Leybourne v. Furlong, 63-262

• Decision Date: 21 January 1964
• Docket Number: No. 63-262,63-262
• Parties: Charlotte LEYBOURNE, Appellant, v. Martha Joe FURLONG et al., Appellees.
• Court: Florida District Court of Appeals

Page 221

161 So.2d 221

Charlotte LEYBOURNE, Appellant, v. Martha Joe FURLONG et al., Appellees.

No. 63-262.

District Court of Appeal of Florida, Third District.

Jan. 21, 1964.

Rehearing Denied March 17, 1964.

Redfearn, Ferrell & Simon, Miami, for appellant.

Robert M. Brake, Coral Gables, for appellees.

Before CARROLL, TILLMAN PEARSON and HENDRY, JJ.

PER CURIAM.

The defendant appeals from a summary final declaratory judgment granted by the circuit court in favor of plaintiffs.

James G. Leybourne died testate on October 1, 1958. Appellant is his wife, executrix and sole heir under the will. Appellees are his daughters by virtue of a prior marriage. At the time of his death the father owned a home impressed with homestead status, located in Dade County. ¹ This property passed outside of his will, by operation of law, to his wife for life, remainder to his daughters. §§ 731.05(1), 731.27 Fla.Stat., F.S.A. At the time of death, the property was subject to a nonpurchase money mortgage payable to Coral Gables Federal Savings & Loan Ass'n (hereinafter referred to as the Federal) for a sum in excess of $26,000.00. The mortgage was security for a note executed by the decedent and appellant, his wife.

By a prior suit in equity, ² the children sought to charge the decedent's estate with the obligation of satisfying the lien on the property.

The present action at law had been instituted at approximately the same time as the equity suit, but remained dormant during the prosecution of the equity claims. After this court handed down its two decisions in regard to the equity proceedings, this suit was reactivated. See note 2, supra.

The present suit for a declaratory judgment sought relief that was substantially similar to that sought in the equity proceedings. The only substantial deviation in the complaint at law, as amended, from that of the complaint in equity being a request of the lower court to determine the children's rights as subrogees.

Both plaintiffs and defendant moved for summary judgment, and the court granted plaintiffs' motion and entered a summary final declaratory judgment, which provides:

'ORDERED AND ADJUDGED as follows:

'1. 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 make any payments of the aforesaid indebtedness, they will have a right to be subrogated to the rights and securities of the Creditor upon the entire debt being paid.

'2. Since the rights of the Creditor include a right to have a recourse over against the Estate of the Deceased JAMES G. LEYBOURNE, the Plaintiffs have a right to 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.

'3. The claim which was filed by Plaintiffs, 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.

'4. Upon the payment in full of said indebtedness to the principal creditor, or his successors or assigns, the Plaintiffs will be entitled to reimbursement from the Estate of JAMES G. LEYBOURNE, Deceased, for any of the sums paid by Plaintiffs upon said indebtedness in such amount as is actually paid on said indebtedness by Plaintiffs.

'5. The amount may be no greater than the amount of each installment due time the number of installments unpaid at the time of the death of the said JAMES G. LEYBOURNE (being the sum of Thirty-Nine Thousand Six Hundred Ten Dollars ($39,610.00), plus any sums which may be added as late penalty charges, attorney fees for collection, and the Court costs on foreclosure; and it is further

'ORDERED AND ADJUDGED that jurisdiction of this cause is hereby retained by this Court for the purpose of taxing such costs as may later be approved upon proper Petition therefor.'

It is our view that the circuit court committed error when it ignored the 'law of the case'. The Supreme Court of Florida enunciated this doctrine in McGregor v. Provident Trust Co. of Philadelphia, 119 Fla. 718, 162 So. 323, 327, to be:

'By 'law of the case' is meant the principle that the questions of law decided on appeal to a court of ultimate resort must govern the case in the same court and the trial court, through all subsequent stages of the proceedings, and will seldom be reconsidered or reversed, even though they appear to have been erroneous. [Citations omitted.] Or, as otherwise stated, 'whatever is once established between the same parties in the same case continues to be the law of the case, whether correct on...