Chase Federal Sav. and Loan Ass'n v. Schreiber

• Decision Date: 30 August 1985
• Docket Number: No. 63017,63017
• Citation: 479 So.2d 90,10 Fla. L. Weekly 470
• Parties: 10 Fla. L. Weekly 470 CHASE FEDERAL SAVINGS AND LOAN ASSOCIATION, Petitioner, v. Jerry B. SCHREIBER, Personal Representative of the Estate of Theadores W. Ross, Respondent.
• Court: Florida Supreme Court

Page 90

479 So.2d 90

10 Fla. L. Weekly 470

CHASE FEDERAL SAVINGS AND LOAN ASSOCIATION, Petitioner, v. Jerry B. SCHREIBER, Personal Representative of the Estate of Theadores W. Ross, Respondent.

No. 63017.

Supreme Court of Florida.

Aug. 30, 1985.

Rehearing Denied Jan. 2, 1986.

Therrel, Baisden, Stanton, Wood & Stetlin, Miami Beach, and Frank R. Gramling of Fertig, Curtis & Wakefield, Fort Lauderdale, for petitioner.

Jerry B. Schreiber, Miami, and Joseph A. McGowan, Hollywood, for respondent.

BOYD, Chief Justice.

This is a petition to review a decision of the Third District Court of Appeal, sitting en banc, reported as Schreiber v. Chase Federal Savings & Loan Association, 422 So.2d 911 (Fla. 3d DCA 1982), in which the district court held that strict decisional conflict, as that concept has been used to define this Court's authority to review district court decisions, is the standard to be used in determining when intra-district decisional conflict exists to allow the district court to sit en banc to harmonize its decisions. The district court certified the following question to be of great public importance:

What is the proper scope of review for district courts of appeal in granting rehearings en banc?

We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We answer the certified question by holding that the district courts of appeal, in exercising their en banc power, are not limited by the case-law standards adopted by the Supreme Court of Florida in the exercise of its discretionary conflict jurisdiction. We hold that the district courts are free to develop their own concepts of decisional uniformity.

The case which precipitated the certification of the question concerning the scope of en banc review involves the validity of a deed to a grantee, not related to the grantor by blood or marriage, in which the stated consideration was "love and affection." The specific issue is whether a deed which shows on its face that the consideration is "love and affection," but does not show on its face that the grantor and grantee are related by blood or marriage, is effective to pass title.

The record reflects that Theadores Ross, a lady ninety years of age, transferred title to her home to Peter Cournoyer by a quitclaim deed which stated that "[t]his quitclaim deed is being given with the consideration being love and affection." The deed was recorded with the minimum amount of documentary stamps affixed. Cournoyer then sold the property to Luis and Gladys Perez for $50,000. The Perezes obtained the major portion of the purchase price from a loan supplied by Chase Federal Savings and Loan Association and secured by a mortgage on the property in question.

After Cournoyer sold the property to the Perezes, Ross brought this action seeking cancellation of her deed to Cournoyer, Cournoyer's deed to the Perezes, and the Perezes' mortgage to Chase Federal, on the ground that the original deed to Cournoyer was void for lack of consideration. The trial court found "there was no consideration for the execution of ... [the deed to Cournoyer] with the exception of love and affection and therefore equitable title and interest in the subject property remained" in Ross. The trial court concluded, however, that "legal title did pass" from Cournoyer to the Perezes because the Perezes were "bona fide purchasers having paid a valuable consideration without notice of any infirmity, and therefore their title to the subject property and interest in the subject property respectively shall stand." Finally, the trial court, holding that a constructive trust arose for the benefit of Ross in the proceeds received by Cournoyer in the sale to the Perezes, entered a judgment for Ross against Cournoyer in the amount of $50,000.

Ross appealed the trial court's denial of her claim for cancellation of the deeds and mortgage, asserting that the Perezes, as purchasers, and Chase Federal, as mortgagee, did not have valid interests in the property because there was notice on the face of the deed to Cournoyer that the consideration was legally insufficient. Therefore, Ross contended, the Perezes were not bona fide purchasers for value without notice and Chase Federal could not claim a valid mortgage on the property. The district court of appeal, 424 So.2d 779 initially rejected Ross's argument and affirmed the trial court's order without opinion. Judge Schwartz dissented. Ross moved for rehearing en banc and the court, pursuant to the procedure governed by Florida Rule of Appellate Procedure 9.331, granted it. A majority of the en banc court considering the cause on the merits reversed the trial court, holding that under the district court's prior decision in Florida National Bank & Trust Co. v. Havris, 366 So.2d 491 (Fla. 3d DCA 1979), a deed given to a non-relative in return for love and affection is invalid for lack of consideration. In so holding the district court found that the Perezes and Chase Federal were on notice to make inquiry concerning the propriety of Ross's deed to Cournoyer because the only consideration it reflected was "love and affection." The district court then remanded the cause with directions to cancel the deeds to Cournoyer and the Perezes and the mortgage to Chase Federal. We hold that the deed was valid and effective to pass legal title notwithstanding that there was no valuable consideration paid and the grantor and grantee were not related.

The judges of the district court sitting en banc disagreed among themselves as to the standard to apply to determine whether there was conflict between the decision of the initial three-judge panel of the district court in the instant case and the district court's previous decision in Havris. In the initial panel decision, as previously stated, the court affirmed the trial court without opinion with Judge Schwartz writing a dissent. The dissent asserted that the majority had failed to properly apply Havris. In Havris, an action was brought by the grantor to cancel a deed to the unrelated grantee on the ground that the deed was not supported by consideration, which was stated as love and affection. As noted, the district court there held that "love and affection" did not constitute valid consideration where the conveyance was between persons unrelated by blood or marriage and that the deed was invalid. In the instant case, four members of the district court sitting en banc --Judges Schwartz, Hendry, Pearson, and Jorgenson--believed that there was "a lack of uniformity" between Havris and the initial decision in the instant case. These judges believed that Florida Rule of Appellate Procedure 9.331 allowed the district court to sit en banc in this case in order "to maintain uniformity of decisions." Four other judges of the en banc court--Judges Hubbart, Nesbitt, Barkdull, and Baskin--believed that the district court had no authority to sit en banc in this case because the controlling facts in Havris and this case were not the same. According to these four judges, there was no direct conflict between Havris and this case under the standard used by the Supreme Court of Florida in exercising its conflict jurisdiction. These four judges concluded that they were obligated to follow the precedent established in Nielsen v. City of Sarasota, 117 So.2d 731 (Fla.1960), which defined decisional conflict as

(1) the announcement of a rule of law which conflicts with a rule previously announced by this [Florida Supreme] Court, or (2) the application of a rule of law to produce a different result in a case which involves substantially the same controlling facts as a prior case disposed of by this Court.

Id. at 731 (emphasis in original). One member of the en banc panel, Judge Ferguson, agreed that Nielsen provided the correct standard to be used by the district courts in determining conflict for en banc purposes, but believed that under that standard conflict existed between Havris and the initial panel decision in the instant case.

Judge Nesbitt, in a dissenting opinion concurred in by four other members of the court, expressed the view that since the en banc rule was established to resolve intra-district conflict which was formerly resolved by the Supreme Court, then the power exercised by the district courts to hear en banc proceedings must be the same as the standard adopted by the Florida Supreme Court in the exercise of its discretionary conflict jurisdiction. Judge Nesbitt further asserted that any change in the definition of conflict by broadening the present Florida Supreme Court standard would be unconstitutional. Judge Hubbart wrote a dissenting opinion in which he agreed with Judge Nesbitt and detailed the history of Florida's rule 9.331.

We respectfully reject the interpretation that the district courts, in exercising their en banc powers, are limited by the standards adopted in case decisions by this Court in the exercise of its discretionary conflict jurisdiction. This Court has held the en banc process to be constitutional and has stated that "[t]he district courts are free ... to develop their own concept of decisional uniformity." In re Florida Rules of Appellate Procedure, Rule 9.331, 374 So.2d 992, 994 (Fla.1979), as modified in 377 So.2d 700 (Fla.1979), and as further modified in 416 So.2d 1127 (Fla.1982).

In holding the en banc process constitutional, we construed the "three judges shall consider each case" language of article V, section 4, as not restricting the district courts from hearing cases en banc. Our decision was consistent with the decision of the United States Supreme Court in Textile Mills Securities Corp. v. Commissioner, 314 U.S. 326, 62 S.Ct. 272, 86 L.Ed. 249 (1941). In Textile Mills, the United States Supreme Court upheld the inherent authority of the Third Circuit Court of Appeals to establish a procedure for that court to sit en banc without authorization by existing rule, statute, or constitutional provision. See Hearing and Rehearing Cases En...