MELVIN FRANK FORD
v.
DANIA LUMBER AND SUPPLY CO., INC., A FLORIDA CORPORATION AND LINDSLEY LUMBER CO., A FLORIDA CORPORATION
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Ford sued to recover damages for a private nuisance allegedly maintained by lumber companies that depreciated his home's value and affected his health. The trial court struck his market value claim but allowed amendment for lost rental value, and upheld a res judicata defense based on an earlier state-brought equity suit to abate the same nuisance. The Florida Supreme Court reversed, holding the res judicata plea was defective due to lack of party identity and limiting damages to the loss of use value during the nuisance period.
The res judicata plea was bad in law because there was not sufficient identity of parties; the State (as the real party in interest in the prior suit) was distinct from the individual plaintiff suing in his own right for private damages. If the plaintiff prevails, damages must be limited to the loss of use value of the property during the period the nuisance existed, not the permanent depreciation in market value.
“One essential element is identity of parties.”
Establishes the fundamental requirement for res judicata defense
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Join FLexlaw to unlock all legal intelligenceMelvin Frank Ford owned a home and sued to recover damages from the defendant lumber companies for maintaining a nuisance. The plaintiff originally cl…
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Final judgment for defendant is before us for review on writ of error. The plaintiff sued to recover damages charging defendant maintained a private nuisance; that same depreciated the market value of plaintiff’s home and injured his health.
On motion the court struck the claim for damages affecting the market value of plaintiff’s home. The court, however, allowed an amendment to claim *436damages for the depreciated rental value of the plaintiff’s home.
A plea of res judicata was filed alleging in substance that theretofore the subject matter now in suit had been litigated in a case wherein State ex rel. Melvin Ford, et al., plaintiffs v. Lindsley Lumber Co., et al., defendants were parties; that the latter suit was in equity and was to abate the nuisance here charged as a. public nuisance. This plea was held good.
We have two questions. Was the plea of res judicata good and what is the proper measure of damages if plaintiff prevails?
The law of res judicata has many times been declared by this Court. McGregor v. Provident Trust Co., 119 Fla. 718, 162 So. 323; Day v. Weadock, et ux., 104 Fla. 251, 140 So. 668. One essential element is identity of parties. 34 C. J., 915, Black on Judgments (2nd ed.) Section 500, et seq.
We held in effect, in Pompano Horse Club Inc. v. State ex rel. Bryan, 93 Fla. 415, 111 So. 801, 52 A. L. R. 51, that where a suit was brought by an individual in the name of the state to suppress by injunction a public nuisance, the public was the real party in interest to the same extent as though the suit was brought by the attorney general.
It was held in Delliher v. Stone & Webster, 75 Fed. (2nd) 331 (CCA 5th Cir.) that a final decree in a suit seeking to enjoin a threatened trespass would not bar a subsequent action in tort for the trespass after its commission. Schnitzer v. Excelsior Powder Mfg. Co., 160 S. W. 282; 28 Am. Jur. 483; Purdue v. Ward, 87 W. Va. 371, 106 S. E. 874, 14 A. L. R. 539.
Coming now to a discussion of the case of Mercer, et vir., v. Keynton, et al., 121 Fla. 87, 163 So. 411, the *437Mercer case does not rule this case as the Mercer case was not brought in the name of the State. The plaintiff there litigated the issue of damages. Our attention has been called to no authority to warrant the recovery of damages in an equity suit where the State is the party plaintiff as in the present case.
We have not overlooked defendants in error’s contention that while the plea might not be good as a plea of res judicata yet, it is good as an estoppel by judgment. One essential element of estoppel by judgment is identity of parties suing in the same capacity. Section 536 Black, supra. There might be merit in this contention if suit had been brought in the name of the State to enforce a purely personal right. We hold that the plea was bad in law.
Passing now to the second question, it appears that the nuisance is remedial. It may be abated and in that event the damage would cease. For that reason the plaintiff’s recovery be limited to the loss of the use value of his property during the period of the nuisance. 39 Am. Jur. (Nuisance) Section 130, et seq. 46 C. J. 828. .
The judgment is reversed for further proceeding not inconsistent with this opinion.
BROWN, C. J., BUFORD and TERRELL, JJ., concur.
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A. & P. Food Stores, Inc. v. Kornstein, 121 So. 2d 701 (Fla. 3d DCA 1960)…ocesses of the court. Consequently, the plaintiffs would have been, subject to appropriate allegations and proof, entitled to the loss of the use value of their property during the period of the nuisance. See Ford v. Dania Lumber & Supply Co., Inc., 150 Fla. 435, 7 So. 2d 594, 595; 39 Am.Jur., Nuisance, § 130, et seq. The allegations of the complaint here clearly demonstrate that the plaintiffs proceeded upon the theory that defendant’s acts caused a depreciation in the value of their property but their pr…
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Nitram Chems., Inc. v. Parker, 200 So. 2d 220 (Fla. 2d DCA 1967)…nuisance, and requiring the jury to state the character of its finding. As the court’s instructions did not comply with these requirements, it follows that they were erroneous.” Our Florida Supreme Court, in Ford v. Dania Lumber & Supply Co., 1942, 150 Fla. 435, 7 So. 2d 594, in a case where the plaintiff sued to recover damages charging defendant maintained a private nuisance, said: “Passing now to the second question, it appears that the nuisance is remedial. It may be abated and in that event the damag…
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Antun Invs. Corp. v. Ergas, 549 So. 2d 706 (Fla. 3d DCA 1989)…Jur.2d, Nuisances, § 50 (1982); the assessment of damages for future harm is inappropriate where the nuisance is merely temporary. A & P Food Stores, Inc. v. Kornstein, 121 So. 2d 701, 704 (Fla. 3d DCA 1960); see Ford v. Dania Lumber & Supply, Co., 150 Fla. 435, 7 So. 2d 594 (1942), “Future harm ... is nullified by the abatement of the nuisance through the injunc-tive processes of the court.” Kornstein, 121 So. 2d at 704. Because the court found that the nuisance was remediable and issued a permanent injun…1 / 2
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Pompano Horse Club, Inc. v. State ex rel. John M. Bryan, 93 Fla. 415 (Fla. 1927)
- McGregor v. Provident Tr. Co. of Philadelphia, 119 Fla. 718 (Fla. 1935)
- Mercer v. Keynton, 121 Fla. 87 (Fla. 1935)
- Day v. Weadock, 104 Fla. 251 (Fla. 1932)
- State v. Williams, 104 Fla. 304 (Fla. 1932)