Liberman v. Rhyne, s. 70--937
| Citation | 248 So.2d 242 |
| Decision Date | 27 April 1971 |
| Docket Number | Nos. 70--937,70--1051,s. 70--937 |
| Parties | Haskell LIBERMAN and Leatrice Liberman, Ludlum Enterprises, Inc., Ludlum Plaza North, Inc., Appellants, v. Paul RHYNE, d/b/a Paul Rhyne Plumbing Contractors, Appellee. |
| Court | Court of Appeal of Florida (US) |
Harold Ungerleider, Miami, and Daniel I. Wincor, Miami Beach, for appellants.
Blackwell, Walker & Gray and J. Frost Walker, III, Miami, for appellee.
Before HENDRY and SWANN, JJ., and CULLEN, RALPH O., Associate Judge.
Paul Rhyne d/b/a Paul Rhyne Plumbing Contractors, sued Haskell Liberman and Leatrice Liberman, Ludlum Enterprises, Inc. and Ludlum Plaza North, Inc. Plaintiff alleged generally, in the first court, that he had supplied plumbing work and fixtures at the request of defendants and that there was an unpaid balance due of $51,387, pursuant to contracts attached to the complaint and that defendants had admitted these obligations pursuant to a letter, also attached, but that they had failed and refused to pay the balance due. In Count Two plaintiff alleged that Haskell Liberman and Leatrice Liberman, his wife, executed a promissory note in the sum of $15,000 and that they had failed to pay the note when it was due. Plaintiff demanded judgment against the defendants, together with interest and attorneys' fees.
The defendants filed an answer which denied the allegations contained in Counts One and Two of the complaint, together with a motion to dismiss and a 'motion to dissolve attachment and traverse'. See § 673.307(1) and (2), Fla.Stat., F.S.A., as they pertain to the suit on the promissory note. In the sworn motion to dissolve the attachment Haskell Liberman admitted that he was the President of the corporate defendants.
After some skirmishing over the pleadings, plaintiff moved for a summary final judgment based on the pleadings and affidavits filed in the cause. A hearing on the motion was scheduled and held on March 30, 1970 at 11:00 A.M. The record reflects that an affidavit in opposition to the motion for summary judgment was filed by the defendant Haskell Liberman, individually, and as an officer of the corporate defendants at 11:06 A.M. on March 30, 1970. No affidavits were filed by Leatrice Liberman. The certificate of service indicates that the affidavit was served by mail on March 27, 1970.
The court did not rule on the motion at that time. Thereafter, plaintiff took and filed the discovery deposition of Haskell and Leatrice Liberman and one Thomas Pfeifer. On June 22, 1970, the trial court rendered a 'partial summary final judgment'. The defendants appealed from that judgment on September 3, 1970.
On September 29, 1970, the trial court rendered a 'partial summary judgment' nunc pro tunc to the 22nd day of June, 1970. This summary judgment was exactly the same as the partial summary judgment rendered June 22, 1970, except the name of one of the corporate defendants was corrected from Ludlam Plaza North, Inc. to Ludlum Plaza North, Inc.
On October 13, 1970, another trial judge entered an order, ex parte, which temporarily enjoined certain of these defendants from selling or disposing of a mortgage which was reputed to be, and apparently is, the purchase money mortgage derived from the sale of the real property which was the subject matter of the attachment by the plaintiff. Defendants have taken an interlocutory appeal from the orders of September 29 and October 13, 1970. Their full appeal and interlocutory appeal have been consolidated for appellate purposes and will be considered and discussed herein.
We find no error in the order of September 29, 1970, which corrected the misspelled name of one of the corporate defendants from Ludlam to Ludlum Plaza North, Inc. See Fulton v. Poston Bridge & Iron, Inc., Fla.App.1960,122 So.2d 240; and Annot., 10 A.L.R. 526, 575.
The order of October 13, 1970 is erroneous and is reversed. The trial court has no authority after a notice of appeal has been filed to change the status of a case or to interfere with the rights of a party under the judgment. The trial court retains jurisdiction of the cause only to correct the record and it may not take any...
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State ex rel. Schwartz v. Lantz, 82-739
...were also decisions to this effect prior to Waltham. See e.g., Kalmutz v. Kalmutz, 299 So.2d 30 (Fla. 4th DCA 1974); Liberman v. Rhyne, 248 So.2d 242 (Fla. 3d DCA), cert. denied, 252 So.2d 798 (Fla.1971); Fulton v. Poston Bridge & Iron, Inc., 122 So.2d 240 (Fla. 3d DCA), cert. denied, 125 S......
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...judgment" did not adversely affect the rights of the plaintiff corporation under the previous order of January 11, cf. Liberman v. Rhyne, 248 So.2d 242 (Fla. 3d DCA 1971), cert. denied, 252 So.2d 798 (Fla.1971), and because the first appeal was a plenary, rather than a non-final one, see Fl......
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...sentence after an appeal had been taken to review it. See Goodner v. Shapiro, 367 So.2d 1110, n.1 (Fla. 3d DCA 1979); Liberman v. Rhyne, 248 So.2d 242 (Fla. 3d DCA 1971), cert. denied, 252 So.2d 798 (Fla.1971); Fulton v. Poston Bridge & Iron, Inc., 122 So.2d 240 (Fla. 3d DCA 1960), cert. de......
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