Thomson v. Petherbridge
| Decision Date | 21 June 1985 |
| Docket Number | No. BA-253,BA-253 |
| Citation | 472 So.2d 773,10 Fla. L. Weekly 1554 |
| Parties | 10 Fla. L. Weekly 1554 William L. THOMSON, Appellant, v. John J. PETHERBRIDGE, Appellee. |
| Court | Florida District Court of Appeals |
George D. Gabel, Jr. and Mitchell E. Woodlief of Wahl & Gabel, Jacksonville, for appellant.
Peter D. Webster of Bedell, Dittmar, DeVault, Pillans and Gentry, Jacksonville, for appellee.
Thomson appeals from the entry of final summary judgment in favor of Petherbridge. We affirm.
On 9 October 1980, Thomson filed a ten-count complaint against Petherbridge and other parties not involved in this appeal. The complaint concerned the breakdown of the business relationship between these parties and its various legal ramifications. Count VII of the complaint sought reformation and immediate payment of a note, given Thomson by Petherbridge pursuant to a contract between them for the purchase of stock from the parties' professional association (P.A.).
On 3 November 1980, Petherbridge moved to dismiss the entire complaint, alleging as to Count VII that it did not state a cause of action for reformation because the stock for which Thomson received the note was actually issued by the P.A. Therefore, the note was unenforceable for lack of consideration.
The court granted the motion as to Counts II through X, and denied it as to Count I; Count X was dismissed with leave to amend. Litigation respecting Counts I and X is still pending. Counts II through IX were dismissed "with prejudice." With regard to Count VII, the dismissal was based on the court's adoption of Petherbridge's argument that the note was unenforceable for lack of consideration.
Thomson appealed the order to this court. In Thomson v. Petherbridge, 406 So.2d 1279 (Fla. 1st DCA 1981), the court "sua sponte note[d] that appellant is attempting to prosecute an interlocutory appeal ... not permitted by Fla.R.App.P. 9.130." (Emphasis supplied) The court recognized an exception to the rule "when a count states a separate and distinct cause of action not interdependent with claims remaining for the trial court," citing Mendez v. West Flagler Family Association, Inc., 303 So.2d 1 (Fla.1974), but found this case not within the exception because "[c]ounts presented by the appellant each involve an aspect of his previous business relationship with appellees...." The court concluded that "appellant's right to review on these grounds must await final judgment."
Following this decision, on 5 October 1983, Thomson filed the complaint involved in this appeal. The complaint acknowledged that the note executed by Petherbridge had been held unenforceable in the previous action, but alleged that the debt represented by the note still existed and sought to recover it. Petherbridge moved for summary judgment, alleging that Thomson was attempting to prosecute the equivalent of the claim already decided adversely to him in the previous action.
The trial court granted this motion on 5 July 1984 on grounds of res judicata, holding that "the present action and [the previous one] involve identity in the thing sued for, identity of causes of action, identity of persons and parties and identity of quality or capacity of the person against whom the claims have been made." It found that the order granting the motion to dismiss in the previous action "was intended to be a final order or judgment on the merits; that it was made by a court of competent jurisdiction; and that, as a result, it constitutes an absolute bar to a subsequent suit on the same cause of action...."
Thomson argues on appeal that the trial court erred in granting this motion on res judicata grounds. He cites the principle that a final judgment is necessary to invoke the doctrine, Weigh Less for Life, Inc. v. Barnett Bank of Orange Park, 399 So.2d 88, 90 (Fla. 1st DCA 1981), and points out our decision in Thomson I holding the order interlocutory. We agree that a final order is necessary for application of res judicata but hold that the order granting the motion to dismiss in...
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...judgment or order is the common element that invokes the doctrines of both res judicata and collateral estoppel. Thomson v. Petherbridge, 472 So.2d 773 (Fla. 1st DCA 1985); Weigh Less For Life, Inc. v. Barnett Bank of Orange Park, 399 So.2d 88 (Fla. 1st DCA 1981). Turning to the case before......
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