Elmore v. Palmer First Nat. Bank & Trust Co. of Sarasota

• Citation: 221 So.2d 164
• Decision Date: 26 March 1969
• Docket Number: No. 68--301,68--301
• Parties: Mary ELMORE, Appellant, v. PALMER FIRST NATIONAL BANK AND TRUST COMPANY OF SARASOTA, Appellee.
• Court: Court of Appeal of Florida (US)

Page 164

221 So.2d 164

Mary ELMORE, Appellant, v. PALMER FIRST NATIONAL BANK AND TRUST COMPANY OF SARASOTA, Appellee.

No. 68--301.

District Court of Appeal of Florida, Second District.

March 26, 1969.

Ray Graham, Sarasota, for appellant.

Worth Dexter, Jr., of Dexter, Conlee & Bissell, Sarasota, for appellee.

LILES, Chief Judge.

Plaintiff appeals from an order of the trial judge dismissing her tort action of malicious interference with a business transaction with prejudice.

On May 4, 1966, one James E. Moore executed and delivered to plaintiff-appellant a check for $10,000.00 drawn on defendant bank. In her complaint appellant alleged that at this time there were adequate funds on deposit in the checking account to honor and pay this check; that upon inquiry as to whether the check was good appellant was told to present the check through normal banking channels; that subsequent to this inquiry appellee bank maliciously placed a 'hold' on the checking account, transferred the funds from the checking account to the depositor's savings account, and refused payment of the check for insufficient funds; that the depositor did not request that the check be refused; and that because of appellee's interference appellant was unable to collect the full $10,000.00 from the depositor because he subsequently died and appellant was forced to compromise her claim against the estate for $3,300.00 since it was doubtful she could prove consideration.

Appellee's motion to dismiss the complaint was granted on the basis of Fla.Stat. § 676.52 (1965). ¹

On an earlier occasion appellee moved to dismiss this appeal; however, this court deferred consideration of the motion. We first consider that motion.

The order of dismissal was filed on February 16, 1968. Appellant then filed a timely motion to rehear in the trial court on February 20, 1968, which was denied on April 29, 1968. Notice of appeal was filed on June 24, 1968. If the motion to rehear properly tolled the appeal period, the notice of appeal was filed within sixty days from the rendition of the final order as then provided by the appellate rules. F.A.R. 3.2(b), 32 F.S.A. ² Upon consideration, this court now holds that the motion to rehear did properly toll the time period and that the notice of appeal was timely. The motion to dismiss is denied.

Appellee argues that the motion to rehear in this case was not 'proper' or as 'permitted by the Rules' and thus did not toll the appeal period. See F.A.R. 1.3. However, we hold that it was proper and timely as envisioned by F.R.C.P. 1.530, 31 F.S.A. Appellee argues that this motion was not directed at an issue of fact and was merely an attempt to prevail upon the judge to reconsider his holdings of law. This is because the judge dismissed plaintiff's case on the pleadings. It argues that a motion to rehear is traditionally a rule of equity practice which is proper when the trial judge hears the case in the absence of a jury. It is appellee's contention that since this is an action at law and not equity this equity practice should not be applied under the newly consolidated law and equity rules.

On the contrary, under modern rules of practice a motion to rehear is not merely a vehicle by which the trial judge can reconsider facts alone; rather, it provides a chance for the trial court to correct any error that it committed if it becomes convinced that it has erred. Since it is clearly within the trial court's power to alter a judgment for a limited period, see F.R.C.P. 1.530, a timely motion asking the court to do so is proper. See Floyd v. State ex rel. La Vigne Elec. Co., Fla.1962, 139 So.2d 873; Kippy Corporation v. Colburn, Fla.1965, 177 So.2d 193; Pensacola Chrysler-Plymouth, Inc. v. Costa, Fla.App., 195 So.2d 250, cert. denied, Fla.1967, 204 So.2d 211.

Turning to the merits of this appeal, the trial court held that this action for malicious interference with business transaction was barred by Fla.Stat. § 676.52, a section of the negotiable instruments law which then provided:

'When bank becomes liable.--A check of itself does not operate as an assignment of any part of the funds to the credit of the drawer with the bank; and the bank is not liable to the holder, unless and until it accepts or certifies the check.'

Appellant readily admits that were this a suit in contract this statute would bar the action. She maintains, however, that since this is an action in tort this statute is not applicable. This argument must be rejected as a thinly veiled attempt to thwart the intended effect of this statute.

It can be seen that the facts of this case are no different than the facts that would be necessary to make out a cause of action in contract if the drawee did owe a contractual duty to payee to honor the payor's check. Since the appellant has sought to take the mere fact of refusal to honor the check by the appellee bank and to plead it as a cause of action in tort instead of contract, it appears that she is trying to circumvent the intended effect of this statute. Were this cause of action in tort allowed to proceed in spite of this statute the effect would be to completely negate the purpose and effect of this statute. It is readily apparent that any refusal to honor a check by a bank, precisely the activity authorized by this statute with regard to the payee of that check, could also be said to constitute an interference with business relations.

As one textual authority states:

'In most jurisdictions the bank is under no legal obligation to the payee or holder of a check, unless there be special circumstances, such as its acceptance or certification of the check. A bank which is...