HARVEY WEINER, M.D., APPELLANT,
v.
RICHARD T. SAVAGE, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
A physician appeals a $100,000 medical malpractice judgment, arguing the trial court erred in denying directed verdicts based on res judicata/collateral estoppel from a prior settlement with the city, statute of limitations, and denial of a mistrial motion. The Fourth District affirmed, finding the physician failed to properly raise the collateral estoppel defense and that statute of limitations presented a fact question for the jury.
The court affirmed the judgment, holding that: (1) the physician failed to properly plead res judicata or collateral estoppel and presented no evidence of the prior settlement's damages, (2) when the statute of limitations began to run presented a fact question for the jury properly submitted to them, and (3) although counsel's conduct was improper, it did not constitute reversible error requiring mistrial.
[1] Res judicata and collateral estoppel must be affirmatively pleaded in the answer to be properly raised.
[2] A prior judgment record must be admitted into evidence to establish res judicata or collateral estoppel.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Res judicata or estoppel should have been established in the answer.”
Establishes the procedural requirement that affirmative defenses must be properly pleaded in the answer, not merely mentioned later
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePlaintiff was injured in an accident involving a city policeman and recovered damages in a suit against the City of Hallandale. Plaintiff subsequently…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Motion For Mistrial cases and more on FLexlaw
PER CURIAM.
Defendant appeals a final judgment in favor of plaintiff in a medical malpractice action. Plaintiff was injured in an accident involving a policeman who worked for the City of Hallandale. A suit was filed against the City of Hallandale, and a recovery secured. In a separate suit plaintiff sued his doctor, appellant herein, alleging negligence in his medical treatment of the same injury involved in the initial suit. Plaintiff obtained a verdict of $100,000 in the second suit, upon which judgment was entered. The second suit is the basis for the instant appeal.
Appellant asserts the trial court erred in failing to direct a verdict on the basis of estoppel by judgment or res judicata arising from the first suit. Appellant further contends that the court should have directed a verdict against the plaintiffs claim based upon the statute of limitations and that error occurred in the denial of a motion for mistrial based upon the conduct and argument of opposing counsel. We conclude that reversible error has not been demonstrated and affirm.
As to the issue of collateral estoppel or res judicata, we conclude that appellant failed to raise this issue by adequate pleading or proof before the trial court. Res judicata or estoppel should have been established in the answer. See Fischbein v. David Jenkins Associates, Inc., 256 So. 2d 85 (Fla.3d DCA 1971), and Rule of Civil Procedure 1.110(d). Appellant’s answer denied negligence and causation and raised the affirmative defense of the statute of limitations but failed to mention res judicata or collateral estoppel. Although there was a brief comment regarding these issues in a pretrial statement they were not appropriately and properly presented at trial.
Even if we were to conclude that the issue was properly raised by the pleadings we would still have to reject appellant’s contentions on appeal because the proof was totally lacking at trial. Although available, the record of the prior case was not admitted into evidence. There was a total absence of evidence as to what injuries or damages were recovered in the first suit. As such, appellant has failed to demonstrate error as to the denial of his motion for a directed verdict on this ground.
Under his second point appellant asserts the court erred in failing to direct a verdict on the issue of the statute of limitations. There is some question as to precisely which period of limitation was applicable to this case. For the purpose of this opinion, we assume the applicable limitation period to be two years. From our review of the record, we are convinced that the time at which plaintiff was on notice so as to begin the running of the limitation period was a question of fact for the jury to decide. In accordance with Nardone v. Reynolds, 333 So. 2d 25 (Fla.1976), the statute of limitations in a medical malpractice action commences when the plaintiff is on notice of the possible invasion of his legal rights. There was a definite issue of fact on this question and the court acted correctly in denying a motion for directed verdict on the issue. Pinkerton v. West, 353 So. 2d 102 (Fla.4th DCA 1977).
The only other issue relates to the argument of counsel and conduct during the examination of a particular witness. Although this conduct was not to be complemented, we conclude the trial court did not commit reversible error in denying the motion for mistrial.
Reversible error has not been demonstrated and the final judgment is affirmed.
AFFIRMED.
ANSTEAD, BERANEK, and GLICK-STEIN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Fla. Patient's Comp. Fund v. Tillman, 453 So. 2d 1376 (Fla. 4th DCA 1984)…oved, Waxman’s counsel conceded that Tillman did not know about that. Where there is a question as to notice or discovery in a medical malpractice action, it is for the jury to decide when the statute of limitations begins to run. Weiner v. Savage, 407 So. 2d 288 (Fla. 4th DCA 1981); Phillips v. Mease Hospital & Clinic, 445 So. 2d 1058 (Fla. 2d DCA 1984). Here, the jury concluded that the period had not expired at the time Waxman was brought into the litigation. There was evidence upon which the jury could h…
-
State v. Ins. Servs. Off., 434 So. 2d 908 (Fla. 1st DCA 1983)…rately, decisively, prospectively, and after consideration of comments from the general public and affected parties — that is, to interpret their statutes by rulemaking.” State Department of Health and Rehabilitative Services v. Framat Realty, Inc., 407 So. 2d 288, 241 (Fla. 1st DCA 1981). The incentives for rulemaking were described at length in McDonald v. Department of Banking and Finance, 346 So. 2d 569 (Fla. 1st DCA 1977) and are illustrated repeatedly by decisions since. Rulemaking is therefore particu…
-
Robbie Lefler v. Lefler, 776 So. 2d 319 (Fla. 4th DCA 2001)…capacity of the persons for or against whom the claim is made. Wisconsin v. Martorella, 670 So. 2d 1161, 1162 (Fla. 4th DCA 1996). We recognize that, generally, res judicata must be pled in an answer as an affirmative defense. See Weiner v. Savage, 407 So. 2d 288 (Fla. 4th DCA 1981). However, in D.F. v. Department of Revenue, 736 So. 2d 782 (Fla. 2d DCA 1999), where a father brought suit to terminate support or set aside an 11-year-old judgment of dissolution of marriage on the issue of paternity, the court…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Nardone v. Reynolds, 333 So. 2d 25 (Fla. 1976)
- Pinkerton v. West, 353 So. 2d 102 (Fla. 4th DCA 1977)
- August B. Trefz and Mary Ann Trefz v. Johnson, 256 So. 2d 85 (Fla. 2d DCA 1972)
- Fischbein v. David Jenkins Assocs., Inc., 256 So. 2d 85 (Fla. 3d DCA 1971)