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


                                              IN THE DISTRICT COURT OF APPEAL

                                              OF FLORIDA

                                              SECOND DISTRICT


AUDREY A. BRYAN,                              )
                                              )
               Appellant,                     )
                                              )
v.                                            )          Case No. 2D15-4830
                                              )
GARY M. FERNALD, as Administrator Ad          )
Litem, and EDWARD JOHN,                       )
                                              )
               Appellees.                     )
                                              )

Opinion filed February 22, 2017.

Appeal from the Circuit Court for Pinellas
County; Mark I. Shames, Judge.

Ann M. Allison of Allison Law Group, Temple
Terrace; and Mary Ann Noud, Bradenton,
for Appellant.

Wil H. Florin and Eric P. Czelusta, Palm
Harbor, for Appellees.

MORRIS, Judge.

               Audrey A. Bryan appeals an order on her petition to determine

beneficiaries in the probate proceedings of her deceased mother's estate.1 In

determining the beneficiaries, the trial court concluded that the issue of the validity of



               1We   have jurisdiction pursuant to Florida Rule of Appellate Procedure
9.170(b)(5).
the decedent's marriage was res judicata. We disagree and reverse and remand for

further proceedings.

              I. Background

              In 2007, Edward John opened the probate proceedings of the decedent's

estate. John named himself as the decedent's surviving spouse and only known

beneficiary. The decedent's children were not served with any pleadings or orders in

the probate case. In March 2009, the probate court entered an order of discharge,

finding that the estate had been properly distributed and discharging John as personal

representative. In June 2009, John petitioned to reopen the estate in order to pursue a

medical malpractice claim against the doctor who treated the decedent before she died,

Dr. Scott Plantz. The petition was served on the decedent's four children, including

Bryan. The estate was reopened, and the estate filed a medical malpractice lawsuit

against Dr. Plantz. In 2012, Gary M. Fernald was appointed as administrator ad litem

for the estate.

              In 2015, Bryan filed a petition to determine intestate beneficiaries pursuant

to section 733.105, Florida Statutes (2014), in the probate proceeding. In her petition,

Bryan alleged that she and the decedent's three other children were not notified of the

administration of their mother's estate. Bryan alleged that she and her siblings are

entitled by law to an equal share of at least fifty percent of their mother's estate and that

if John cannot produce a valid marriage certificate proving that he was legally married to

the decedent, Bryan and her siblings are entitled to an equal share of one hundred

percent of the decedent's estate. John and Fernald filed a response to Bryan's petition,

alleging that Dr. Plantz was behind Bryan's petition. The response set forth numerous




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allegations of misconduct by Dr. Plantz in the pending medical malpractice case and the

probate case. In response to Bryan's allegations, John and Fernald argued that John

was lawfully married to the decedent at the time of her death and that this issue was

already determined in a 2013 order in the medical malpractice case. In the 2013 order,

the trial court denied Plantz's amended motion for partial summary judgment on

damages and found that "the person [John] married was the [d]ecedent."2

              A hearing was held on Bryan's petition on August 26, 2015. John and

Fernald were represented by counsel, and Dr. Plantz also appeared with counsel. The

parties all agreed that Bryan and her siblings are beneficiaries of the estate, but they

disputed the validity of the marriage between the decedent and John. Bryan's counsel

argued that the issue was not controlled by the order in the medical malpractice case

because that order was not a final order. The estate argued that the order constitutes a

factual finding that John and the decedent were married at the time of the decedent's

passing. The trial judge stated that he did not "know how [he could] go beyond that,"

and he wondered why he would "go back and reinvent the wheel that [the other judge]

apparently spent considerable time and judicial energy on." Bryan responded that she

and her siblings had not had the opportunity to argue the issue to any court, and the trial

judge seemed to agree that "it's a due process issue." The estate's counsel argued that

in depositions, Bryan and her sister did "not dispute that this was a valid and legal

marriage." Bryan's deposition was read to the court, wherein she admitted that she



              2Noting   that the case presented "a difficult and troubling fact pattern," the
trial court in the medical malpractice case found that "the person [John] married was the
[d]ecedent. He is not claiming he was defrauded. Under the authorities reviewed[,] the
[c]ourt cannot declare the marriage invalid or void because the [d]ecedent used a
different name."


                                            -3-
witnessed her mother marry John in what appeared to be a valid wedding ceremony.

Bryan's counsel then argued that Bryan did witness a wedding ceremony but that Bryan

had no idea that her mother had obtained the marriage certificate under a false name

and identity. The trial judge stated that he was not going to reverse the judge in the

medical malpractice case and found that that order "is res judicata on the issue." He

stated the following:

              [T]his isn't a factual issue as I contemplated when I reviewed
              the file and prepared for the hearing today. I think that I
              make a determination based upon the uncontested part of it
              with regard to the four adult children of the decedent and I
              make a ruling based on the findings of [the medical
              malpractice] order directly on point that I think is res judicata
              on the issue of the marriage and find that Mr. John was the
              spouse of the decedent.

              In the written order, the trial court determined that Bryan and her three

siblings are beneficiaries and that John is also a beneficiary as the decedent's spouse.

The trial court found that based on the earlier order in the separate medical malpractice

case, res judicata applies and controls the issue of the validity of the marriage between

John and the decedent. The trial court found that deposition evidence further

established the validity of the marriage.

              II. Analysis

              On appeal, Bryan first argues that the doctrine of res judicata does not

apply because the requirements for res judicata were not satisfied. Under the doctrine

of res judicata,

              [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



                                            -4-
              which might with propriety have been litigated and
              determined in that action.

Fla. Dep't of Transp. v. Juliano, 

, 105 (Fla. 2001) (quoting Kimbrell v.

Paige, 

, 1012 (Fla. 1984)). Thus, res judicata applies when the

following 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, 

1253, 1255 (Fla. 2004). This court reviews de novo the trial court's application of res

judicata. See Campbell v. State, 

, 295 (Fla. 2d DCA 2004).

              Here, the first two elements were not satisfied because the things sued for

and the causes of action are different. In the medical malpractice case, the decedent's

estate is suing Dr. Plantz for damages and the cause of action is based on medical

negligence. In the probate case, Bryan is asking for a determination of the decedent's

beneficiaries and the proper administration of the estate. The facts or evidence

necessary to maintain the two causes of action are different. See Albrecht v. State, 

, 12 (Fla. 1984) ("The determining factor in deciding whether the cause of

action is the same is whether the facts or evidence necessary to maintain the suit are

the same in both actions."), superseded by statute on other grounds as stated in Bowen

v. Fla. Dep't of Envtl. Regulation, 

(Fla. 2d DCA 1984). Furthermore, the

identities and qualities of the parties are not present in the two cases. Bryan was not

part of the proceedings between the estate and Dr. Plantz when the court entered the

order in the medical malpractice case, and Bryan was not in privity with the estate when

it was asserting the validity of the marriage in the medical malpractice case. See

Wildflower, LLC v. St. Johns River Water Mgmt. Dist., 

, 374 (Fla. 5th



                                              -5-
DCA 2015) ("Res judicata binds the parties in the former action and their privies. A

'privy is one who is identified with the litigant in interest.' " (citations omitted)).

               Moreover, res judicata does not apply in this case because "[a] final order

is necessary for application of res judicata." Thomson v. Petherbridge, 

,

774 (Fla. 1st DCA 1985); Accent Realty of Jacksonville, Inc. v. Crudele, 

,

160 (Fla. 3d DCA 1986) ("The entry of a final judgment or order is the common element

that invokes the doctrines of both res judicata and collateral estoppel."). The order

entered in the medical malpractice case is not a final order because it merely denied Dr.

Plantz's motion for partial summary judgment.3 See Better Gov't Ass'n of Sarasota Cty.,

Inc. v. State, 

, 415 (Fla. 2d DCA 2001) (recognizing that an order

denying summary judgment is not a final order). The medical malpractice case is still

ongoing.

               In conclusion, the trial court erred in ruling that "[t]he application of res

judicata prevents [the court] from disturbing" the order in the medical malpractice case.

It must be noted that in its order, the trial court further ruled that it would not "rule

contrary" to the prior order because "the presented deposition testimony of [Bryan,] who

recognized in her testimony the validity of the marriage between [John] and [the

decedent,] is contrary to the position advocated by her attorney." Even though Bryan

testified in her deposition that she witnessed her mother marry John, Bryan's attorney

argued that at the time of the deposition, Bryan herself "didn't know whether it was a



               3Indenying Dr. Plantz's motion for summary judgment in the medical
malpractice case, the trial court determined that Plantz was not entitled to a summary
judgment in his favor on the issue of the validity of the marriage. Even though the trial
court went on to find that the marriage was valid, it did not grant summary judgment in
favor of the estate on that issue.


                                               -6-
legal binding marriage." The trial court did not engage in an independent analysis of

whether the marriage was valid under the applicable law. Rather, the trial court based

its ruling on the prior order in the medical malpractice case. For the reasons stated, we

reverse the order on appeal and remand for further proceedings.

             Reversed and remanded.


NORTHCUTT and LUCAS, JJ., Concur.




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