Opinion
No. 78-2030.
July 17, 1979. Rehearing Denied September 27, 1979.
Appeal from the Circuit Court, Dade County, Thomas E. Lee, J.
Joseph S. Paglino, Miami, for appellant.
Steel, Hector Davis and Darrey A. Davis, Miami, for appellees.
Before PEARSON, KEHOE and SCHWARTZ, JJ.
We have carefully examined the issues raised by this appeal and find them to be controlled by our recent decision in Burleigh House Condominium v. Buchwald, 368 So.2d 1316 (Fla. 3d DCA 1979). In light of that decision, which we note was unavailable to the trial court at the time it entered summary judgment for the appellees, the summary judgment must be reversed.
We have particularly considered the issue of whether the doctrine of estoppel by judgment applies here to bar the appellant's cause of action. The appellees contend that this action is barred by the prior cases of Buckley Towers Condominium v. Buchwald, 321 So.2d 628 (Fla. 3d DCA 1975), appeal dismissed, 327 So.2d 31, 330 So.2d 15 (Fla. 1976) and Buckley Towers Condominium v. Buchwald, 340 So.2d 1206 (Fla. 3d DCA), cert. denied, 348 So.2d 945 (Fla. 1977). We cannot agree that the issues raised below were tried and determined in those cases.
Buckley Towers Condominium v. Buchwald, 321 So.2d 628, supra, determined only that the trial court had jurisdiction to enforce the terms of a settlement agreement entered into between the parties. Nowhere in that opinion were the terms of the agreement (particularly those terms relating to the recreation lease attacked sub judice) either approved or disapproved. The underlying validity of the recreation lease was never raised in this appeal.
In Buckley Towers Condominium v. Buchwald, 340 So.2d 1206, supra, we held that no error was committed in the enforcement of the settlement agreement between the parties by (a) denying the appellant's motion for a continuance, and (b) sequestering funds due the appellee under the terms of the recreation lease. Further, we expressly refused to consider the issue of the legality of the recreation lease that was raised for the first time at oral argument.
We therefore conclude that there are no material features distinguishing this appeal from that in Burleigh House Condominium v. Buchwald, supra, and that the principles applied in that case are controlling here.
Reversed.