Stadler v. Cherry Hill Developers, Inc.

• Decision Date: 15 February 1963
• Docket Number: Nos. 3406,3412,s. 3406
• Citation: 150 So.2d 468
• Parties: Albert STADLER et al., Appellants, v. CHERRY HILL DEVELOPERS, INC., et al., Appellees.
• Court: Florida District Court of Appeals

Page 468

150 So.2d 468

Albert STADLER et al., Appellants, v. CHERRY HILL DEVELOPERS, INC., et al., Appellees.

Nos. 3406, 3412.

District Court of Appeal of Florida, Second District.

Feb. 15, 1963.

Rehearing Denied March 11, 1963.

Thomas H. Anderson, of Anderson & Nadeau, Miami, for appellants.

William S. Turnbull, Orlando, for appellees.

ALLEN, Judge.

This cause arises on interlocutory appeal and appeal from an order granting defendant-appellees' motion for summary judgment. It might be noted at the outset that the order granting the motion for summary judgment is not a final decree and that only the interlocutory appeal is proper. Cruden v. State Bank of Apopka, Fla.App.1962, 136 So.2d 357; Elliott v. Lazar, Fla.App.1958, 104 So.2d 618.

Plaintiff-appellants are holders of a first (construction) mortgage. Defendant-appellees are the fee owners, the holders of a subordinated or second (purchase money) mortgage, and various persons having or claiming an interest in the property.

In September of 1960, plaintiff-appellants instituted suit to foreclose and elected to accelerate the entire indebtedness because of a default in an interest payment due May 20, 1960. A decree pro confesso was entered against defendant-appellee fee holders but the other defendants answered. Defendant-appellees Lenzen, holders of the subordinated mortgage, answered denying, inter alia, the allegations of the complaint as to ownership of the mortgage, the existence of the indebtedness and the existence of any default. In affirmative defense they contested the validity of the subordination agreement and contended that their mortgage was superior. The Lenzen answer also contained a counterclaim which they later moved to dismiss. Plaintiffs answered the counterclaim and the cause became at issue on April 26, 1961. It appears that plaintiffs served notice of final hearing in July, but did not move the court for an order fixing the time in which testimony would be taken or setting the cause for trial as prescribed by former Rule 3.13, Florida Rules of Civil Procedure, 31 F.S.A., in effect at the time.

In August of 1961, the period for the taking of testimony as prescribed in the aforementioned rule having expired, defendants Lenzen moved for a final decree on bill and answer. In the same month, the court granted the motion and, finding that the answer was responsive and denied all material allegations of the complaint, entered a final decree dismissing the complaint with prejudice. No appeal was taken from this decree.

We note in passing that the attorneys representing the appellants on appeal did not represent the plaintiffs in the original action.

In October of 1961, plaintiffs again filed suit for foreclosure. Their complaint was essentially identical to that in the first suit except a default of payment due in August, 1960, rather than the May default was alleged. Defendants Lenzen answered. Their answer was essentially identical to that in the first suit except an additional defense, res judicata, was alleged. Specifically they answered that, with the exception of an omitted party defendant and a different alleged default, the second action was identical to the first; that the election to accelerate in the first suit made all subsequent payments part of that suit; that the decree in the first suit was an adjudication on the merits and that res judicata barred the second action. The Lenzens then filed a motion for summary judgment based on the defense of res judicata, which motion was granted and is here appealed.

Essentially, two questions are presented: Did the election, in the first complaint to accelerate the balance upon an initial default render a decree in the first suit res judicata as to an action for a second default, and, was the final decree on bill and answer a decree on the merits and res judicata as to the second action? Since resolution of the second question is essential to consideration of the first, the effectiveness of the decree in the first suit as an adjudication on the merits will be explored first.

Appellants contend that the decree pursuant to hearing on bill and answer when the time for taking testimony has expired is not res judicata and urges two distinct arguments in support of this contention. They argue that the basis for the decision is ambiguous, possibly resting on matters in abatement, and therefore not an adjudication on the merits and further, that the decree was predicated on non-compliance with a rule of court and should not be res judicata.

In asserting that the decree was predicated on non-compliance with a rule of court and that it was entered upon a technicality, appellants misconceive the function of the hearing and decree on bill and answer when the time for taking testimony has expired. The decree was not, as appellants urge, similar to a dismissal for failure to prosecute. Rather, it was a decree on the pleadings when and after appellants had waived the right to offer proof. It was, under current practice and at the time of its entry, a summary decree authorized by Rule 1.36(b), Florida Rules of Civil Procedure, 30 F.S.A.

While no case holding the type of proceeding and decree in question to be one contemplated by Rule 1.36(b) has been found, an examination of the origin and history of the proceeding impels this conclusion. The practice of entering, upon defendants' motion, a decree on the pleadings when the time for taking testimony had expired was formalized in Rule 85, Rules for Government of Circuit Courts in Equity Cases, and was distinct from the procedure for a decree on the pleadings upon plaintiffs' motion contemplated in Laws of 1931, c. 14658, § 40 and later in Equity Rule 40(h). See Chatham Inv. Co. v. Sunshine Investments, Inc., Fla.1929, 98 Fla. 783, 124 So. 374; Miami Bridge Co. v. Miami Beach Ry. Co., Fla.1943, 152 Fla. 458, 12 So.2d 438; Stoltenberg v. Hughes, Fla.1944, 154 Fla. 519, 18 So.2d 475.

The procedure outlined in former Rule 85 had no exact counterpart in the 1949 Equity Rules, but logically must have been subsumed in either Rule 33(c) of those Rules, now Rule 1.11(c), Florida Rules of Civil Procedure, or in Rule 40(b) of the 1949 Equity Rules, now Rule 1.36(b), Florida Rules of Civil Procedure. This uncertainty was resolved when, in Starlight Corp. v. City of Miami Beach, Fla.1952, 57 So.2d 6, the court categorized the decree entered on defendant's motion as being authorized by Equity Rule 40. However, in Reinhard v. Bliss, Fla.1956, 85 So.2d 131, the Court categorized a similar proceeding as being authorized by Rule 1.11(c), Florida Rules of Civil Procedure, the successor to Equity Rule 33(c). This apparent conflict is resolved, however, by the language of the Court in the Reinhard case:

'A test * * * heard wholly on the pleading under our rule 1.11(c), * * * is the same as a motion * * * for a summary judgment * * * under * * * State rule 1.36(b).' (85 So.2d 132.)

The decision in that case having turned on the sufficiency of the complaint, the characterization was entirely proper. See City of Miami v. Miami Transit Co., Fla.App.1957, 96 So.2d 799. Nevertheless, the earlier decision in the Starlight case, supra, coupled with the decision in Strong v. Clay, Fla.1951, 54 So.2d 193, indicate that a decree on bill and answer after the time for taking testimony has expired is a summary decree under Rule 1.36(b) and that the hearing and decree are 'on the merits' and res judicata. Nystrom v. Nystrom, Fla.App.1958, 105 So.2d 605; Needle v. A. F. Kisinger & Associates, Inc., Fla.App.1960, 118 So.2d 35. See Da Costa v. Dibble, Fla.1898, 40 Fla. 418, 423, 24 So. 911, 913.

Appellants' second argument relative to the validity of the decree on bill and answer as res judicata is based on alleged ambiguity in the decree. Specifically, appellants contend that the decree could have rested on the denial of default and a finding that the action was premature, and not have reached the merits. Appellants further contend that when a decision could turn on matters not reaching the merits or on the merits, a presumption that the former was the basis of decision exists and that a party invoking res judicata as a bar must show that the decree relied upon did, in fact, adjudicate the merits of the cause. An examination of the authority relied upon by appellants reveals that these doctrines concerning the certainty of adjudication and the burden of proof have been invoked or announced for the most part in cases involving estoppel by judgment, although occasionally applied in cases involving res judicata. See 50 C.J.S. Judgments, §§ 627, 717 (1947); 30A Am.Jur., Judgments §§ 347, 348 (1958).

In Florida, however, the distinction between res judicata and estoppel by judgment is more closely observed. See Youngblood v. Taylor, Fla.1956, 89 So.2d 503; 19 fla.Jur., Judgments and Decrees, §§ 105-106 (1958), and the principles relied upon by appellants have had application only in cases involving estoppel by judgment. See 19 Fla.Jur., Judgments and Decrees, §§ 143, 145 and 174 (1958).

Insofar...