Pipkin v. Wiggins

526 So. 2d 1002 (1988)

R. Michael PIPKIN, Appellant,
v.
Robert H. WIGGINS, Appellee.

No. 88-361.

District Court of Appeal of Florida, Third District.

June 14, 1988. Rehearing Denied July 13, 1988.

Zuckerman, Spaeder, Taylor & Evans and Ronald B. Ravikoff and Humberto J. Pena, Coral Gables, for appellant.

Elena Moure, Miami, for appellee.

Before BARKDULL, FERGUSON and JORGENSON, JJ.

FERGUSON, Judge.

The appellant's motion to dismiss, which alleged that the court lacked jurisdiction over the defendant and that res judicata principles precluded relitigation of the jurisdictional issue, was correctly denied.^[1]

For the purpose of long-arm jurisdiction over the person pursuant to section 48.193(1)(b), Florida Statutes (1987), where a tortious act is committed within this state, it is not necessary to show that the defendant was physically present in the state of Florida. See Lewis v. Cues, 338 So. 2d 241 (Fla. 4th DCA 1976).

Prior litigation between these parties involved breach of obligations under a joint venture agreement. The instant litigation is based on a different cause of action arising from a subsequent interference with that agreement; therefore, res judicata principles are not applicable. Albrecht v. State, 444 So. 2d 8, 12 (Fla. 1984) ("[W]hen the second suit is between the same parties, but based upon a different cause of action from the first, the prior judgment will not serve as an estoppel except as to those issues actually litigated and determined in it.").

Jurisdiction here is based on acts of solicitation within the state which were not present or pertinent in previous jurisdictional determinations. For that reason collateral estoppel is no bar. Nationwide Mut. Fire Ins. Co. v. Race, 508 So. 2d 1276, 1278 (Fla.3d DCA 1987) (collateral estoppel is no bar where the issue sought to be precluded was not actually litigated and determined in the prior action.).

Affirmed.

NOTES

[1] Florida Rule of Appellate Procedure 9.130(a)(3)(C)(i) provides for review of a non-final order which determines jurisdiction of the person.