PBCBA BAR BULLETINS pbcba_bulletin_June 2019 | Page 17

PROBATE C o r n e r
Collateral Estoppel – Trap For The Unwary!
DAVID M. GARTEN
Strategically, you want to prevent the
appointment of an alleged tortfeasor as
personal representative so that you can
pursue your discovery and damages on
the estate’s dime. Assuming you objected
to the PR’s appointment on the basis
of conflict of interest and lose, are you
then precluded from raising those same
issues (undue influence, incapacity, fraud,
tortious interference, conversion, etc) in a
subsequent proceeding? Maybe.
The doctrine of collateral estoppel - which
is also known as issue preclusion - bars re-
litigation of identical issues (not the entire
claim or cause of action) between identical
parties in two proceedings. The doctrine is
intended to prevent repetitious litigation
of what is essentially the same dispute.
For the doctrine to apply, the following
elements must be met: (1) an identical issue
must be presented in a prior proceeding;
(2) the issue must have been a critical and
necessary part of the prior determination;
(3) there must have been a full and fair
opportunity to litigate the issue; (4) the
parties in the two proceedings must be
identical; and (5) the issues must have
been actually litigated. See Provident Life
& Accident Ins. Co. v. Genovese , 138 So. 3d
474 (Fla. 4th DCA 2014). The party seeking to
claim the benefit of issue preclusion bears
the burden of proof. See Campbell v. State ,
906 So. 2d 293 (Fla. 2d DCA 2004); Excel Ins.
Co. v. Brown, 406 So. 2d 534 (Fla. 5th DCA
1981). If there is any uncertainty as to the
matter formerly adjudicated, the burden
of showing it with sufficient certainty
by the record or extrinsically is upon the
party who claims the benefit of the former
judgment. It is not enough for the court to
apply collateral estoppel where the former
cause involved the same issues if it cannot
be shown that such issues were clearly
adjudicated. See Seaboard Coast Line R.R.
Co. v. Indus. Contracting Co. , 260 So.2d 860
(Fla. 4th DCA 1972).
December of 1975. The validity of that inter
vivos gift was attacked in the guardianship
proceeding. After an evidentiary hearing,
the trial court found the alleged inter
vivos gift was invalid and directed that all
sums be accounted for. In the course of the
proceedings, the court also directed Serns to
produce any of Ward’s wills that were in his
possession. No wills were ever produced. In
1986 the Ward died. Serns opened an estate
based upon the Ward’s December 1, 1975 Will
(“December 1 Will”). The December 1 Will had
been drafted by Serns contemporaneously
with the giving of the inter vivos gift. The
Ward’s daughter petitioned for revocation
of the probate of the December 1 Will.
The trial court denied the petitioned for
revocation and the appellate court reversed
on the basis of collateral estoppel. The
court reasoned: “In the earlier guardianship
adjudication, the trial court expressly found
that Mrs. Greenfield's inter vivos gift of all of
her assets to Serns, which occurred in early
December, 1975, was the product of undue
influence by Serns. The court also expressly
found that there was no indication that Mrs.
Greenfield had changed her long-standing
testamentary intention to make provision
for her daughter, Carol Bergman, in her
will. The December 1 Will was simply an
additional gift to Serns, testamentary in
form, of Mrs. Greenfield's assets. Like the
inter vivos gift, the testamentary gift was
totally inconsistent with Mrs. Greenfield's
numerous previous wills and codicils.
It is abundantly clear from the lengthy,
thorough order entered in the guardianship
proceeding that had Serns produced the
December 1 Will, as the court directed him
to do, the trial court would have invalidated
the Will, in addition to the inter vivos gift.
Manifestly the trial court did not set aside
the inter vivos gift for the purpose of having
the same assets pass to Serns through
a contemporaneous testamentary gift.
We conclude that Serns was collaterally
estopped to rely on the December 1 Will.”
In Wise v. Quina , 174 So. 2d 590 (Fla. 1st DCA
1965), the plaintiffs in the equity suit were
not barred from maintaining a subsequent
action at law for damages because the issue
of their right to damages was neither raised
nor adjudicated in the equity suit.
In Fell v. Jonas , 183 So.2d 735 (Fla. 3d
DCA 1996), the lessors leased property to
lessee. The lease provided that lessors
could terminate the lease upon default.
Upon lessee's default, lessors obtained
cancellation of the lease in an equitable
action. Damages were not sought in that
action, nor were they dealt with in the final
judgment. Lessors brought a subsequent
action at law to recover damages for breach
of the lease. The court held that because
lessors had not sought damages in the
equitable action, they were not estopped
from maintain a subsequent action for
damages.
In Accardi v. Hillsboro Shores Improvement
Association, Inc ., 944 So.2d 1008 (Fla. 4th
DCA 2005) the plaintiff filed suit for trespass
which resulted in a final judgment. The
plaintiff later filed suit seeking monetary
damages. The court held that because
the thing sued for in the first case was for
equitable relief and the thing sued for in the
second suit was for monetary damages, res
judicata did not apply.
BURDEN OF PERSUASION: “Differences
in the burden of proof or persuasion
between the initial proceeding and the
subsequent proceeding may also affect
whether the doctrine of collateral estoppel
will be applied. Restatement (Second) of
Judgments Section 28(4) thus recognizes
that a determination of an issue will not
be given preclusive effect where "the party
against whom preclusion is sought had a
significantly heavier burden of persuasion
with respect to the issue in the initial action
than in the subsequent action; the burden
has shifted to his adversary; or the adversary
In Bergman v. Serns , 560 So.2d 1201 (Fla. POTENTIAL DEFENSES TO COLLATERAL has a significantly heavier burden than he
3d DCA 1990), Mrs. Greenfield (the “Ward”) ESTOPPEL:
had in the first action."
was adjudicated incompetent and a
guardianship was established. During the EQUITY v. MONETARY DAMAGES: Is the first (Continued on next page)
course of the guardianship proceeding, lawsuit in equity and the second lawsuit for
Serns, the Ward’s son, alleged that the damages?
Ward transferred all of her assets to him in
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