United States Gypsum Co. v. Columbia Casualty Co.

169 So. 532, 124 Fla. 633, 1936 Fla. LEXIS 1174

• Court: Supreme Court of Florida
• Decided: June 10, 1936
• Status: Published

Opinions

Davis, J.

On January 14, 1930, the plaintiff in error, United States Gypsum Company, filed this suit against Columbia Casualty Company, the defendant in error, as surety on a construction bond. The bond was the standard form approved by the American Institute of Architects and was executed to the Right Reverend Patrick Barry, Bishop of St. Augustine DioceSe, Roman Catholic Church, as obligee. The construction work to which the bond pertained was a school building for St. James Roman Catholic Parish at Orlando, Florida. Under the facts' alleged in plaintiff’s declaration, a cause of action against the surety company was made out. See: Johnson Electric Co. v. Columbia Casualty Co., 101 Fla. 186, 133 Sou. Rep. 850, 77 A. L. R. 1; Barry v. Columbia Casualty Co., 101 Fla. 168, 133 Sou. Rep. 852. So a final judgment in the surety company’s favor rendered on demurrer sustained to plaintiff’s declaration in this case was in due course of appellate procedure, reversed. See: United States Gypsum Co. v. Columbia Casualty Co., 111 Fla. 526, 149 Sou. Rep. 569.

When this Court’s mandate and opinion of reversal were lodged in the Circuit Court, the case was returned to the rolls for further pleading to the plaintiff’s declaration, that is to say, to the declaration of plaintiff that this Court had held to be good.

Thereupon the defendant below interposed a special defense in the form of pleas, the substance of which is as follows: That on November 21, 1929, suit had been theretofore brought in the Circuit Court on the same bond now set up in the declaration held good by the Supreme Court; that in due course of procedure defendant had demurred to plaintiff’s declaration,' which demurrer had been sustained by the Circuit Court; that pursuant to said demurrer sustained to plaintiff’s declaration that the Circuit Court had, on April 8, 1930, entered final judgment thereon in defendant’s behalf and against plaintiff discharging defendant from any and all further liability on the bond sued on; that thereafter the trial court had refused to permit an amended declaration to be filed and that subsequent thereto a writ of error prosecuted by plaintiff to the adverse judgment rendered on the demurrer had been dismissed because sued out too late (United States Gypsum Co. v. Columbia Casualty Co., 100 Fla. 1802, 132 Sou. Rep. 217); that in consequence of said former judgment of the Circuit Court rendered on the same bond now sued on in this case, the Circuit Court had finally and irrevocably adjudged that there was, as a matter of law, no cause of action accruing to plaintiff on said bond, and that the plaintiff and defendant being the same parties in both actions, and the bond and cause of action predicated thereon being the same in this case as in the former case, that the Circuit Court’s judgment of April 8, 1930, holding that the declaration stated no cause of action was res adjudicaba of the present controversy, notwithstanding the opinion and judgment of the Supreme Court rendered in the present case on July 30, 1930, holding contrary to the decision and final judgment of the Circuit Court as to the alleged insufficiency of plaintiff’s present declaration to state a cause of action in the suit now before this Court on writ of error.

Demurrers to the pleas of res adjudicaba were overruled, motions to strike same were denied and final judgment thereon in favor of the surety company was rendered on a stipulation of facts that in substance established the truth of the allegations set up in the pleas of res adjudicaba. The case now before this' Court on the present appeal is on writ of error to the last mentioned finding and judgment.

It will thus be observed that the question to be decided in the present case may be posed as follows:

. Where there is a single bond entered into between an owner as obligee, a construction company as' principal, and a bonding company as surety, wherein the owner is to be indemnified from all costs and damages for the principal’s failure to pay sub-contractors under him directly, and where a sub-contractor having two separate contracts with the principal covered by said bond, thereupon brings two separate suits at law against the surety company bond on his several contracts, whereupon the Court denies a motion to consolidate the two suits, with the ultimate result that each suit is separately decided against the sub-contractor on demurrers to the several declarations, the judgment in one of the cases being reversed, and a writ of error to the final judgment in the other case being sued out but dismissed because taken out too late, can the unreversed and unreversible-judgment of the Circuit Court in one case wherein the writ of error was dismissed for lack of jurisdiction in the appellate court to reverse the erroneous judgment in that case, be pleaded in bar in the second case as res adjudicata sufficient in law to nullify and defeat the decision and mandate of the Supreme Court in such second case upholding the declaration in the latter case as sufficient to state a cause of action notwithstanding the decision and judgment of the Circuit Court to the contrary, where the judgment and mandate of the Supreme Court has affirmatively set aside an earlier judgment of the Circuit, Court holding the declaration to be bad, and has directed the Circuit Court thereupon to have such further proceedings in that cause pursuant to the Supreme Court’s judgment and mandate as according to right, justice, the judgment of the Supreme Court, and the laws of the State of Florida ought to be had in the premises?

The doctrine of res judicata is an obvious rule of expediency and justice. As such it is a part of the legal systems of all civilized nations. The legal precept comprehended within the phrase “res judicata” may be briefly defined as the doctrine that an existing final judgment or decree rendered upon the merits, and without fraud or collusion, by a court of competent jurisdiction, upon a matter within its jurisdiction, is conclusive of the rights of the parties and of their privies, in all other actions or suits, in the same, or in any other judicial tribunal of concurrent jurisdiction, on the points and matters in issue in the first suit. Res judicata means that the judgment of a court of competent jurisdiction directly rendered upon a particular issue, as a plea, a bar, or as evidence, is conclusive, between the same parties, upon the same matter, when directly again brought in question in another controversy between the same litigants or their privies.

The doctrine of res judicata (nemo debet bis vexari si constet curiae quod sit pro una et eodem causa) not only puts an end to strife but produces certainty as to individual rights and gives a dignity and respect to judicial proceedings that would otherwise be interminable so long as the litigants were possessed of means to prolong their controversies.

But the application of the doctrine, res judicata is of close affinity with the equally salutary doctrines of collateral attack, inconsistent positions in legal proceedings, law of .the case, and election of remedies. Each of the legal principles last mentioned may give rise to estoppels as effectually binding upon the involved litigant as the estoppel of res judicata. Thus the doctrine of the law of the case is in its essence nothing more than a special and limited ap plication of the doctrine of res judicata or former adjudication. It is -of special significance as' applied to decisions of questions of law as distinguished from decisions on questions of fact, previously rendered in the same case.

Briefly elaborated, the doctrine “law of the case” means that whatever is once irrevocably established as the controlling legal rule of decision between the same parties in the same case continues to be the “law of the case,” whether correct on general principles or not, so long as the facts on which such decision was predicated continue to be the facts of the case before the court. Gee v. Williamson, 1 Port. (Ala.) 313, 27 Am. Dec. 628, and note; Ross v. Bank of Burlington, 1 Aikens (Vt.) 43; 15 Am. Dec. 664. Thus, where interlocutory appeals are permitted an appeal from an interlocutory order when decided by the appellate court may effectually so become the law of the case as to future steps in it as to altogether preclude material changes in the judicial hypothesis' upon which the appellate decision was rendered. Palm Beach Estates v. Croker, 106 Fla. 617, 143 Sou. Rep. 792 (first two headnotes).

So, reduced to its ultimate analysis, the case now before this Court presents a case of conflicting judicial estoppels. That is' to say, it is a case wherein ¡plaintiff below relying upon the “law of the case” as decided by this Court in its decision and mandate of July 30, 1933, holding its declaration to be good (United States Gypsum Co. v. Columbia Casualty Co., 111 Fla. 526, 149 Sou. Rep. 569, supra), contends that defendant’s plea of res judicata predicated upon a Circuit Court’s unreversed contrary judgment rendered in a companion case decided between the same parties, based on exactly the same liability, pleaded in an identical form of declaration, must fall before the superior legal force and'effect of the Supreme Court’s-judgment that has already been duly, and irrevocably, established, as the “law of the case” insofar as any Circuit Court adjudication predicated upon an alleged insufficiency of plaintiff’s declaration may be concerned.

Our conclusion is that plaintiff’s position, thus stated, is sound. Here the “law of the case” as established on the prior appeal prosecuted in this same suit, is to the effect that plaintiff’s declaration is good and entitled plaintiff to recover unless something in bar or preclusion thereof shall be pleaded and proved by defendant as a defense. The only defense asserted thus far is that in a companion case between the same parties, based on the same bond, relying upon the same cause of action, and particularized in identical pleadings, an unreversed judgment of the Circuit Court has been rendered holding that plaintiff in the present case has stated no cause of action and is therefore not entitled to recover anything at all on the particular bond sued upon.

The fallacy of defendant’s premise in setting up the Circuit Court judgment as a bar res judicata to the present suit is at once made apparent when we consider, as we must, that the doctrine “law of the case” is simply a special application of the broader doctrine known as res judicata.

Here, the fundamental res judicata (law of the case) consists of a prior judgment of the Supreme Court rendered in this same case. By such prior judgment of the Supreme Court the “law of the case” has been irrevocably established as entitling the plaintiff to proceed upon its present declaration as a basis of recovery, notwithstanding any contrary opinion or judgment of the Circuit Court .that may be set up in opposition to the mandate of the appellate court.

The rule is well settled that when a question of law has been decided by an appellate coui't, it is considered final and cannot thereafter be reviewed upon a subsequent appeal ixi the same case. 1 Encyclopedic Digest Florida reports, paragraph 190, and cases cited. Thus the judgment and mandate of the appellate court possesses every attribute of res judicata of the question of law passed upon in the appellate proceeding. And none of the parties to the appellate proceeding can aver or plead against it later in subsequent steps in that same case, because the opinion and judgment of the appellate court became the “law of that case” and superogatory and final as to what has been decided upon the appeal.

Therefore, assuming that the judgment of the Circuit Court pleaded in the present case was' and is res judicata of the lack of merit in plaintiff’s pleaded claim, the judgment of the Supreme Court rendered after issue of law joined between the same parties on the prior appeal in this same case, is likewise res judicata of the sufficiency of that same claim. This is so, because the opinion and judgment of the appellate court has become'the adjudicated “law of the case” in the present suit.

Therefore, as between conflicting adjudications based upon an identical point of law involved, the conclusion is obvious that the legal force and effect as an estoppel of the Supreme Court’s' opinion and decision establishing the “law of the case” in the particular suit must be given superior force and effect to the alleged estoppel of a contrary judgment of a Circuit Court set up in opposition to the effectiveness of the appellate court’s judgment and mandate pursuant to which the instant case was returned to the Circuit Court’s rolls for determination after a previous final judgment in the case was reversed, with directions to do right and justice between the parties to the appellate proceedings.

The law of the case as decided by an appellate court is one kind of estoppel. Former adjudication in another separate suit by a judgment therein unreversed is another kind of estoppel. But both kinds of estoppel rest entirely upon the principles of res judicata. If, therefore, both kinds of estoppel have arisen with reference to the same controversy and between the same parties or their privies, the estoppel grounded upon the decision of the highest court must prevail. Hence the estoppel of “law of the case” is of greater weight than an estoppel by former adjudication in a separate suit decided in the lower court and the “law of the case” must take precedence if the two estoppels cannot stand together in the same litigation because irreconcilable as against.each other.

This is especially true in a case like the present one where the parties have deliberately made and joined an issue in law in an appellate court, and have thereupon voluntarily become bound by the appellate decision deciding the “law of the case” without calling to the appellate court’s attention, while the appealed case was still pending before it, the circumstance of an alleged contrary unreversed prior adjudication between the parties of the precise point in controversy that would be res judicata in the case on appeal, if pleaded absent an appellate decision establishing the “law of the case” as being in opposition to the contentions requested to be determined on the appeal.

The Circuit Court erred in finding in favor of defendant below on the pleas of res judicata, so the judgment is reversed with directions to enter a finding to the contrary on such pleas and thereupon permit such pleadings and proceedings in the cause as shall be consistent with the law of the case as established upon the prior writ of error.

Reversed and remanded with directions.

Whitfield, C. J., and Terrell and Buford, J. J., concur. Ellis, P. J., and Brown, J., dissent.