          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                 FOURTH DISTRICT

                LUCKY NATION, LLC, and NINA SOLONENKO,
                              Appellants,

                                         v.

                           HASSAN AL-MAGHAZCHI,
                                 Appellee.

                                 No. 4D14-4764

                                [January 6, 2016]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Mily Rodriguez Powell, Judge; L.T. Case No. 14-009692
CACE (03).

     Andrey Solonenko, Miramar, for appellants.

     Steven M. Canter of Tucker & Tighe, P.A., Fort Lauderdale, for appellee.

LEVINE, J.

    The issue is whether the doctrine of collateral estoppel bars appellants’
quiet title action. We find collateral estoppel does not bar appellants’ quiet
title action because there is no identity of parties and the issue was never
fully litigated in the prior case.

   Lucky Nation, LLC, purchased the subject property after a homeowners
association foreclosed on it. When Lucky Nation purchased the property,
a mortgage encumbered it. Between the time Lucky Nation purchased the
property and the certificate of title was issued, Bank of America initiated
a foreclosure action against the original owners.

   Nina Solonenko, the managing member of Lucky Nation, apparently did
not know of the ongoing foreclosure case.1 She allegedly learned of the
foreclosure after the subject property was sold to Hassan Al-Maghazchi.
Upon learning of the sale, Solonenko, pro se, objected and moved to vacate
the judgment of foreclosure. She did not, however, move to intervene. The

1   Lucky Nation deeded Solonenko one-half interest in the subject property.
trial court denied Solonenko’s motion.

    Lucky Nation and Solonenko initiated a new action against Al-
Maghazchi and sought to quiet title. Al-Maghazchi moved for summary
judgment. He argued the doctrine of collateral estoppel barred Lucky
Nation and Solonenko’s quiet title action because Solonenko had already
litigated the issue when she had objected in the prior case. The trial court
held collateral estoppel applied and granted summary judgment.

   Appellants argue collateral estoppel does not bar their quiet title action.
We agree and reverse because appellants were never parties to the prior
action and because the trial court in the prior foreclosure case did not
have subject matter jurisdiction to adjudicate the merits of a non-party’s
objection.

   The standard of review is de novo for both an order granting summary
judgment and a trial court’s ruling concerning collateral estoppel.
Aronowitz v. Home Diagnostics, Inc., 174 So. 3d 1062, 1065 (Fla. 4th DCA
2015).

    Collateral estoppel “bars re-litigation of identical issues between
identical parties in two proceedings” so as to prevent “repetitious litigation
of what is essentially the same dispute.” Provident Life & Accident Ins. Co.
v. Genovese, 138 So. 3d 474, 477 (Fla. 4th DCA 2014). Collateral estoppel
has the following five elements, all of which must be met:

      (1) an identical issue must be presented in a prior proceeding;
      (2) the issue must have been a critical and necessary part of
      the prior determination; (3) there must have been a full and
      fair opportunity to litigate the issue; (4) the parties in the two
      proceedings must be identical; and (5) the issues must have
      been actually litigated.

Id. Our analysis concerns the fourth and fifth elements of collateral
estoppel.

   Solonenko never moved to intervene and, absent intervention, she was
not an “actual party to the proceedings below.” Ezem v. Fed. Nat’l Mortg.,
153 So. 3d 341, 343 (Fla. 1st DCA 2014); YHT & Assocs., Inc. v. Nationstar
Mortg. LLC, 177 So. 3d 641 (Fla. 2d DCA 2015). Because Solonenko was
a non-party to the prior proceeding, there was no identity of parties.
Indeed, because Solonenko was never a party, she could not have even
appealed the adverse judgment of the trial court. See Barnett v. Barnett,
705 So. 2d 63, 64 (Fla. 4th DCA 1997). Without the ability to appeal, the

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issue could not have been fully litigated. See Alvarez v. Cotarelo, 626 So.
2d 267, 268 (Fla. 3d DCA 1993).

    In addition, the court in the prior action never had subject matter
jurisdiction to decide the merits of Solonenko’s objection. For an issue to
have been “fully litigated,” a court of “competent jurisdiction” must enter
a final decision. Mobil Oil Corp. v. Shevin, 354 So. 2d 372, 374 (Fla. 1977).
Subject matter jurisdiction has two components: (1) “the power of the trial
court to deal with the class of cases to which a particular case belongs”
and (2) lawfully invoking the court’s jurisdiction “by the filing of a proper
pleading.” Garcia v. Stewart, 906 So. 2d 1117, 1122 (Fla. 4th DCA 2005)
(citation omitted).     “Pleadings” include complaints, answers, and
counterclaims, but a motion is not a pleading. Id. at 1123 (citing Green v.
Sun Harbor Homeowners’ Ass’n, 730 So. 2d 1261, 1263 (Fla. 1998)).

    Although the trial court in the prior action undoubtedly had the power
to “deal with the class of cases” to which Solonenko’s objection belonged,
Solonenko never invoked the trial court’s jurisdiction “by the filing of a
proper pleading.” See id. at 1122. Rather, she objected and moved to
vacate the foreclosure judgement. Therefore, because the trial court never
had “competent jurisdiction” to decide the merits of Solonenko’s objection
and motion, the matter was not “actually litigated.” Genovese, 138 So. 3d
at 477; see also Aronowitz, 174 So. 3d at 1067 (stating that where an
appellate court vacated a trial court’s judgment, the trial court’s judgment
cannot be the basis for a collateral estoppel argument).

    In summary, there is no identity of parties as Solonenko was never
made a party to the prior proceeding. In addition, the issues were not
actually litigated as the trial court lacked subject matter jurisdiction to
adjudicate Solonenko’s objection and motion. We therefore reverse the
trial court’s grant of summary judgment.

   Reversed.

CIKLIN, C.J., and TAYLOR, J., concur.

                            *           *      *

   Not final until disposition of timely filed motion for rehearing.




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