LEON UNGER, APPELLANT,
v.
JOSEPH BERGNESS, APPELLEE
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Leon Unger appealed a summary judgment dismissing his second lawsuit against Joseph Bergness for damages arising from a dog fight. The trial court found Unger's claim barred by the rule against splitting a cause of action because he had already recovered a judgment in an earlier suit based on the same incident. The appellate court affirmed, holding the bar applied and that Unger failed to qualify for the recognized exception to the rule.
The court affirmed the summary judgment, holding that Unger's second action was barred by the rule against splitting a cause of action. The court interpreted Rosenthal v. Scott as recognizing a limited exception to the splitting rule where one element of damage is the subject of insurance, but found that Unger did not bring himself within the holding of Rosenthal and thus could not avail himself of the exception.
“the plaintiff had recovered a prior judgment upon the same cause of action and that the instant action was barred by the rule which forbids the splitting of a cause of action”
Establishes the basis for the trial court's summary judgment against the plaintiff
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Join FLexlaw to unlock all legal intelligenceUnger's dog was injured in a dog fight on July 1, 1962. Unger filed suit in Justice of Peace Court on July 30, 1962, seeking recovery for medical expe…
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The plaintiff appeals a summary final judgment for the defendant. The cause was filed in the Civil Court of Record for Dade County. The basis of the summary final judgment was the holding that under the undisputed facts the plaintiff had recovered a prior judgment upon the same cause of action and that the instant action was barred by the rule which forbids the splitting of a cause of action. See Mims v. Reid, Fla. 1957, 98 So.2d 498.
The appellant presents two points. The first urges that the trial judge was precluded from the granting of the motion for summary judgment because a previous motion had been denied upon consideration of the same evidence. No Florida case is presented on this point but the appellant relies upon Allstate Finance Corporation v. Zimmerman, 296 F.2d 797 (5th Cir. 1961). We need not decide whether this is the rule in Florida because the cited case holds that where new proofs are submitted on the second motion for summary judgment, the trial court has the poiyer to grant the second motion. The trial judge in the instant case clearly relied upon new proofs submitted upon the second motion even though the principle of law asserted was the same.
Appellant’s second point urges that the defendant was not entitled to the judgment as a matter of law because the rule against the splitting of a cause of action was not applicable in this case. He argues that the rule will not be applied as a bar to the second action if the plaintiff, because of unavoidable ignorance as to the extent of items of damage, or by reason of mistake, fails to include his full claim in the *628first suit He relies upon Rosenthal v. Scott, Fla. 1963, 150 So.2d 433.
The record reveals that the plaintiff filed suit in the Justice of Peace Court on July 30, 1962, for medical expenses incurred as a result of injuries received by his dog' in a dog fight which occurred on July 1, 1962. On August 2, 1962, plaintiff’s dog died. Plaintiff relied upon legal advice given to him by the Clerk of the Justice of Peace Court and proceeded to trial where he testified that the dog had died. He received a judgment which was satisfied.
We interpret the holding in the Rosenthal case, supra, as recognizing an exception to the rule against the splitting of a cause of action where one element of damage (usually property loss) is the subject of insurance. The exception may be further limited by the facts of the Rosen-thal case which we need not set forth here. We conclude that the appellant has not brought himself within the holding of Rosenthal v. Scott, supra, and affirm.
Affirmed.
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Tyson v. Viacom, Inc., 890 So. 2d 1205 (Fla. 4th DCA 2005)…endant); McKibben v. Zamora, 358 So. 2d 866 (Fla. 3d DCA 1978) (concluding that plaintiff had improperly split cause of action by filing separate negligence lawsuits seeking to recover damages to property and for personal injury); Unger v. Bergness, 172 So. 2d 627 (Fla. 3d DCA 1965) (holding that plaintiff was precluded from filing separate suits for injuries to his dog and for his dog’s death arising out the same attack by the defendant’s dog); compare Bowie v. Reynolds, 161 So. 2d 882, 884 (Fla. 1st DCA 196…
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Ponce Dev. Co. v. Espino, 449 So. 2d 317 (Fla. 3d DCA 1984)…mself of his own wrongdoing). Reversed and remanded. . One of the points on appeal is that it was error to grant a summary judgment on the same principle of law on which the motion was previously denied absent new proofs, citing Unger v. Bergness, 172 So. 2d 627 (Fla. 3d DCA 1965) and Calder Race Course, Inc. v. Metropolitan Dade County, 42 Fla.Supp. 129 (Fla. 11th Cir.Ct.1975). It is unnecessary to address this point because the "lack of mutuality” issue is dispositive.…
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Jocelyn Rothstein v. Honeywell, Inc., 519 So. 2d 1020 (Fla. 3d DCA 1987)…al judge improperly granted Honeywell’s motion for summary judgment as to the breach of contract and negligence counts because Honeywell’s prior motion involving identical counts had been denied by the predecessor trial judge. See Unger v. Bergness, 172 So. 2d 627 (Fla. 3d DCA 1965). Our reversal of the final summary judgment disposes of this issue.…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Valentine W. Mims v. Reid, 98 So. 2d 498 (Fla. 1957)
- Murray Rosenthal and Joseph Rosenthal v. Scott, 150 So. 2d 433 (Fla. 1961)
- Allstate Fin. Corp. v. Zimmerman, 296 F.2d 797 (5th Cir. 1961)