              NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                     MOTION AND, IF FILED, DETERMINED


                                              IN THE DISTRICT COURT OF APPEAL
                                              OF FLORIDA
                                              SECOND DISTRICT



DORIS THEWS,                            )
                                        )
             Appellant,                 )
                                        )
v.                                      )              Case No. 2D15-4208
                                        )
WAL-MART STORES EAST, LP, a             )
Foreign Limited Partnership, and WESLEY )
PATTERSON,                              )
                                        )
             Appellees.                 )
                                        )

Opinion filed February 10, 2017.

Appeal from the Circuit Court for Polk
County; Keith P. Spoto, Judge.

Billie Jo Belcher and Carolyn M. Salzmann
of Legally Pink Law, PLLC, Winter Park, for
Appellant.

Thomas A. Valdez, Peter J. Molinelli, and
Jeremy J. Jacobs of Quintairos, Prieto,
Wood & Boyer, P.A., Tampa, for Appellees.


CASANUEVA, Judge.

             Doris Thews appeals a final order dismissing with prejudice her suit

against the Appellees, Wal-Mart Stores East and Wesley Patterson. The trial court

dismissed her amended complaint based on the Appellees' argument that the suit was

barred by the doctrine of res judicata. We agree with Ms. Thews that the trial court
erred in granting Wal-Mart East's motion to dismiss with prejudice and reverse that

portion of the order. However, we conclude that the trial court correctly dismissed the

amended complaint against Mr. Patterson and affirm that portion of the order without

discussion.

                                I. PROCEDURAL HISTORY

              Ms. Thews originally sued Wal-Mart Stores, Inc., in the United States

District Court in the Middle District of Florida, alleging that she sustained injuries on

December 4, 2010, when she was struck by a shopping cart. That lawsuit proceeded to

trial, the trial court granted Wal-Mart Stores, Inc.'s motion for judgment as a matter of

law, and Ms. Thews' lawsuit was dismissed. The dismissal of the federal lawsuit was

affirmed on appeal. Thews v. Wal-Mart Stores, Inc., 560 Fed. Appx. 828 (11th Cir.

2014), cert. denied, 135 S. Ct. 448 (2014).

              Thereafter, it was discovered that Wal-Mart Stores East, not Wal-Mart

Stores, Inc., actually owned the store where the incident occurred.1 Ms. Thews then

filed her present complaint against Wal-Mart Stores East in state court. In lieu of filing

an answer and affirmative defenses, Wal-Mart Stores East filed a motion to dismiss

based on the doctrine of res judicata. After a hearing, the trial court granted the motion

and dismissed the case with prejudice. Ms. Thews appeals that ruling, arguing that the

doctrine of res judicata does not preclude her state court action, because Wal-Mart

Stores East is a separate and distinct legal entity from Wal-Mart Stores, Inc.




              1
              Apparently, Wal-Mart Stores, Inc., never asserted in the federal
proceedings that it did not own the store at issue.


                                             -2-
                   II. RES JUDICATA AS AN AFFIRMATIVE DEFENSE

              Affirmative defenses such as res judicata must be typically raised in an

answer, not in a motion to dismiss, unless the allegations of the complaint demonstrate

that the action is barred by res judicata. Neapolitan Enters. LLC v. City of Naples, 185

So. 3d 585, 589 (Fla. 2d DCA 2016). Further, this court reviews an order dismissing a

complaint with prejudice using a de novo standard of review, because a motion to

dismiss examines the legal sufficiency of the complaint, not factual determinations. Id.

In ruling on the motion to dismiss, the trial court was required to accept the allegations

of the amended complaint as true and was "limited to considering the four corners of the

complaint along with the attachments incorporated into the complaint." Id. We

conclude that the trial court improperly granted the motion to dismiss, because the face

of Ms. Thews' amended complaint does not demonstrate that the action is barred by res

judicata.

              "The doctrine of res judicata applies when four identities are present: (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." Topps v. State, 865 So. 2d 1253, 1255 (Fla. 2004). The

factor at issue in the present case is the identity of the parties. "For the purpose of res

judicata, identity of parties is satisfied if the parties to the second action were either

parties to the first action or in privity with those parties." Mann v. Palmer, 713 F.3d

1306, 1311 (11th Cir. 2013). 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



                                             -3-
              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.

Griswold v. Cty. of Hillsborough, 598 F.3d 1289, 1292 (11th Cir. 2010).

              Wal-Mart Stores East argues on appeal, as it did in the motion to dismiss,

that it was in privity to Wal-Mart Stores, Inc., because it agreed to be bound by the

federal litigation, a substantive legal relationship existed between the two corporations,

and Wal-Mart Stores East was adequately represented by Wal-Mart Stores, Inc., in the

federal action. We conclude that, although one or all of these factors may eventually be

established, they were not established by the four corners of the amended complaint.

We also note that there was no evidence presented by either party at the hearing on the

motion to dismiss. Because the face of the complaint does not demonstrate that the

action is barred by res judicata, the defense should have been raised in an answer to

the complaint, not in a motion to dismiss. See Neapolitan Enters., 185 So. 3d at 589.

                                        III. FRAUD

              Ms. Thews also argues that the doctrine of res judicata does not apply to

the present case because the omission of Wal-Mart Stores East from the prior litigation

was caused by fraud on the part of Wal-Mart Stores, Inc. We do not find merit in this

argument because, as noted above, no evidence was presented at the hearing on the

motion to dismiss. Therefore, there is no evidence at this point in the proceedings to

support the argument that either Wal-Mart Stores, Inc., or Wal-Mart Stores East

committed fraud.




                                           -4-
                                   IV. CONCLUSION

             Accordingly, we reverse that portion of the order granting the motion to

dismiss against Wal-Mart Stores East and affirm that portion of the order as it pertains

to Mr. Patterson.


NORTHCUTT and KHOUZAM, JJ., Concur.




                                           -5-
