Ogle v. Pepin

• Decision Date: 21 February 1973
• Docket Number: No. 41761,41761
• Citation: Ogle v. Pepin, 273 So.2d 391 (Fla. 1973)
• Parties: Henry T. OGLE, as Trustee, Appellant, v. Arthur D. PEPIN et al., Appellees.
• Court: Florida Supreme Court

Page 391

273 So.2d 391

Henry T. OGLE, as Trustee, Appellant, v.Arthur D. PEPIN et al., Appellees.

No. 41761.

Supreme Court of Florida.

Feb. 21, 1973.

Norman Bie, Jr., Clearwater, for appellant.

T. Paine Kelly, Jr., of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellees.

DEKLE, Justice.

This cause comes to us upon a full appeal claiming jurisdiction on the basis that the decision of the Fourth District Court of Appeal at 253 So.2d 270 was a decision 'initially and directly . . . construing a provision of the state . . . constitution.'Fla.Const. art. V, § 3(b)(1)(1973), F.S.A.So, we must decide at the outset this jurisdictional question to see if we have the authority to entertain this appeal.

The case generally involves an action on a mortgage note with an equitable defense being sustained for a credit to appellees-mortgagors on the balance due to the extent of the full fair market value of the property at the time of an earlier foreclosure sale (instead of the lower actual bid in that earlier foreclosure).An appeal followed in the Fourth District.During the proceedings before the district court, two constitutional questions pertaining to alleged impairment of the obligation of contracts (Fla.Const. art. I, § 10) and denial of equal protection of the law (Fla.Const. art. I, § 2) were raised for the first time.Notwithstanding, the affirming decision of the district court did not discuss or refer to any constitutional provision or argument.In his appeal here appellant suggests as a basis for our jurisdiction that the district court'inherently' construed these provisions in our state constitution.This contention dictates at the inception a discussion and a definitive decision concerning the nature of our appeal jurisdiction in this respect.An analysis of this jurisdictional question convinces us that the applicability or inapplicability of the inherency doctrine to the present factual situation will settle the entire appeal.

We enunciated the inherency doctrine as a basis for establishing our appeal jurisdiction in Evans v. Carroll, 104 So.2d 375(Fla.1958), and shortly thereafter amplified its meaning in Harrell's Candy Kitchen v. Sarasota-Manatee Airport Authority, 111 So.2d 439(Fla.1959).Those landmark decisions applied the inherency doctrine to 'final judgments or decrees directly passing upon the validity of a State statute.'(emphasis added)The question therefore arises as to whether the inherency doctrine applies to the aspect of our appeal jurisdiction involved in the present case, i.e., 'decisions . . . initially and directly . . . construing a provision of the state . . . Constitution.'(emphasis added)

In determining whether the inherency doctrine applies in this further area, we must examine the key word, 'construing.'Did not district court's decision Construe a constitutional provision?By definition it is apparent that Some language is essential to Consture a provision.In judicial terminology we defined 'construing' in its constitutional sense in the case of Armstrong v. City of Tampa, 106 So.2d 407(Fla.1958).As Armstrong puts it, an opinion or judgment does not construe a provision of the constitution unless it undertakes: (p. 409)

'. . . to explain, define or otherwise eliminate existing doubts arising from the language or terms of the constitutional provision.'

This rationale, quite clearly, collides with the inherency doctrine.To apply the inherency doctrine in this cause, we would be saying that a judgment in itself can inherently Construe a provision of our constitution without reference to it.In other words, the decision need not discuss, explain or erfer to any constitutional provision; it is sufficient if it is 'inherent' in the case.Upon a thorough examination of these divergent viewpoints, we have concluded that the Armstrong rule, as distinguished from the inherency doctrine relative to a statute, should apply to trial court orders and district court decisions'construing a controlling provision of the state of federal constitution.'

We are of course aware of the limited qualification of the Armstrong rule in footnote 3 of Board of County Commissioners of Dade County v. Boswell, 167 So.2d 866(Fla.1964), holding that final judgments referring to a controlling constitutional provision without any further explanation are sufficient to invoke this Court's appeal jurisdiction under judgments construing the constitution, and the outright departure from the Armstrong rule in Kirk v. Baker, 224 So.2d 311(Fla.1969).The decision in Kirk involved appeal jurisdiction from a trial judge's order declaring a governor's executive order unconstitutional.We took jurisdiction even though the final judgment did not discuss or refer to any controlling constitutional provision.In specifically receding from the Armstrong rule and relying on Harrell's Candy Kitchen, we said, in effect, that the judgment Inherently construed controlling constitutional provisions in Fla.Const. art. II, § 3(Separation of Powers), and art. IV, § 1(a)(Gubernatorial Powers).We should not have referred to Harrell's Candy Kitchen in this context and to that extent we hereby recede from such reference or application as reaching over to the construing by implication of a Constitutional provision.The inherency doctrine as formulated in Evans and Harrell's Candy Kitchen is limited to judgments and decisions passing upon a state statute.In cases claiming that a decision construed the constitution, we adhere to the Armstrong...