680 So. 2d 1107 | Fla. Dist. Ct. App. | 1996
In this appeal from final summary judgment, appellant asserts the trial court determined an issue of fact by erroneously applying the doctrine of collateral estoppel. We agree and reverse.
In granting summary judgment, the trial court took judicial notice of a ruling in another mortgage foreclosure case against Brock involving different plaintiffs. The trial court then applied the doctrine of collateral estoppel to resolve the question of the validity of a power of attorney allegedly used by Brock’s wife to obtain the mortgages, and consequently rejected appellant’s affirmative defenses and counterclaim in the present ease. The trial court stated that identity of parties was not required for the doctrine to apply, relying on Verhagen v. Arroyo, 552 So.2d 1162 (Fla. 3d DCA 1989), and Dixie Auto Transport Co. v. Louttit, 588 So.2d 68 (Fla. 2d DCA 1991), as authority for that proposition. More recent case law convinces us that the trial court’s interpretation of the doctrine of collateral estoppel in Florida is incorrect.
In Stogniew v. McQueen, 656 So.2d 917, 919 (Fla.1995), the supreme court rejected the contention that as a result of Zeidwig v. Ward, 548 So.2d 209 (Fla.1989), there was “no longer a requirement of mutuality for purposes of collateral estoppel. Zeidwig constituted a narrow exception in which collateral estoppel was permitted in a defensive context and then only under the compelling facts of that case.”
Appellant also contends the trial court erred in denying a motion to dismiss for failure to prosecute after appellee presented a memorandum of good cause, however, we find no abuse of discretion in that regard. See, e.g. Edgecumbe v. American General Corp., 613 So.2d 123 (Fla. 1st DCA 1993).
AFFIRMED in part, REVERSED in part, and REMANDED.
. The Stogniew court also indicated that the mutuality requirement could be satisfied if a party to the second action was in privity with or "virtually represented by one who [was] a party to [the first] lawsuit.” To be virtually represented, "one must have an interest in the action such that she will be bound by the final judgment as if she were a party.” 656 So.2d at 920.
. Both of the cases the trial court relied on in its order, Verhagen and Dixie Auto, cited Zeidwig. Verhagen appears to involve a factual situation somewhat similar to that in Zeidwig, in that there
. In addition, this case does not appear to involve purely defensive application of collateral estoppel.