On February 10, 2017, in Thews v. Wal-Mart Stores East, No. 2D15-4208, the 2nd DCA reversed a trial court ruling dismissing a plaintiff's premises liability claim on the grounds of res judicata. The plaintiff had originally sued the corporate entity, Walmart, Inc., and lost that case when the trial court granted the defendant's motion for a judgment as a matter of law. Thereafter, the plaintiff discovered that another corporate entity, Wal-Mart Stores East, actually owned the store involved in the incident. The plaintiff filed a new complaint against Wal-Mart Stores East, but the trial court granted the defendant's motion to dismiss on the grounds of res judicata.
On review, the 2nd DCA noted that affirmative defenses such as res judicata typically must be raised in an answer, not a motion to dismiss, unless the allegations of the complaint demonstrate that the action is barred by res judicata. The 2nd DCA concluded that the the face of the complaint did not demonstrate that re judicata applied. The Court observed that four identities must be present for res judicata to apply: (1) identity of the thing sued for; (2) identity of the cause of action; (3) identity of persons and parties to the action; and (4) identity of the quality of the persons for or against whom the claim is made. The Court additionally observed that identity of the parties can be satisfied where a party to the first action is in privity with a party to the second action, and that a nonparty may be in privity with a party to the prior action if: (1) the nonparty agreed to be bound by the litigation of others; (2) a substantive legal relationship existed between the person to be bound and a party to the judgment; (3) the nonparty was adequately represented by someone who was a party to the suit; (4) the nonparty assumed control over the litigation in which the judgment was issued; (5) a party attempted to relitigate issues through a proxy; or (6) a statutory scheme foreclosed successive litigation by nonlitigants. The 2nd DCA concluded that while one or more of these factors might exist, they were not established on the face of the complaint.
This decision could present only a temporary respite for the plaintiff, because the issue likely will be revisited in the case by way of an affirmative defense. However, the plaintiff has also argued that the defendant was defrauded by Wal-Mart, Inc. and that this caused the omission of Wal-Mart Stores East from the original litigation, an argument which likely will also be revisited in opposition to any affirmative defense on res judicata grounds.