Maass v. Christensen, 81-422

• Decision Date: 19 May 1982
• Docket Number: No. 81-422,81-422
• Citation: 414 So.2d 255
• Parties: George A. MAASS, Appellant, v. Sigurd CHRISTENSEN and Dola Christensen, his wife, Royal Mariner of Fort Lauderdale, Inc., a Florida corporation not for profit, and Wilma A. Maney, Appellees.
• Court: Florida District Court of Appeals

Page 255

414 So.2d 255

George A. MAASS, Appellant, v. Sigurd CHRISTENSEN and Dola Christensen, his wife, Royal Mariner of Fort Lauderdale, Inc., a Florida corporation not for profit, and Wilma A. Maney, Appellees.

No. 81-422.

District Court of Appeal of Florida,

Fourth District.

May 19, 1982.

Curtin R. Coleman of Coleman, Leonard & Morrison, Fort Lauderdale, for appellant.

Robert A. Plafsky of Ruden, Barnett, McClosky, Schuster & Russell, Fort Lauderdale, for appellees-Christensen.

Nancy Little Hoffmann of Nancy Little Hoffmann, P.A., and Todd L. Smith, P.A., Fort Lauderdale, for appellee-Maney.

DELL, Judge.

This appeal involves a controversy between the condominium apartment owners over the rights to parking space number 28 at the Royal Mariner of Fort Lauderdale. Appellant, George A. Maass, the defendant/counterclaimant below, appeals from the court's denial of his claim for slander of title. During oral argument, Maass waived his claim for other damages but maintained his claim to recover attorney fees as part of the cost of removing the cloud from his title.

Appellee, Wilma A. Maney, owned a condominium apartment and three parking spaces numbered 26, 27 and 28. Nelle Jablonka, not a party to this action, owned an apartment and parking space 112, and rented space 28 from Maney. Maney offered her apartment and two unspecified parking spaces for sale. In May, 1977, she entered into a contract to sell her apartment together with parking spaces 27 and 28 to Maass. In June she accepted checks in the amount of $2,000 from Jablonka. One check, in the amount of $500 and dated June 4, 1977, contains the notation "Par. payment on Space # 28," and the other check, for $1,500 and dated June 6, 1977, contains the notation "Sale of Garage Space # 28." Jablonka testified that she bought space 28 on June 6. It thus appears that on that date, Maney had sold the same parking space twice. The condominium by-laws provided that:

At the time of purchase of member's unit, member was irrevocably assigned the parking space or spaces bearing the same number designation as set forth in such written assignment of parking ... [H]e can sell, assign and convey all additional spaces ... to another apartment owner; provided, however, that such assignment is in writing and an executed copy of same is provided to the Directors of the Association for permanent records....

Maney did not execute the required written assignment of parking space 28 to Jablonka. In July, the Maney-Maass sale closed. These closing documents did include an executed assignment of spaces 27 and 28 to Maass, which was recorded. In September the appellees, Sigurd and Dola Christensen, entered into a contract with Jablonka to purchase her apartment together with parking spaces 112 and 28. Three days after entering into this contract, the Christensens received a letter from Jablonka's listing broker which advised them that an error appeared in the contract, and that in rechecking this with Royal Mariner, the broker found that "the records showed 112 and 26." ¹ The Christensens submitted the required application for approval to buy the apartment with spaces 112 and 26 to Royal Mariner, which approved them. The Christensens admitted in their answer to request for admissions, and Mr. Christensen testified at trial, that they knew Maney had assigned space 28 to Maass before they closed their transaction with Jablonka. Notwithstanding this knowledge, the Jablonka-Christensen sale closed in November and thereafter the Christensens engaged in a vigorous effort to create paper title to space 28 in themselves. They obtained a letter from Maney stating that Jablonka purchased space 28 on June 8, 1977. Jablonka provided a bill of sale for space 28 which the Christensens recorded December 16, 1977, and Jablonka executed an assignment of space 28 to the Christensens. They wrote Maass and the manager of the Royal Mariner and asserted ownership in space 28. They prepared an assignment from Maney to Jablonka bearing the date June 8, 1977, which Maney signed, and they filed suit against Maass for recission and cancellation of the assignment of space 28 to Maass. Maass counterclaimed against the Christensens and filed a third party suit against Maney for indemnification. The trial court held that Maass owned space 28 but denied his counterclaim for slander of title, finding no fraud or malice on the part of any party. The court ordered each party to bear his own attorney fees and assessed costs against Maney.

Maass presents one issue on appeal: whether the trial court erred in ordering each party to bear his own attorney fees. He argues first that since the trial court found that Maney caused the controversy by her initial failure to execute the proper conveyance documents, Maass may look to her for his attorney fees under his claim for indemnity. Secondly, Maass argues that the trial court should have found in his favor on the slander of title action, entitling him to collect his attorney fees from the Christensens as part of the cost of removing the cloud from his title.

We find no merit in Maass' claim for indemnity against Maney. Because the trial court held Maass not liable to the Christensens, Maney's alleged obligation to indemnify never arose. See Seaboard Air Line Ry. v. American District Electric Protective Co., 106 Fla. 330, 143 So. 316 (1932); Chappell v. Scarborough, 224 So.2d 791 (Fla. 1st DCA 1969). Maass falls outside the limited exception created by Pender v. Skillcraft Industries, Inc., 358 So.2d 45 (Fla. 4th DCA 1978), which dealt with a significantly different set of facts. Nor does Maass establish an independent basis for indemnification. Thus, no basis exists to award attorney fees in favor of Maass against Maney.

Before reaching the merits of Maass' next point we shall discuss a more general matter: that is, whether, under the facts and circumstances of this case, a slander of title action will lie against one who claims an adverse interest in a...