BOHNSACK v. AMSOUTH BANK OF FLORIDA (1999)

Appellant (Bohnsack) filed an action against appellee (the Bank) alleging tortious interference with a business relationship.   In response to a motion filed by the Bank, the trial court concluded that the action was barred by the doctrines of res judicata and collateral estoppel and, accordingly, entered a summary final judgment in favor of the Bank. Because it is apparent from the record that neither res judicata nor collateral estoppel bars Bohnsack's action, we reverse.

 The Bank claims that Bohnsack's tortious interference action is barred by a prior foreclosure action instituted against her by the Bank, and resolved in the Bank's favor.   The trial court agreed.   However, the record clearly demonstrates that the two actions share neither an identity of the thing sued for nor an identity of causes of action.   Accordingly, the record will not support application of the doctrine of res judicata.   See, e.g., Surf Colony Dock Ass'n, Inc. v. Vanderbilt Towers Unit # 1 of Naples Ass'n, Inc., 708 So.2d 304, 305 (Fla. 2d DCA 1998) (application of “the doctrine of res judicata requires that the two actions share an identity of the thing sued for and an identity of the cause of action”).   The record also clearly demonstrates that the issues relevant to Bohnsack's tortious interference action were not actually litigated in the foreclosure action.   Accordingly, the record will also not support application of the doctrine of collateral estoppel.   See, e.g., Department of Health & Rehab. Serv. v. B.J.M., 656 So.2d 906 (Fla. 1995) (application of the doctrine of collateral estoppel requires that the issues relevant to the subsequent action were actually fully litigated in the prior action).

Because the trial court erroneously concluded that Bohnsack's tortious interference action was barred by the doctrines of res judicata and collateral estoppel, we reverse the summary final judgment entered in favor of the Bank and remand for further proceedings.

REVERSED and REMANDED.

The prior foreclosure action determined the legitimacy of the bank's efforts to foreclose the mortgage following Bohnsack's breach of the loan agreement.   Alleged tortious actions of the bank, which form the basis of Bohnsack's current action, consisted of the same actions taken by the bank in enforcing its rights under the prior loan agreement.   The present tort action is, therefore, precluded not only by res judicata, but also by the economic loss rule.   See, e.g., Smith v. State, Board of Regents, 701 So.2d 348, 349 (Fla. 1st DCA 1997) (noting that where a contract exists, a tort action will lie only for intentional or negligent acts considered to be independent from acts that breached the contract).

While arguably Bohnsack's complaint also asserts what amounts to a claim that the bank obtained the foreclosure judgment by extrinsic fraud which claim would not be barred under the doctrines of res judicata or collateral estoppel, see Liberoff v. Liberoff, 711 So.2d 1333, 1335-36 (Fla. 3d DCA 1998), I would, nevertheless, affirm because this issue was not raised by Bohnsack.

WEBSTER, J.

LAWRENCE, J., CONCURS. WOLF, J., DISSENTS WITH WRITTEN OPINION.