Anderson v. Anderson

349 So. 2d 856, 1977 Fla. App. LEXIS 16440

Opinion

PER CURIAM.

Appellant/plaintiff, Robert A. Anderson, brought suit on an alleged oral contract between himself and his former wife, appel-lee/defendant, Norma J. Anderson. Appel-lee filed an answer and asserted res judica-ta as an affirmative defense. She also filed a motion for summary judgment alleging “that there is no genuine issue of any material fact concerning the defense of Res Ju-dicata arising as a result of the Final Judgment dissolving the marriage of the parties hereto. . . . ” The motion was granted and this appeal followed.

The four elements of res judicata are not present in this case, and the doctrine is thereby inapplicable. Although under Florida’s permissible joinder rule of civil procedure appellant may have been able to resolve this controversy during the dissolution proceeding he was not required to do so.

Because there is an issue of genuine material fact as to the existence and terms of an oral contract between appellant and appellee pertinent to the alleged legal obligation of appellee to pay one-half of the indebtedness evidenced by the promissory note we reverse and remand for further proceedings. Holl v. Talcótt, 191 So.2d 40 (Fla.1966).

REVERSED and REMANDED.

BOARDMAN, C. J., and HOBSON and OTT, JJ., concur.