Furlong v. Leybourne
| Decision Date | 16 December 1964 |
| Docket Number | No. 33435,33435 |
| Citation | 171 So.2d 1 |
| Parties | Martha Joe FURLONG et al., Petitioners, v. Charlotte LEYBOURNE, Respondent. |
| Court | Florida Supreme Court |
Robert M. Brake, Coral Gables, for petitioners.
Redfearn & Simon, Miami, for respondent.
Certiorari is sought to review a decision of the District Court of Appeal, Third District, appearing in Leybourne v. Furlong, Fla.App.1964, 161 So.2d 221.
Petitioners, three sisters, were plaintiffs in an action in the Circuit Court to have determined their right to be subrogated as contingent claimants of their deceased father's estate in the event they paid the debt of a mortgage which he executed in his lifetime together with his second wife, the defendant in said action and respondent here. The mortgage is secured by the homestead property of the decedent father. Respondent is the stepmother of petitioners. She is the sole beneficiary under decedent's will and executrix of his estate and has a life estate in the homestead. Petitioners are remaindermen to the homestead. Respondent, as executrix of the estate, filed objection to the contingent claim filed by petitioners, whereupon they filed said action to determine the validity of their claim as provided by § 733.18(2), Florida Statutes, F.S.A.
In said action the Circuit Court in its summary judgment held:
'Since the right to be subrogated to the rights and securities of a Creditor extends to anyone paying any part of the debt of another provided the entire debt is paid, then should Plaintiffs [petitioners] make any payments of the aforesaid indebtedness [the mortgage debt], they will have a right to be subrogated to the rights and securities of the Creditor [mortgagee] upon the entire debt being paid.
'Since the rights of the Creditor include a right to have a recourse over against the Estate of the JAMES G. LEYBOURNE [the deceased father], the Plaintiffs [petitioners] have a right of such recourse as contingent claimants, independent of any action on the part of the Creditor, subject only to fulfilling the requirements of the so-called Florida Claims Statute, as set forth in Florida Statutes, Sections 733.16 and 733.18, [F.S.A.]
'The claim which was filed by Plaintiffs [petitioners] in the Estate of JAMES G. LEYBOURNE, and the filing of this action upon said claim after objection had been made were timely and were sufficient in form to fulfill the requirements of said Claims Statutes.
'Upon the payment in full of said indebtedness [mortgage debt] to the principal creditor, * * * the Plaintiffs will be entitled to reimbursement from the Estate of JAMES G. LEYBOURNE, Deceased, * * *'
The District Court of Appeal reversed this judgment because it found the Circuit Court had ignored the doctrine 'law of the case.' The court said:
'The lower court failed to apply the law, as determined by this court on two previous appeals, involving the same parties and factual situation. In Furlong v. Coral Gables Federal Savings & Loan Ass'n, note 2, supra, the first appeal , this court stated:
[Emphasis supplied.] 121 So.2d at 801.
'In Furlong v. Leybourne, note, supra, the second appeal , this court stated:
"While the appellee cannot recover from the estate since it has long been closed for the filing of creditor claims, * * *.' 138 So.2d 356.'
See Leybourne v. Furlong, Fla.App., 161 So.2d 221, text 223.
At this point because of the application of the 'law of the case' doctrine, we hereafter give a brief resume of the earlier litigation between these same parties to which the District Court of Appeal refers in the quotation above.
In the initial litigation between the same parties, petitioners as the remaindermen unsuccessfully sought to have the estate exonerate the homestead from the mortgage. The Third District Court of Appeal affirmed the lower court and held that since the mortgagee creditor had failed to file a claim in the probate proceedings within the time prescribed by law the estate could not be compelled to exonerate the homestead from the mortgage by satisfying it. See Furlong et al. v. Coral Gables Federal Savings & Loan Ass'n, 121 So.2d 797.
In concluding its opinion in Furlong v. Coral Gables Federal Savings & Loan Ass'n, supra, text 801, the court said:
In still further litigation between the parties the issue was whether the widow, the respondent here, in her individual capacity as co-maker of said note with her deceased husband should bear the primary responsibility for payment of the note. The District Court of Appeal held that as to the widow and the daughters, if any of them paid off the mortgage she or they would be subrogated to the mortgagee's right to foreclose the mortgage. The court also held as to the widow, who was an accommodation maker on the note, that her right of subrogation would include 'recourse over against his estate for the debt,' but that she 'cannot recover from the estate since it has long been closed for filing of creditor claims.' See Furlong v. Leybourne, 138 So.2d 352, 356.
Petitioners contend the District Court of Appeal in the case under review in ruling that the Circuit Court departed from 'the law of the case' as enunciated in 121 So.2d 797 and 138 So.2d 352, conflicted with McGregor v. Provident Trust Co., 119 Fla. 718, 162 So. 323; with Florida East Coast Ry. Co. v. Geiger, 66 Fla. 582, 64 So. 238; and with Feigen v. Sokolsky, Fla., 65 So.2d 769, which cases hold the doctrine of the law of the case (1) applies only to subsequent stages of procedure in the same case, (2) that the doctrine is not decisive of points presented in a second writ of error that were not presented in a former writ of error, and (3) there can be no 'law of the case' which is controlling when the facts are different at the two trials.
We believe that the contentions of petitioners for our invoking certiorari jurisdiction have merit. Neither of the two earlier cases concerned the precise issue presented in the third case here under review. The issue in this case is whether petitioners can be subrogated as contingent claimants if they pay the mortgage debt. The issue in the first case was whether the doctrine of exoneration was applicable and would require payment of the mortgage debt from the general assets of the estate. See headnote 2 of 121 So.2d 797 and discussion on pages 800 and 801. The holding reflected in the 3rd headnote of that case went to the question whether the contingent claim filed by remaindermen was sufficient to overcome the failure of the mortgagee to file a claim as a predicate for exoneration of the homestead by payment of the mortgage from the assets of the estate. The first case was not decisive of the issue of subrogation presented in the instant case. The second decision of the District Court of Appeal reported in 138 So.2d 352 holds that the respondent as accommodation maker of the mortgage note would 'have recourse over against his [decedent's] estate for the debt as she pays it,' but 'cannot recover from the estate since it has long been closed for filing of creditor claims.' The court then states * * *'
From this language in the second apppeal decision equating the subrogation rights of the stepdaughters with those of the stepmother, it...
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