Zack Co. v. Robert L. Turchin, Inc.

271 So. 2d 39, 1972 Fla. App. LEXIS 5667

Opinion

PER CURIAM.

Appellant, The Zack Co., brought suit against appellee originally in 1966. The first count of the complaint stated a cause of action for “open account.” The second stated a cause of action for “account stated,” and the third count for “goods, wares and merchandise sold and delivered.” During the course of the trial, the domicile of The Zack Co. become an issue. It was discovered that the corporation was an Illinois corporation and had no standing to bring suit in Florida. The cause was dismissed.

Subsequently, The Zack Co., a Florida corporation, brought suit on written contract. Defendant filed his motion for judgment on the pleadings and attached copies of the record in the prior suit. The trial judge granted the motion for judgment on the pleadings and this appeal ensued.

Appellant maintains that the former suit is not a bar to this action and we agree and reverse. This is a suit on a contract; this is a suit by a Florida corporation. The .other suit was brought by The Zack Co., an Illinois corporation. The other suit was on different grounds. Therefore, res judi-cata cannot apply simply for the reason there has been no ruling on the merits and the. parties are not the same. See Rankin v. State of Florida, 5 Cir. 1969, 418 F.2d 482; Wacaster v. Wacaster, Fla.App.1969, 220 So.2d 914.

Reversed and remanded for action consistent with this opinion.