Leahy v. Batmasian

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Summary Judgment granted to landlord on tenant's complaint for damages for wrongful eviction
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  Leahy v. Batmasian, 960 So.2d 14 (Fla. App., 2007)- 1 - 960 So.2d 14Thomas A. LEAHY, d/b/a Far East Accents, Appellant,v.James H. BATMASIAN, etc., et al., Appellees.No. 4D06-245.District Court of Appeal of Florida, Fourth District.May 2, 2007.Rehearing Denied July 13, 2007.[960 So.2d 15]  Nancy Little Hoffman of Nancy LittleHoffman, P.A., Pompano Beach, for appellant.[960 So.2d 16]Alexander D. Varkas, Robert A.Sweetapple and Peter Sosin of Sweetapple,Broeker, Varkas, Feltman & Sosin, Boca Raton,for appellees.WARNER, J.In this complicated landlord-tenant proceeding, the trial court granted summary judgment to the landlord on the tenant'scomplaint for damages for wrongful eviction.The court found that the complaint was barred by res judicata, because the tenant had not raisedthe issue in prior proceedings where the landlordhad sued for eviction and damages and thetenant counterclaimed for constructive eviction based upon premises defects. We affirm thesummary judgment concluding that res judicata bars the present suit.Appellant Leahy entered into a lease withlandlord Batmasian in 1993. When Leahy failedto pay the full amount of the rent claimed in1994, Batmasian filed suit to evict Leahy and for unpaid rent. Leahy counterclaimed for constructive eviction due to premises defectsand fraudulent inducement. Leahy actuallyvacated the premises shortly after the suit wasfiled.The suit for unpaid rent and counterclaimfor constructive eviction continued until 1999.When the court compelled Batmasian to producevarious financial records at Leahy's request,Batmasian represented that most of thedocuments were unrelated to the pending claims,with which Leahy's counsel agreed. Thedocuments were not produced. In 2001,Batmasian agreed to dismiss his claim for unpaid rent in return for Leahy's dismissal of hisclaim for fraudulent inducement. Leahy's claimfor constructive eviction remained.Leahy, while unrepresented by counsel,discovered some documents in 2002 which hecontended showed that Batmasian hadovercharged him on rent. Had rent beencalculated properly, he would have been currentand not subject to eviction. Based upon thisnewly discovered evidence, he moved to amendhis complaint for the seventh time to add awrongful eviction claim. During the hearing, thetrial court indicated that it would not consider the claim without the filing of the proposedamended complaint, but Batmasian explainedthat denying on that basis was probably notsustainable. Batmasian then offered other reasons for denying the claim. The trial courtentered a simple denial of the motion withoutelaborating a reason.Shortly thereafter, the court held a trial onLeahy's complaint of constructive eviction dueto premises defects. It found for Batmasian andentered final judgment in his favor. Leahy didnot appeal the final judgment.Instead, Leahy filed a new complaintalleging a cause of action for breach of thecontract based upon breach of the covenant of quiet enjoyment through wrongful eviction. Thecomplaint followed the allegations of his motionto amend his claim in the prior suit and allegedthat the documents showing the overcharging of   Leahy v. Batmasian, 960 So.2d 14 (Fla. App., 2007)- 2 - rent had been fraudulently concealed from him by Batmasian in the first lawsuit, and he hadonly discovered them by other means in 2002.He claimed damages as a result of Batmasian'sovercharging. The damages claimed wereessentially the same as those claimed in the prior suit.Batmasian answered and raised thefollowing affirmative defenses: (1) the claimswere precluded by the expiration of the statuteof limitations, (2) the claims were barred by res judicata, and (3) the claims should have beenasserted as compulsory counterclaims in the prior action. He then moved for summary judgment, which the trial court granted onvarious bases, including res judicata.[960 So.2d 17]Leahy then moved to amend his claimsagain to assert claims of fraud in the inducementof the contract and negligent misrepresentation.The court denied these claims as beingcompulsory in the prior action. It then enteredfinal summary judgment on all claims. Fromthese orders, Leahy appeals.Leahy contends res judicata does not apply because there was no identity in the causes of action. For res judicata to apply, there must befour identities: (1) identity of thing sued for, (2)identity of cause of action, (3) identity of  persons and parties to the action, and (4) identityof quality or capacity of persons for or againstwhom the claim is made. Burns v.DaimlerChrysler Corp., 914 So.2d 451, 453(Fla. 4th DCA 2005). Identity of the causes of action is established when `the facts or evidence necessary to maintain the suit are thesame in both actions.' Tyson v. Viacom, Inc.,890 So.2d 1205, 1209 (Fla. 4th DCA2005)(quoting Albrecht v. State, 444 So.2d 8, 12(Fla.1984)).Contrary to Leahy's contention, in this casethere is an identity of the causes of action. Boththe 1994 action and the 2004 action were causesof action for breach of the same lease, resultingin the same damages. The difference betweenthe two actions consisted of the different termsof the contract and underlying facts on whicheach alleged breach was based. However, thesingle act upon which damages were predicatedwas Leahy's wrongful eviction.Courts have often relied on the followingstatement regarding the application of res judicata:A judgment on the merits rendered in aformer suit between the same parties or their  privies, upon the same cause of action, by acourt of competent jurisdiction, is conclusive notonly as to every matter which was offered andreceived to sustain or defeat the claim, but as toevery other matter which might with proprietyhave been litigated and determined in thataction.Kimbrell v. Paige, 448 So.2d 1009, 1012(Fla.1984) (quoting Wade v. Clower, 94 Fla.817, 114 So. 548, 552 (1927)). However, asJudge Gross noted in his concurring opinion inTyson, the supreme court actually has a morenarrow view of what that means. He noted thatin Hay v. Salisbury, 92 Fla. 446, 109 So. 617,621 (1926), the supreme court explained thisarea of law:The test of the identity of causes of action,for the purpose of determining the question of res adjudicata, is the identity of the factsessential to the maintenance of the suits....When the second suit is between the same parties as the first and on the same cause of action, the judgment in the former is conclusivein the latter, not only as to every question whichwas decided, but also as to every other matter which the parties might have litigated and haddetermined within the issues as they were madeor tendered by the pleadings or as incident to or essentially connected with the subject-matter of the litigation, whether the same, as a matter of fact, were or were not considered. As to suchmatters a new suit on the same cause of actioncannot be maintained between the same parties.This rule applies to every question falling withinthe purview of the srcinal action, both in  Leahy v. Batmasian, 960 So.2d 14 (Fla. App., 2007)- 3 - respect to matters of claim and defense, whichcould have been presented by the exercise of duediligence.Id. (citations omitted) (emphasis added).Thus, the question which must be asked todetermine the application of res judicata iswhether the essential elements of the[960 So.2d 18]cause of action, and thus the ultimate facts to be proved, are the same. For instance, in Woodsonv. Woodson, 89 So.2d 665 (Fla. 1956), a widowfirst filed suit for wrongful death of her husbandon a theory of gross negligence of the driver.After that suit failed, she then filed a wrongfuldeath action against the same defendant, alleginga private carrier for hire relationship and simplenegligence. The court held that res judicata barred the second suit. Both suits were for wrongful death of the husband, and required thewidow to bring all theories of recovery in thefirst suit, even though the specific factsnecessary to prove one theory of recovery weredifferent than the other theory.We followed this rationale in Signo v.Florida Farm Bureau Casualty Insurance Co.,454 So.2d 3 (Fla. 4th DCA 1984). There, the plaintiff sued the defendants for damages due toan automobile accident. She alleged that thedefendants were negligent in hiring the driver of the vehicle which hit her. After the trial courtgranted summary judgment which was affirmedon appeal, the plaintiff brought a new claim thatthe same defendants were bailees of the vehicleand liable for its negligent operation. Our courtheld that the second action was barred by res judicata, as the srcinal cause of action was for negligence and the second suit was merely adifferent theory of negligence.Similarly, Leahy sued Batmasian for breachof contract and alleged damages. The secondsuit also alleged a breach of the same contract,resulting in the eviction of Leahy, and allegedthe same damages. Just as in Woodson andSigno, the cause of action and theory of recoverywas the same — breach of contract. Theessential elements of both causes of action were1) the existence of a contract; 2) breach of thatcontract through Leahy's wrongful eviction; and3) damages. The fact that the method of breachasserted is different in each complaint is akin todifferent theories of negligence which do notescape the bar of the doctrine of res judicata.Therefore the second complaint is barred by thedoctrine of res judicata.In Tyson we explained that our result inSigno relied more on the principle againstsplitting a cause of action, an aspect of res judicata. That principle was explained in Mimsv. Reid, 98 So.2d 498 (Fla.1957):The law does not permit the owner of asingle or entire cause of action or an entireindivisible demand to divide or split that causeof action so as to make it the subject of severalactions, without the consent of the defendant.All damages sustained or accruing to one as aresult of a single wrongful act must be claimedor recovered in one action or not at all. The law presumes that a single cause of action can betried and determined in one suit, and will not permit the plaintiff to maintain more than oneaction against the same party for the same cause.This rule is founded on the plainest and mostsubstantial justice — namely, that litigationshould have an end, and that no person should be unnecessarily harassed with a multiplicity of suits. If the first suit is effective and available,and affords ample remedy to the plaintiff, thesecond suit is unnecessary and consequentlyvexatious. The rule against splitting causes of action is closely related to the doctrine of res judicata in this respect.Id. at 500-01 (citation omitted). As JudgeGross noted in his concurring opinion in Tyson, For the purpose of applying the rule againstsplitting a cause of action, `cause of action' isdefined as `the right which a party has toinstitute a judicial proceeding.' 890 So.2d at1220-21 (quoting Shearn v. Orlando FuneralHome,[960 So.2d 19]Inc., 88 So.2d 591, 593 (Fla.1956)). Here, thatright was a breach of contract action. Thus,  Leahy v. Batmasian, 960 So.2d 14 (Fla. App., 2007)- 4 - whether termed res judicata or splitting a causeof action, those doctrines would bar recovery for the breach of contract in the second suit.To overcome the bar, Leahy asserts thatBatmasian is precluded from asserting res judicata or splitting a cause of action by thedoctrine of judicial estoppel, becauseBatmasian's attorney objected to the assertion of the claim in the prior proceeding. In Blumbergv. USAA Casualty Insurance Co., 790 So.2d1061 (Fla. 2001), the supreme court discussedthe doctrine of judicial estoppel, quoting fromChase & Co. v. Little, 116 Fla. 667, 156 So.609, 610 (1934):A claim made or position taken in a former action or judicial proceeding will, in general,estop the party to make an inconsistent claim or to take a conflicting position in a subsequentaction or judicial proceeding to the prejudice of the adverse party.In order to work an estoppel, the positionassumed in the former trial must have beensuccessfully maintained. In proceedingsterminating in a judgment, the positions must beclearly inconsistent, the parties must be the sameand the same questions must be involved. So,the party claiming the estoppel must have beenmisled and have changed his position; and anestoppel is not raised by conduct of one party toa suit, unless by reason thereof the other partyhas been so placed as to make it to act inreliance upon it unjust to him to allow that first party to subsequently change his position. Therecan be no estoppel where both parties areequally in possession of all the facts pertainingto the matter relied on as an estoppel; where theconduct relied on to create the estoppel wascaused by the act of the party claiming theestoppel, or where the positions taken involvedsolely a question of law.Id. at 1066. See also Grau v. Provident Life& Accident Ins. Co., 899 So.2d 396 (Fla. 4thDCA 2005).Leahy argues that Batmasian's argumentagainst the motion to amend to assert the new breach of contract claim in the prior suit prevents him from asserting the bar of res judicata in this suit. Just before trial in the prior suit, Leahy moved to amend his counterclaimfor breach of contract to assert his newlydiscovered claim. This was the seventh time hesought to amend his counterclaim. Without firsthearing from Batmasian, the trial court statedthat it would deny the claim because Leahy hadnot filed a proposed amended complaint.Batmasian asked to be heard and did not rely onthe lack of a proposed pleading. Instead, heargued that to allow the amendment would be aclassic case of abuse of the amendment process,and the amendment would be futile because theclaim was barred by the statute of limitations.Counsel also challenged the allegation that hehad fraudulently misrepresented anything inconnection with the production of documents.Finally, he asserted that the proposedamendment constituted a different cause of action requiring proof of different facts whichshould result in denial of the motion to amend.The trial court made little comment at thehearing and entered an order of denial withoutexplanation.Under the principles set forth in Blumberg,no judicial estoppel has been proved. WhileBatmasian did argue to the judge that the causesof action were different in objecting to theamendment, the judge's simple denial does notmean that Batmasian was successful on that position. The judge had already announced hisintention to deny because no proposed pleadinghad[960 So.2d 20] been filed. Further, Batmasian also argued thatthe amendment process was being abused. Wehave often said that Florida's liberal policy of amendment gradually diminishes as the case proceeds to trial. See, e.g., Noble v. MartinMem'l Hosp. Ass'n, Inc., 710 So.2d 567 (Fla. 4thDCA 1997). Given that Leahy was asking for the seventh time to amend his pleading just before trial, the trial court may have very wellexercised its discretion to deny the motion onthat ground. Thus, because we cannot say thatBatmasian succeeded in asserting his position as
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