                                      IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA

SEMINOLE     TRIBE    OF              NOT FINAL UNTIL TIME EXPIRES TO
FLORIDA, A FEDERALLY                  FILE MOTION FOR REHEARING AND
RECOGNIZED INDIAN TRIBE,              DISPOSITION THEREOF IF FILED

      Appellant,

v.                                    CASE NO. 1D16-565

STATE   OF     FLORIDA,
DEPARTMENT OF REVENUE,

      Appellee.


_____________________________/

Opinion filed November 9, 2016.

An appeal from the Circuit Court for Leon County.
John C. Cooper, Judge.

Glen A. Stankee of Akerman, LLP, Fort Lauderdale; Kristen M. Fiore of Akerman
LLP, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General; J. Clifton Cox, Special Counsel; Jonathan L.
Williams, Deputy Solicitor General; and Timothy E. Dennis, Assistant Attorney
General, Tallahassee, for Appellee.


ROBERTS, C.J.

      This appeal challenges an order from the Second Judicial Circuit Court in and

for Leon County dismissing a complaint on res judicata grounds filed by the
Seminole Tribe of Florida (the Tribe). We find that the Leon County Circuit Court

properly dismissed the complaint and affirm.

      This appeal stems from a declaratory judgment action filed by the Tribe

against the Department of Revenue (the Department) that also sought a fuel tax

refund of motor fuel taxes for the period of June 7, 2009, through March 31, 2012,

on the grounds the fuel tax, as applied to the Tribe, for fuel it uses on tribal lands for

governmental purposes violates federal law. The Leon County Circuit Court found

the Tribe had previously sought a declaratory judgment and a fuel tax refund against

the Department in the Seventeenth Judicial Circuit in and for Broward County and

that decision was appealed to the Fourth District Court of Appeal. See Fla. Dep’t of

Revenue v. Seminole Tribe of Fla., 65 So. 3d 1094 (Fla. 4th DCA 2011). The Fourth

DCA reversed and remanded the case to the Broward County Circuit Court to enter

summary judgment in favor of the Department, finding off-reservation purchases

taxable even though the legal incidence of the tax falls on a tribal purchaser. Id. at

1097-98. The Tribe sought review by the Florida Supreme Court, and it declined to

accept jurisdiction. Seminole Tribe of Fla. v. Fla. Dep’t of Revenue, 86 So. 3d 1114

(Fla. 2012). Based upon this prior litigation, the Leon County Circuit Court found

the Tribe was attempting to collaterally attack the Fourth DCA’s decision and

dismissed the underlying case with prejudice.




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      The standard of review of an order dismissing a cause of action is de novo

because the question of whether a complaint should be dismissed is a question of

law. Genesis Ministries, Inc. v. Brown, 186 So. 3d 1074, 1076 (Fla. 1st DCA 2016).

“Typically affirmative defenses, like res judicata in this case, cannot be properly

considered on a motion to dismiss.” May v. Salter, 139 So. 3d 375, 376 (Fla. 1st

DCA 2014). However, there is an exception to the rule when the prior litigation is

plain from the face of the complaint and the party properly requests the court to take

judicial notice of prior proceedings. See Livingston v. Spires, 481 So. 2d 87, 88

(Fla. 1st DCA 1986).

      The Tribe had mentioned the prior case history between the parties in its

complaint filed with the Leon County Circuit Court and did not oppose the

Department’s motion for judicial notice. The trial court properly considered the

Department’s res judicata argument in its motion to dismiss.

      “The doctrine of res judicata makes a judgment on the merits 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.’” AMEC Civil, LLC v. State, Dep’t of Transp. 41 So. 3d

235, 238-39 (Fla. 1st DCA 2010) (quoting Zamora v. Fla. Alt. Univ. Bd. of Trs., 969

So. 2d 1108, 1112 (Fla. 4th DCA 2007) (quoting Kimbrell v. Paige, 448 So. 2d 1009,

1012 (Fla. 1984)). Res judicata bars subsequent litigation when there has been a

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prior judgment on the merits and the following identities are present in the prior and

current litigation: (1) identity of the thing being sued for; (2) identity of the cause of

action; (3) identity of the parties; and (4) identity of the quality or capacity of the

persons for or against whom that claim is made. Sena v. Pereira, 179 So. 3d 433,

435 (Fla. 4th DCA 2015). Neither party contests the presence of the identity of the

parties nor the identity of the quality or capacity of the persons for or against whom

that claim is made. The Tribe contests the presence of the identity of the thing being

sued for and the identity of the cause of action.

      With respect to the identity of the thing being sued for, the Tribe sought a

declaratory judgment in the underlying cause of action and in the Broward County

Circuit Court. In both cases, it requested the trial court to find that it cannot be taxed

for fuel it purchases off-reservation and uses on-reservation for governmental

purposes. Therefore, the identity of the thing being sued for is present.

      To find the identity of the cause of action, the facts to support both causes of

action must be identical. Id. However, under the transactional theory, the identity

of the cause of action is extended to “every other matter which the parties might

have litigated and had determined, within the issues as framed by the pleadings or

as incident to or essentially connected with the subject matter of the first

litigation.” AMEC, 41 So. 3d at 239 (citation omitted).




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      All of the claims the Tribe sought in the underlying cause of action are

essentially connected to the subject matter of the first litigation. The Tribe sought a

ruling that the Department could not collect fuel tax on fuel it purchased off-

reservation that is used on-reservation for government purposes. The Tribe could

have brought the additional claims that it now seeks to add against the Department

in order to bar the Department from collecting the fuel tax, but it chose not to raise

those claims in the first cause of action. The facts that were present between these

two parties at the time the Tribe filed a complaint in Broward County Circuit Court

are the same facts that were present in the underlying cause of action. The statutes

germane to this issue have not changed. Additionally, we find no merit in the Tribe’s

argument that different tax periods can never be the same cause of action. This Court

has previously found that different time periods do not bar res judicata when the

question to the court is the same as one that was previously decided. Urban v. Morris

Drywall Spray Textures, 634 So. 2d 718, 720 (Fla. 1st DCA 1994).

      AFFIRMED.

WINOKUR, J., and CLARK, JR., BRANTLEY S., ASSOCIATE JUDGE,
CONCUR.




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