Petition for Writ of Certiorari — Stockton v. Lansiquot

88 -2 69

Supreme Court, U.S.

FILED

IN THE JUL 13° 1988

SUPREME COURT OF THE UNITED STATBSBEPH F. SPANIOL, UR

OCTOBER TERM, 1988 CLERK ?

Case No.

Henry Haines stockton,

Petitioner,

Vv.

Beverly Ann Lansiquot,

John Wells, Patricia

Ann Riedel, Joyce

Roderick Londono, Ssara-

sota County Public Hos-

pital Board, Florida

Patient Compensation

Fund,

Respondents.

From The United states

Court Of Appeals For The

Eleventh Circuit

THE PETITION FOR WRIT OF CERTIORARI

Carl J. Robie, III

Counsel of Record and

Attorney for Petitioner

2828 South Tamiami Trail

Sarasota, FL 34239

(813) 365-2827

THE QUESTION PRESENTED

WHETHER THE ELEVENTH CIRCUIT COURT OF AP-

PEALS FAILED TO DISTINGUISH THE PERSONAL

CLAIMS OF HENRY HAINES STOCKTON, INDIVID-

UALLY, FROM THOSE CLAIMS MADE BY HENRY

HAINES STOCKTON AS PERSONAL REPRESENTA-

TIVE OF HIS DECEASED WIFE'S ESTATE, IN

REVIEWING AN APPLICATION OF THE FLORIDA

DOCTRINE OF RES JUDICATA.

THE PARTIE

HENRY HAINES STOCKTON, Petitioner

BEVERLY ANN LANSIQUOT, Respondent

JOHN WELLS, Respondent

PATRICIA ANN RIEDEL, Respondent

JOYCE RODERICK LONDONO, Respondent

SARASOTA COUNTY PUBLIC

HOSPITAL BOARD, Respondent

FLORIDA PATIENTS' COM-

PENSATION FUND, Respondent

ii

Page

The Question Presented ........ i

The Parties. . Pe Soe 6 6 6 4s e 6. EE

Table of Contents ....4.4.464¢ee. Shi

Table of Authorities. ........ iv

Reference to Official

Cr [~~ « « « «se @ ee se wi

Jurisdictional Grounds. ....... vii

Constitutional Authority. ...... ix

Statement of the Case. ........ 1

~~~? 66 6 @ 6 «-s © «se ese 8

~~~~~~—ES 6 © @ 6 6 6 « «© «© «© « «6 @ S9

DTS 7S bs <« « «6 6 6 «soe eo

iii

TABLE OF AUTHORITIES

Page

Albrecht v. State, 444 So.2d

8 (Fla. 1984)... a Ve EN ee ao a 3

Hay v. Salisbury, 92 Fla. 446,

109 So. 617 (1926). . «. « « « « « « 0546

Kline v. Heyman, 309 So.2d 242,

cert. denied, 423 U.S. 1034, 96

S.Ct. 567, 46 L.Ed. 2d 408

(1975). . >. . . > 7 . . *. ° * . > 7. -5,6

’

119 Fla. 718, 162 So. 323 (1935). .4,5,6

Migra v. W -

trict Board of Education, 465 U.S.

75, 104 S.Ct. 892, 79 L.Ed. 2d 56

[sas 4k weal ee ee 2 « SRS,

18,19

Shearn v. Orlando Funeral Home,

88 So.2d 591 (Fla. 1956). .. . .3,4,6,8,

9,10,12,

13,14,15,

16,18,19

Shiver v. Sessions, 80 So.2d

905, 907 (Fla. 1955). ... . . 13,16,1S

Stockton v. Lansiquot, 838 F.2d

S565 Chee Gees wees « os co ce + eo) VF,

5,9

Universal Construction Company

v. City of Fort Lauderdale, 68

$0.28 306, Bee Gees Bec 6b cc ce ct 2

iv

Page

United States Constitution. .... viii

First, Seventh, Eighth, Ninth

and Fourteenth Amendments to

the United States Constitution,. . . viii

United States Constitution,

Article IV, §l. * * al . bl > 7 * . viii, ix

United States Code, Title 28

§1738 * > bl - _ - * a 7. - >. >. >. * viii, ix

United States Code, Title 42,

SI9GS sce eevee eee ee «6 o otamee

Florida Statutes

$95.32 « © © © © © © © © «© co «© «© £40,13,16

Florida Statutes

§394.459. . . 7 7 . . . 7 * . . 7 os . -12

Florida Statutes Annotated

§§768.01-768.04, incl., . .. . .10,13,16

Florida Statutes

§768.16 to §768.27, incl.,. . . .1,14,18

Florida Statutes

§§768.17-768.21, incl., ea 10,13,16

A reprinted copy of the opinion of

the United States Court of Appeals,

Eleventh Circuit, is appended at pages

A-1 to 11, inclusive, and is referenced

by West Publishing Company as Stockton v.

Lansiquot, 838 F.2d 1545 (11th Cir.

1988).

vi

JURISDICTIONAL GROUNDS

(1) The date of the Judgment to be re-

viewed is March 10, 1988. It was entered

on March 10, 1988. (A reprinted copy is

appended at pages A~-12,13.)

(2) The date of the Order denying the

PETITION FOR REHEARING is April 14, 1988.

It was entered on April 14, 1988. (A re-

printed copy is appended at pages A-14,

15.)

(3) The date of the Order granting Sunm-

mary Judgment to Respondents in the Uni-

ted States District Court for the Middle

District of Florida, is November 25,

1986. It was entered on November 25,

1986. (A reprinted copy is appended at

pages A-16 to 25, inclusive.)

(4) The basis for federal jurisdiction

in the court of first instance was that

Petitioner, a citizen of New Jersey, and

Ruth Burchell Stockton, deceased, sued

vii

citizens of Florida and St. Croix, the

U.S. Virgin Islands, for deprivation of

rights, privileges, immunities, freedoms

and liberties under color of law of the

State of Florida and under the First,

Seventh, Eighth, Ninth and Fourteenth

Amendments to the United States Constitu-

tion, Title 42, §1983 of the United

States Code, and the United States Con-

stitetion, for an amount in controversy

that exceeded $10,000.00.

(5) The authority conferring jurisdic-

tion on this Honorable Court is the Uni-

ted States Constitution, Article IV, §1

(Full Faith and Credit Clause) and its

implementation by statute under 28 USC

§1738.

viii

(1)

(2)

CONSTITUTIONAL AUTHORITY

U.S. Constitution, Art. IV, §1.

28 USC §1738 in pertinent part:

"Such Acts, records and ju-

dicial proceedings or copies

thereof, so authenticated, shall

have the same full faith and cre-

dit in every court within the

United States and its Territories

and Possessions as they have by

law or usage in the courts of

such State, Territory or Posses-

sion from which they are taken."

ix

STATEMENT O CASE

The Petitioner, Henry Haines Stock-

ton, brought a suit in a Florida state

court under the Florida Wrongful Death

Act as personal representative of the

estate of Ruth Burchell Stockton, who

died in Sarasota Memorial Hospital, a

defendant in that proceeding. The claims

consisted of only those allowed under the

Act. (§768.16 to §768.27, inclusive,

Florida Statutes.) The Petitioner was

the surviving spouse of the decedent and

the beneficiary of her estate.

The claims under the Act for a sur-

vivor and beneficiary are derived from

the decedent's death and the decedent's

estate. Petitioner made no individual or

personal claims in state court in his own

right. There, the Petitioner was the

plaintiff in the capacity of a personal

1

representative on behalf of the decedent

and her estate.

The evidence presented in state court

sought to prove negligence and hospital

malpractice as well as damages allowed

under the Act. The first trial resulted

in a hung jury. The second trial was won

by the Hospital. The judgment was af-

firmed on appeal without opinion by the

Second District Court of Appeals of the

State of Florida. Before the second

trial, Petitioner filed suit in the U.S.

District Court for the Middle District of

Florida for his individual common law

claims of breach of contract, fraud and

violations of his constitutional and

civil rights under 42 USC §1983. [Also

similar claims were brought on behalf of

his wife and her estate which are not the

subject of this petition for a writ of

certiorari. ]

The Middle District Court granted

summary judgment to the defendants on the

basis of the preciusive effect of res

judicata under Florida law relying on

Migra v. W ool District

Board of Education, 465 U.S. 75, 104

S.Ct. 892, 79 L.Ed. 2d 56 (1984) and

Albrecht v. State, 444 So.2d 8 (Fla.

1984).

The Circuit Court of Appeals affirmed

the judgment with opinion. (See A-1-11.)

The Petitioner timely filed for a rehear-

ing on the issue of his own personal

claims being separate from those of his

wife or her estate. On rehearing, Peti-

tioner cited case law that had not been

previously reviewed by the Court, in

response to the authority relied upon in

the opinion barring the personal claims

of the Petitioner by res judicata. See

Stockton at page 1546 and Shearn v. Or-

3

lando Funeral Home, 88 So.2d 591 (Fla.

1956).

The opinion identified the Petition-

er's personal causes of action as the

same as those brought in state court

under the Wrongful Death Act requiring

the same evidence, in contrast to Florida

law which does not bar a second action

personally brought by a widow who had

acted as the executrix of an estate which

sued in the first action under the Wrong-

ful Death Act. (See A-6,7,8 and Shearn.)

The cases cited in opinion do not

address the fact that a first claim was

brought under the Wrongful Death Act and

the second contains Mr. Stockton's per-

sonal claims. On page 1546 of the opin-

ion, the Circuit Court relies on law pre-

dating the Wrongful Death Act (effective

date 1972) regarding the identity of the

parties. McGregor v. Provident Trust

4

Co., 119 Fla. 718, 162 So. 323 (1935);

Hay v. Salisbury, 92 Fla. 446, 109 So.

617 (1926); Kline v. Heyman, 309 So.2d

242, cert. denied, 423 U.S. 1034, 96

S.Ct. 567, 46 L.Ed. 2d 408 (1975).

In Kline at page 244, the Second

District Court of Appeals for the State

of Florida sets forth the rule which is

quoted by the 1ith Circuit:

"It is well settled Florida law

that ‘even though a party ina

subsequent suit was not a named

party in a prior suit, such party

is bound by the prior judgment if

he participated in the first

proceeding or was represented by

a party to that proceeding. '"

(A-9, Stockton at page 1546.)

The facts of the cases cited above do

not contain a claim under the Wrongful

Death Act by a personal representative

and then a second action by that same

party suing in his own capacity. The

facts of Kline consist of a suit to quiet

title in Florida barred after an in per-

5

sonam action in Connecticut was decided

against a husband who had his wife's

consent to represent her in that proceed-

ing. There, the husband and wife were

alive. No estate was involved nor any

wrongful death claim made. Both McGregor

and Hay were decided before the Wrongful

Death Act came into existence. The Act

could not have been considered or review-

ed in these cases.

Shearn was presented to the Circuit

Court as the basis for a rehearing under

its Florida Supreme Court ruling on iden-

tical facts to the federal case at bar.

Shearn was set forth as the controlling

authority, effectively overruling McGreg-

or, Hay and Kline for the reason it deals

with the identity of a cause of action

under the Wrongful Death Act and a sub-

sequent personal action by the former

personal representative, while the cases

6

relied upon by the Circuit Court do not.

The petition for rehearing was denied

per curiam on April 14, 1988. (A-14,15.)

z RGU, MIN

The writ of certiorari should be

granted for the reason that the opinion

and judgment of the Circuit Court failed

to follow the Migra rule laid down by

this Honorable Court. The Court did not

apply the law of Florida under Shearn.

Instead the claims of Petitioner were

inappropriately precluded under Migra.

The Florida law of res judicata does

not bar a second suit involving the

claims of a party who acted as a personal

representative of the deceased spouse's

estate that first sued under the Florida

Wrongful Death Act. Shearn.

The Petitioner's claims discussed in

this Petition do not consist of his

rights as the beneficiary of his wife's

estate or those derivative claims as her

surviving spouse.

To find the wrongful death claims of

the estate are the same as Mr. Stockton's

personal claims, overlooks the prevailing

Florida law of res judicata not cited by

the Circuit Court in its opinion. (See

Shearn. )

The United States Supreme Court man-

dated the preclusive effect of a state

court judgment by applying the law of res

judicata in that state. Migra. This

rule has been cited by the Circuit Court

in its opinion, but misapprehended. The

Florida law of res judicata has not been

applied to Mr. Stockton's separate

claims. Shearn. Stockton at page 1546.

A-8,9.

Specifically, the Florida Supreme

Court under identical facts sub judice,

did not bar a second action by a widow

who sued as the administrator of her

husband's estate in the first action for

9

wrongful death on the same facts. Shearn.

Shearn is the law of res judicata in

Florida governing a second suit for the

personal claims of a party who acted as

the administrator (now personal repre-

sentative) of her deceased husband's

estate that first sued under the Wrongful

Death Act. Shearn at pages 592 and 593.

Florida Statutes Annotated §§768.01-

768.04 (repealed and replaced by

§§768.17-768.21, inclusive, §95.11, Flor-

ida Statutes).

Shearn has not been changed nor over-

ruled by later case law. It has been

continuously upheld by the Florida Su-

preme Court.

Conceding arguendo that the Circuit

Court's opinion at page 1546 accurately

bars relitigating

"... the federal claims of an un-

constitutional deprivation of

oe be

10

Ruth Stockton's right to

life...", (A-7.)

where does the rule operate to bar the

husband's claims for breach of contract

and violation of his constitutional

rights under Florida law to be free to

contract elsewhere and to be free from

"concealment" of physical restraint of

his wife at the time she was admitted.

The proofs of these claims were not

relevant to the state case. The admit-

ting nurse did not testify at trial in

state court. Mr. Stockton was deprived

of his freedom to choose another health

care provider that would not have re-

strained his wife. “Concealment” of the

physical restraint (as opposed to the

restraint itself) is a separate and in-

tentional tort. It is also a fraud. It

was not relevant to the evidence of the

standard of care owed to Mrs. Stockton,

11

in the estate's hospital malpractice

clain.

The concealment of physical restraint

also relates to whether the contract was

breached and whether Mr. Stockton was de-

prived of the protection Florida law

offers one in contracting with a health

care provider. (See §394.459, Florida

Statutes.) His wife was unable to choose

her care due to her mental illness and

incapable of communicating to her husband

that she was being restrained which

caused her death. His rights emanating

from the concealment are separate from

the alleged wrongful death caused by the

act that was concealed. Simply stated,

there were separate claims arising from

separate acts. (Compare Shearn at page

593.)

Shearn carries the identical prece-

dent of the second suit containing Mrs.

12

Shearn's claims of injury to herself and

her property, while the first claim under

the Wrongful Death Act, created

"an entirely new cause of action,

in an entirely new right..."

for the named beneficiaries which in-

cluded her as a widow. Shearn at page

593. Shiver v. Sessions, 80 So.2d 905,

907 (Fla. 1955).

Both of the suits in Shearn were

based upon the negligence of the same

defendant, in the same accident and

therefore, the parties were determined to

be the same, however, the causes of ac-

tion were not identical due to the rights

created by the Wrongful Death Statute.

F.S.A. §§768.01-768.04, inclusive; now

§§768.17-768.21, inclusive, §95.11.

The opinion at page 1546 character-

izes Mrs. Stockton's federal claim as a

“right to life" deprivation, for which a

13

claim is not provided under the Act. A

claim for his wife's actual loss of life

was most certainly not provided to Mr.

Stockton as a survivor or beneficiary in

state court. (See §§768.16-768.27, in-

clusive.)

The Florida Supreme Court has histor-

ically regarded the bar of res judicata

as a doctrine that

",...should not be so rigidly

applied as to defeat the ends of

justice." Universal Construction

Company v. City of Fort Lauder-

dale, 68 So.2d 366, 369 (Fla.

1953).

In Shearn the same Supreme Court

consistently used the same principles in

refusing to apply res judicata to identi-

cal facts to the case at bar.

In contrast, the opinion rendered

herein relies on case law that is applied

to different facts than found below.

None of the cases cited in the opinion

14

Si ess 2x Pore est .

involve a suit under the Wrongful Death

Act by a personal representative, estate

rrneficiary or surviving spouse who sub-

sequently brings claims in his own right.

The Florida case law relied upon in the

subject opinion predates the enactment of

the Wrongful Death Act rendering those

decisions inappropriate and in effect

overruled by Shearn on our facts.

The Circuit Court states at page 1546

of the opinion "This is not meant to be a

formalistic inquiry into the labels ap-

plied, . . ." when determining the iden-

tity of the causes of action. (A-6.)

Then the Court opines that the same wit-

nesses and evidence in the same sequence

would be required in federal court with-

out variation. This conclusion is truly

absent an evaluation of Mr. Stockton's

personal, constitutional, contractual

rights and common law claims in contrast

ao

to the first cause of action as "an en-

tirely new right" under the Act. Shearn

at page 593 citing to Shiver at page 907.

The Circuit Court's opinion overlooks

the Wrongful! Death Act as a statutory

creature of specific claims which do not

include a beneficiary's individual rights

such as damage to that beneficiary's car,

his person, his civil liberties or for

breach of his contract. (§§768.01-04,

inclusive; 768.17-768.21, inclusive;

95.11, Florida Statutes.)

Without the death of Ruth Stockton

these "entirely new" rights would not

exist. However, the personal claims of

Henry Haines Stockton should and do exist

regardless of her death and regardless of

the Florida Wrongful Death Act.

16

F

:

g

s

|

5

ONC ON

The subject opinion's chilling effect

alters the rights that accompany separate

claims outside of an estate or outside of

a wrongful death, which demonstrates the

true need for a writ of certiorari.

Should Mrs. Shearn have had to sue for

the damage to her car involved in the

accident when she brought the estate

claim for her husband's wrongful death?

The answer must assuredly be no, not

anymore than Mr. Stockton should have had

to bring his personal claims as an estate

matter.

The writer strongly suggests the

reason for the issuance of the writ

should be twofold. First, the opinion

abrogates the scope of the Florida Wrong-

ful Death Act. The Act does not allow or

provide for such personal claims on be-

half of beneficiaries or survivors of the

17

estate, in their own right. Second,

these and other individual claims shall

be forfeited by the improper application

of the Migra rule cited in the opinion,

shortening various statutes of limita-

tions to deprive claimants of their

rights. The opinion gives a preclusive

effect that does not belong in Florida

wrongful death claims under the Act.

By the subject opinion, the Wrongful

Death Act is dangerously expanded to re-

quire all beneficiaries and survivor's to

file their personal claims at the time an

estate sues for wrongful death, whether

a claim arises from separate conduct

such as concealment or from the same

conduct such as causing a loss of life.

This amplification of the Act is patently

unfair and not intended under Florida

law. Shearn; §§768.16 - 768.27, inclu-

sive, Florida Statutes.

18

Because Ruth Stockton died, Henry

Haines Stockton's personal causes of

action should not be altered nor be con-

sidered the saine as his wife's under

Florida law. His claims are different

under different laws supported by dif-

ferent facts and evidence. Shearn.

Shiver. Migra.

The answer to the question presented

for review in this petition is that the

Eleventh Circuit Court of Appeals failed

to distinguish the personal claims of the

Petitioner from those claims he made as

the personal representative of his de-

ceased wife's estate when deciding wheth-

er the Florida doctrine of res judicata

was correctly applied by the District

Court.

The Petition for Writ of Certiorari

should be granted and the writ issued

19

regarding the individual claims of Henry

Haines Stockton.

Respectfully submitted,

CARL J. HOBIE, III

2828 South Tamiami Trail

Sarasota, Florida 34239

(813) 365-2827

Attorney for Petitioner

and Counsel of Record

20

21

Stockton v. Lansiquot, 838 F.2d

1545 (11th Cir. 1988), No. 86-

3871 * _ * . * 7 7 J > 7. - - - al

Judgment dated March 10, 1988

in The United States Court of

Appeals for the Eleventh Circuit,

Stockton v. Lansiquot, et al.,

No. 86-3871. a . 7 > * _ > — * i

Order dated April 14, 1988 On

Petition For Rehearing in The

United States Court of Appeals

for the Eleventh Circuit,

Stockton v. Lansiquot, et al.,

es oy ee

Order dated November 25, 1986

granting Summary Judgment to Re-

spondents in the U.S. District

Court for the Middle District of

Florida, Stockton v. Lansiquot,

et al., No. 84-553-CIV-T-17. ..

22

Page

-A-1

A-12

-A-14

-A-16

we

STOCKTON v. LANSIQUOT

Henry Haines STOCKTON,

Plaintiff-Appellant,

Vv.

Beverly Ann LANSIQUOT, John Wells,

Patricia Ann Riedel, Joyce Roderick

Londono, Sarasota County Public Hos-

pital Board, Florida Patients’ Com-

pensation Fund, Defendants-Appellees.

No. 86-3871.

United States Court of Appeals,

Eleventh Circuit.

March 10, 1988.

Husband of patient who died in hos-

pital brought civil rights suit against

hospital, hospital employees, and hospi-

tal's insurer. The United States Dis-

trict Court for the Middle District of

Florida, Docket No. 84-553-Civ-T-17,

Elizabeth A. Kovachevich, J., entered

STOCKTON v. LANSIQUOT

summary judgment in favor of defendants,

and husband appealed. The Court of Ap-

peals held that res judicata effect of

final judgment in favor of hospital in

state court suit brought by husband, as

personal representative of patient's

estate, for wrongful death of patient

barred husband's federal civil rights

suit against hospital, hospital employ-

ees, and hospital's insurer.

Affirmed.

1. Federal Courts [Key No. 420)

Federal court must apply law of

state in which it sits with respect to

res judicata, and is required by federal

statute to give same preclusive effect to

state court judgment as that judgment

would enjoy in courts of state in which

A-2

STOCKTON v. LANSIQUOT

it was rendered. 28 U.S.C.A. § 1738.

2. Judgment [Key No. 828(3.37)}

Res judicata effect of final judg-

ment in favor of hospital in state court

suit brought by husband, as personal

representative of patient's estate, for

wrongful death of patient barred hus-

band's federal civil rights suit against

hospital, hospital employees, and hospi-

tal's insurer. 42 U.S.C.A. § 1983.

Appeal from the United States District

Court of the Middle District of Florida.

Before RONEY, Chief Judge,

ANDERSON and EDMONDSON, Circuit Judges.

PER CURIAM:

Plaintiff Henry Haines Stockton ap-

peals a summary judgment in favor of

A-3

STOCKTON v. LANSIQUOT

defendants in this case which arose out

of the circumstances surrounding his

wife's death during her stay at Sarasota

Memorial Hospital. The district court

held that Stockton's claims against the

Hospital were barred by the res judicata

effect of a final judgment rendered in

favor of the Hospital in a suit tried to

a jury in state court and affirmed on

appeal on substantially the same issues

and claims as those asserted in the in-

stant case. See H. Haines Stockton v.

Sarasota County Public Hospital Board,

No. 84-2042 (Fla. 2d DCA June 2, 1985)

(affirming without opinion). We affirn.

{1,2] A federal court must apply the

law of the state in which it sits with

respect to res judicata, and is required

under 28 U.S.C.A. § 1738 to give the same

A-4

STOCKTON v. LANSIQUOT

preclusive effect to a state court judg-

ment as that judgment would enjoy in the

courts of the state in which it was ren-

dered. Migra v. Warren City School

Dist., 465 U.S. 75, 77 n. 1, 104 S.Ct.

892, 894 n. 1, 79 L.Ed.2d 56 (1984);

McDonald v. Hillsborough County School

Bd., 821 F.2d 1563, 1565 (11th Cir.

1987). Under Florida law, the doctrine

of res judicata applies when four “iden-

tities" exist: (1) identity of the thing

sued for, (2) identity of the cause of

action, (3) identity of the parties, and

(4) identity of the quality of the person

for or against whom the claim is made.

Albrecht v. State, 444 So.2d 8, 12 (Fla.

1984). The district court properly found

that these four identities are present

between this case and the state case

which was basically brought under the

A-5

STOCKTON v. LANSIQUOT

wrongful death statute in Florida, and

for breach of the Hospital's duty under

state law.

First, as to the identity of things

sued for, plaintiff in the state proceed-

ing sued for money damages for the loss

of his wife's companionship, services and

protection; for his own pain and suffer-

ing; and for the hospital's breach of its

obligation to provide adequate care and

its failure to promulgate effective rules

insuring decedent's safety. The same

recovery is sought in this suit.

Second, there is an identity in the

causes of action. This is not meant to

be a formalistic inquiry into the labels

applied, instead the "determining factor

in deciding whether the cause of action

is the same is whether the facts or evi-

dence necessary to maintain the suit are

A-6

STOCKTON v. LANSIQUOT

the same in both actions." Albrecht, 444

So.2d at 12. The same witnesses would be

asked to testify to the same sequence of

events in federal court as they had pre-

viously done in state court. Thus, while

in state court plaintiff pursued a wrong-

ful death action and here asserts depri-

ation of civil rights under 42 U.S.C.A.

§ 1983, both suits "could have been" ini-

tially pursued in either state or federal

court without any variation in the pre-

sentation of facts or evidence.

Albrecht, 444 So.2d at 12; see McDonald,

821 F.2d at 1565. Comparing the state

and federal complaints, it is evident

that the federal claims of an unconstitu-

tional deprivation of Ruth Stockton's

right to life would depend upon the very

same facts and evidence as were necessary

to maintain the prior state wrongful

A-7

STOCKTON v. LANSIQUOT

death action. The federal breach of

contract action is similarly premised

upon allegations that the Hospital failed

to provide plaintiff's wife with due

care, which was at the heart of plain-

tiffs failed attempt to prove negligence

in the state forun.

Third, as to the identity of parties

or their privies, it is not necessary

that there be an exact identity of the

parties. A judgment is conclusive as to

those in privity with the parties. Mc-

Gregor v. Provident Trust Co., 119 Fla.

718, 162 So. 323 (1935); Hay v. Salis-

bury, 92 Fla. 446, 109 So. 617 (1926).

There is no cognizable distinction be-

tween the plaintiffs. Stockton suing on

his own behalf in the federal action is

essentially the same as his appearing as

personal representative of decedent's

A-8

STOCKTON v. LANSIQUOT

estate in the state action. It is well

settled Flcrida law that "even though a

party in a subsequent suit was not a

named party in a prior suit, such party

is bound by the prior judgment if he

participated in the first proceeding or

was represented by a party to that pro-

ceeding." Kline v. Heyman, 309 So.2d

242, cert. denied, 423 U.S. 1034, 96

S.Ct. 567, 46 L.Ed.2d 408 (1975).

The defendants in the two actions are

also sufficiently similar to fit within

the third identity of res judicata under

Florida lav. The individual defendants

are all employees of the Hospital, and

the Floride Patients' Compensation Fund

(the Fund) is an insurer of the Hospital.

The actions of the individual defendants

were implicated in the state wrongful

death acticn which sought vicarious lia-

A-9

STOCKTON v. LANSIQUOT

bility of the Hospital. The Fund has a

contractual relationship with the Hospi-

tal and that relationship has created a

commonality of interests for purposes of

defending against plaintiff's claims.

Thus, while the parties to the federal

action may be nominally different from

those in the state action, they are in

effect the very same parties. kKnabb v.

Duner, 143 Fla. 92, 196 So. 456 (1940).

Fourth, the identity of the quality of

the persons for or against whom the claim

is made is apparent. The test is whether

the parties in the state action had the

incentive to adequately litigate the

claims in the same character or capacity

as would the parties to the federal ac-

tion. Ford v. Dania Lbr. & Supply Co.,

150 Fla. 435, 7 So.2d 594 (1942). This

same plaintiff sued the same defendants

A-10

STOCKTON v. LANSIQUOT

for relief on substantially the same

claim, arising from the same circum-

stances, and raised the same underlying

issues in the federal proceeding as he

had previously raised in the state pro-

ceeding.

The district court properly granted

defendants' motion for summary judgment

on the ground of res judicata as matters

outside the pleadings were considered.

18 C. Wright, A. Miller & E. Cooper,

Federal Practice & Procedure § 4405;

Capitol Funds, Inc. v. Arlen Realty,

Inc., 755 F.2d 1544, 1546-47 (11th Cir.

1985).

AFFIRMED.

A-11

UNITED STATES COURT OF APPEALS

For The Eleventh Circuit

No. 86-3871

D.C. e -

HENRY HAINES STOCKTON,

Plaintiff-Appellant,

versus |

BEVERLY ANN LANSIQUOT,

JOHN WELLS,

PATRICIA ANN RIEDEL,

JOYCE RODERICK LONDONO,

SARASOTA COUNTY PUBLIC HOSPITAL BOARD,

FLORIDA PATIENTS' COMPENSATION FUND,

Defendants~-Appellees.

Appeal from the United States District

Court for the Middle

District of Florida

Before RONEY, Chief Judge, ANDERSON and

EDMONDSON, Circuit Judges

JUDGMENT

This cause came on to be heard on

the transcript of the record from the

United States District Court for the

A-12

Middle District of Florida, and was ar-

gued by counsel;

ON CONSIDERATION WHEREOF, it is now

here ordered and adjudged by this Court

that the judgment of the said District

Court in this cause be and the same is

hereby, AFFIRMED;

It is further ordered that plain-

tiff-appellant pay to defendants-appel-

lees, the costs on appeal to be taxed by

the Clerk of this Court.

Entered: March 10, 1988 —

For the Court: Miguel J. Cortez, Clerk

By:_/S/ Karleen McNave _

Deputy Clerk

ISSUED AS MANDATE: Apr 22 1988

A-13

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No.

86-3871

HENRY HAINES STOCKTON,

Plaintiff-Appellant,

versus

BEVERLY ANN LANSIQUOT,

JOHN WELLS,

PATRICIA ANN RIEDEL,

JOYCE RODERICK LONDONO,

SARASOTA COUNTY PUBLIC HOSPITAL BOARD,

FLORIDA PATIENTS' COMPENSATION FUND,

Defendants~-Appellees.

Appeal from the United States District

Court for the Middel (sic) District

of Florida

( April 14, 1988 )

BEFORE: RONEY, ANDERSON and EDMONDSON,

Circuit Judges.

PER CURIAM:

The petition(s) for rehearing filed

A-14

Por wnt

by appellant, Henry Haines Stockton, is

denied.

ENTERED FOR THE COURT:

y

United States Circuit Judge

ORD~-41

A-15

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

HENRY HAINES STOCKTON,

Plaintiff,

vs. Case No. 84-

553-CIV-T-17

BEVERLY ANN LANSIQUOT,

et al.,

__£™9Defendants. .™— /

ORDER GRANTING MOTIONS FOR SUMMARY _

JUDGMENT

This cause is before the Court on

motions for summary judgment filed by

Defendants on May 29, 1886. (sic)

This circuit clearly holds that sunm-

mary judgment should only be entered when

the moving party has sustained its burden

of showing the absence of a genuine issue

as to any material fact when all the

evidence is viewed in the light most fav-

orable to the nonmoving party. Sweat v.

The Miller Brewing Co., 708 F.2d (sic)

(Sth Cir. 1969). Factual disputes pre-

Clude summary judgment. In this case,

A-16

ae ee

PE aes sO ae

this Court is satisfied that summary

judgment is appropriate.

The following facts are not in dis-

pute, as presented to the Court in the

Joint Memorandum of Parties submitted on

July 25, 1986:

1. At all times material hereto,

Decedent Ruth Stockton was the wife of H.

H. Stockton, who is personal representa-

tive of her estate and who is the es-

tate's sole residuary legatee.

2. At all times material hereto,

defendant Hospital, through its employ-

ees, knew Decedent was in a highly dis-

turbed emotional state and that she was

incapable of caring for herself.

3. On February 15, 1981, Decedent

was confined to her bed by Hospital en-

ployees through the use of a posey and

guard-rails that were attached to her

bed.

A-17

4. Decedent died on July 15, 1981.

5. Mr. Stockton filed a wrongful

death action in the circuit court in and

for Sarasota County, Florida, H. Haines

Stockt : ta c ty Public H “a

tal Board, 81-1907-CA-01.

6. The state wrongful death action

was tried; the first trial ended in a

mistrial, due to a hung jury.

7. <A second trial was held which

ended in a jury verdict, finding no neg-

ligence on the part of the Defendants.

This judgment was affirmed on appeal.

@. The Second Amended Complaint and

Answers to that complaint, attached to

the joint memo, are true and correct

copies of the Complaint and Answer in the

state proceedings.

9. Defendant Hospital is and has

been, at all material times, an agency or

political subdivision of the State of

A-18

a ee

Florida, a body politic and public.

The legal memoranda in support of the

motions for summary judgment are well-

supported and highly persuasive, and this

Court hereby incorporates them by refer-

ence.

A comparison of the Plaintiff's state

and federal complaints clearly shows that

the same factual issues underlie each

complaint. The conduct of the Hospital

and its staff (now named as individual

defendants) is the central issue. Al-

though the allegations are now bad faith,

breach of contract and unconstitutional

deprivation, the underlying acts or al-

leged omissions in question are still the

same.

It is noted by the Court that the

state court complaint was brought by H.

Haines Stockton as personal representa-

tive. However, Count II of that complaint

A-19

asks for damages to be awarded to H.

Haines Stockton as husband and survivor,

for the loss of his wife's companionship,

services, protection, and for his own

pain and suffering.

Count III asks for money damages due

to the Hospital's alleged breach of its

agreement with Stockton to provide ade-

quate nursing care and to promulgate

rules and regulations necessary for the

decedent's safety.

Count IV was for loss of support for

Stockton due to the loss of support from

a trust in decedent's name. Due to these

factors, the Court is satisfied as to the

identity of parties necessary for res

judicata.

After careful consideration, this

Court also finds that the causes of ac-

tion are the same due to the identity of

facts and evidence necessary to prove

A-20

all claims. This Court determines that

the underlying factual issues raised by

Stockton's complaint have already been

litigated, or could have been litigated,

during the state case. This Court takes

judicial notice of the court record in

Vv s-

pital Board, et al., Case No. 81-1907-CA-

01, in the Twelfth Judicial Circuit in

and for Sarasota County and the appellate

record in that case, Appeal No. 84-2042,

in the Second District Court of Appeals,

Lakeland. The Court specifically takes

notice of the pleadings, the trial tran-

script, the appellate briefs, the orders,

final judgment and appellate decisions.

Under the authority of Migra v. War-

2 it j ° f_ Educa-

tion, 465 U.S. 75, 79 L.Ed.2da 56, 104

S.Ct. 892 (1984), and Albrecht v. State,

444 So.2d 8, 11-12 (Fla. 1984), it is

A-21

clear that the allegations in the federal

complaint which were raised, or could

have been raised at the state level, are

now barred.

One issue that could not have been

previously raised is the allegation that

the plaintiff was deprived of a fair

trial. The complaint alleges that de-

fendants Wells and Lodono (sic) gave

"inconsistent" or "ambiguous" testimony

which led to a mistrial. This bare al-

legation does not state a cause of action

upon which relief can be granted. It

should be noted that there was a subse-

quent trial, which did result in a ver-

dict, although unfavorable to the Plain-

tiff. That verdict was upheld on appeal.

The Supreme Court of the United

States has established standards to be

used in evaluating motions for summary

judgment and the responses thereto. In

A-22

Celotex Corp (sic) v. Catrett, 477 U.S.

, 91 L.id 2a 265, 106 S.Ct (1986),

the Court said,

Rule 55(e) therefore requires

the noimoving party to go beyond

the pl2adings and by her own

affidavits, or by the "deposi-

tions, answers to interrogator-

ies, aid admissions on file,"

designate "specific facts showing

that tnere is a genuine issue for

trial."

This Curt noticed the Plaintif,

(sic) giving him ten (10) days to supple-

ment his response to the motions for

summary jwigment, using the standards set

forth in Clotex, in the Court's order of

November 12, 1986. However, the Plain-

tiff was wmable to make any showing of

fact or evidence which would negate the

the (sic) bar of res judicata, or of

collateral] estoppel. Even without these

bars, the motions for summary judgment

would prevail.

A jury Of six reasonable people con-

A-23

sidered the facts and the evidence which

are necessary to support the Plaintiff's

case. After considering all of the fac-

tors the Plaintiff would again call into

question, that jury found that the Hospi-

tal's conduct, and that of its staff,

were not negligent. That record is part

of the record supporting the motions for

summary judgment. The facts themselves

are taken by this Court to be true, as

well as the jury's assessment of those

facts.

The Plaintiff has provided no facts

or new evidence to show that the issues

he (sic) that now raises would have any

different outcome than that at the state

level. He has been unable to provide

this Court with affidavits, depositions,

or any evidence in support of the fed-

eral complaint that would show that the

case, if it went to trial, could survive

A-24

a motion for directed verdict.

In this case the Court is satisfied

that there are no genuine issues of ma-

terial fact. Evaluating the motions and

the responses thereto, in light of the

standards set forth by the Supreme Court

of the United States in Celotex Corp. v.

Catrett, 477 U.S. _, 91 L.Ed. 2d 265,

106 $.CT. (sic) -, (1986), and in

Anderson v. Liberty Lobby, Inc., 477 U.S.

___, 91 & BG 24 202, 106 & Ct... as

well as on the basis of res judicata and

collateral estoppel, the motions for

summary judgment as to all defendants are

hereby Granted. The Clerk is directed to

close this case.

DONE AND ORDERED in Chambers, in

Tampa, Florida, this 25th day of Novem-

ber, 1986.

{s/ ELIZABETH A. KOVACHEVICH

ELIZABETH A. KOVACHEVICH

United States District Judge

A-25