IN THE SUPREME COURT OF FLORIDA CASE NO. SC Fourth District Case No. 4DOI VIACOM INC., a Delaware corporation. Petitioner, vs.

Transcription

1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC Fourth District Case No. 4DOI-4554 VIACOM INC., a Delaware corporation Petitioner, vs. JOHN M. TYSON Respondent. ON PETITION TO REVIEW A DECISION OF THE DISTRICT COURT OF APPEAL, FOURTH DISTRICT INITIAL BRIEF ON JURISDICTION OF PETITIONER ROBERT W. PITTMAN, P.A. 701 Brickell Avenue, Suite 1650 Miami, Florida Telephone: (786) Telecopy: (786) ROBERT W. PITTMAN, FBN Counsel for Defendant, Viacom Inc.

2 TABLE OF CONTENTS Page TABLE OF CONTENTS... ii TABLE OF CITATIONS...iii LIST OF ABBREVIATIONS USED IN THIS BRIEF... v STATEMENT OF THE CASE... 1 SUMMARY OF ARGUMENT... 4 ARGUMENT: Tyson III Creates Conflict Jurisdiction By Applying The Test For Estoppel By Judgment To Determine Identity Of Causes Of Action For Purposes Of Res Judicata... 4 CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF TYPE SIZE AND STYLE ii

3 TABLE OF CITATIONS Cases Albrecht v. State, 444 So. 2d 8 (Fla. 1984)... 1, 5, 8 Bagwell v. Bagwell, 14 So. 2d 841, 843 (Fla. 1943) 6 Dade Co. v. Matheson, 605 So. 2d 469 (Fla. 3d DCA 1992)... 9 Greenstein v. Greenbrook, Ltd., 443 So. 2d 296 (Fla. 3d DCA 1983)... 1, 8-9 Gordon v. Gordon, 59 So. 2d 40 (Fla. 1952) (Gordon II).. 1, 5-9 Gordon v. Gordon, 36 So. 2d 774 (Fla. 1948) (Gordon I).. 5, 6 Londono v. Turkey Creek, Inc., 609 So. 2d 14 (Fla. 1992) Mendez v. W. Flagler Family Ass n, 303 So. 2d 1 (Fla. 1974).. 10 Mims v. Reid, 98 So. 2d 498 (Fla. 1957).. 9 Quality Type & Graphics v. Guetzloe, 513 So. 2d 1110 (Fla. 5 th DCA 1987).. 1, 8 Riehl v. Riehl, 60 So. 2d 35 (Fla. 1952)... 6 State v. McBride, 848 So. 2d 287 (Fla. 2003).. 4, 7 Tyson v. Viacom, Inc., 890 So. 2d 1205 (Fla. 4th DCA 2005) ( Tyson III ) Tyson v. Viacom, Inc., 28 Fla. L. Weekly D2420 (Fla. 4th DCA 2003) ( Tyson II ).. 3 Tyson v. Viacom, Inc., 760 So. 2d 276 (Fla. 4th DCA 2000) ( Tyson I ) 2 iii

4 Statutes & Rules Fla. Stat (3) 8 Fla. Stat (2).. 2 Fla. R. Civ. P (a). 9 Fla. R. App. P (a)(2)(A)(iv) 1 iv

5 LIST OF ABBREVIATIONS USED IN THIS BRIEF App. Blockbuster The Appendix to this Brief, consisting of a conformed copy of the decision below, Tyson v. Viacom, Inc., 890 So. 2d 1205 (Fla. 4th DCA 2005) ( Tyson III ) Blockbuster Entertainment Group, a business unit of Viacom Inc. Tyson Respondent, plaintiff and appellant below, John M. Tyson Viacom Hollywood Video Petitioner, defendant and appellee below, Viacom, Inc. Hollywood Video, Inc. v

6 STATEMENT OF THE CASE Viacom seeks review of Tyson v. Viacom, Inc., 890 So. 2d 1205 (Fla. 4th DCA 2005), pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(iv), because it applied the wrong test in determining, for purposes of res judicata, whether Tyson s latest complaint shares identity of causes of action with an earlier complaint. The test applied in Tyson III directly and expressly conflicts with the following decisions of this Court and the Third and Fifth District Courts of Appeal: Gordon v. Gordon, 59 So. 2d 40 (Fla. 1952); Albrecht v. State, 444 So. 2d 8 (Fla. 1984); Quality Type & Graphics v. Guetzloe, 513 So. 2d 1110 (Fla. 5 th DCA 1987); and Greenstein v. Greenbrook, Ltd., 443 So. 2d 296 (Fla. 3d DCA 1983). Tyson entered into an employment contract ( Contract ) with Blockbuster commencing in May 1996 as Senior Vice President, Development-Domestic Video. App. at 1. Tyson was terminated for cause on November 25, Id. On February 11, 1997, Tyson filed a two-count complaint (the Original Action ) alleging that Viacom breached his Contract by wrongfully terminating him for cause, and further that Viacom violated Florida s whistle blower statute by allegedly terminating him in retaliation for protected conduct (i.e., faxing documents to an Oregon court alleging that a co-worker was performing tasks in violation of that court s injunction). App. at 1, 3; Fla. Stat (2). The gravamen of the Original Action was that Blockbuster s Senior Vice President of 1

7 Strategic Analysis, Mark Gilman, allegedly was performing tasks specified in Tyson s job description, and performing these duties in violation of an injunction entered by an Oregon court arising from a dispute between Blockbuster and Hollywood Video. App. at 1, Thus, Tyson s employment was allegedly part of a smoke screen scheme to shield Gilman s activities. App. at 1, 6. On June 6, 1997, the trial court dismissed Tyson s whistle blower count with leave to amend for failing to state a cause of action. App. at 2. Tyson did not amend but instead actively litigated his remaining breach of contract count for an additional 18 months. Id. Viacom moved for summary judgment on the breach of contract count, but Tyson did not respond and, instead, voluntarily dismissed this remaining count of the Original Action. App. at 2. Tyson then appealed the trial court s subsequent final order dismissing the whistle blower count. Id. The appellate court affirmed the trial court s dismissal. Id.; Tyson v. Viacom, Inc., 760 So. 2d 276 (Fla. 4th DCA 2000) ( Tyson I ). On November 22, 2000, Tyson filed a second complaint realleging the breach of contract count from the Original Action and alleging a new count for fraud in the inducement (the New Action ). App. at 2. The New Action contained four new factual allegations: Viacom knew Tyson was relocating to work for Blockbuster in Florida; Gilman was first offered Tyson s position; Blockbuster did not inform Tyson of his role as a smoke screen for Gilman; and 2

8 Blockbuster did not inform Tyson of its intention to relocate to Texas. App. at 2. Otherwise, Tyson alleged the same facts in the New Action in support of the breach of contract and fraud in the inducement counts as he had alleged in the Original Action in support of the whistle blower count (and breach of contract count before he withdrew it). App. at 2 (majority), 16 (dissent) (emphasizing that Tyson could have included his fraud in the inducement count in the Original Action and that Tyson altered only the manner in which the facts were used to support the requisite elements of each count of his respective complaints). Viacom answered and thereafter moved for summary judgment on in its affirmative defense that Tyson s breach of contract and fraud in the inducement counts were barred by res judicata. App. at 2. Viacom argued that the Original Action and the New Action arose out of the same cause of action even alleging the same facts and should have been litigated together. App. at 2, 15, 18. The trial court granted Viacom s motion for summary judgment, and the appellate court affirmed. Tyson v. Viacom, Inc., 28 Fla. L. Weekly D2420 (Fla. 4th DCA 2003) ( Tyson II ). On rehearing en banc, however, the appellate court majority withdrew the prior opinion and ruled that the doctrine of res judicata does not bar Tyson s claims. App. at 2 (i.e., Tyson III). The only issue on appeal concerning res judicata was whether the Original Action and the New Action arose from the same cause of action. App. at 3. 3

9 SUMMARY OF ARGUMENT Res judicata prohibits not only relitigation of claims raised but also the litigation of claims that could have been raised in the prior action. State v. McBride, 848 So. 2d 287, 290 (Fla. 2003). Tyson III, however, limits the application of res judicata and the corollary rule against splitting causes of action so that they bar only subsequent identical counts (i.e., counts requiring the exact same elements of proof) rather than barring all claims arising from the same cause of action (i.e., same underlying facts or transaction). In so doing, the majority in Tyson III has eroded [the doctrine of res judicata] to a point of non-existence and effectively replaced it with the separate and distinct doctrine of judgment by estoppel. App. at 18 (May, Polen, JJ., dissenting). The identical-factual-proof test created and applied in Tyson III directly and expressly conflicts with the decisions of this Court in Gordon II and Albrecht, the Fifth District Court of Appeal in Quality Type & Graphics v. Guetzloe, and the Third District Court of Appeals in Greenstein v. Greenbrook, Ltd. ARGUMENT Tyson III creates conflict jurisdiction by applying the test for estoppel by judgment to determine identity of causes of action for purposes of res judicata The long-standing test established by this Court for determining identity of causes of action is whether the facts in a new complaint are essentially the same as the facts that were, or would have been required to be, presented in the original 4

10 complaint. Gordon v. Gordon, 59 So. 2d 40, (Fla. 1952) (Gordon II); see also Albrecht v. State, 444 So. 2d 8 (Fla. 1984) (citing Gordon II). In contrast, the majority in Tyson III applied the following test: whether the facts necessary to prove the claims are identical. 1 App. at 3 (majority) (concluding that [i]n Tyson s case, the facts necessary to prove his three claims were not identical ). The appellate court cites as the basis for this test: Albrecht v. State, 444 So. 2d 8 (Fla. 1984); and Gordon v. Gordon, 36 So. 2d 774 (Fla. 1948) (Gordon I). Id. A review of these cases reveals that the majority in Tyson III applied the wrong test by requiring identical factual proof and, thus, limiting res judicata to bar only identical claims or counts rather than all claims arising from the same cause of action. The Court in Albrecht recognized that [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. 444 So. 2d at 12 (emphasis added) (citing Gordon II, not Gordon I). Significantly, Albrecht neither requires identical facts nor characterizes cause of action as synonymous with claim or count. Instead, the majority in Tyson III relied on another district court s misinterpretation of Gordon I for the identical requirement. App. at 3. 1 The majority in Tyson III uses the term claim as synonymous with the term count. Thus, Tyson s contract, statutory, and tort counts represent three claims. App. at 3. The majority, however, misconstrues this Court s precedence and limits the expression cause of action to mean claim, and thus count as well, rather than a superset of potentially multiple claims or counts. Compare App. at 3 with App. at (dissent) (distinguishing claims from cause of action). 5

11 In Gordon I, this Court briefly described the test for determining the identity of causes of action as the identity of the facts essential to the maintenance of the actions. 36 So. 2d at 776 (quoting Bagwell v. Bagwell, 14 So. 2d 841, 843 (Fla. 1943)). In two subsequent opinions, however, the Court clarified that res judicata does not require identical facts; instead, only estoppel by judgment applicable when a subsequent suit is based on a different cause of action requires the actual litigation of every point and question presented or the precise facts. See Riehl v. Riehl, 60 So. 2d 35, 36 (Fla. 1952) ( [Bagwell] is not controlling in the instant case because the test appropriately applied therein was estoppel by judgment and not res adjudicata. ); Gordon II, 59 So. 2d at (clarifying its decision in Gordon I, setting forth the appropriate test for identity of causes of action, and recognizing that Bagwell applied the test for estoppel by judgment). The seminal case on res judicata, and cited repeatedly in Albrecht, is not Gordon I, but Gordon II. Upon a careful review of [the Court s] decisions and a reconsideration of [Gordon I], the Court in Gordon II recognized that although Gordon I had cited the identity of facts language from Bagwell, the standard actually applied in Gordon I for determining identity of causes of action, and the correct standard for res judicata is: whether the facts in the second case [are] essentially the same as that which [were], or would have been required to be, presented in the first action. Gordon II, 59 So. 2d at 44. The Court in Gordon II 6

12 went on to recognize that if the cause of action was not the same, then estoppel by judgment comes into play and only those matters actually litigated and determined in the initial action are foreclosed not other matters which might have been, but were not, litigated or decided as in the case of res judicata. Id. at 43). Instead of considering whether the facts in the second case were essentially the same as those presented in the first action, the majority in Tyson III looked to see if the facts necessary to prove Tyson s claims or counts were identical. The facts necessary to prove two claims will only be identical if they share the same elements i.e., identical counts. Thus, under the test applied in Tyson III, res judicata would only bar subsequent identical counts (or at least arguably a count made up of a complete subset of elements) to a prior litigated count. See App. at (dissent) (recognizing that the majority s construction of the doctrine erodes it to the point of non-existence). Res judicata, however, prohibits not only relitigation of claims raised but also the litigation of claims that could have been raised in the prior action. State v. McBride, 848 So. 2d 287, 290 (Fla. 2003). Instead of applying the doctrine of res judicata, the appellate court s test effectively dispenses with the first step in Gordon II of determining whether the causes of action are the same, and goes straight to the less eclipsing test applied for estoppel by judgment i.e., barring only those matters presented and actually litigated. Gordon II, 59 So. 2d at 43, 45. 7

13 The identical-claim approach to defining causes of action applied by the majority in Tyson III is in sharp contrast to the transactional approach implied in Albrecht and Gordon II and expressly applied by other Florida courts of appeal. 2 For example, in Quality Type & Graphics v. Guetzloe, 513 So. 2d (Fla. 5 th DCA 1987), the court stated that it was incumbent upon [the plaintiff] to correctly state his basis for relief and then adequately prove it[,]... set[ting] out the facts of the occurrence or transaction and demand[ing] judgment in his favor on several bases, even mutually exclusive ones. (emphasis added). The court reasoned: it is an abuse of the legal process, and the defendant, to permit a plaintiff to sue on one legal theory and after losing because he cannot support his allegations to come back and allege the same occurrence or transaction and seek relief in a different legal theory. Id. (emphasis added). The conflict between the Fourth and Fifth District Courts of Appeal is undeniable, as the test annunciated by the majority in Tyson III cannot accommodate mutually-exclusive claims or different legal theories because the factual elements would not be identical. The Fifth District Court of Appeal is not alone in applying a transactional approach. In Greenstein v. Greenbrook, Ltd., the Third District Court of Appeal barred claims for breach of contract and tortuous interference because they 2 The transactional approach has been codified in the Administrative Procedures Act as well. See Fla. Stat (3) ( After the Court has rendered judgment on a petition for enforcement, no other petition shall be filed or adjudicated... on the basis of the same transaction or occurrence. ) (emphasis added). 8

14 shared the same cause of action with a prior resolved suit for specific performance. 443 So. 2d 296, 297 (Fla. 3d DCA 1983). The court stated that it was incumbent upon the plaintiffs to raise all available claims or demands for relief arising out of the alleged breach. Their failure to do so precludes subjecting those defendants to another successive action based on the same conduct. Id. The majority in Tyson III lost site of the purpose of res judicata by constructing a test that precludes only identical counts rather than all claims arising from the same transaction or occurrence i.e., same cause of action. [Res judicata] is founded upon the sound proposition that there should be an end to litigation and that in the interest of the State every justiciable controversy should be settled in one action in order that the courts and the parties will not be pothered for the same cause by interminable litigation. Gordon II, 59 So. 2d at 44. Thus, [i]f the first suit is effective and available, and affords ample remedy to the plaintiff, the second suit is unnecessary and consequently vexatious. Mims v. Reid, 98 So. 2d 498, 501 (Fla. 1957) (quoting 1 Fla. Jur. Actions 42); see also Dade Co. v. Matheson, 605 So. 2d 469, 472 (Fla. 3d DCA 1992) (finding second suit on abandoned claim especially barred by rule against splitting causes of action). These same policy interests are promoted by the rules establishing compulsory counterclaims and preventing piecemeal appeals. See Fla. R. Civ. P (a) (requiring pleading of counterclaims arising out of the transaction or occurrence ) (emphasis added); Londono v. Turkey Creek, Inc., 609 So. 2d 14, 19 9

15 (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) (underscoring that piecemeal appeals should not be permitted where claims are legally interrelated and in substance involve the same transaction ); App. at (dissent) (quoting same citations); see also App. at 14 (Gross, J., concurring) (arguing that transactional approach used to determine compulsory counterclaims should be used to determine if causes of action split). CONCLUSION The identical-factual-proof test applied in Tyson III reduces the doctrine of res judicata to an exercise of matching identical counts rather than causes of action. This interpretation of the doctrine directly and expressly conflicts with the decisions of this Court and other Florida Courts of Appeal. Viacom respectfully requests that the Court accept jurisdiction over the petition to safeguard the protection afforded by res judicata against vexatious and seriatim lawsuits. Respectfully submitted by: ROBERT W. PITTMAN, P.A. 701 Brickell Avenue, Suite 1650 Miami, Florida Telephone: (786) Telecopy: (786) Counsel for Defendant, Viacom Inc. By: ROBERT W. PITTMAN Florida Bar No

16 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this day of April, 2005, a true and correct copy of the foregoing was sent by U.S. Mail to respondent s counsel, Mary B. Meeks, Esq., DeCubellis, Meeks & Uncapher, P.A., 837 North Garland Avenue, Post Office Box 4976, Orlando, Florida ROBERT W. PITTMAN CERTIFICATE OF COMPLIANCE WITH FONT REQUIREMENTS The undersigned certifies that the type size and style used in this brief is Times New Roman, 14-Point, proportionately spaced. ROBERT W. PITTMAN 11