Finchum v. Vogel, 163
| Decision Date | 30 December 1966 |
| Docket Number | No. 163,163 |
| Citation | 194 So.2d 49 |
| Parties | John R. FINCHUM, Sr., and Mary L. Finchum, his wife, Clifford V. Finchum and Frances Finchum, his wife, Finchum Brothers, Inc., and Bank of South Brevard, Appellants, v. Edward J. VOGEL and Lorraine C. Vogel, his wife, Oscar J. Jutzl, Sr., and Anna M. Jutzi, his wife, J. T. Litteral and Elizabeth Litteral, his wife, on behalf of themselves and all others similarly situated, Appellees. |
| Court | Florida District Court of Appeals |
Romeo A. Amari, of Moore & Amari, Cocoa Beach, for appellants-Finchum.
Ralph Geilich, of Williams & Geilich, Melbourne, for appellant-Bank of South Brevard.
Elting L. Storms and Eric W. Pappas, Storms, Pappas & Krasny, Melbourne, for appellees.
This appeal is taken from a mandatory injunction ordering the appellants-defendants to either tear down two commercial buildings or to convert the same to residential purposes. The appellees-plaintiffs brought a class suit seeking an injunction against the defendants to restrain the construction of a building alleging it to be in violation of restrictive covenants applicable to all of the property in the subdivision where the buildings were being constructed. Plaintiffs were the owners of certain lots in the subdivision and the defendants, Finchum, were the owners of one lot in the subdivision on which the defendant bank held a mortgage. The property was used by the remaining defendant. The interests of all of the parties were derived from a common source, the corporate subdivider who caused a plat of the subdivision to be recorded. On the face of the plat under a heading 'Restrictions' appeared several paragraphs the most pertinent ones being:
'* * *
The 'Restrictions' then concluded with the following paragraph:
'* * * Provided, further, that a breach of any of the foregoing conditions shall cause said premises to revert to the seller, its successors or assigns, each of whom shall respectfully have the right of re-entry and possession upon said premises in the event of any such breach. * * *'
All of the foregoing was further specified in the muniments of title under which all of the parties claim. The testimony clearly established that the defendants erected the two buildings on their lot in the subdivision and that one is used as an office and the other as a warehouse all contrary to the restrictions. The court entered the final decree appealed ordering the defendants to remove said buildings or to convert them into residential structures.
Prior to consideration of the merits we dispose of a procedural question. The appellees have included in their appendix a document purporting to be a release executed by the corporate subdivider of their right of the reverter provision above quoted. The appellants have filed a motion to strike this document from appellees' appendix. This document is not shown to have been offered,...
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Williams v. Oken
...2d DCA 2004), St. Mary's, 785 So.2d 1261, Fine v. Carney Bank of Broward County, 508 So.2d 558 (Fla. 4th DCA 1987), and Finchum v. Vogel, 194 So.2d 49 (Fla. 4th DCA 1966). This Court granted review. Williams raises the following three issues on review: (1) whether the district court erred o......
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State of Fla. v. STANG
...So.2d 267, 270 (Fla. 3rd DCA 1997); Fine v. Carney Bank of Broward County, 508 So.2d 558, 559 (Fla. 4th DCA 1987); Finchum v. Vogel, 194 So.2d 49, 51 (Fla. 4th DCA 1966). The dissent candidly disregards this rule by basing its opposition to the discharge of jurisdiction on matters not inclu......
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Doctors Associates, Inc. v. Thomas
...appellate court may not consider matters outside the record. See Gilman v. Dozier, 388 So.2d 294 (Fla. 1st DCA 1980); Finchum v. Vogel, 194 So.2d 49 (Fla. 4th DCA 1966); Sheldon v. Tiernan, 147 So.2d 593 (Fla. 2d DCA 1962). The record at the trial level is quite sparse and lacks any specifi......
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Loch Haven Homeowners' Ass'n, Inc. v. Nelle
...Owner's Ass'n v. Driscoll, 106 Ohio App. 95, 153 N.E.2d 681 (1957). Two of our sister courts have adopted that view. Finchum v. Vogel, 194 So.2d 49 (Fla. 4th DCA 1966); Ortega Company v. Justiss, 175 So.2d 554 (Fla. 1st DCA 1965). But cf. Flamingo Ranch Estates, Inc. v. Sunshine Ranches Hom......