Opinion
No. 90-2664.
February 26, 1991. Rehearing Denied April 23, 1991.
On Petition for Certiorari in the Circuit Court of Dade County; Martin Greenbaum, Judge.
Gilbride, Heller Brown, Miami, and Linda H. Gottlieb, Coral Gables, for petitioners.
Popham, Haik, Schnobrich Kaufman, and Lori L. Heyer, Miami, for respondent.
Before HUBBART, BASKIN and GODERICH, JJ.
The petition for a writ of certiorari is denied based upon the respondent's concession, which we accept, that any factual determinations made in the non-jury mortgage foreclosure action will have no res judicata or collateral estoppel effect as to any of the issues to be determined by the jury on the petitioners' third-party complaint against the FDIC as receiver. See McGregor v. Provident Trust Co., 119 Fla. 718, 733, 162 So. 323, 329 (1935); Couch Constr. Co. v. Florida Dep't of Transp., 537 So.2d 631, 632 (Fla. 1st DCA 1988), rev. denied, 545 So.2d 1366 (Fla. 1989); Restatement (Second) of Judgments § 36(2) (1982); see also Langley v. FDIC, 484 U.S. 86, 108 S.Ct. 396, 98 L.Ed.2d 340 (1987); Beighley v. FDIC, 868 F.2d 776, 783 (5th Cir. 1989); Trigo v. FDIC, 847 F.2d 1499 (11th Cir. 1988); FDIC v. La Rambla Shopping Center, 791 F.2d 215, 218-21 (1st Cir. 1986); American Surety Co. v. Normandy State Bank, 237 Mo. App. 39, 167 S.W.2d 436 (1943). Given this concession, we conclude that the petitioners' right to a jury trial on the third-party complaint was not violated below by scheduling the mortgage foreclosure action for trial before the trial on the third-party complaint. Compare Spring v. Ronel Refining, Inc., 421 So.2d 46 (Fla. 3d DCA 1982).
Certiorari denied.