PROBATE CORNER

By: David M. Garten, Esq.

ARTICLE: Collateral Estoppel – Trap For The Unwary!

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).

In Bergman v. Serns, 560 So.2d 1201 (Fla. 3d DCA 1990), Mrs. Greenfield (the “Ward”) was adjudicated incompetent and a guardianship was established. During the course of the guardianship proceeding, Serns, the Ward’s son, alleged that the Ward transferred all of her assets to him in 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.”

POTENTIAL DEFENSES TO COLLATERAL ESTOPPEL:

EQUITY v. MONETARY DAMAGES: Is the first lawsuit in equity and the second lawsuit for damages?

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 has a significantly heavier burden than he had in the first action.” The classic example of the application of this exception occurs in the context of an acquittal in a criminal proceeding, which is not sufficient to protect the defendant from liability in a subsequent civil action by the government related to the same misconduct. [citations omitted].” See Cook v. State, 921 So. 2d 631(Fla. 2nd DCA 2005). See also United Servs. Auto. Ass’n v. Selz, 637 So. 2d 320 (Fla. 4th DCA 1994) wherein the court held:Pursuant to the foregoing analysis, it was improper for the trial court to collaterally estop appellant’s declaratory action based upon Elitzky on this point of appellant’s duty to defend because the legal standard in Pennsylvania is different from that in Florida. In Florida, it would be easier for the exclusion clause to apply because Florida does not require that the intended injury be of the “same general type” as the resulting injury. Appellant should have been given the opportunity to argue under the correct legal standard.”. Compare C. L. R. Co. v. Industrial Contracting Co., 260 So. 2d 860 (Fla. 4th DCA 1972) (for there to be identity of the cause of action, the degree of proof required in the second suit must be at least as great as that required to support recovery in the first suit. If the degree of proof required in the first suit is greater than that required in the second, the cause of action cannot be held to be the same).

CONCLUSION: Assuming you objected to the appointment of the PR and lose, you may still be able to raise the same issues in a subsequent lawsuit. Ask: (1) Were the issues presented in both proceedings identical? (2) Were the issues raised in the first lawsuit a critical and necessary part of that determination? (3) Was there a full and fair opportunity to litigate the issues? (4) Are the parties in the two proceedings identical? (5) Were the issues actually litigated in the first lawsuit? (6) Is the first lawsuit in equity and the second lawsuit for damages? (7) Did the plaintiff have a significantly heavier burden of persuasion with respect to the issues raised in the initial action than in the subsequent action?