Augusta Corporation v. Strawn

• Decision Date: 18 May 1965
• Docket Number: No. 65-179.,65-179.
• Citation: 174 So.2d 621
• Court: Florida District Court of Appeals
• Parties: AUGUSTA CORPORATION, a Florida corporation, and Abraham Platt, Appellants, v. Edna H. STRAWN and Iva L. Hillyer, Appellees.

174 So.2d 621

AUGUSTA CORPORATION, a Florida corporation, and Abraham Platt, Appellants, v. Edna H. STRAWN and Iva L. Hillyer, Appellees.

No. 65-179.

District Court of Appeal of Florida. Third District.

April 27, 1965.

Rehearing Denied May 18, 1965.

Ward & Ward, Miami, for appellants.

Dunbar H. Johnson, Miami, for appellees.

Before BARKDULL, C.J., and TILLMAN PEARSON and SWANN, JJ.

SWANN, Judge.

This is an appeal by one of the appellants, Abraham Platt, from an order denying the return of certain tax money paid by him during the pendency of this suit in the trial court.

The facts giving rise to this appeal are briefly these.

Appellees filed a complaint to cancel a 99-year lease with the appellant corporation and alleged, inter alia, that the appellant corporation had not paid the 1963 real estate taxes due on the property, although required to do so by the lease.

On March 31, 1964, during the pendency of this suit, the appellant, Abraham Platt, purchased at judicial sale the 99-year lease, and paid the 1963 real estate taxes due on the property to the tax collectors of the City of Miami and Dade County, Florida.

A final decree was entered in the cause on July 30, 1964, cancelling the lease on other grounds.

On October 9, 1964, appellant, Abraham Platt, filed a petition with the trial court seeking the return of the monies which he had paid for the 1963 real estate taxes to the tax collector during the pendency of the cause.

On January 28, 1965 the Chancellor entered his order denying the petition and this appeal was entered.

The order of January 28, 1965, recited, inter alia:

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"On the date of the final hearing, counsel for Augusta Corporation and Platt orally moved for the return of such money after the Court had announced to counsel for the parties the substance of what the final decree in the cause would contain when entered in written form. The Court, at that time, stated, in essence, that it would hear counsel on that proposition upon the Court's return from vacation.

"The Final Decree entered in the cause contained the following language:

"`That this Court retains jurisdiction of this cause to make such other and further orders herein as may be necessary or proper.'

"It may well be that this Court could have entertained the petition for the return of the tax monies had such petition been filed within sixty (60) days from the date of the Final Decree herein, but the circumstances described above do not afford this Court the jurisdictional authority to entertain the petition filed on October 9th, 1964. Further, Rule 1.38 does not authorize the Court to make any corrections in its final decree which would have the effect of authorizing this Court to, at this time, entertain the petition for the return of the tax monies paid.

"As I understand the law, Mr. Platt has not made such involuntary payment under compulsion or coercion as to constitute grounds for the return to him of the monies paid for taxes.

"However, for the reasons stated above, it is the conclusion of this Court that it is without jurisdiction to entertain the Petition filed October 9th, 1964 for the return of tax monies paid to the Tax Collector."

* * * * * *

The recent case of McEachin v. McEachin, Fla.App. 1963, 154 So.2d 894, seems to be in point.

In that case the final decree contained a provision that the court "retains jurisdiction herein for the entry of such other and further orders as may be proper herein, and for the purpose of modifying any orders herein."

Chief Judge Donald K. Carroll pointed out that the Chancellor's authority to change the property provisions of the final decree therein rested upon a different legal basis from his authority to change the visitation privileges. He thereafter stated:

* * * * * *

"A more troublesome contention made by the appellee is that the chancellor has the power to modify the final decree because of the provision in that decree that the court `reserves jurisdiction herein for the entry of such other and further orders as may be proper herein, and for the purpose of modifying any orders herein.'

"While the authorities in Florida and elsewhere as to the legal effect of such a reservation clause are not wholly consistent, we

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