RES JUDICATA

Although the Commission's opinion, in general, is correct in its discussion of res judicata, it did not consider several exceptions or qualifications to the doctrine which would make it inappropriate in this case. Some of these, which should be considered by the Commission upon remand, are:

(a) that the doctrine will not be invoked where it will work an injustice;

(b) that it is not applicable to a judgment which might have rested on either of two grounds, only one of which goes to the merits;

(c) that it ordinarily does not apply to voluntary dismissals;

(d) that, generally, the effect of a judgment as res judicata must be determined from the entire record of the case, and not just the judgment itself; and

(e) that the burden of establishing the certainty of the matter formerly adjudicated is on the party claiming the benefit of it.

Nevertheless, when a choice must be made we apprehend that the State, as well as the courts, is more interested in the fair and proper administration of justice than in rigidly applying a fiction of the law designed to terminate litigation.

...

Although we are constrained to adhere to our former opinion that all the requisites of res judicata appear to exist, we are now convinced that this doctrine should not necessarily be controlling under the facts and circumstances attendant upon this litigation. Indeed, this very Court, among others, has announced the salutary principle that the doctrine of res judicata should not be so rigidly applied as to defeat the ends of justice.

In Wallace v. Luxmoore, 156 Fla. 725, 24 So.2d 302, 304, speaking through Mr. Justice Terrell, we said:

"Stare decisis and res adjudicata are perfectly sound doctrines, approved by this court, but they are governed by well-settled principles and when factual situations arise that to apply them would defeat justice we will apply a different rule. Social and economic complexes must compel the extension of legal formulas and the approval of new precedents when shown to be necessary to administer justice. In a democracy the administration of justice is the primary concern of the State and when this cannot be done effectively by adhering to old precedents they should be modified or discarded. Blind adherence to them gets us nowhere."

"Under the doctrine of res judicata, a judgment on the merits in a prior suit bars a second suit involving the same parties or their privies based on the same cause of action. Under the doctrine of collateral estoppel, on the other hand, the second action is upon a different cause of action, and the judgment in the prior suit precludes relitigation of issues actually litigated and necessary to the outcome of the first action."

"In this case, however, appellant has not appellant in the state court her sex discrimination claims, now stated as a Title VII action. Such claims were dismissed by the state court in order to permit a later federal court action. This is that action."

Although the defense of collateral estoppel can look jurisdictional in character, it is an affirmative defense, see Fed.R.Civ.P. 8(c)(1), and therefore is not a per se jurisdictional bar to court review as contemplated by Fed.R.Civ.P. 12(b)(1) (and thus the Florida rule which is based on that federal rule, Fla.R.Civ.P. 1.140(b)(1)). Youngin's Auto Body v. District of Columbia, 775 F.Supp.2d 1,6 (D.D.C. 2011); and see, Hemphill v. Kimberly–Clark Corp., 605 F.Supp.2d 183, 186 (D.D.C.2009) (observing that “res judicata is an affirmative defense that is generally pleaded in a defendant's answer, but is also properly brought in a pre-answer Rule 12(b)(6) motion”).

While the defenses of res judicata and collateral estoppel may be resolved through a motion for summary judgment, the trial court erred when it ventured outside the four corners of the complaint, took judicial notice of the final judgment of dissolution of marriage, and dismissed the complaint with prejudice. See Kest v. Nathanson, 216 So.2d 233 (Fla. 4th DCA 1969).