Armour & Co. v. Lambdin

• Decision Date: 18 February 1944
• Citation: 154 Fla. 86,16 So.2d 805
• Court: Florida Supreme Court
• Parties: ARMOUR & CO. v. LAMBDIN.

16 So.2d 805

154 Fla. 86

ARMOUR & CO. v. LAMBDIN.

Florida Supreme Court

February 18, 1944

Rehearing Denied March 7, 1944.

Appeal from Circuit Court, Pinellas County; T. Frank Hobson, judge.

Alfred P Marshall, of Clearwater, for appellant.

J. Carl Lambdin, of St. Petersburg, in pro per, for defendant in error.

WELCH, Circuit Judge.

This appeal brings here for review two orders of the lower Court, one dated July 10, 1943, dismissing plaintiff's original bill of complaint, with leave to amend; the other dated October 28 1943, dismissing plaintiff's amended bill of complaint and the amendment thereto.

On February 15 1943, plaintiff filed its bill of complaint for an accounting, wherein it was alleged that the defendant purporting to act as attorney for plaintiff's assignor did, on February 8, 1938, procure an execution on a judgment entered July 15, 1930, which had been assigned to plaintiff on April 1, 1937, which assignment had not been filed for record until October 9, 1940, and delivered such execution to the Sheriff of Pinellas County, who made a levy and sale thereunder, receiving therefrom $1,500 and transferring to defendant, as attorney for plaintiff's assignor, Armour Fertilizer Works, the net sum of $1,413.75 and taking the defendant's receipt for said sum on April 4, 1938. Plaintiff alleged that it had many times demanded an accounting from the defendant but that the defendant had refused to account, or pay. That having received this money in the capacity as an attorney and a fiduciary, the same was held by him in trust for the rightful owner, who is the plaintiff, and that such rightful owner is now entitled in a Court of Equity to an accounting, to determine the portion of said money rightfully belonging to the plaintiff. Motion was made to dismiss the bill, and on July 10, 1943, the lower Court entered the following order:

'The above cause coming on to be heard upon motion to dismiss the bill of complaint, arguments and briefs submitted by the respective parties, and upon careful consideration thereof, the Court is of the opinion that the motion to dismiss the bill should be granted, for the following reasons, to wit:

'First: The allegations of the Bill of Complaint in the instant case, show clearly that the account is not complicated, that the amount claimed is fixed, definite and certain, being exactly, to-wit: the sum of $1,413.75; that there is no need of discovery; that there is no charge of mis-management or misappropriation of trust funds; that the pertinent allegations do not show such a course of dealing or state of affairs between the parties as to require an accounting in equity. See Frierson v. Frierson, 110 Fla. 416, 149 So. 18; Massengale v. O'Hara, 63 Fla. 521, 58 So. 42; 1 C.J.S., Accounting, § 18, page 654; Rickman v. Whitehurst, 73 Fla. 152, 74 So. 205.

'Second: The bill of complaint does not show the relationship of attorney and client between this plaintiff and the defendant. Defendant at most is shown to have been a self-appointed attorney or agent for this plaintiff's assignor. The language of the bill (i. e. Paragraphs 1 and 3), 'The defendant purporting to act as attorney for plaintiff's assignor' inferentially suggests that this plaintiff is not recognizing the relationship of attorney and client even as between plaintiff's assignor and defendant. Yet in Paragraph 5 of the bill the plaintiff alleges, 'The fund so received by the defendant received by him in the capacity of an attorney at law and a fiduciary * * *', which, again inferentially, suggests that the relationship of attorney and client did exist between this plaintiff's assignor and the defendant and that such relationship carries over as between this plaintiff and the defendant. In other words, the plaintiff on the subject of the relationship of attorney and client suggestively and inferentially both approbates and reprobates even with reference to such subject matter in connection with the plaintiff's assignor and defendant, but does not clearly and definitely do either. If there were a clear showing of the relationship of attorney and client between the plaintiff and defendant, the trust, which might then exist, would be in the opinion of this Court what might be called a naked trust. The mere existence of such a trust and such a relationship as is disclosed by this bill does not of itself give the right to an accounting from the one who might be termed a trustee to a cestui que trust. If a cestui que trust knows to the penny how much is due from the trustee to him in a trust or fiduciary relationship of the character of the one attempted to be shown here, and the amount is fixed, definite and certain as is alleged in the bill, he can sue for that amount at law and has there in that forum an adequate remedy. Under these circumstances there is no need, absent as here any allegations of special, unusual or particular reasons, for the interposition of a court of equity.

'Moreover, the trust bill of complaint does not attempt to trace trust funds or assets nor in any other manner, which this Court can envisage, does it set up any justiciable controversy proper to be determined by a court of equity. It is appropriate to observe in connection with the subject of the allegations of the bill with reference to a trust or fiduciary relationship that there is no charge that the defendant ever knew of the assignment from the original judgment creditor to the plaintiff herein, and therefore it is at least questionable that the plaintiff can claim the relationship of attorney and client between itself and the defendant. No attorney is compelled to accept every client who presents himself at his office. It is conceivable that the defendant, who was at the time of the transactions set forth in the bill of complaint an attorney at law, might have accepted as a client Armour Fertilizer Works, a corporation, and for some reason not have accepted this plaintiff as a client. There is no question that when the assignment was made that all of the legal rights of the assignor were conveyed to the assignee, but there is a question as to whether or not all equitable rights were by virtue of the assignment transferred to this plaintiff. It would seem that the relationship of attorney and client might be created only by the employment of the attorney on the part of the client and the acceptance of such employment by the attorney. There is no showing in the bill of any such employment or acceptance of employment as between this plaintiff and the defendant, and, as aforesaid, there is no direct allegation of such contract or agreement between this plaintiff's assignor and this defendant. The lack of knowledge on the part of the defendant of the assignment seems to preclude the possibility of the relationship of attorney and client existing between the plaintiff and defendant though grantedly this would not necessarily negative a simple or naked trust. The Plaintiff does not allege that the defendant has failed or refused to account or pay the monies over to the plaintiff's assignor.

'Third: The defendant raises a very interesting question in his motion to dismiss. The question presented is whether or not in a motion to dismiss a bill in equity the defendant may in and by said motion raise laches by virtue of the bill of complaint showing on its face that the three year statute of limitations has run and therefore would be available as a defense or bar to the action if it had been instituted on the law side of the court. It must be borne in mind that the plaintiff's bill does not use this situation as a predicate for equitable relief but an inspection of the bill does disclose that more than three years have elapsed since the right in this plaintiff's assignor to bring an action against the defendant accrued. In this connection it will be noted, however, that the bill fails to allege upon what date the plaintiff became cognizant of the acts of the defendant nor does it allege upon what date the right of action, if any, accrued to the plaintiff. Furthermore, the bill does not attempt to allege that an action at law has ever been instituted against the defendant and that the defendant in such action filed a plea of the statute of limitations.

'It is the view of this court that the statute of limitations is in the nature of a plea of privilege and that it cannot be presumed that the defendant would have elected to have filed such a plea had an action at law been instituted against him. Such a plea on the law side of the court is an affirmative defense or bar as well as being one of privilege which may or may not be used at the option of the defendant. This court deems it unnecessary to determine the question hereinbefore set forth but is inclined toward the view that laches predicated upon the statute of limitations might be raised in a motion to dismiss where the passage of time designated in such statute as a bar appears affirmatively on the face of the bill and assuming that no equitable basis for the tolling of the statute is made to appear. If it were permissible and proper for this question to be raised by a motion to dismiss as was attempted in this cause, it would be appropriate for the court to consider the contention of the defendant to the effect that since the plaintiff's bill discloses that the alleged cause of action is not based upon a written agreement of contract but springs from the duty of restitution raised by the facts which show that the money was obtained under circumstances constituting an unjust enrichment and creating a naked trust, that the action is barred by the three year statute of limitations of laches predicated thereupon. As aforestated this court does not deem it necessary to pass upon this question...