Opinion
Case No. 4D01-4554.
Opinion filed October 22, 2003.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Patti Englander Henning, Judge; L.T. Case No. 00-19945(03).
Mary B. Meeks, DeCubellis Meeks, P.A., Orlando, for appellant.
Lawrence P. Bermis, Kirkland Ellis, Los Angeles, and Robert W. Pittman, Steel Hector Davis, LLP, Miami, for appellee.
This appeal provides a refresher course on the doctrine of res judicata and its corollary — the rule against splitting a cause of action. The plaintiff appeals a summary judgment entered against him on claims for breach of contract and fraud in the inducement, which arose out of the termination of his employment with the defendant. The plaintiff argues that the judgment must be reversed because the doctrine of res judicata does not bar his second complaint. We disagree and affirm.
Both complaints alleged a sequence of events beginning with facts leading up to the plaintiff's employment and ending with his termination approximately six months later. Both complaints adopted and realleged all of the facts in each count of the respective complaints.
The facts necessary to our resolution are those alleged in the second complaint and Tyson's affidavit in opposition to the Motion for Summary Judgment. The complaint alleged that the defendant, Viacom, Inc., recruited and hired the plaintiff as Senior Vice President of Development for Blockbuster Entertainment Group. The employment agreement provided for the plaintiff to be responsible for overseeing Blockbuster's domestic real estate, site selection, and construction activities. In May 1996, the plaintiff began his employment with the defendant.
Around the same time, the defendant hired Mark Gilman as Blockbuster's Senior Vice President of Strategic Analysis. After beginning his employment, the plaintiff learned that Viacom had originally offered the domestic real estate position to Gilman. Viacom had revoked the offer because of a permanent injunction that prohibited Gilman from participating in the defendant's domestic real estate and construction activities ("Gilman injunction").
Nevertheless, the plaintiff soon began to suspect that Gilman was involved in the domestic real estate and construction activities of Blockbuster. Although Viacom advised the plaintiff not to discuss his work with Gilman in the absence of corporate counsel, Gilman immediately began to do so. According to the plaintiff, Gilman actually began to perform many of the plaintiff's contractual duties. Gilman made a presentation concerning Blockbuster's domestic real estate activities at a regional conference in July 1996. Gilman's involvement in Blockbuster's domestic real estate and construction activities was apparently public knowledge, as evidenced by a Wall Street Journal report that Gilman was responsible for this division within the company that was published in August 1996.
The plaintiff complained to the defendant about Gilman's involvement in the domestic real estate activities to no avail. He then sought advice from outside counsel and obtained a copy of the Gilman injunction that had been issued by an Oregon federal district court. Meanwhile, the defendant began to negotiate the terms of the Gilman injunction with Gilman's prior employer so that Gilman could participate in Blockbuster's domestic real estate and construction activities.
The plaintiff alleged that the defendant had planned to terminate him without cause and give his responsibilities to Gilman in early November 1996. Prior to his termination, however, on November 17, 1996, the plaintiff faxed documents reporting Gilman's activities to the Oregon federal district court and to Gilman's former employer. The defendant then terminated the plaintiff for cause by a letter mailed on November 25, 1996.
In 1997, the plaintiff filed his first complaint, alleging breach of the employment contract and violation of Florida's Whistle Blower's Act. The complaint contained fourteen (14) factual allegations, all of which were adopted, realleged, and relied upon in each of the two counts. On June 9, 1997, the circuit court granted the defendant's motion to dismiss the whistle blower claim for failure to state a cause of action.
The complaint failed to state a cause of action because the injunction was not "a law, rule or regulation" and the federal district court was not an "agency" within the meaning of the statute. See § 448.102(2), (3), Fla. Stat. (1997). The term " cause of action" is used, pursuant to Florida Rule of Civil Procedure 1.140(b)(6), but as will be seen in the body of this opinion, the term has been used interchangeably with the term " claim" in both case law and rules of procedure.
The parties continued to litigate the breach of contract claim over the next nineteen months. On
January 8, 1999, just prior to a hearing on the defendant's motion for summary judgment, the plaintiff voluntarily dismissed the breach of contract claim without prejudice. On February 8, 1999, he appealed the dismissal of the whistle blower claim. On August 19, 1999, this Court issued a Dobrick order and relinquished jurisdiction to allow the plaintiff to obtain a final appealable order.
Dobrick v. Discovery Cruises, Inc., 581 So.2d 645 (Fla. 4th DCA 1991) (discussing the issue of finality for purposes of appeal).
The trial court entered a final judgment on the whistle blower claim, Count II, on August 27, 1999. The judgment stated: "A Final Judgment is hereby entered in favor of the Defendant, VIACOM, INC., as to Count II of the Complaint, and against the Plaintiff, JOHN M. TYSON." On June 27, 2000, this court affirmed the judgment. Tyson v. Viacom, Inc., 760 So.2d 276 (Fla. 4th DCA 2000).
On November 22, 2000, the plaintiff filed the second complaint, alleging the same breach of contract claim and a new claim for fraud in the inducement. This complaint contained seventeen (17) factual allegations, all of which were adopted, realleged, and relied upon in each count. In February 2001, the defendant filed a motion to stay discovery pending resolution of its affirmative defenses. The plaintiff did not object, and the court granted the motion.
The three additional facts alleged in the second complaint were that Viacom failed to disclose: 1) the Gilman injunction; 2) the prior offer and subsequent withdrawal of Tyson's position to Gilman and that it intended to give Gilman many of the plaintiff's job responsibilities; and 3) the company's intended move to Texas. All of these facts became known to the plaintiff during the summer of 1996.
On March 20, 2001, the defendant moved for a judgment on the pleadings based on res judicata and the statute of limitations. The court denied the motion. It did not lift the stay on discovery. In August 2001, the defendant moved for summary judgment on the same grounds. The court did not permit further discovery despite the plaintiff's request.
Following a hearing, the court entered summary judgment for the defendant. It did not articulate its reasons, but cited to Florida Patient's Compensation Fund v. Cohen, 488 So.2d 56 (Fla. 1986); Florida Patient's Compensation Fund v. St. Paul Fire Marine Insurance Co., 535 So.2d 335 (Fla. 4th DCA 1988); and Quality Type Graphics v. Guetzloe, 513 So.2d 1110 (Fla. 5th DCA 1987).
The plaintiff argues that the trial court erred in applying res judicata to bar the second complaint. He reasons that because he voluntarily dismissed the breach of contract claim without prejudice, it did not operate as an adjudication on the merits and cannot now bar pursuit of that cause of action. The defendant responds that the final judgment of dismissal as to count II, the whistle blower claim, operated as an adjudication on the merits of the entire cause of action. The defendant maintains that the plaintiff was required to bring all claims arising out of his employment termination in one complaint, and that he impermissibly split his cause of action when he filed the second complaint for breach of contract and fraud in the inducement after having obtained an adjudication on the merits of the cause of action when the judgment of dismissal was entered on the whistle blower claim. Alternatively, the defendant argues that the fraud in the inducement claim is barred by the applicable statute of limitations.
RES JUDICATA AND THE RULE AGAINST SPLITTING A CAUSE OF ACTION
We begin our refresher course on res judicata by reviewing the law. "To make a matter res judicata, there must be a concurrence of the following conditions: 1) identity of the thing sued for, 2) identity of the cause of action, 3) identity of the persons and parties to the actions, and 4) identity of the quality or capacity of the person for or against whom the claim is made." ICC Chem. Corp. v. Freeman, 640 So.2d 92, 93 (Fla. 3d DCA 1994). The rule against splitting a cause of action is an aspect of the doctrine of res judicata. Froman v. Kirland, 753 So.2d 114, 116 (Fla. 4th DCA 1999); see also Alvarez v. Nestor Salesco, Inc., 695 So.2d 941 (Fla. 4th DCA 1997).
In this case, the only condition the parties dispute is the identity of the cause of action. In doing so, they also dispute whether the plaintiff impermissibly split his cause of action. The dissent suggests that the doctrines are independent of one another. We disagree. Regardless of how you label it, the result is the same. When the identity of the cause of action is the same under the doctrine of res judicata, then the prohibition against splitting a cause of action prevents the severance of claims into separate law suits. Conversely, if there is no identity of the cause of action, then the doctrines of res judicata and splitting a cause of action are inapplicable.
The plaintiff argues that the whistle blower cause of action does not have the same identity as the breach of contract and fraud in the inducement causes of action. The defendant argues that all three claims arose out of the same cause of action. Thus, allowing the plaintiff to pursue the fraud claim in the second amended complaint violates the rule against splitting a cause of action.
One of the difficulties in this case lies in the use of the terms. The terms " claim for relief," " claim," and " cause of action" have been used so interchangeably over the years in both case law and rules of procedure, it is difficult to tell them apart. Indeed, the parties in this case have also used them interchangeably.
Black's Law Dictionary defines cause of action "as [a] group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person." Black's Law Dictionary 214 (7th ed. 1999). Florida case law has similarly identified "the determining factor in deciding whether the cause of action is the same is whether the facts or evidence necessary to maintain the suit are the same in both actions." Albrecht v. State, 444 So.2d 8, 12 (Fla. 1984).
Florida courts have also discussed the doctrine of res judicata in terms of a transaction. Indeed, this court has done so without labeling it a "transactional" approach. Signo v. Fla. Farm Bureau Cas. Ins. Co., 454 So.2d 3, 5 (Fla. 4th DCA 1984) ("From one episode or transaction one cause of action emerges, though different theories of liability may exist."); see also Huff Groves Trust v. Caulkins Indiantown Citrus Co., 810 So.2d 1049, 1050 (Fla. 4th DCA 2002) ("This action is merely a different theory of liability based on the same transactions out of which the breach of contract action arose.").
The federal courts have been more straightforward in labeling their approach to analyzing the doctrine of res judicata as "transactional." The United States Court of Appeals for the Seventh Circuit and other federal courts have relied upon the "same transaction" test to illustrate the difference between a claim and cause of action. Lim v. Cent. DuPage Hosp., 972 F.2d 758 (7th Cir. 1992); Nunley v. Kloehn, 158 F.R.D. 614 (E.D.Wis. 1994). Under that test, multiple claims or theories of relief constitute a single cause of action if a single group of operative facts gives rise to the relief requested. Welch v. Johnson, 907 F.2d 714, 720 (7th Cir. 1990).
The dissent suggests that reliance on these cases is misplaced because they do not apply Florida law. We respectfully disagree. We find them instructive.
A " cause of action," then, is the sequence of factual events giving rise to a lawsuit, while a " claim" (or "count") is the legal theory under which relief is sought.
In many lawsuits, or causes of action, the plaintiff only brings one claim, or legal theory, for relief; in such cases, the terms " cause of action" and " claim" are often used interchangeably as labels for the parties' legal proceedings. In other actions, however, a single cause of action, or lawsuit, may consist of many different claims, or legal theories of relief; a fired employee, for example, may bring claims of age and sex discrimination in the same proceeding, or bring claims of termination based on harassment and retaliatory motives. Under these circumstances, it would indeed be misleading to equate these terms; the sequence of factual occurrences gives rise to a single cause of action which, in turn, is comprised of several claims, or legal theories of recovery. A cause of action, then, may contain numerous claims, while a single claim may or may not constitute a single cause of action.
Nunley, 158 F.R.D. at 617 (emphasis added in original).
In this case, the plaintiff alleged the same set of operative facts in each count of his respective complaints. What distinguished one count (or claim) from the other, was the manner in which the facts were used to support the requisite elements to state a claim for relief. "The fact that the elements of proof in the context of [one claim] differ from those at issue in [plaintiff's other claim] is not a basis on which we may hold res judicata to be inapplicable." Davila v. Delta, 326 F.3d 1183, 1188 (11th Cir. 2003).
Thus, our inquiry is whether the whistle blower, breach of contract, and fraud in the inducement claims arose from the same set of operative facts, a/k/a the cause of action. The answer becomes clear when the term cause of action is examined in light of the goal the doctrine of res judicata was designed to achieve.
Res judicata and its sub-part, the rule against splitting a cause of action, were designed to avoid multiple lawsuits and piecemeal litigation. They were designed to promote judicial efficiency and economy of the law. "[T]he rule is founded upon the plainest and most substantial justice — namely, that litigation should have an end and that no person should be unnecessarily harassed with a multiplicity of suits." Gaynon v. Statum, 10 So.2d 432, 433 (Fla. 1942); see also Lobato-Bleidt v. Lobato, 688 So.2d 431 (Fla. 5th DCA 1997).
Florida law has consistently promoted the philosophy of judicial efficiency in the rules concerning compulsory counterclaims and those established to avoid piecemeal appeals. See, e.g., Fla. R.Civ.P. 1.170(a); Londono v. Turkey Creek, Inc., 609 So.2d 14, 19 (Fla. 1992) ("The purpose of the compulsory counterclaim is to promote judicial efficiency by requiring defendants to raise claims arising from the same `transaction or occurrence'. . . ."); Mendez v. W. Flagler Family Ass'n, 303 So.2d 1, 5 (Fla. 1974) ("We adhere to the rule that piecemeal appeals should not be permitted where claims are legally interrelated and in substance involve the same transaction. . . .").
Under Mendez, the plaintiff could not have pursued the appeal of the whistle blower claim while the breach of contract claim was pending. This reinforces that both claims arose out of the same set of operative facts or cause of action.
Each of these rules shares the common goal of judicial efficiency. It is for this reason that "[r]es judicata applies to all matters actually raised and determined as well as to all other matters which could properly have been raised and determined in the prior action, whether they were or not." ICC Chem. Corp., 640 So.2d at 93; see also State v. McBride, 848 So.2d 287, 290 (Fla. 2003) ( "Res judicata . . . prohibits not only relitigation of claims raised but also the litigation of claims that could have been raised in the prior action.") (emphasis in original).
Applying this doctrine to the procedural history of this case is intriguing because of the independent effect of each disposition of the individual claims. The court disposed of the whistle blower claim based on the legal definition of terms employed by the statute. Nevertheless, the dismissal for failure to state a " cause of action" acted as an adjudication on the merits. Gilbertson v. Boggs, 743 So.2d 123 (Fla. 4th DCA 1999).
The plaintiff voluntarily dismissed the breach of contract claim without prejudice. That disposition did not operate as an adjudication on the merits. Froman, 753 So.2d at 116; see also Chassan Prof'l Wallcovering, Inc. v. Victor Frankel, Inc., 608 So.2d 91, 93 (Fla. 4th DCA 1992). However, it is the unique combination and sequence of the dispositions that caused the plaintiff to run afoul of the doctrine of res judicata.
The plaintiff included the breach of contract claim in the first complaint. He knew of the fraud in the inducement claim prior to his voluntary dismissal of the breach of contract claim and "could have" amended the complaint to include it. "[B]oth claims grew out of a common nucleus of operative fact: . . . a series of transactions closely related in time, space, and origin." Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1240 (11th Cir. 1999). Yet, he chose to pursue the whistle blower claim to its conclusion and obtain an adjudication on its merits while he temporarily set aside the other two claims. Because the whistle blower claim shared its operative facts with the breach of contract and fraud in the inducement claims, its adjudication on the merits necessarily disposed of the entire cause of action. This is true despite the fact that the breach of contract and fraud in the inducement claims were never independently adjudicated on their merits.
Enter the rule against splitting a cause of action. If "a party voluntarily drops a claim in a first action and then later seeks to maintain a separate second action on the abandoned claim, the rule against splitting causes of action applies to preclude that party from maintaining the second suit on the abandoned claim." Dade County v. Matheson, 605 So.2d 469, 472 (Fla. 3d DCA 1992). While the facts of Matheson are not identical to the facts in this case, the rule of law announced is instructive.
In short, the plaintiff had two choices when the court dismissed the whistle blower claim. He could forgo the appeal of the non-final order dismissing the whistle blower claim, pursue the other claims (breach of contract and fraud in the inducement), and raise the dismissal along with any other issues upon final disposition of the entire cause of action. Alternatively, the plaintiff could, and did, choose to obtain a final adjudication on the merits of the cause of action by obtaining a final judgment of dismissal on the whistle blower claim and pursue the appeal. It was this choice that now precludes new litigation based on the same cause of action.
We have exhaustively reviewed cases on res judicata and the rule against splitting a cause of action. We have also reviewed the exceptions to the doctrine to determine their applicability to the facts of this case. For example, the doctrine will not be invoked where it will work an injustice. State St. Bank Trust Co. v. Badra, 765 So.2d 251 (Fla. 4th DCA 2000). "[T]he doctrine is not applicable to a judgment which might have rested on either of two grounds, only one of which goes to the merits." Thomson McKinnon Sec., Inc. v. Slater, 615 So.2d 781, 783 (Fla. 1st DCA 1993). Despite their emotional appeal, neither does the plaintiff argue them nor do the facts warrant their application. While it may seem unfair to now deprive the plaintiff of the opportunity to pursue full litigation of the breach of contract and fraud in the inducement claims, the "fault lies not in our justice system but in the failure of the plaintiff to properly use it." Quality Type Graphics, 513 So.2d at 1111.
We appreciate the dissent's attempt to justify its outcome. Were it as simple as comparing the allegations of separate claims for relief to see if they are identical, the doctrine of res judicata would be eroded to a point of non-existence. No one can genuinely dispute that the core of operative facts was the hiring and firing of the plaintiff by the defendant, which all took place within a span of months. Indeed, the plaintiff alleged the same facts in each claim for relief. In short, the plaintiff's various claims arose out of the same cause of action. See Ragsdale, 193 F.3d at 1235. We have not ignored the express language of the judgment of dismissal. Neither have we reviewed it in a vacuum without considering the interplay of the separate dispositions. Therefore, we affirm the trial court's final summary judgment because the plaintiff's second complaint violates the doctrine of res judicata and its corollary — the rule against splitting a cause of action.
STATUTE OF LIMITATIONS DEFENSE
What follows in this section is dicta. Res judicata is the basis upon which this court's decision lies. We address the statute of limitations issue only to dispel any suggestion that because some of the facts needed to state the claim for fraud in the inducement occurred prior to the employment agreement they are not within the same set of operative facts as the breach of contract and whistleblower claims. Either all the claims arose out of the same set of operative facts and are therefore barred by the doctrine of res judicata or their chronology created two separate causes of action, in which case the fraud in the inducement claim is barred by the statute of limitations.
A claim for fraud in the inducement is subject to a four-year statute of limitations. § 95.11(3), Fla. Stat. (2002). Additionally, section 95.031, Florida Statutes (2003) provides, in pertinent part:
(2)(a) An action founded upon fraud under s. 95.11(3), including constructive fraud, must be begun within the period prescribed in this chapter, with the period running from the time the facts giving rise to the cause of action were discovered or should have been discovered with the exercise of due diligence, instead of running from any date prescribed elsewhere in s. 95.11(3). . . .
§ 95.031(2)(a), Fla. Stat. (2003) (emphasis added).
By his own admission, the plaintiff was aware of the operative facts of the fraud in the inducement claim during the summer of 1996, and prior to his fax transmission in early November 1996. Therefore, no material facts were in dispute for purposes of summary judgment based on the statute of limitations. The plaintiff became aware of the Gilman injunction shortly after his employment began in May 1996. He became aware that Gilman began to perform many of his job responsibilities throughout the summer when Gilman made a presentation in July 1996. He became aware of the company's intention to relocate to Texas just after relocating his family to Florida, which occurred in August 1996. Notwithstanding this knowledge, the plaintiff filed the second complaint on November 22, 2000, over four years later.
The dissent suggests that the four-year statute of limitations does not bar the claim for fraud in the inducement because the last fact necessary to the claim is the termination of the plaintiff's employment. This is perhaps the only point upon which the majority and dissent agree. It is for this very reason that all claims arose out of the same cause of action and the second complaint is now barred by res judicata.
Neither the plaintiff nor the dissent can logically support the position that the causes of action are different and yet rely upon the very same set of operative facts to avoid the statute of limitations. The core of operative facts in this cause of action is the hiring and firing of the defendant, including those facts that led up to those events. The law dictates that they form one cause of action, consisting of the three claims made by the plaintiff. Nevertheless, whether we view the fraud in the inducement claim as an impermissible splitting of the cause of action or as a separate cause of action arising from independent facts that preceded the breach of contract and whistle blower claims, the fraud in the inducement claim is barred.
CONCLUSION
"[T]he effect of res judicata `puts at rest and entombs in eternal quiescence every justiciable, as well as every actually adjudicated, issue.'" Chandler v. Chandler, 226 So.2d 697, 699 (Fla. 4th DCA 1969) (quoting Gordon v. Gordon, 59 So.2d 40, 43 (Fla. 1952)). The trial court properly entered summary judgement. We find no merit in the other issues raised.
AFFIRMED.
POLEN, J., concurs.
I respectfully dissent.
I disagree with the majority's conclusion that the doctrine of res judicata precluded Tyson's claims for breach of contract and fraudulent inducement for two reasons: 1) there is no identity of causes of action between the whistle blower claim and the breach of contract and fraudulent inducement claims, so res judicata does not apply; and 2) the final judgment Tyson obtained on the whistle blower claim was specific to only that count of his original complaint.
"Identity of the causes of action is established where the facts which are required to maintain both actions are identical." Gold v. Bankier, 840 So.2d 395, 397 (Fla. 4th DCA 2003) (quoting Cole v. First Dev. Corp. of Am., 339 So.2d 1130, 1131 (Fla. 2d DCA 1976) (citing Gordon v. Gordon, 36 So.2d 774 (Fla. 1948))) (emphasis added). To prove the whistle blower claim, Tyson had to show that he was fired in retaliation for his disclosure of Viacom's activities that violated the federal court's injunction. See § 448.102, Fla. Stat. (2002). To prove his breach of contract claim, he had to prove the relevant duties under the contract and Viacom's breach that was a legal cause of his damages. See Fla. Std. Jur. Instr. (Civ.) MI 12.1. To prove his fraudulent inducement claim, Tyson had to prove that Viacom made a false statement as to a material fact, it knew or should have known of the statement's falsity, it intended that he rely upon the statement, and he relied and was thereby injured. See Spitz v. Prudential-Bache Sec., Inc., 549 So.2d 777, 778 (Fla. 4th DCA 1989). While some of the facts required to prove Tyson's three claims overlap, they are not identical. Without labeling it a "proof" approach, this court clearly stated in Gold that the determination of whether causes of action are identical turns on the proof required to maintain each action. 840 So.2d at 397.
The majority does not attempt to distinguish Gold, but cites federal cases that do not apply Florida law. See Ragsdale, 193 F.3d at 1239 (applying federal law); Lim, 972 F.2d at 763-64 (applying federal law);Welch, 907 F.2d at 720 (applying Illinois law); Nunley, 158 F.R.D. at 617 (applying federal law). The majority defends its reliance on these federal cases by stating that "Florida courts have also discussed the doctrine of res judicata in terms of a transaction" without labeling such a "transactional" approach. See Signo, 454 So.2d at 5; Huff Groves Trust, 810 So.2d at 1050.
Unlike Gold, Signo and Huff Groves Trust address splitting causes of action, not identity of causes of action under res judicata. See Signo, 454 So.2d at 5 (citing Restatement of the Law of Judgments, Second, § 24 Dimensions Of "Claim" For Purposes Of Merger Or Bar — General Rule Concerning "Splitting" and § 25 Exemplifications Of General Rule Concerning Splitting); Huff Groves Trust, 810 So.2d at 1050-51 (citing Fla. Patient's Comp. Fund v. St. Paul Fire Marine Ins. Co., 535 So.2d 335, 338 (Fla. 4th DCA 1988) ("One cannot revisit the same transaction or occurrence, already adjudicated between the same parties, by resort to a new legal theory in a separate lawsuit. To do so, is an impermissible splitting of causes of action.") (emphasis added)).
The prohibition against splitting causes of action is an aspect of res judicata. Froman v. Kirland, 753 So.2d 114, 115 (Fla. 4th DCA 1999). Our supreme court has stated the rule as:
the law mandatorily requires that all damages sustained or accruing to one as a result of a single wrongful act must be claimed and recovered in one action or not at all. As is stated in 1 Am.Jur. 481, "the rule is founded upon the plainest and most substantial justice-namely, that litigation should have an end and that no person should be unnecessarily harassed with a multiplicity of suits."
Gaynon v. Statum, 10 So.2d 432, 433 (Fla. 1942), superseded by statute on other grounds as stated in Goldman v. Kent Cleaners Laundry, Inc., 110 So.2d 50 (Fla. 3d DCA 1959). Thus, cases dealing with the prohibition against splitting causes of action are necessarily limited to an analysis of damages incurred "as a result of a single wrongful act," or a "transactional" approach.
This case, however, involves the broader doctrine of res judicata, and specifically poses the question of whether Tyson's claims for breach of contract and fraudulent inducement are precluded by the trial court's final judgment on the whistle blower claim. For this purpose, under Florida law, "the determining factor in deciding whether the cause of action is the same is whether the facts or evidence necessary to maintain the suit are the same in both actions." Albrecht v. State, 444 So.2d 8, 11-12 (Fla. 1984), superseded by statute on other grounds, Bowen v. Fla. Dep't of Envtl. Regulation, 448 So.2d 566 (Fla. 2d DCA 1984); see also Jackson v. Bullock, 57 So. 355, 355 (Fla. 1912) ("The test of the identity of causes of action, for the purpose of determining the question of res adjudicata, is the identity of the facts essential to the maintenance of the suits."); Hay v. Salisbury, 109 So. 617, 621 (Fla. 1926) (same);
Gold, 840 So.2d at 397 (same); Inter-Active Servs., Inc. v. Heathrow Master Ass'n, 809 So.2d 900, 902 (Fla. 5th DCA 2002) (same); B V Ltd. v. All Dade Gen. Constr., Inc., 662 So.2d 413, 415 (Fla. 3d DCA 1995) (same); Thomson v. Petherbridge, 472 So.2d 773, 775 (Fla. 1st DCA 1985) (same). Federal cases applying Florida law recognize this.Aquatherm Indus., Inc. v. Fla. Power Light Co., 84 F.3d 1388, 1394 (11th Cir. 1996) ("[T]he determining factor in deciding whether the cause of action is the same is whether the facts or evidence necessary to maintain the suit are the same in both actions") (quoting Albrecht); In re Zoernack, 289 B.R. 220, 228-29 (Bankr. M.D. 2003) (same); Sunbelt Cranes Constr. Hauling, Inc. v. Gulf Coast Erectors, Inc., 189 F. Supp.2d 1341, 1344 (M.D.Fla. 2002) (same); Gibbs v. Republic Tobacco, 119 F. Supp.2d 1288, 1292 (M.D.Fla. 2000) (same).
Based on the foregoing analysis, I respectfully disagree that Florida courts take a "transactional" approach, without labeling it as such, to determine whether identity of causes of actions exists for the purposes of res judicata. Even if the transactional analysis were applicable to this situation, I cannot conclude that Tyson's entire relationship with Viacom, from the pre-contract representations that form the basis of his fraudulent inducement claim to his firing, is properly viewed as a single transaction. See Scovell v. Delco Oil Co., 798 So.2d 844, 846 (Fla. 5th DCA 2001) (landlords did not split cause of action by bringing two separate actions under single lease, one for accelerated payment of rent and one for failure to remove petroleum storage equipment); Bryant v. Allstate Ins. Co, 584 So.2d 194 (Fla. 5th DCA 1991) (insured does not split cause of action by suing separately for breach of individual coverage issues contained in single insurance policy); Popwell v. Abel, 226 So.2d 418 (Fla. 4th DCA 1969) (separate suits on check and breach of contract under which check was issued did not improperly split cause of action).
Furthermore, the conclusion the majority reaches ignores the express language of the final judgment at issue, which states it was entered "as to Count II of the Complaint . . . ." The withdrawn breach of contract claim is never mentioned, as it was no longer a part of the case. The final judgment is therefore not a judicial determination, on the merits or otherwise, of that claim. For that reason, res judicata should not bar Tyson's second suit. See Universal Constr. Co. v. City of Fort Lauderdale, 68 So.2d 366, 370 (Fla. 1953) (holding that res judicata did not bar quantum meruit claim because it was not brought in first action, according to language of final judgment); see also Stadler v. Cherry Hill Developers, Inc., 150 So.2d 468, 471 (Fla. 2d DCA 1963) ("When the fact of an adjudication on the salient issue was doubtful, when the party against whom the bar of res judicata was invoked was possibly misled in their understanding of such adjudication and when strict application of the doctrine would result in unjust enrichment to the party invoking the doctrine, res judicata should not be applied.").
Under Florida case law, I conclude that there is no identity of cause of action between Tyson's three claims. Because there is no identity of Tyson's causes of action, res judicata does not apply to bar the subsequent claims. In addition, the language of the final judgment indicates that it resolves only the whistle blower claim, and thus should not bar Tyson's breach of contract and fraudulent inducement claims.
Next, I turn to the statute of limitations issue. On this issue, I conclude that there is a material factual dispute which precludes summary judgment. Tyson may have admitted to being aware of some of the facts that only when added together with facts learned later equal an actionable claim for fraudulent inducement. But Tyson did not know all of the facts by the summer of 1996. A factual dispute remains as to when Tyson became aware of the full breadth of Viacom's fraudulent intentions to use him as a smoke screen for improper dealings with Gilman. If Tyson was not aware of the claim until he was terminated on November 25, 1996 and then replaced with Gilman in December 1996, then the fraudulent inducement claim filed on November 22, 2000 would not be barred by the four-year statute of limitations.
This is a logical conclusion because one of the elements of fraudulent inducement is "that the plaintiff suffered injury in justifiable reliance on the representation." Samuels v. King Motor Co. of Fort Lauderdale, 782 So.2d 489, 497 (Fla. 4th DCA 2001). Tyson himself would not have suffered an actionable injury merely by the fact that he was aware that he was employed under less than ideal conditions. The injury instead is the fact that Tyson took the job, giving up his own law practice to do so, and was then terminated due to the machinations of Viacom. The termination, as the end result of fraudulent inducement into the contract, is the injury that causes the claim to accrue and the statute of limitations to run. This conclusion is in keeping with the fact that whether in fraud or products liability actions, "the plaintiff is on notice only after she has suffered damage or injury ("trauma")." Byington v. A.H. Robins Co., 580 F. Supp. 1513, 1515 (S.D.Fla. 1984) (citingSteiner v. Ciba-Geigy Corp., 364 So.2d 47, 53 (Fla. 3d DCA 1978)).
Furthermore, this conclusion is not inconsistent with my conclusion that Tyson's claims are not barred by res judicata. As stated earlier, the facts supporting Tyson's fraudulent inducement and breach of contract claims (and the whistle blower claim in the initial complaint) do overlap. They, however, are not identical so as to render them barred by res judicata. Maybe pre-contract representations about job duties that turned out to be false and Tyson's termination are necessary to establish fraudulent inducement, but different facts support the breach of contract and whistle blower claims.
For the breach of contract claim, the only two operable facts are that a contract was executed and very soon thereafter, Tyson began having his contractual duties altered. It does not matter that there was an injunction against Gilman or that Tyson was ultimately terminated. As for the unsuccessful whistle blower claim, the only two significant facts are that Tyson attempted to contact the court about the violation of the injunction and was then terminated. It does not matter that Tyson had an employment contract or that his duties were altered. Each of Tyson's claims, based on three separate legal theories that could stand alone without reference to the others, constitutes one of the many individual transactions with which an individual is involved in the course of employment. This is why the fraudulent inducement claim is not barred either by res judicata or the statute of limitations.
Additionally, it is not clear from the order entered by the trial court that the judge ruled on the statute of limitations issue. The order simply cites three cases, only one of which addresses a statute of limitations issue. See Fla. Patient's Comp. Fund v. Cohen, 488 So.2d 56, 57 (Fla. 1986) (holding that statute of limitations was applicable to the claim and an issue of fact existed as to when the plaintiff discovered the claim). This citation supports Tyson's argument, and indicates that this Court cannot affirm the trial court's finding on the statute of limitations in favor of Viacom, because a ruling on the issue, if one was made, was in favor of Tyson.
Both because Tyson's breach of contract and fraudulent inducement claims are not barred by res judicata and, at a minimum, a genuine issue of material fact exists as to when the fraudulent inducement claim accrued, I would reverse and remand for reinstatement of Tyson's breach of contract and fraudulent inducement claims.
NOT FINAL UNTIL DISPOSITION OF ANY TIMELY FILED MOTION FOR REHEARING.