Dubois v. Osborne, 98-123.

• Decision Date: 22 November 1999
• Docket Number: No. 98-123.,98-123.
• Parties: Ada DUBOIS and Allen Dubois, Appellants, v. Harold A. OSBORNE, as personal representative of Rose Osborne, Appellee.
• Court: Florida District Court of Appeals

745 So.2d 479

Ada DUBOIS and Allen Dubois, Appellants, v. Harold A. OSBORNE, as personal representative of Rose Osborne, Appellee.

No. 98-123.

District Court of Appeal of Florida, First District.

November 22, 1999.

Clyde M. Collins, Jr. and George K. Brew, Jacksonville, for Appellants.

John Paul Howard, Jacksonville, for Appellee.

KAHN, J.

This dispute over title to land comes to us on appeal for the second time. See Dubois v. Osborne, 675 So.2d 124 (Fla. 1st DCA 1996) (unpublished table decision). Appellee's decedent, Rose Osborne, filed the underlying complaint against appellants Ada and Allen Dubois on April 21, 1994. The complaint alleged four counts. The first two counts sought cancellation of certain deeds held by appellants and a declaratory judgment vesting title in appellee to the two parcels of land at issue. The third and fourth counts, respectively, sought recovery for forgery of the deeds and civil theft.

Appellants denied the material allegations, asserted various affirmative defenses, and filed a counterclaim for ejectment and recovery of real estate taxes paid on the property. Ms. Osborne subsequently moved for summary judgment. Judge Taylor determined that the deeds in appellants' possession were forgeries, canceled the deeds in appellants' names, and declared Ms. Osborne the sole owner of the property in question. The trial court made no findings in the summary judgment as to who forged the deeds, and specifically "retain[ed] jurisdiction to try the remaining issues in this cause, to wit: the damages, if any, as a result of the allegations of Count III and Count IV herein." Appellants appealed the adverse summary judgment to this court, contending that material issues remained as to the affirmative defenses.

As appellee conceded in oral argument in this appeal, he argued that summary judgment was proper because the trial court entered summary judgment only as to Count I (fraudulent deeds) and Count II (declaratory judgment). Specifically, in the answer brief filed in the first appeal Ms. Osborne argued:

Counsel for Appellant has misconstrued in part the order of the court in this matter. The summary judgment order in this matter does not go to Counts III and IV of the pending complaint. The affirmative defenses go to issues not concluded by the summary judgment order.

This argument proved successful as this court affirmed the trial court's ruling.

After remand from this court, Judge Buttner took over the case. The new judge ruled that the only issues remaining were appellee's attorney fees and appellants' right to recover property taxes paid on the property at issue. At trial, the court refused to consider arguments concerning Counts III and IV because it considered these counts foreclosed in appellee's favor by the summary judgment rendered by the previous judge. The trial court entered judgment for appellee, awarding appellee damages and attorney's fees. Florida's civil theft statute, invoked by Count IV, was the only basis for attorney's fees.

Appellee now urges that the trial court correctly found that Judge Taylor's original summary...