Opinion
6D23-1318
10-20-2023
CHRISTOPHER PICKELL, Appellant, v. LENNAR HOMES, LLC, Appellee.
Jason Brian Phillips, of J. Brian Phillips, P.A., Orlando, for Appellant. Dara L. Lindquist and Joseph H. Lang, Jr., of Carlton Fields, P.A., Orlando, for Appellee.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF TIMELY FILED
Appeal from the County Court for Orange County. Elizabeth Starr and Andrew Bain, Judges Lower Tribunal No. 2018-SC-028239-O.
The final judgment was entered by Judge Elizabeth Starr, and the order denying motion for rehearing was entered by Judge Andrew Bain.
Jason Brian Phillips, of J. Brian Phillips, P.A., Orlando, for Appellant.
Dara L. Lindquist and Joseph H. Lang, Jr., of Carlton Fields, P.A., Orlando, for Appellee.
SMITH, J.
Appellant, Christopher Pickell ("Pickell"), appeals the final judgment granting Appellee's, Lennar Homes, LLC ("Lennar Homes"), motion for summary judgment. This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(b)(1)(A). Pickell raises several issues in his Initial Brief, one of which compels reversal.
This case was transferred from the Fifth District Court of Appeal to this Court on January 1, 2023.
Pickell entered into a purchase agreement with Lennar Homes to buy a newly constructed residence, and the parties closed three months afterward. Pickell later sued both Lennar Homes and Lennar Homes' heating, ventilation, and air conditioning installer, Mills Air Inc. ("Mills"), in separate lawsuits. The claims asserted and damages sought in each suit were substantially similar. Pickell obtained a default judgment against Mills in the Mills lawsuit, and that judgment was later satisfied.
We acknowledge Pickell's concession that any recovery from Mills would be set off post-judgment from a potential future judgment against Lennar Homes. See Addison Constr. Corp. v. Vecellio, 240 So.3d 757, 763 (Fla. 4th DCA 2018) (satisfaction of "overlapping items of compensation" in different judgments is a "post-judgment collections issue").
In this case, Pickell asserts the trial court erred in finding res judicata barred his claims of breach of implied warranty of fitness for a particular purpose (Count I) and breach of Lennar Homes' limited warranty (Count II). On these counts, we find merit and reverse the trial court's ruling; we affirm the trial court's ruling on Count III without further discussion.
The standard of review for a trial court's ruling on summary judgment is de novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000).
To successfully assert a defense of res judicata, a party must prove four "identities": "(1) identity of the thing sued for; (2) identity of the cause of action; (3) identity of persons and parties to the action; and (4) identity of the quality of the persons for or against whom the claim is made." Fernandez v. Cruz, 341 So.3d 410, 413 (Fla. 3d DCA 2022) (quoting Topps v. State, 865 So.2d 1253, 1255 (Fla. 2004)). This Court's analysis will focus on the third "identity."
Lennar Homes correctly asserts that "identity of parties" applies to the "same parties or their privies." Engle v. Liggett Grp., Inc., 945 So.2d 1246, 1259 (Fla. 2006) (emphasis added) (quoting Fla. Dep't of Transp. v. Juliano, 801 So.2d 101, 105 (Fla. 2001)). Lennar Homes claims to be a privy to Mills based on the contractual relationship with Mills as general contractor and subcontractor.
Privity of contract in its basic form means parties are in a contractual relationship with one another. Espinosa v. Sparber, Shevin, Shapo, Rosen & Heilbronner, 612 So.2d 1378, 1379-80 (Fla. 1993) ("In a legal context, the term 'privity' is a word of art derived from the common law of contracts and used to describe the relationship of persons who are parties to a contract. [citation omitted.]"). Privy or privity, however, when used in the context of res judicata, assumes a different meaning.
The Florida Supreme Court has set forth the test for when a party can assert privity with another party from a separate, former lawsuit: "[o]ne not a party to a suit is in privity with one who is where his interest in the action was such that he will be bound by the final judgment as if he were a party." Stogniew v. McQueen, 656 So.2d 917, 920 (Fla. 1995) (quoting Se. Fid. Ins. Co. v. Rice, 515 So.2d 240 (Fla. 4th DCA 1987)). This can arise in cases such as those involving insurance companies and insureds, see Rice, 515 So.2d at 242 (discussing privity in the parallel concept of collateral estoppel), or in the context of assignees or successors in interest. See Pers. One, Inc. v. John Sommerer & Co., P.A., 564 So.2d 1217 (Fla. 3d DCA 1990).
Lennar Homes correctly cites another instance where Florida courts have applied the concept of privity-where one party has indemnification responsibilities to the other. AMEC Civil, LLC v. PTG Constr. Servs. Co., 106 So.3d 455, 456 (Fla. 1st DCA 2012). But that obligation of indemnification must run from the party asserting the res judicata defense to the party who was sued in the separate action. Here, the indemnification responsibility does not run from Lennar Homes to Mills; rather, the subcontract requires Mills to indemnify Lennar Homes.
Lennar Homes fails to cite any contractual or other legal duty which would make it liable for the default judgment entered against Mills. Lennar Homes is, therefore, not a privy to Mills, and there is no "identity of parties" as would be required for a res judicata defense. Thus, the trial court's judgment for Lennar Homes on Counts I and II of the Amended Complaint must be reversed.
AFFIRMED in part; REVERSED and REMANDED with instructions.
TRAVER, C.J., and STARGEL, J., concur.