Noonan-Judson v. Surrency
| Decision Date | 09 February 1996 |
| Docket Number | A,NOONAN-JUDSO,No. 94-2537,ONAN-JUDSO,94-2537 |
| Citation | 669 So.2d 1058 |
| Parties | 21 Fla. L. Weekly D359 Jacquelineppellant/Cross-Appellee, v. M. Delores Page SURRENCY, etc., et al., Appellees/Cross-Appellants. |
| Court | Florida District Court of Appeals |
Appeal from the Circuit Court for Brevard County, Edward M. Jackson, Judge.
Stewart B. Capps of Stewart B. Capps, P.A., Indialantic, for Appellant/Cross-Appellee.
Vincent G. Torpy, Jr., Melbourne, for Appellees/Cross-Appellants.
This is an appeal from a final judgment in which the trial court determined that appellant elected her remedy by foreclosing on a note and mortgage. Appellees/cross-appellants filed a cross-appeal contending that the trial court erred by not finding the transaction usurious. We hold that this agreement was not usurious and the trial court erred in applying the doctrine of election of remedies. Further, we hold that the trial court erred by not enforcing the preliminary agreement through imposition of a resulting trust on the property.
Surrency held a second mortgage on a property in Palm Bay. NationsBank, the first mortgagee, foreclosed on the property and a judicial sale of the property was set. Surrency, in order to save her interest in the property, had to find a party willing to refinance or lend her money to redeem the mortgage. Attorney William Dixon assisted and advised Surrency during this time.
On the day before the sale Dixon contacted Surrency and told her that another client of his, Noonan-Judson, might be willing to assist her. Dixon met with Noonan-Judson and the two agreed to the following terms:
1. Noonan-Judson would put up $97,000 to bid the property at the foreclosure;
2. the property would be placed on the market and sold; and
3. Noonan-Judson's initial investment of $97,000 would be repaid from the sale proceeds and the amount remaining would be divided in half between Noonan-Judson and Surrency.
Noonan-Judson wrote a check for $97,000 with a notation stating "investment" on the check.
Dixon testified and the trial court found that Surrency agreed to this arrangement. At the judicial sale Dixon bid $97,000 for the property in his name as trustee for Surrency. Later, Dixon prepared a mortgage deed and note for Noonan-Judson for $97,000 which also provided for monthly payments of $1,500 to her prior to the house being sold. Dixon testified that he delayed putting the trust terms in writing to give Surrency time to hammer out auxiliary terms related to the marketing of the property. Surrency failed to make the $1,500 monthly payments.
Noonan-Judson filed a two-part complaint asking in Count I that the note and mortgage be foreclosed and in Count II the court impose an express, resulting or constructive trust on the property. The trial court granted Noonan-Judson's motion for partial final summary judgment on the mortgage foreclosure claim. The court granted her a mortgage lien of $113,378.51 and ordered the property to be sold. At the sale Surrency redeemed the mortgage.
At a later date, the trial court heard testimony on Count II of Noonan-Judson's complaint requesting the imposition of a trust on the property. Although the court found that Surrency understood and consented to the terms of the agreement, the court denied Noonan-Judson's request for imposition of a trust on the property. The court ruled that Noonan-Judson, in choosing the mortgage foreclosure action, had elected her remedy and thus eliminated the preliminary agreement to enter into a written trust agreement as a remedy.
We agree with Noonan-Judson that the trial court erred in applying the doctrine of election of remedies in this case for two reasons. First, Surrency failed to plead this...
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Kerrigan, Estess, Rankin & McLeod v. State
...judgment of dissolution awarding appellee permanent alimony, where her petition did not raise issue of alimony); Noonan-Judson v. Surrency, 669 So.2d 1058 (Fla. 5th DCA 1996) (reversing final judgment determining appellant elected remedy by foreclosing note and mortgage and thus was not ent......
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Collins v. Bannon, 2D00-1299.
...for hearing, or litigated by the parties. See Gordon v. Gordon, 543 So.2d 428 (Fla. 2d DCA 1989); see also Noonan-Judson v. Surrency, 669 So.2d 1058 (Fla. 5th DCA 1996). In Spencer v. Devine, 364 So.2d 22 (Fla. 1st DCA 1978), the trial court found that an agreement between the parties was v......
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Doerflein v. Doerflein, 96-2940.
...such evidence. Because the issue of attorney's fees was not litigated, the court's ruling is reversed. Cf. Noonan-Judson v. Surrency, 669 So.2d 1058 (Fla. 5th DCA 1996) (judgment on issue not presented in pleading or litigated by parties voidable on appeal). Moreover, the reversal of the fo......