Opinion
February 16, 1951.
Appeal from the Circuit Court for Escambia County, L.L. Fabisinski, J.
Cutler Mittle, Tampa, for appellant.
Yonge, Beggs Lane, Pensacola, for appellee.
The appellant, Sam Catches, filed a common law action in the Circuit Court of Escambia County, Florida against W.S. Campbell, a building contractor, to recover damages for alleged inferior and defective workmanship and materials furnished by the appellee Campbell under two construction contracts and a loss of rentals resulting from the supply of poor workmanship and inferior materials. Attached as Exhibits to the complaint is a copy of the construction contracts of the parties, one dated October 19, 1945, and the other June 14, 1946.
The defendant-appellee interposed to this common law action as a defense thereto a plea of res adjudicata. The plea so tendered is viz.:
"1. All of the matter for which damages are claimed in the complaint were settled and adjudicated in a cause lately pending on the Chancery side of this Court wherein W.S. Campbell was complainant and Sam Catches was defendant, by final decree dated December 23, 1948, and recorded in Chancery Order Book 35 at page 228, as modified by decree on rehearing dated February 18, 1949. The said decrees of the Circuit Court of Escambia County, Florida, were subsequently affirmed by the Supreme Court of Florida on September 30, 1949.
"2. If the plaintiff has any claim against this defendant by reason of the agreements alleged in the complaint, he is now barred from asserting the same under the provisions of Section 63.35, Florida Statutes 1941 [F.S.A.], as the agreements mentioned in the complaint were among the transactions that constituted the subject matter of the suit in Chancery described in the preceding paragraph of this answer.
"3. The defendant admits the agreements alleged in the complaint, alleges that he built the buildings in accordance with the agreements, and denies all of the other allegations of the complaint."
Counsel for plaintiff-appellant filed a motion to strike the plea of res adjudicata on the ground that it was legally insufficient and was not a defense to the common law action. The Court below overruled and denied the motion to strike, thereby holding that the plea or pleas set forth in the answer were legally sufficient and constituted a good defense to the suit. Subsequently, counsel for the defendant-appellee, pursuant to Common Law Rule No. 43, 30 F.S.A., moved the Court for the entry of a summary judgment in behalf of the defendant, which motion was granted and the plaintiff appealed.
The controlling question presented here is whether or not the items sued for in the common law action were appropriate issues in the equity case which was affirmed on appeal here and reported in 42 So.2d 448. We have heard oral argument, reviewed the record and briefs filed in the equity cause and it is our view and conclusion that the items were adjudicated therein and the summary judgment entered below is free from error. See Tilton v. Horton, 103 Fla. 497, 137 So. 801, 139 So. 142.
Affirmed.
SEBRING, C.J., and TERRELL and ADAMS, JJ., concur.