White v. Miers, AD-478

• Decision Date: 18 January 1982
• Docket Number: No. AD-478,AD-478
• Citation: 408 So.2d 1078
• Parties: J. Edwin WHITE, Appellant, v. Miley MIERS, Jeanette Clark, and Capital Realty Associates, Inc., a Florida corporation, Appellees.
• Court: Florida District Court of Appeals

Page 1078

408 So.2d 1078

J. Edwin WHITE, Appellant, v. Miley MIERS, Jeanette Clark, and Capital Realty Associates, Inc., a Florida corporation, Appellees.

No. AD-478.

District Court of Appeal of Florida, First District.

Jan. 18, 1982.

Rehearing Denied Feb. 11, 1982.

Barry S. Richard of Roberts, Miller, Baggett, Laface, Richard & Wiser, Tallahassee, for appellant.

John K. Folsom of Folsom & Steinmeyer, Harry Lewis Michaels, Tallahassee, for appellees.

PER CURIAM.

AFFIRMED.

BOOTH and THOMPSON, JJ., concur.

ERVIN, J., dissents with written opinion.

ERVIN, Judge, dissenting.

Although the Florida Supreme Court will not grant certiorari review from a per curiam affirmance (PCA) without opinion, I nevertheless feel that I have an obligation to the parties before this court to state my reasons for dissent. This is an appeal from the lower court's order dismissing the appellant's complaint with prejudice. The majority's PCA obviously approves the dismissal. I do not.

In 1979, the plaintiff/appellant brought an action against Miley Miers Realty, Inc. and Miley Miers individually, alleging defendants breached a realty contract due to their failure to share with appellant a real estate commission. The trial court directed a verdict in favor of Miers individually, finding that there was insufficient evidence to hold that Miers in his individual capacity was a party to the contract. The case proceeded to trial against the corporation and the jury rendered a verdict for the appellant against it.

In December, 1980, the appellant filed another complaint against Miers individually, Jeanette Clark, an associate of Miers, and Capital Realty Associates, Inc., a successor corporation to Miley Miers Realty, Inc., alleging in Count I that Miers and Clark converted a portion of the commission belonging to the appellant, and in Count II that Miley Miers Realty, Inc. was dissolved and Capital Realty Associates, Inc. was formed shortly after the verdict as a scheme to defraud the appellant of his portion of the commission; that both corporations were the alter ego of Miers, and, because of defendants' fraud, appellant sought to pierce the corporate veil. The trial court dismissed Count II of the complaint without prejudice. The appellant did not elect to amend the second count, maintaining on appeal its correctness as originally pled. He did, however, move to amend Count I of the complaint in order to allege a theory of restitution for unjust enrichment. The trial court then granted summary judgment for Miers and Capital Realty on Count I, which included the proposed amendment on res judicata grounds. The court also dismissed with prejudice the proposed amendment to Count I and Count II for failure to state a cause of action. All counts against Clark were dismissed with prejudice for failure to state a cause of action.

In my judgment the principle of res judicata is inapplicable as a bar to the later causes of action as there was not the required identity as to them with the prior cause. See Gordon v. Gordon, 59 So.2d 40 (Fla.1952); Prall v. Prall, 58 Fla. 496, 50 So. 867 (1909); McGregor v. Provident Trust Co., 119 Fla. 718, 162 So. 323 (1935); State v. Dubose, 152 Fla. 304, 11 So.2d 477 (1943); Donahue...