Opinion
No. 84-958.
August 29, 1985. Rehearing Denied October 16, 1985.
Appeal from the Circuit Court, Marion County, Raymond T. McNeal, J.
Dock A. Blanchard and Lauren E. Merriam, III, of Tucker, Brannen, Blanchard Stillwell, P.A., Ocala, for appellant.
No appearance for appellees.
This is an appeal from an amended final judgment entered in favor of the defendant in an action to quiet and confirm title to real property. The issue is whether the lower court erred in granting appellee Weathers' motion for judgment on the pleadings. We hold that former adjudication bars appellant Patterson's claim, and affirm.
Appellant Patterson filed a complaint against appellee Weathers, and two others, seeking to quiet and confirm title to real property located in Marion County, Florida. The property at issue is informally described as "Parcel I." Patterson attached two exhibits to her complaint. Exhibit A is a copy of a final judgment rendered in the Marion County Circuit Court in Civil Action No. 78-360B. Exhibit B is a Supplemental Final Judgment entered in the same action. Civil Action No. 78-360B was an action to quiet title to real property, including "Parcel I", brought by the instant appellee, Weathers, against several defendants including the instant appellant, Patterson. The supplemental final judgment in the prior action supplements the final judgment with the addition of defendants and "Parcel I", the property at issue in the instant case. The supplemental final judgment in the former action orders and adjudges, inter alia:
6. That the plaintiff [instant appellee Weathers] is the owner in fee simple of the land hereinabove described, and her title thereto is hereby quieted, established and confirmed in her, and the supposed or apparent claims, rights, interests, liens and estates of the above-named or designated defendants, and each and every one of them, in and to the lands hereinabove described, or any part thereof, are hereby adjudged and decreed to be inferior to the title of plaintiff, and to be clouds thereon, and are hereby cancelled and adjudged and decreed to be null and void.
7. That each and every one of the defendants, their heirs, successors, assigns and legal representatives and each and every one of them, known or unknown, named or unnamed be and they are hereby, enjoined and restrained, as well as all persons claiming by, through or under them, or any of them, from ever in any way asserting or claiming any title, right or interest in or to the lands hereinabove described adverse to the title of plaintiff thereto, and they are further perpetually enjoined and restrained from ever in any way disturbing the possession of the plaintiff, her heirs, administrators, or assigns, or said lands or any part or parcel thereof.
DONE AND ORDERED in Chambers at Ocala, Marion County, Florida this 16th day of January, 1979.
No other parts of the record from the former action between the instant parties except the final judgment and supplemental final judgment were presented to the lower court. Accordingly, the exhibits attached to appellant Patterson's complaint are the only portions of the record from the former action which are presently before us.
Weathers filed an answer to Patterson's complaint in the instant case. Although she did not specifically label it an "affirmative defense", appellee Weathers raised the affirmative defense of former adjudication in her answer to the complaint. This satisfies Florida Rule of Civil Procedure 1.110(d) which only requires that "[i]n pleading to a preceding pleading a party shall . . . set forth affirmatively . . ." its affirmative defense; the rule does not so elevate form over substance to require a party to label its defense as an "affirmative defense." Appellee Weathers satisfactorily pled res judicata in her answer, and she established this defense by reference to the exhibits attached to Patterson's complaint. This case is therefore different from Excel Insurance Company v. Brown, 406 So.2d 534 (Fla. 5th DCA 1981) because there Excel pled res judicata but failed to establish it by affidavit, verified motion, or other manner.
On appeal, appellant Patterson urges that a review of the complete case file in the former action between the parties reveals that the former adjudication does not bar the instant action. It is true that recitals in a final judgment may be contradicted by other parts of the record, and so lose their res judicata effect. See Johnson v. Clark, 145 Fla. 258, 198 So. 842 (1940). However, appellant Patterson did not present to the lower court those parts of the record of the former action which contradict the final judgment and supplemental final judgment.
It is fundamental that an appellate court cannot reverse a trial court on the basis of facts which were not presented to the trial court, and therefore are not part of the record on appeal. See South Florida Apartment Association, Inc. v. S.A. Dansyear, 347 So.2d 710 (Fla. 3d DCA 1977), cert. den., 354 So.2d 985 (Fla. 1977) (in absence of record sufficient to review a matter assigned as error appellate court must affirm the trial court); Strickland v. Lewis, 328 So.2d 244 (Fla. 1st DCA 1976) (appellate court cannot review legal conclusions unless all facts upon which they are based are presented). This is as true in an action seeking relief from a prior judgment as much as it is in any other action.
The supplemental final judgment entered in the former action between the parties supplements, not amends, the final judgment in that case. Together, the final judgment and the supplemental final judgment constitute the single final judgment in the former action between the parties. Together, those documents quiet appellees' title to "Parcel I" against any claim of appellant. On the basis of the record before us, we affirm the judgment of the lower court.
AFFIRMED.
THOMPSON, E.R., Jr., Associate Judge, concurs.
SHARP, J., dissents with opinion.
The issue on appeal is whether the trial court erred in granting the defendant, Weathers', motion for judgment on the pleadings on the ground that the plaintiff, Patterson's, suit to quiet title was barred by the defendant's prior suit against the plaintiff and others. I respectfully dissent because I do not think the defendant properly raised res judicata as an affirmative defense, nor do I think she properly established, as a matter of law, this defense simply by the pleadings.
It is axiomatic that res judicata is an affirmative defense, Fla.R.Civ.P. 1.110(d), which the pleader has the burden of pleading and establishing. Excel Insurance Company v. Brown, 406 So.2d 534 (Fla. 5th DCA 1981) (and cases cited therein). In this case, Weathers answered Patterson's quiet title complaint with denials and admissions, but she pled no affirmative defenses as such. She simply denied that Patterson has title to the land involved in this suit, because of a prior judgment in a suit involving Patterson as a defendant.
Specifically, the answer alleged:
The Defendants [sic], MATILDA WEATHERS, answers the Complaint filed herein as follows:
* * * * * *
8. Denied that plaintiff has any right, title, claim or interest in and to the lands subject matter of this action, as rights of the parties were determined by the Final Judgment and Supplemental Final Judgment entered in Civil Action Number 78-360-B, Circuit Court of Marion County, Florida.
Weathers' motion for judgment on the pleadings takes the position that the res judicata defense is raised on the face of the complaint. That would be a most unusual situation, since to be bound by a former judgment, it must be clearly established that the parties and cause of action were identical, and that there was an adjudication on the merits. See Lewis v. Connecticut General Life Insurance Company, 427 So.2d 254 (Fla. 5th DCA 1983); Seaboard Coast Line Railroad Company v. Industrial Contracting Company, 260 So.2d 860 (Fla. 4th DCA 1972).
In this case, Patterson's complaint attached as an exhibit, a copy of a final judgment in a quiet title suit filed in Marion County which she alleged cast a "cloud" on her title. The attached final judgment names Patterson as a defendant against whom a default was obtained, and it quieted title in Weathers as to various specific parcels, none of which are involved in the present suit. Another exhibit attached to the complaint is entitled "Supplemental Final Judgment" and pertains to the same proceeding. It does include the property at issue in this suit, but it fails to designate Patterson as one of the defendants served and bound by the supplemental judgment. In fact, the parcels and persons named as defendants in the "Supplemental Final Judgment" are entirely different from those named in the original final judgment. The supplemental judgment refers throughout to the defendants "named" or designated "herein," and makes no reference to the defendants or the parcels in the original final judgment.
The supplemental judgment recites:
1. The Court has jurisdiction of this cause and of each of the following named or designated Defendants who were named in the Complaint herein to-wit: MARY WADE, ROBERT M. FIFE, FRANCOIS PARK, J.T. PEACOCK, W.O. HEATH, W.O. HEATH, JR., HARRIET LUSHINGTON, a/k/a HARRIET LUSINGTON a/k/a HARRIET LIVINGSTON, VINA WILLIAMS, CLARENCE E. VANS and his wife, CLARABELL E. VANS, ELVIRA HEATH, and LAWYER'S TITLE INSURANCE CORPORATION, and as to each of said natural persons against the unknown husband or wife as the case may be of any or either of them, if alive and if dead then against their and each of their unknown heirs, devisees, legatees, grantees and all other parties in the interests by, through, under or against them, and against all parties having or claiming on having any right, title or interest in the following described lands in Marion County, Florida, to-wit:
PARCEL `H'
* * * * * *
PARCEL `I'. . . .
The latter parcel is the property involved in the present suit. It was not mentioned in the original judgment.
It is unclear to me from these documents, that Weathers' quiet title complaint sought to quiet title as to all the properties against all the defendants in both judgments. There may have been multiple counts involving different defendants as to different parcels. These ambiguities can only be resolved by resort to the full court records concerning the prior suit, after res judicata is properly pleaded in this case. Patterson would be thus afforded a right to defend by filing a reply with supporting documents. At this point, resolution of the res judicata defense is clearly premature.
Patterson attempted to argue below and on appeal that no default was entered against her in the prior litigation, and she attempted to attach the default judgments in her appendix to her brief. Obviously, at this point they are not part of the record, but they should be considered by the trial court in determining whether res judicata should be applied.
On the basis of these pleadings, I think Weathers failed to prove and establish her res judicata defense. It was therefore error to enter a final judgment in her favor on that ground. I would reverse.