Belcher v. First Nat. Bank of Miami

• Decision Date: 27 October 1981
• Docket Number: Nos. 78-2207,78-2210,s. 78-2207
• Citation: 405 So.2d 754
• Parties: J. A. BELCHER, individually and as Co-Trustee of the J. A. Belcher Trust and as Co-Trustee of the Margaret Belcher Gerhart Trust; J. A. Belcher, Jr., as Co-Trustee of the J. A. Belcher Trust; E. N. Belcher III, individually and as Co-Trustee of the Margaret Belcher Gerhart Trust; Jewel Lee Kallusch; Frank W. Gerhart; Lynn McLeod Nichols; Janet McLeod Varnado; and Peter L. Pollock, Appellants, v. FIRST NATIONAL BANK OF MIAMI et al., Appellees.
• Court: Florida District Court of Appeals

Page 754

405 So.2d 754

J. A. BELCHER, individually and as Co-Trustee of the J. A. Belcher Trust and as Co-Trustee of the Margaret Belcher Gerhart Trust; J. A. Belcher, Jr., as Co-Trustee of the J. A. Belcher Trust; E. N. Belcher III, individually and as Co-Trustee of the Margaret Belcher Gerhart Trust; Jewel Lee Kallusch; Frank W. Gerhart; Lynn McLeod Nichols; Janet McLeod Varnado; and Peter L. Pollock, Appellants, v. FIRST NATIONAL BANK OF MIAMI et al., Appellees.

Nos. 78-2207, 78-2210.

District Court of Appeal of Florida, Third District.

Oct. 27, 1981.

Floyd, Pearson, Stewart, Richman, Greer & Weil and Ellen C. Freidin and Alan G. Greer, Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Blecke, Miami, for appellants.

Steel, Hector & Davis and John M. Barkett and Wilson Smith, Miami, for appellees.

Before BARKDULL, HENDRY and DANIEL S. PEARSON, JJ.

HENDRY, Judge.

These consolidated appeals raise the issue whether a pre-judgment defendant may appeal a summary judgment exonerating a co-defendant. We hold that such an order is non-appealable and dismiss. ¹

Nora Manning, a registered real estate broker, was the plaintiff in this action to recover a brokerage commission. The various defendants are owners and trustees of a tract of land in Broward County. Ms. Manning claims that J. A. Belcher, Sr. (J. A.) part owner of the land, had apparent authority to act for the other owners and trustees and gave her an oral listing on the property offering a ten percent commission upon its sale. J. A. claims that no promises were made. Two potential buyers for the property were produced, but the deals fell through and Ms. Manning filed this suit. Her complaint sought damages for breach of the commission agreement and willful and malicious interference with a business arrangement. All of the defendants moved for summary judgment. After a hearing, the lower court granted summary judgment for appellee First National Bank of Miami ^BM, and denied the motion with regard to the other defendants. Final judgment was entered for the bank, and the remaining defendants, appellants herein, seek review of this order. ²

Essentially, appellants submit that the trial court's order granting summary judgment for their codefendant FNBM was correct-but argue that they also should have been granted summary judgment. Appellants contend that no material factual differences exist among the positions of the various defendants, and therefore maintain that summary judgment should have been granted for all. Recognizing, however, that they may not appeal from the denial of their own motion for summary judgment, Danford v. City of Rockledge, 387 So.2d 967 (Fla. 5th DCA 1980); Mooney v. Integon Life Insurance Co., 368 So.2d 957 (Fla.3d DCA 1979); Fla.R.App.Pro. 9.130, appellants instead challenge the summary judgment in favor of their codefendant FNBM.

For many years the rule in Florida was that a defendant could not appeal a judgment exonerating a codefendant because there was no contribution among tortfeasors. Jackson v. Florida Weathermakers, 55 So.2d 575 (Fla.1951); O'Brien v. Francis, 231 So.2d 13 (Fla.3d DCA 1970); see also Durbin Paper Stock Co. v. Watson-David Insurance Co., 167 So.2d 34 (Fla.3d DCA 1964), cert. denied, 172 So.2d 596 (Fla.1965). Appellants argue that this rule no longer pertains, and relying upon Pensacola Interstate Fair, Inc. v. Popovich, 389 So.2d 1179 (Fla.1980), claim a right to assert this error on appeal.

In Popovich, supra, the Florida Supreme Court affirmed the decision of the First District in Christiani v. Popovich, 363 So.2d 2 (Fla. 1st DCA 1978), and held that the right of a judgment defendant to appeal from a judgment exonerating another codefendant is a necessary consequence of Florida's Uniform Contribution Among Tortfeasors Act, Section 768.31(4)(f), Florida Statutes, which destroys inchoate contribution rights against an exonerated codefendant. ³

We agree with appellants that Popovich extends to judgment defendants the right to appeal adverse rulings exculpating co-defendants. However, appellants may not benefit from Popovich at this time because they are not yet judgment defendants. In the present posture of this case, no liability has been determined; there has been no trial resulting in a judgment against appellants. While FNBM has escaped on the basis of summary judgment, there is no certainty that appellants will not enjoy a like result at the hands of the jury. No case or controversy presently exists for us to resolve. Consequently, we hold that the order under review is non-appealable and dismiss. ⁴

We now consider FNBM's request for attorney's fees on this appeal pursuant to Section 57.105, Florida Statutes (Supp.1978). This section authorizes the award of attorney's fees to the prevailing party in any civil action in which the court finds that...