Holton v. H.J. Wilson Co., Inc.

• Decision Date: 30 January 1986
• Docket Number: No. 66453,66453
• Parties: 11 Fla. L. Weekly 44 Jack J. HOLTON, et al., Petitioners, v. H.J. WILSON CO., INC., Respondent.
• Court: Florida Supreme Court

Page 341

482 So.2d 341

11 Fla. L. Weekly 44

Jack J. HOLTON, et al., Petitioners, v. H.J. WILSON CO., INC., Respondent.

No. 66453.

Supreme Court of Florida.

Jan. 30, 1986.

J. Emory Wood, Tampa, for petitioners.

John T. Allen, Jr. and Christopher P. Jayson of John T. Allen, Jr., P.A., St. Petersburg, for respondent.

ADKINS, Justice.

We have for review H.J. Wilson Co. v. Collom, 460 So.2d 437 (Fla. 2d DCA 1984), in which the district court interpreted our decision in Pensacola Interstate Fair, Inc. v. Popovich, 389 So.2d 1179 (Fla.1980), in a manner it acknowledged as inconsistent with the Third District's readings of the same case in Belcher v. First National Bank, 405 So.2d 754 (Fla. 3d DCA 1981), and Mercy Hospital, Inc. v. Marti, 408 So.2d 639 (Fla. 3d DCA 1981), review denied, 418 So.2d 1280 (Fla.1982). We have jurisdiction based on conflict, article V, section 3(b)(3), Florida Constitution, and approve Wilson.

In Popovich we examined the Uniform Contribution Among Tortfeasors Act, section 768.31, Florida Statutes (1975), and upheld a judgment defendant's right to appeal alleged errors in judgments exonerating codefendants. Because section 768.31(4)(f) renders the judgment of the court as to liability among several defendants binding upon those parties in terms of contribution, this Court reasoned that a party is aggrieved upon the exoneration of a codefendant and must therefore be accorded a right to appeal.

The question which Popovich left unanswered, and which we presently address, is the time at which such an appeal is to be taken. The district courts have split on this issue. While noting that Popovich "fail[ed] to address the procedural requirements necessary to appeal a judgment exonerating a codefendant," Belcher, 405 So.2d 756 fn. 4, the Third District, in Mercy Hospital and Belcher, as well as Rinek v. State Department of Transportation, 442 So.2d 996 (Fla. 3d DCA 1983), review denied, 451 So.2d 847 (Fla.1984), has held that the right to appeal matures only after a "present controversy" presents itself for resolution in terms of indemnity or contribution. Belcher, 405 So.2d at 755. In other words, a party may appeal an adverse judgment only after suffering an adverse judgment in the case, or, as in Rinek, reaching a settlement with the plaintiff.

In the case at bar, on the other hand, the Second District held that a defendant may not wait until rendition of a judgment against him. The court barred the defendant's claim for contribution and/or indemnity against a codefendant on the grounds that he had failed to timely appeal the summary judgment exoneration of the codefendant.

We agree with the Wilson court. The policies of finality of litigation and judicial efficiency require that a codefendant, as well as a plaintiff, be bound to timely appeal an adverse ruling exonerating one of two or more defendants when the defendant's exoneration as against the plaintiff will also determine that defendant's liability to the codefendant for either contribution or indemnity.

Such a ruling will avoid the type of abuse illustrated by the facts of this case. Bert Collom brought a wrongful death action against defendants City of St. Petersburg Jack Holton and H.J. Wilson Co., alleging that each had negligently contributed to the drownings of his wife and daughter in a flooded storm sewer. On April 8, 1980, Wilson, the builder of the sewer, obtained a final summary judgment against plaintiff Collom. The district court affirmed this judgment on March 4, 1981. Collom v. H.J. Wilson Co., 396 So.2d 1238 (Fla. 2d DCA 1981).

Although Holton, the owner of the land involved, was a party to the action during this time, he failed to participate in the appeal of the judgment exonerating Wilson. Rather, on August 21, 1980, Holton filed a motion for leave to file a third-party complaint against Wilson, seeking contribution and/or indemnity. This motion was not heard until July 24, 1981. The trial court judge denied the motion, finding the district court's affirmance of the summary judgment determinative of Holton's claims. Finding no requisite common liability justifying a claim of contribution, and no relationship between the defendants creating a right to indemnity, Houdaille Industries, Inc. v. Edwards, 374 So.2d 490 (Fla.1979), the court denied the motion.

This ruling was neither appealed nor contested by Holton until three years later. In July of 1984, Holton successfully brought Wilson back into the litigation when another trial judge granted Holton's motion for reconsideration of his earlier motion seeking leave to file a third-party complaint against Wilson. The motion for reconsideration was accompanied by a complaint identical to that submitted to the court three years before.

The Second District articulated its disapproval of that decision on two grounds. First, the court found that because Wilson's summary judgment as to Collom determined the liability of Wilson to Holton, Holton had failed to timely appeal the entry of the initial summary judgment exonerating Wilson. Secondly, Holton failed to appeal the denial of his motion for leave to file a third-party complaint. Citing Orlovsky v. Solid Surf, Inc., 405 So.2d 1363 (Fla. 4th DCA 1981), the court held that the order should have been appealed as an order fully disposing of a claim against a party no longer in the case.

Because we hold that Holton, under these circumstances, failed to timely appeal the summary judgment absolving Wilson of any liability to Collom based on negligence, we find the denial of Holton's motion for leave to file a third-party complaint proper, and agree that Holton's failure to appeal the ruling should have properly served as a second bar to his eventual prosecution of a claim against Wilson. Orlovsky v. Solid Surf, Inc.; Phillips v. Ostrer, 442 So.2d 1084 (Fla. 3d DCA 1983); Let's Help Florida v. DHS Films, Inc., 392 So.2d 915 (Fla. 3d DCA 1980). As a party to the action during the resolution of liability between Collom and Wilson, Holton was aggrieved by Wilson's initial exoneration by summary judgment and should have joined in Collom's appeal. Under section 768.31(4)(f), Florida Statutes (1983), if the judgment apportions liability between the parties, it is also determinative of contribution rights between the parties. If Holton knew of any material issues of fact pointing to Wilson's liability, it should have presented them to the court during Collom's appeal, either by filing a brief or cross-appealing. Holton argues he had no such duty to participate in a proceeding between two other parties.

Holton cites a line of case law in which our decision of Pensacola Interstate Fair, Inc. v. Popovich has been interpreted as allowing a defendant to appeal a judgment exonerating a codefendant only after he has either suffered an adverse judgment at the hands of the plaintiff or settled with the plaintiff. The Third District, in Belcher v. First National Bank and Mercy Hospital, Inc. v. Marti, interpreted the language in Popovich recognizing a judgment defendant's right to appeal from a ruling adversely affecting his rights against exonerated defendants as requiring entry of a judgment against the defendant before his right to appeal accrues. In Rinek, the court mitigated its strict requirement that a judgment be returned prior to appeal by allowing a settling party to appeal the exoneration of three codefendants.

We disagree with the Third District in its assertion that no "case or controversy" exists prior to either a finding of a defendant's liability or a settlement with plaintiff. We are principally concerned here with the relationship between two defendants. A timely appeal by one defenda...