04-1690 THE EDUCATION RESOURCES V. RICKARD

State: Florida

Court: Florida Third District Court

Docket No: 04-1690 THE EDUCATION RESOURCES V. RICKARD

Case Date: 02/08/2006

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JANUARY TERM A.D., 2006

** THE EDUCATION RESOURCES INSTITUTE, INC., etc., Appellant, v. MARK W. RICKARD, Appellee. ** ** ** ** ** LOWER TRIBUNAL NO. CASE NO. 3D04-1690

02-29010

Opinion filed February 8, 2006. An Appeal from the Circuit Court for Miami-Dade County, Roberto M. Pineiro, Judge. Behar, Gutt & Glazer, and Robert J. Edwards, for appellant. Andrew John Anthony, and Bradley A. Silverman, for appellee.

Before GREEN, RAMIREZ, and ROTHENBERG, JJ. RAMIREZ, J. The Education Resources Institute, Inc. ("TERI") appeals the entry of an adverse final summary judgment arising from its

lawsuit against appellee Mark Rickard to collect on defaulted promissory notes Rickard executed for educational student loans. We affirm because the doctrine of res judicata bars TERI's state court claim. Rickard which TERI filed filed a an out-of-state to bankruptcy liquidate moved proceeding the amount to of the

counterclaim TERI.

damages

Rickard

owed

Rickard

to

dismiss

counterclaim to which TERI argued that it was entitled to a money judgment pursuant to the promissory notes it sued upon. The bankruptcy court denied Rickard's motion, and subsequently entered its final judgment finding only that Rickard's debt owed to TERI was non-dischargeable. The judgment was silent on the counterclaim. Rickard appealed the judgment but TERI neither

moved for rehearing, clarification nor filed a cross appeal. Years later, TERI filed the underlying action against Rickard to liquidate its claim. As we stated in Amador v. Florida Board of Regents, 830 So. 2d 120 (Fla. 3d DCA 2002), Florida courts apply principles of federal claim preclusion to determine whether a Florida claim is res judicata in cases where a prior federal court judgment

exists.

Under the federal law of res judicata, a final judgment

on the merits of an action precludes the re-litigation of claims that were previously raised or could have been raised in a

former action. See Apparel Art Int'l, Inc. v. Amertex Enters.

2

LTD., 48 F. 3d 576 (1st Cir. 1995). Although the bankruptcy court did not specifically address TERI's counterclaim in its final judgment, TERI cannot now pursue the identical claim it raised action. in the bankruptcy proceeding in the underlying court

We must therefore affirm.

3

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