DDISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

DANIEL E. KOWALLEK,

Appellant,

v.

LEE REHM, PORT ST. LUCIE POLICE DEPARTMENT, CITY OF PORT 

ST. LUCIE, FLORIDA POWER AND LIGHT COMPANY, and ASPLUNDH 

TREE EXPERT COMPANY,

Appellees.

No. 4D14-4581

[January 13, 2016]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. 

Lucie County; William L. Roby, Judge; L.T. Case No. 562014CA001633.

Daniel E. Kowallek, Port St. Lucie, pro se.

No brief filed on behalf of appellees.

CIKLIN, C.J.

Daniel Kowallek (“Kowallek”) appeals an order dismissing his case 

with prejudice as to two defendants, Florida Power and Light Company 

and Asplundh Tree Expert Company (“the defendants”), contending that 

the trial court erred in granting the motion filed by the defendants on the 

bases of res judicata and collateral estoppel. Although we agree that the 

action should not have been dismissed pursuant to the doctrine of res 

judicata, we affirm on the basis of collateral estoppel.

In a prior lawsuit, Kowallek asserted negligence claims against the 

defendants, alleging that they improperly trimmed a tree on a utility

easement located on his property. In that prior case, Kowallek sought to 

address tree trimming procedures to prevent future damage to Kowallek’s 

property. A final judgment was rendered ordering that Kowallek had 

thirty days to remove the vegetation in the easement, and that if he did 

not do so, the defendants then had a right to remove the vegetation. The 

thirty-day period expired and because Kowallek took no action, the 

defendants removed the vegetation, as permitted by the final judgment. 
2

Kowallek then filed the action below against the defendants and 

several other parties claiming negligence, trespass, destruction of private 

property, and alleged that the defendants did not remove vegetation in 

compliance with the final judgment. 

Looking to the instant complaint, the prior complaint, and the final 

judgment (the latter two of which were incorporated into the complaint 

by reference), the trial court dismissed the instant action with prejudice 

on the bases of res judicata and collateral estoppel. 

This court has defined res judicata as follows:

“A judgment on the merits rendered in a former suit between 

the same parties or their privies, upon the same cause of 

action, by a court of competent jurisdiction, is conclusive not 

only as to every matter which was offered and received to 

sustain or defeat the claim, but as to every other matter 

which might with propriety have been litigated and 

determined in that action.”

Tyson v. Viacom, Inc., 890 So. 2d 1205, 1209 (Fla. 4th DCA 2005) 

(quoting Huff Groves Trust v. Caulkins Indiantown Citrus Co., 810 So. 2d 

1049, 1050 (Fla. 4th DCA 2002)). 

Similarly, the doctrine of collateral estoppel, or issue preclusion, “bars 

relitigation of the same issue between the same parties which has 

already been determined by a valid judgment,” even where the present 

and former cause of action are not the same. Zikofsky v. Mktg. 10, Inc., 

904 So. 2d 520, 525 (Fla. 4th DCA 2005) (citations omitted). While 

collateral estoppel and res judicata are affirmative defenses that may not 

ordinarily form the basis for a motion to dismiss, they may be 

appropriate where a plaintiff specifically incorporates prior proceedings 

into his complaint. Duncan v. Prudential Ins. Co., 690 So. 2d 687, 688 

(Fla. 1st DCA 1997).

Here, dismissal of the action pursuant to res judicata was not 

appropriate because the causes of action alleged in the second complaint 

were different from the first, as they were based on events that occurred 

after the entry of the final judgment in the first case, and they involved 

some additional parties. However, the trial court did not err in 

dismissing the motion on the basis of collateral estoppel because in his

second complaint, Kowallek attempted to relitigate the same issue as the 

first. That is, the defendants’ removal of vegetation on Kowallek’s 

property. 
3

While Mr. Kowallek may wish to pursue a course of action before the 

trial court that originally permitted entry onto his easement and therein 

allege that the defendants were unreasonable in their entry, no such 

action lies here. 

Affirmed.

GROSS and GERBER, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.