UNITED STATES RUBBER COMPANY, APPELLANT,
v.
LUCKY NINE, INC., AND ROBERT D. GROSSMAN, APPELLEES
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.
United States Rubber Company appeals the dismissal of its complaint seeking the balance on an account against Lucky Nine, Inc. and its guarantor Robert Grossman. The court reverses, holding that res judicata cannot be applied at the pleading stage to bar the action, particularly where the defendants' prior admissions may have been induced by fraud or misrepresentation.
The trial court erred in dismissing the complaint at the pleading stage based on res judicata. Res judicata must be affirmatively pleaded under the Florida Rules of Civil Procedure and cannot be used to bar an action where the prior judgment may have resulted from fraud, deceit, or misrepresentation. The trial court must consider the merits at a later stage if the defense is properly pleaded.
“if the allegations in the complaint are true, the application of the doctrine of res judicata would allow a party by agreeing to an account stated and to judgment thereon to later change his position and escape liability by testifying that a bookkeeping error had been made by the creditor. Under such circumstances the application of the doctrine would protect the one guilty of fraud, deceit or misrepresentation.”
Establishes the court's concern that res judicata should not be mechanically applied where fraud is alleged, as it would reward wrongdoing.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceUnited States Rubber Company had accounts with two corporations: Lucky Nine, Inc. and Lucky Five, Inc., both guaranteed by Robert Grossman. The compan…
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 Affirmative Defense Pleading cases and more on FLexlaw
We have reconsidered this appeal upon petition for rehearing and have receded from our former judgment of affirmance. The question involved is whether or not a complaint should be' dismissed upon the basis that the action contained therein appears to be res judicata.
It affirmatively appears from a complaint filed by the United States Rubber Company that it had accounts against two corporations. One corporation was known as Lucky Nine, Inc. and the other as Lucky Five, Inc. Each account was guaranteed by Robert D. Grossman, one of the appel-lees here. The rubber company sued Lucky Nine, Inc. as principal and Grossman as guarantor on one of the accounts and received judgment in the amount of $4,756.20 in the Civil Court of Record in and for Dade County, Florida. This judgment was based upon an admission in the record by Grossman as president of Lucky Nine, Inc. that the amount due was $4,756.20.
*875Subsequently, plaintiff sued upon the account rendered to Lucky Five, Inc. That suit was in the United States District Court for the Southern District of Florida. During the course of the trial Grossman testified that a large portion of the account charged against Lucky Five, Inc. should have been charged against Lucky Nine, Inc. Upon the basis of this testimony, a judgment was rendered by the Federal Court for only the amount admitted by Grossman as president of Lucky Five, Inc. to be due. This amount was $4,000.
The complaint now before us sets out the above transactions and claims the balance of $34,584.36 against Lucky Nine, Inc. and Grossman. The defendants filed a motion to dismiss upon the ground that the complaint failed to state a cause of action. The trial judge dismissed the complaint with prejudice and this appeal followed.
In the present instance, if the allegations in the complaint are true, the application of the doctrine of res judicata would allow a party by agreeing to an account stated and to judgment thereon to later change his position and escape liability by testifying that a bookkeeping error had been made by the creditor. Under such circumstances the application of the doctrine would protect the one guilty of fraud, deceit or misrepresentation. There is authority that the doctrine should not be applied in such cases. Cf. Ferrall v. Bradford, 2 Fla. 508, 50 Am.Dec. 293; cf. Vineseck v. Great Northern Ry. Co., 136 Minn. 96, 161 N.W. 494, 2 A.L.R. 530 (1917); cf. 30A Am.Jur. Judgments, § 369, n. 9 (1958) and cases cited therein; cf. Restatement, Judgments § 62, p. 256 (1942).
The Florida Rules of Civil Procedure specifically provide that res judicata shall be affirmatively pleaded. We believe that the orderly processes of the law will best be preserved by declining to make exceptions to these rules. Hough v. Menses, Fla.1957, 95 So.2d 410; Sacks v. Rickies, Fla.App.1963, 155 So.2d 400.
We therefore hold that the trial judge erroneously dismissed this complaint at the pleading stage and that the judgment must be reversed and the cause remanded for further proceedings. If the defense of res judicata is pleaded, the court must determine on the basis of all the facts presented whether the defense is applicable under the rule above stated.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
In re Est. of Samuel Donner v. Donner, 364 So. 2d 757 (Fla. 3d DCA 1978)…rmative defense which is not properly raised by a motion to dismiss but should be pled as part of the answer. Florida Rules of Civil Procedure 1.110(d); Hough v. Menses, 95 So. 2d 410 (Fla.1957); and United States Rubber Company v. Lucky Nine, Inc., 159 So. 2d 874 (Fla.3d DCA 1964). The appellant is entitled to seek an accounting of the profits allegedly derived in part out of the corpus of the estate. Reversed and remanded with directions to reinstate the complaint. . Charles Donner was later permitted to…
-
Diaz v. Bravo, 603 So. 2d 106 (Fla. 3d DCA 1992)…efenses which are not properly raised by a motion to dismiss, but should be pled as part of the answer. See Rule 1.110(d), Fla.R.Civ.P.; see also In re Estate of Donner, 364 So. 2d 757 (Fla.3d DCA 1978); United States Rubber Co. v. Lucky Nine, Inc., 159 So. 2d 874 (Fla.3d DCA 1964). Therefore, if the motion to dismiss was granted on either of those grounds, the trial court erred. If the motion to dismiss was granted based on the plaintiffs’ failure to post a bond pursuant to section 57.011, the trial court al…
-
Liberoff v. Liberoff, 711 So. 2d 1333 (Fla. 3d DCA 1998)…by the fraud of the opposing party, it does not bar a subsequent action for the omitted item. 33 Fla. Jur.2d Judgments And Decrees § 165, at 21 (1994); see Restatement (Second) of Judgments § 70 (1982); United States Rubber Co. v. Lucky Nine, Inc., 159 So. 2d 874, 875 (Fla. 3d DCA 1963). [*1336] Here the former wife’s pleadings assert what amounts to a claim that the judgment was procured by extrinsic fraud by wrongfully withholding "from the court the March 9 Agreement. See DeClaire v. Yohanan, 453 So. 2d 3…
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
- Hough v. Menses, 95 So. 2d 410 (Fla. 1957)
- Sacks v. Rickles, 155 So. 2d 400 (Fla. 3d DCA 1963)
- Ferrall v. Bradford, 2 Fla. 508 (Fla. 1849)