American Nat. Bank v. Lau

• Court: Florida District Court of Appeals
• Writing for the Court: McNULTY
• Citation: American Nat. Bank v. Lau, 268 So.2d 567 (Fla. App. 1972)
• Decision Date: 23 June 1972
• Docket Number: No. 71--703,71--703
• Parties: AMERICAN NATIONAL BANK et al., Appellants, v. Charlotte LAU, Appellee.

Page 567

268 So.2d 567

AMERICAN NATIONAL BANK et al., Appellants, v. Charlotte LAU, Appellee.

No. 71--703.

District Court of Appeal of Florida, Second District.

June 23, 1972.

Rehearing Denied Nov. 30, 1972.

Howard P. Rives, of Cooper, Rives & Baskin, Clearwater, for appellant American National Bank, and joinder appellants Herman McMurry and Peggy A. McMurry.

Henry P. Trawick, Jr., of Millican & Trawwick, Sarasota, for appellant Howdeshell Plumbing, Inc.

N. S. Gould of Phillips, McFarland, Gould & Korones, Clearwater, for appellants George A. LaPiene and Versie D. LaPiene.

Gardner W. Beckett, of Nelson, Beckett, Nelson & Thomas, St. Petersburg, for appellee Charlotte Lau.

McNULTY, Judge.

This is an interlocutory appeal from an order striking certain defenses of appellants made to an amended motion to vacate brought by appellee under Rule 1.540(b), R.C.P., 31 F.S.A. Appellee's motion seeks to set aside an order confirming the sale of property previously owned by her which was sold pursuant to a mechanics' lien foreclosure. The parties appellant, haned here in the order in which they became involved with the property and this proceeding, are Howdeshell Plumbing, Inc., Herman and Peggy McMurry, American National Bank, and George and Versie LaPiene.

This case began way back in 1963 with a complaint for a mechanics' lien foreclosure brought by appellant Howdeshell Plumbing. Appellee was personally served as the fee owner of the property involved and did not appear. A decree Pro confesso was entered against her almost a year later in 1964, and a final decree of foreclosure was entered more than a year after that on June 30, 1965. Howdeshell Plumbing and two other lienors who were joined in the suit were held entitled to proceeds of the sale thereafter ordered, and Howdeshell was the successful bidder at such sale for $511.00 (the amount owed to it under the foreclosure decree). On October 18, 1965 the chancellor entered an order confirming the foreclosure sale and a master's deed was issued to Howdeshell Plumbing. Several months later Howdeshell Plumbing sold the property to the McMurrys who on the same date executed an $8,000 mortgage to appellant American National Bank.

Thereafter, on October 17, 1966, appellee filed her original motion to vacate the order confirming sale (which was entered 364 days earlier on October 18, 1965 as aforesaid), addressing said motion only against the successful foreclosure plaintiff, Howdeshell Plumbing. Appellants LaPiene, the present owners, then came into the picture by purchasing the property from the McMurrys in 1968.

Three years later, on May 12, 1971, appellee filed an 'Amended Motion' to vacate in which she seeks to join the appellant bank and appellants McMurry and LaPiene, and all appellants filed their defenses to such motion. Thereafter, certain of such defenses of each appellant were stricken by the order appealed from herein and this appeal ensued. We reversed.

As noted, appellee seeks to set aside the order confirming sale pursuant to Rule 1.540(b), R.C.P., which provides in pertinent part as follows: ¹

'(b) . . . On motion and upon such terms as are just, the courtt may relieve a party or his legal representative from a final judgment, decree, order or proceedings for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment or decree is void; (5) the judgment or decree has been satisfied, released or discharged or a prior judgment or decree upon which it is based has been reversed or otherwise vacated or it is no longer equitable that the judgment or decree should have prospective application. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, decree, order or proceeding was entered or taken. A motion under this subdivision does not affect the finality of a judgment or decree or suspend its operation.'

Appellee's basis contention made in her motion is this: that the foreclosure sale involved herein was invalid for the reason that appellant Howdeshell Plumbing purchased the property for only $511.00, when the property in fact had a fair market value of at least $10,500.00, and thus the sale price was so inadquate as to stock the conscience of the court and raise a presumption of 'surprise or some misadventure.' She explains the obvious delay in seeking redress by alleging that for some time before and after the foreclosure sale herein she was suffering from a nervous break-down and in fact had been adjudicated incompetent in April of 1966. She was restored some five months later, she says, in September of 1966, after which she promptly began the instant post-decretal proceeding.

The defenses of all appellants which were stricken, and concerning which this appeal is taken, essentially assert first, that appellee's motion to vacate was not timely filed as to any of them, and secondly, even if it were timely, that the allegations therein are insufficient to afford relief under Rule 1.540(b), Supra.

Concerning the timeliness of appellee's motion, we can see a bifurcated problem. First, the original motion under Rule 1.540(b), Supra, was addressed solely against Howdeshell Plumbing and it prayed for relief from the order confirming sale. We hold initially that since this original motion was filed within one year from that order it was at least Prima facie timely as to Howdeshell Plumbing. ² We reject Howdeshell's contentions that the Amended motion was not timely because it was not filed within one year and that it was, in effect, a 'new' motion. The amendment raised no new or different grounds for relief as against Howdeshell and consequently is part of land stands in the place of the original motion. ³ It merely sought to join all other appellants. The grounds relied upon for relief against Howdeshell, however, will be discussed Infra.

Concerning now the timeliness of the amended motion as to the remaining appellants, even if such a post-decretal procedure is available against them under the peculiar facts herein, it is new to them and comes too late. The grounds alleged, assuming they are cognizable under reasons (1), (2) or (3) of the rule aforesaid, were made as to them more than one year after the order confirming sale; and, too, there is no allegation in either the original or amended motion for relief which would bring into play reason (5) for relief under the rule as against Any of the appellants. It follows that if appellee is entitled to relief as against any of the latter appellants at all under the rule it would h ave to be within the contemplation of reason (4) thereof, i.e., that the order appealed from is Void. Since the essential ground relied upon for relief is the 'gross inadequacy' of the sale price at the foreclosure sale we would be compelled to say, then, if appellee were to prevail, that 'gross inadequacy' renders the sale Void, as distinguished from voidable. We think the rationale of the settled cases, ⁴ notably our previous holding in Edward...