Wise v. Tucker

Decision Date10 June 1981
Docket NumberNo. 78-753,78-753
Citation399 So.2d 500
PartiesVirgil V. WISE, Appellant, v. T. J. TUCKER, Appellee.
CourtFlorida District Court of Appeals

Joel T. Daves, III, of Burdick & Daves, West Palm Beach, for appellant.

William H. Pruitt of Pruitt & Gay, West Palm Beach, for appellee.

PER CURIAM.

Virgil V. Wise seeks review of a final judgment entered against him following jury trial of a contract action. The events leading up to this judgment are as follows:

In 1972, Wise conveyed two parcels of real property to appellee, T. J. Tucker, by two separate deeds, taking back a mortgage on each parcel as part consideration. On April 22, 1975, Wise instituted foreclosure proceedings as to one parcel, alleging that Tucker had defaulted on the mortgage. On November 12, 1975, during the pendency of the foreclosure suit, Wise and Tucker executed a written agreement, prepared by Tucker's attorney, which provided, in part:

4. Upon consideration of T. J. Tucker obtaining a $25,000.00 loan through the Small Business Administration, Virgil V. Wise agrees to reinstate the mortgage.

5. If said loan is obtained Virgil V. Wise agrees to permit T. J. Tucker to make all of the payments now in arrears on the mortgage of the East 100' of Lot 8, Block I, replat of Loxahatchee District, Subdivision, Loxahatchee Groves, Book 12, page 29, and further, that T. J. Tucker agrees to pay one (1) year mortgage in advance, if said loan is obtained.

6. If the SBA loan is disapproved for any reason, Virgil V. Wise agrees to give right of redemption to T. J. Tucker by allowing him nine (9) months to make payments on the arrearage of said mortgage on East 100' of lot 8, Block I.

However, neither Tucker nor Wise informed the court of this agreement and, therefore, the court had no knowledge of the nine-month extension provision. This being the case, it entered a final judgment of foreclosure on February 11, 1976, finding that Wise was entitled to judgment as a matter of law.

The property was noticed for public sale and sold to Wise on March 8, 1976. At this point, Tucker hired another attorney who unsuccessfully moved to set aside the final judgment of foreclosure and to cancel the certificate of title on fraudulent procurement grounds, citing the extension provision of the November 12th agreement as a basis. No appeal was taken in this foreclosure action.

On October 21, 1976, Tucker filed the complaint in the instant action seeking specific performance and damages for breach of the aforementioned agreement in that Wise failed to honor the nine-month extension to satisfy the arrearage. In response, Wise filed a motion to dismiss the action as being a collateral attack on the judgment of foreclosure. Following denial of this motion, Wise filed an answer designating res judicata and collateral estoppel as affirmative defenses. While the court found that Tucker was not entitled to specific performance and dismissed that count of the complaint, the damages count proceeded to trial and resulted in a jury verdict in Tucker's favor. Final judgment was entered thereon and this appeal ensued.

Under the doctrine of res judicata, a final judgment or decree on the merits, by a court of competent jurisdiction, constitutes an absolute bar to a subsequent suit on the same cause of action, and concludes all issues which were raised or could have been raised in the action. Coulter v. Davin, 373 So.2d 423 (Fla. 2d DCA 1979); Golden View Condominium, Inc. v. City of Hallandale, 279 So.2d 323 (Fla. 4th DCA), cert. denied, 288 So.2d 258 (Fla.1973). As to defenses, however, there is authority that identity of the causes of action is not required:

(D)espite the general rule that an adjudication in an action involving a different cause of action does not preclude matters which were not actually litigated, the doctrine of res judicata has been declared to be applicable to defenses which were not, but could have been, raised and determined in a prior action, so that a defendant who fails to set up an available defense in a prior action is concluded as to its existence by the prior adjudication, even though the subsequent action involves a different cause of action.

19 Fla.Jur. Judgments and Decrees § 127 (footnotes omitted). This exception for...

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13 cases
  • Carey v. Neal, Cortina and Associates
    • United States
    • United States Appellate Court of Illinois
    • June 20, 1991
    ...and the plaintiff was not asserting the contract claim as a defense for her failure to make the mortgage payments); cf. Wise v. Tucker (Fla.App.3d 1981), 399 So.2d 500 (Defendant in foreclosure action, who obtained agreement for extension of time to pay arrearages on loan, was barred byres ......
  • Acquisition Corp. of America v. FDIC
    • United States
    • U.S. District Court — Southern District of Florida
    • March 25, 1991
    ...in the related state proceedings, the Court held that it was barred by the doctrine of collateral estoppel. See Wise v. Tucker, 399 So.2d 500, 502-03 (Fla. 4th DCA 1981); American Nat. Bank & Trust Co. v. Egidi, 388 So.2d 51, 52 (Fla. 4th DCA 1980); see also Citibank, N.A. v. Data Lease Fin......
  • AGB Oil Co. v. CRYSTAL EXPLORATION, ETC.
    • United States
    • Florida District Court of Appeals
    • December 18, 1981
    ...and decided, but also to every matter which might have been raised,5Gordon v. Gordon, supra; Hay v. Salisbury, supra; Wise v. Tucker, 399 So.2d 500 (Fla. 4th DCA 1981); Floyd v. Roberts, 331 Mich. 687, 50 N.W.2d 184 (1951),6 AGB is barred by the doctrine from relitigating the matters contai......
  • In re Barrett
    • United States
    • United States Bankruptcy Courts. Tenth Circuit. U.S. Bankruptcy Court — District of Colorado
    • October 18, 2007
    ...now be heard on his proffer of an oral argument ... to vary the terms of the written contract. Id., at 330. See also Wise v. Tucker, 399 So.2d 500, 502-03 (Fla.App.1981); In re Itzler, 247 B.R. 546, 550-54 (Bankr. 4. The Final Judgment in the Florida State Court Suit is Not "Void" Under Ban......
  • Request a trial to view additional results
1 books & journal articles
  • Legal theories & defenses
    • United States
    • James Publishing Practical Law Books Florida Causes of Action
    • April 1, 2022
    ...So.2d 1225, 1226 (Fla. 4th DCA 1983). 6. Stevens v. Len-Hal Realty, Inc. , 403 So.2d 507, 508 (Fla. 4th DCA 1981). 7. Wise v. Tucker , 399 So.2d 500, 502 (Fla. 4th DCA 1981). 8. Pickett v. Woods , 360 So.2d 45, 46 (Fla. 4th DCA 1978). LEGAL THEORIES & DEFENSES §18:110 Florida Causes of Acti......

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