THE EQUITABLE FIRE AND MARINE INSURANCE COMPANY, AUTHORIZED TO DO BUSINESS IN THE STATE OF FLORIDA, APPELLANT,
v.
BRADFORD BUILDERS, INC., A FLORIDA CORPORATION, FOR THE USE AND BENEFIT OF THE AETNA CASUALTY & SURETY COMPANY, A CONNECTICUT CORPORATION, APPELLEE
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This case concerns whether a dismissal order under Florida Rule of Civil Procedure 1.35(b) acts as res judicata, barring a subsequent suit. The court held that the prior dismissal order, which denied chancery relief but left the plaintiff to its remedy at law, was not a ruling on the merits and therefore not res judicata.
No, such a dismissal order is not res judicata because it does not clearly indicate an intention for the disposition to be final and without right to further proceedings by the plaintiff. The court must look at the entire order to determine its purport.
“We do not find that the order, in its entirety, indicates a ruling by the chancellor on the merits sufficient to support a defense res judicata to bar a subsequent suit.”
Establishes the court's conclusion that the prior dismissal was not a ruling on the merits.
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Join FLexlaw to unlock all legal intelligenceThe appellant, Equitable Fire and Marine Insurance Company, sought to use a prior dismissal order as a res judicata defense in a subsequent suit. The …
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This case turns on a question of whether a final order of dismissal entered under Rule 1.35(b), Florida Rules of Civil Procedure, 30 F.S.A., is res judicata. The order in question reads, in part, as follows:
* * * * * *
“Under the circumstances, Plaintiff has failed to state a cause of action for declaratory decree and the cause should he dismissed under authority of Halpert v. Olesky, Fla., 65 So.2d 762, and Florida National Bank of Jacksonville v. Pugh, Fla., 88 So.2d 284, and Plaintiff left to its traditional and sufficient remedy at law.”
* * * * * *
We do not find that the order, in its entirety, indicates a ruling by the chancellor on the merits sufficient to support a defense res judicata to bar a subsequent suit. To support a defense of res judicata, it must be clear that the court in the previous action intended that the disposition there was to be without right to further proceedings by the plaintiff. See: Tilton v. Horton, 103 Fla. 497, 137 So. 801; 19 Fla.Jur., Judgments and Decrees, § 144; 30A Am.Jur., Judgments, § 69. The order claimed to be res judicata in the instant action was carefully drawn to say that the only ruling was a denial of the right of chancery relief. The purport of the order must be determined from the entire order, and not just from an isolated part thereof. See: Kincade v. Jeffery-DeWitt Insulator Corp., 5th Cir. 1957, 242 F.2d 328; McDougal v. McDougal, Mo.App.1955, 279 S.W.2d 731; Webb v. Smith, 202 Okl. 656, 216 P.2d 968; 30A Am.Jur., Judgments, § 69.
Therefore, for the reasons stated above, the final judgment here under review be and the same is hereby affirmed.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
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Horowitz v. United Invs. Corp., 227 So. 2d 719 (Fla. 3d DCA 1969)…pplicable to the defense of res judicata have been set forth in Mims v. Reid, Fla. 1957, 98 So. 2d 498, and Rosenthal v. Scott, Fla.1961, 150 So. 2d 433. See also Equitable Fire and Marine Insurance Company v. Bradford Builders, Inc., Fla. App.1965, 174 So. 2d 44. We do not think a further extended discussion of the defense necessary. But we should point out that under the law of this state the doctrine of res judicata bars an action only if it clearly appears that that action [*722] could have been brought…
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Thomson McKINNON Sec., Inc. v. Kerrean Slater, 615 So. 2d 781 (Fla. 1st DCA 1993)…to prevail, the final judgment relied upon must reflect within its four corners that it was on the merits and is conclusive as to the second suit), cert. denied, 120 So. 2d 616 (Fla.1960); Equitable Fire & Marine Ins. Co. v. Bradford Builders, Inc., 174 So. 2d 44, 45 (Fla. 3d DCA) (“To support a defense of res judicata, it must be clear that the court in the previous action intended that the disposition there was to be without right to further proceedings by the plaintiff.”), cert. denied, 183 So. 2d 218 (Fl…
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Equitable Fire & Marine Ins. Co. v. Bradford Builders, Inc., 183 So. 2d 218 (Fla. 1965)…Certiorari denied without opinion. 174 So. 2d 44.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Tilton v. Horton, 103 Fla. 497 (Fla. 1931)
- Halpert v. Oleksy, 65 So. 2d 762 (Fla. 1953)
- Kincade v. Jeffery-De Witt Insulator Corp., 242 F.2d 328 (5th Cir. 1957)
- Houston Motor Co. v. Mercer, 103 Fla. 791 (Fla. 1931)
- The Fla. Nat'l Bank OF Jacksonville v. Pugh, 88 So. 2d 284 (Fla. 1956)