Opinion
No. 97-3969
Opinion filed July 1, 1998 JANUARY TERM 1998 Rehearing Denied August 3, 1998
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Robert Lance Andrews, Judge; L.T. Case No. 97-5741.
Paul E. Gifford of the Law Offices of Paul E. Gifford, Ft. Lauderdale, for appellant.
Norman S. Levin of Norman S. Levin, P.A., Ft. Lauderdale, for appellee.
In a prior lawsuit appellant sued an automobile dealer who had sold him a stolen car, as well as dealer's surety company, American bankers. At the trial of that case, the court directed a verdict in favor of American bankers on the ground that appellant could have no cause of action against the surety, American bankers, until she had obtained a judgment against the principal covered by the surety bond. After obtaining a judgment, appellant brought this suit against American Bankers, and the trial court entered a summary judgment for American Bankers based on res judicata. We reverse, because, the cause of action not having accrued to appellant at the time the directed verdict was entered, the dismissal of American Bankers from that lawsuit was not on the merits. Hett v. Madison Mut. Ins. Co., 621 So.2d 764 (Fla. 2d DCA 1993). The summary judgment is accordingly reversed.
DELL, GUNTHER and KLEIN, JJ., concur.