to be reviewed, was correct and in no way irregular.

Petitioners were defendants in a negligence action brought by plaintiff-respondents. Upon being denied a continuance when the case was called for trial the plaintiffs announced they would take a nonsuit. The Court orally granted the nonsuit over the objection of defendants who insisted nonsuits were abolished in Florida. Nothing further was done by the Court nor the parties.

A second action was filed involving the same cause of action and the same parties. Among other defenses the answer of the defendant asserted that of res judicata based upon the above termination of the first action. Plaintiff moved to strike the defense and the Court granted the motion in a pretrial order. This order is sought to be reviewed on certiorari. The defendant maintains, as he did below, that under the present rules of procedure the granting of the nonsuit in the first case was a dismissal with prejudice and therefor is a final judgment which will support the defense of res judicata.

The transcript of the record in the first case, upon which the judge relied in striking the defense, reveals that no action other than the oral granting of nonsuit was taken by the Court. Nowhere in the record can there be found a final judgment necessary to the defense of res judicata.

One of the necessary elements in rendering a cause res judicata is a prior final judgment. 19 Fla.App.,Jur., Judgments § 107. Hinchee v. Fisher, Fla.App.,1957, 93 So.2d 351. A party relying on a former judgment must not only plead but must prove the judgment relied upon. Betts v. Betts, Fla.App.,1953, 63 So.2d 302. The mere reference to a prior controversy and adverse decision is insufficient to raise the issue of res judicata. Moorhead v. Moorhead, Fla.App.,1947, 159 Fla.App., 470, 31 So.2d 867. The appropriate way to conclude a case nonsuited is to procure a final judgment. Peaslee v. Michalski, Fla.App.,App.1964, 167 So.2d 242.

The plea of res judicata was properly stricken.

Certiorari is denied.

SHANNON, J., concurs.

WHITE, J., dissents with opinion.

WHITE, Judge (dissenting).

The petitioners, defendants below, seek review by certiorari of an order striking their fourth defense to plaintiffs' complaint in a negligence action. By said defense the defendants pleaded res judicata in that on 8 October 1962, in a previous case involving the same parties and issues, 'the case was called for trial and the plaintiffs moved for a continuance, which continuance was denied, and thereupon announced to the court that the plaintiffs would 'take a nonsuit,' and thereupon the trial of the case was discontinued; that * * * the failure of the plaintiffs to proceed with the trial of the case when it was called for trial, and the subsequent dismissal by the court of said case, constituted a dismissal with prejudice for failure of the plaintiffs to prosecute the action.'

When the previous case was called for trial on 8 October 1962 it appeared that a witness for the plaintiffs was unavailable, and after denial of the motion for continuance plaintiffs took a 'voluntary' ¹ nonsuit which was confirmed ore tenus by the trial court. Thereafter the date for trial of the present case, which is essentially identical with the previous case, was set for 18 November 1963. At pretrial conference for this trial the defendants argued that the right to voluntary nonsuit in Florida was abolished by amended Rule 1.35(b), Rules of Civil Procedure, 30 F.S.A., ² which the defendants contended had the effect of making plaintiffs' previous nonsuit equivalent to a dismissal with prejudice. This contention, specifically pleaded in the defendants' fourth defense, was rejected by the trial court both in the pretrial order and in a special order striking the said defense. The defendants petitioned for certiorari.

The respondents urge that there is no right to review of orders granting nonsuits and that to permit such review by the avenue of certiorari would circumvent the rule prohibiting appeals in such instances. It is true that an order granting a voluntary nonsuit is not a final order and therefore not appealable. ³ This rule has persisted in Florida since 1869 when the Supreme Court observed that the situation 'might be remedied by the court directing sua sponte a certiorari to bring up the judgment of nonsuit,'--although certiorari was there deemed unnecessary. ⁴ Subsequently the legislature enacted § 59.05, Fla.App.,Stat., F.S.A. which permits a plaintiff to appeal an order which prompts him to take an involuntary nonsuit, but there has been no relaxation of the rule which prohibits a defendant from appealing a voluntary nonsuit. See Greene v. American Trash Hauling Co., Inc., Fla.App., App.1963, 154 So.2d 726. It has also been held that a defendant may not obtain review of an order on nonsuit by resort to prohibition. State ex rel. Paluska v. White, Fla.App.,App.1964, 162 So.2d 697.

In the present case, the immediate matter sought to be reviewed is an order striking the defense of res judicata, which defense happened to be premised on the asserted finality of the alleged baseless and unauthorized nonsuit that discontinued plaintiffs' case . Such order may be reviewed through certiorari. See Hinchee v. Fisher, Fla.App.,1957, 93 So.2d 351. The petitioners' position is that the trial court's earlier ruling on voluntary nonsuit was in effect a dismissal with prejudice. Accordingly they insist that the trial court was without jurisdiction to reset the case for trial, and I think this poses a question which is reviewable on certiorari--a discretionary writ which may issue to review orders at law in appropriate cases as where it is asserted that the trial court acted in excess of its jurisdiction. E. g. Kauffman v. King, Fla.App.,1956, 89 So.2d 24; cf. Enfinger v. Baxley, Fla .1957, 96 So.2d 538. We recently granted the writ to review an interlocutory order at law where it appeared that the order sought to be reviewed was likely to result in substantial injustice, after considering, inter alia, the importance of the question, the probability that a verdict would have to be reversed, and the expense and inconvenience involved. See Leithauser v. Harrison, Fla .App.1964, 168 So.2d 95, Second District opinion filed 9 October 1964.

The Supreme Court also has reviewed quasi interlocutory orders at law where the petitioners alleged that the trial court failed to observe the essential requirements of law and justice and where the 'circuitous route' would result in an impractical method of review. Tantillo v. Miliman, Fla.App.,1956, 87 So.2d 413. The discretionary writ has also issued to review charges that the lower court's procedure was 'essentially irregular,' not according to the requirements of law and where no appeal or direct method of review existed. See First National Bank of Gainesville v. Gibbs, 1919, 78 Fla.App., 118, 82 So. 618; Caudell v. Leventis, Fla.App.,1950, 43 So.2d 853, 855. Accordingly I think we should grant the writ and consider the important question on the merits.

As to the merits, we should note the often repeated pronouncement that at early common law a plaintiff had the absolute right to be nonsuited at any stage of the trial even after rendition of the verdict but that by statute of 2 Henry IV, Chapter 7, the right to nonsuit after verdict was eliminated. National Broadway Bank of City of New York v. Lesley, 1893, 31 Fla.App., 56, 58, 12 So. 525. This, absent effective change by rule of the Supreme Court, would indicate the current status of voluntary nonsuit in Florida ⁵ inasmuch as the legislature has not seen fit to abridge the common law right except to limit the time for its exercise to a period before the jury retire from the bar. ⁶

It is unnecessary to burden this dissent with legal bibliography on the subject of nonsuit. Suffice it to reaffirm that it has long been accepted law in Florida that a plaintiff, within the defined limits, is entitled 'as of right' to take a nonsuit. National Broadway Bank v. Lesley, supra; Buffington v. Quackenboss, 1853, 5 Fla.App.,196, 197-198. See also commentary in Vol. XIII V.Fla.App.,L.Rev. 105 . Thus nonsuit, being considered amenable to change only by statute prior to the 1954 R.C.P., has been held not subject to judicial discretion. Pitt v. Abrams, 1941, 103 Fla.App., 1022, 1024, 139 So. 152. A sole exception has been recognized in circumstances where the plaintiff clearly could not recover in any event, as where it affirmatively appeared that the action was barred by some absolute limitation. E. g. Crews v. Woods, Fla.App., 1952, 59 So.2d 526; Hartquist v. Tamiami Trail Tours, 1939, 139 Fla.App., 328, 190 So. 533.

As noted, the legislature has not materially abridged the right to voluntary nonsuit. Moreover the Supreme Court has not promulgated any rule expressly abolishing the right in the exercise of its authority under Article V. Sec. 3, Florida Constitution, as...