Allstate Finance Corporation v. Zimmerman, 18911.

• Citation: 296 F.2d 797
• Decision Date: 29 November 1961
• Docket Number: No. 18911.,18911.
• Parties: ALLSTATE FINANCE CORPORATION et al., Appellants, v. Irving ZIMMERMAN et al., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

296 F.2d 797 (1961)

ALLSTATE FINANCE CORPORATION et al., Appellants, v. Irving ZIMMERMAN et al., Appellees.

No. 18911.

United States Court of Appeals Fifth Circuit.

November 29, 1961.

Melvin T. Boyd, T. J. Blackwell, Blackwell, Walker & Gray, Miami, Fla., for appellants.

Martin Lemlich, Darrey A. Davis, Clyde Trammell, Jr., Asst. County Atty., Miami, Fla., for appellees.

Before TUTTLE, Chief Judge, and JONES and WISDOM, Circuit Judges.

TUTTLE, Chief Judge.

This is an appeal from an order of the District Court granting a motion for summary judgment filed by the defendants and dismissing the complaint with prejudice. The questions are two-fold. (1) May a District Court sustain a motion for summary judgment after another Judge of the same court has denied a motion for summary judgment filed on behalf of the same parties, and (2) is the order of dismissal sustainable either on the ground that our earlier decision in Allstate Finance Corp. v. Zimmerman et al., 5 Cir., 272 F.2d 323 made the matter res judicata or on the grounds that there was no substantial issue of fact to warrant a trial on the merits.

The complaint in this case alleged that the plaintiff was "the assignee of all right, title and interest, legal and equitable which `Minuteman Automatic Car Wash, Inc.' owned in certain described real and personal property"; that while the owner was in possession of the described property, defendant, Sheriff Kelly, pursuant to a tax warrant in the sum of approximately $34.00, negligently caused a levy to be made upon certain real property of the owner, which was not "covered by the tax warrant" and which was excessive in that the property levied on was of the value in excess of $22,500.00; that thereafter the Sheriff caused the said property to be sold at a tax sale at which the defendant, Zimmerman, became the purchaser for the sum of $34.00; that the Sheriff permitted Zimmerman to secure entrance to the building by physically breaking into the same without unlocking the doors; that Zimmerman committed a trespass by doing so and that he unlawfully removed from the building real and personal property of great value. Defendant Thompson is joined as the Deputy Sheriff who actually authorized the entering of the premises during the scope of his employment. The insurance company was joined as surety on defendant Kelly's bond. The complaint asserts compensatory and punitive damages totaling $35,000.00.

Appellant, the plaintiff below, at all times material to the action was the owner of a first mortgage on the real property described in the complaint. It foreclosed its mortgage and upon a foreclosure sale it bid in the property for the full amount of the mortgage. Thereafter, appellant in this case filed a suit alleging substantially the above facts except that it was not then an assignee of the mortgagors and therefore did not allege, as it does here, that it sued as such assignee. It alleged merely that at the time of the trespass and damage, it was the holder of the mortgage on the property, that it later through the foreclosure sale became the owner of, and entitled to the possession of, the property. It sued for the recovery of the $35,000 damages. The trial court dismissed that suit for failure to allege facts on which relief could be granted. On appeal to this court, we affirmed the judgment. Allstate Finance Corporation v. Zimmerman, 5th Cir., 272 F.2d 323. We there held that the mortgage holder had no cause of action of its own because of any diminution of the value of its security because as a matter of law it had satisfied the mortgage by bidding the full amount of the debt at the foreclosure sale. In the opinion we said:

"Without a showing that the mortgagor\'s cause of action for damage to the property had been assigned to it, it undertook to assert that cause of action as its own, and this it could not do." Page 325.

Thereafter, it is alleged that Allstate obtained from the original mortgagor an assignment to whatever cause of action the original owner had arising out of the alleged illegal conduct of the defendants. It then filed the present suit, asserting that it now proceeded as the assignee of the original owner.

The defendants filed a motion for summary judgment, asserting as the principal ground for the motion that the matter was res judicata by virtue of the previous judgment of dismissal. The trial court entered an order overruling the motions for summary judgment. The order also appears to have overruled "all the defendants' motions to dismiss." No such motions or orders are included in the record before us. The trial court's order further provided "that the defendants should have fifteen days from the date of this order within which time to file their answer." This order was dated October 17, 1960.

Thereafter, on December 8, 1960, defendants filed additional motions for summary judgment asserting that "the pleadings and attached affidavits show that there is no genuine issue of any material fact or law." The record before us does not include any answer filed by the defendants. This motion was brought to a hearing before a visiting judge after counter-affidavits had been filed by the plaintiff. Thereafter, on January 3, 1961, the visiting trial judge entered an order granting the motions for summary judgment and dismissing the complaint with prejudice.¹

Appellant here argues, mistakenly we think, that the second Judge² did not have the power to enter a motion for summary judgment after another Judge of the same Court had previously denied such a motion. Appellant equates such an order to one which overrules or modifies a previous decision by a court which has become "the law of the case." It is undisputed on the record before us that when Judge Lieb originally denied the motion for summary judgment he did not have before him the affidavits which were attached to or submitted in support of the second motion. Therefore, what Judge Martin, the second Judge, passed upon was not the same question as that which was decided by Judge Lieb.

While we certainly do not approve in general the piecemeal consideration of successive motions for summary judgment, since defendants might well normally be held to the requirement that they present their strongest case for summary judgment when the matter is...