        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                      DEPARTMENT OF REVENUE,
                       o/b/o Christine M. Cowie,
                              Appellant,

                                      v.

                         JOSEPH A. ORLOWSKI,
                               Appellee.

                              No. 4D14-3306

                             [January 6, 2016]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Timothy Bailey, Judge; L.T. Case No. 13-10573 (41).

   Pamela Jo Bondi, Attorney General, and William H. Branch, Assistant
Attorney General, Tallahassee, for appellant.

   Robert M. Panisch, Plantation, for appellee.

                        ON MOTION FOR REHEARING

LEVINE, J.

  We grant the motion for rehearing, withdraw our prior opinion, and
substitute this opinion in its place.

   The issue in this case is whether the trial court erred in finding that res
judicata barred the Department of Revenue’s (“DOR”) petition against
appellee to establish paternity and child support. We find that res judicata
applied because both the prior proceeding and the instant petition involved
the same parties and both concerned a petition to establish paternity and
child support. Accordingly, we affirm the final judgment in favor of
appellee.

   In 2006, the DOR, on behalf of Christine Cowie (“the mother”), filed a
petition to establish paternity and child support against appellee Joseph
Orlowski, as the biological father, and Peter Cowie, as the legal father.
According to the petition, Orlowski impregnated the mother, and the
mother was pregnant with the child when she married Cowie. When the
child was born, Cowie’s name was listed on the birth certificate as the
father, and the child was given Cowie’s last name.

   During the hearing in 2006, the mother instructed the DOR that she
wanted to withdraw the petition. The mother also confirmed that she
understood that a dismissal would be with prejudice and that she would
not have any legal recourse against Orlowski in the future on this issue.
Following the hearing, the trial court entered an agreed final order
dismissing the petition with prejudice.

   In December 2012, the mother and her husband divorced. In the final
judgment of dissolution of marriage, the trial court noted that the guardian
ad litem determined it was in the child’s best interest that the husband
not be the child’s father. Consistent with this determination, the trial
court stated that the husband was not the child’s legal father and ordered
the State of Florida, Office of Vital Statistics, to remove the husband’s
name from the child’s birth certificate.

   In August 2013, the DOR filed the instant petition, on behalf of the
mother, against Orlowski to determine paternity and establish child
support. Orlowski filed a motion for summary judgment, arguing that the
issue of his paternity was conclusively resolved in an earlier proceeding
and thus was res judicata. The DOR filed a response, arguing that the
motion to dismiss should be denied based on equitable principles and the
best interests of the child. The DOR further asserted that res judicata did
not apply because the paternity issue had never been adjudicated on the
merits. After a hearing, the trial court granted the motion for summary
judgment, finding that the prior agreed final order “was a final adjudication
on the merits, and that res judicata applies to the current action.”

   An order granting summary judgment is reviewed de novo, as is a trial
court’s ruling concerning the application of res judicata. Volusia Cnty. v.
Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000); W & W
Lumber of Palm Beach, Inc. v. Town & Country Builders, Inc., 35 So. 3d 79,
82 (Fla. 4th DCA 2010).

    Res judicata is a judicial doctrine used to bar parties from relitigating
claims previously decided by a final adjudication on the merits. W & W
Lumber, 35 So. 3d at 82-83. “Res judicata bars relitigation of a claim
decided in a prior final adjudication if the subsequent claim satisfies the
following four elements: ‘1) identity in the thing sued for; 2) identity of the
cause of action; 3) identity of persons and parties of the action; and 4)
identity of the quality in the person for or against whom the claim is
made.’” Id. (citation omitted). The law is clear that, where the four

                                      2
identities are present, “a voluntary dismissal with prejudice operates as
an adjudication on the merits, barring a subsequent action on the same
claim.” Id. (quoting Capital Bank v. Needle, 596 So. 2d 1134, 1136 (Fla.
4th DCA 1992)).

    In the present case, the trial court properly applied res judicata because
all four identities were the same in both the original 2006 paternity action
and the 2013 paternity action. Additionally, the agreed dismissal with
prejudice of the original action operated as an adjudication on the merits.
See id. Had the present petition to determine paternity and child support
been brought by a different party, then res judicata would not have
applied. See Dep’t of Health & Rehab. Servs. ex rel. Ward v. Wyatt, 475 So.
2d 1332 (Fla. 5th DCA 1985) (finding that prior dismissal with prejudice
of mother’s paternity and child support action against putative father did
not operate as res judicata to bar action by HRS on behalf of child against
putative father for paternity and child support); State, Dep’t of Revenue,
Office of Child Support Enforcement ex rel. D.J.N. v. Redding, 685 So. 2d
1000, 1000 (Fla. 3d DCA 1997). See also § 742.011, Fla. Stat. (stating
that a mother or child may bring a proceeding to determine paternity).

   The DOR also challenges the award of attorney’s fees pursuant to
section 57.105, Florida Statutes. We reverse and remand to the trial court
to make an appropriate finding based on the record. See Whitten v.
Progressive Cas. Ins. Co., 410 So. 2d 501, 505 (Fla. 1982) (stating that to
award attorney’s fees under section 57.105, a trial court must make an
express finding of “a complete absence of a justiciable issue of either law
or fact raised by the losing party”) (citation omitted); Peerless Elec. Co. v.
Goldberger, 473 So. 2d 300, 300 (Fla. 4th DCA 1985).

   In sum, we affirm the judgment in favor of appellee, and we reverse and
remand the award of attorney’s fees.

   Affirmed in part, reversed in part, and remanded.

WARNER and KLINGENSMITH, JJ., concur.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.




                                      3
