       DDISTRICT   COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                         DANIEL E. KOWALLEK,
                              Appellant,

                                      v.

LEE REHM, PORT ST. LUCIE POLICE DEPARTMENT, CITY OF PORT
ST. LUCIE, FLORIDA POWER AND LIGHT COMPANY, and ASPLUNDH
                   TREE EXPERT COMPANY,
                         Appellees.

                              No. 4D14-4581

                            [January 13, 2016]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; William L. Roby, Judge; L.T. Case No. 562014CA001633.

   Daniel E. Kowallek, Port St. Lucie, pro se.

   No brief filed on behalf of appellees.

CIKLIN, C.J.

   Daniel Kowallek (“Kowallek”) appeals an order dismissing his case
with prejudice as to two defendants, Florida Power and Light Company
and Asplundh Tree Expert Company (“the defendants”), contending that
the trial court erred in granting the motion filed by the defendants on the
bases of res judicata and collateral estoppel. Although we agree that the
action should not have been dismissed pursuant to the doctrine of res
judicata, we affirm on the basis of collateral estoppel.

   In a prior lawsuit, Kowallek asserted negligence claims against the
defendants, alleging that they improperly trimmed a tree on a utility
easement located on his property. In that prior case, Kowallek sought to
address tree trimming procedures to prevent future damage to Kowallek’s
property. A final judgment was rendered ordering that Kowallek had
thirty days to remove the vegetation in the easement, and that if he did
not do so, the defendants then had a right to remove the vegetation. The
thirty-day period expired and because Kowallek took no action, the
defendants removed the vegetation, as permitted by the final judgment.
   Kowallek then filed the action below against the defendants and
several other parties claiming negligence, trespass, destruction of private
property, and alleged that the defendants did not remove vegetation in
compliance with the final judgment.

   Looking to the instant complaint, the prior complaint, and the final
judgment (the latter two of which were incorporated into the complaint
by reference), the trial court dismissed the instant action with prejudice
on the bases of res judicata and collateral estoppel.

   This court has defined res judicata as follows:

      “A judgment on the merits rendered in a former suit between
      the same parties or their privies, upon the same cause of
      action, by a court of competent jurisdiction, is conclusive not
      only as to every matter which was offered and received to
      sustain or defeat the claim, but as to every other matter
      which might with propriety have been litigated and
      determined in that action.”

Tyson v. Viacom, Inc., 890 So. 2d 1205, 1209 (Fla. 4th DCA 2005)
(quoting Huff Groves Trust v. Caulkins Indiantown Citrus Co., 810 So. 2d
1049, 1050 (Fla. 4th DCA 2002)).

    Similarly, the doctrine of collateral estoppel, or issue preclusion, “bars
relitigation of the same issue between the same parties which has
already been determined by a valid judgment,” even where the present
and former cause of action are not the same. Zikofsky v. Mktg. 10, Inc.,
904 So. 2d 520, 525 (Fla. 4th DCA 2005) (citations omitted). While
collateral estoppel and res judicata are affirmative defenses that may not
ordinarily form the basis for a motion to dismiss, they may be
appropriate where a plaintiff specifically incorporates prior proceedings
into his complaint. Duncan v. Prudential Ins. Co., 690 So. 2d 687, 688
(Fla. 1st DCA 1997).

    Here, dismissal of the action pursuant to res judicata was not
appropriate because the causes of action alleged in the second complaint
were different from the first, as they were based on events that occurred
after the entry of the final judgment in the first case, and they involved
some additional parties.       However, the trial court did not err in
dismissing the motion on the basis of collateral estoppel because in his
second complaint, Kowallek attempted to relitigate the same issue as the
first. That is, the defendants’ removal of vegetation on Kowallek’s
property.

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    While Mr. Kowallek may wish to pursue a course of action before the
trial court that originally permitted entry onto his easement and therein
allege that the defendants were unreasonable in their entry, no such
action lies here.

   Affirmed.

GROSS and GERBER, JJ., concur.

                          *         *        *

   Not final until disposition of timely filed motion for rehearing.




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