Ritter v. Miami Marine Agency, Inc.

• Decision Date: 28 September 1961
• Docket Number: No. 61-116,61-116
• Parties: Alexander S. RITTER, Appellant, v. MIAMI MARINE AGENCY, INC., a Florida corporation, Appellee.
• Court: Florida District Court of Appeals

Page 107

133 So.2d 107

Alexander S. RITTER, Appellant, v. MIAMI MARINE AGENCY, INC., a Florida corporation, Appellee.

No. 61-116.

District Court of Appeal of Florida, Third District.

Sept. 28, 1961.

Owen S. Freed, Miami, Hamilton, Straughn & Sharit, Winter Haven, for appellant.

Bergstresser & Taylor, Miami, for appellee.

Before CARROLL, BARKDULL and HENDRY, JJ.

BARKDULL, Judge.

The appellant seeks review of a final judgment determining damages resulting from an alleged wrongful attachment. This order arose out of the following situation: Subsequent to the release of a writ of attachment in the original action, wherein the writ had been issued against a vessel, a third party claiming right of possession to the vessel, Miami Marine Agency, Inc., filed a petition to assess damages against the plaintiff (appellant herein), for alleged wrongful attachment and attorney's fees incurred in causing the discharge of the writ. Thereafter, without further pleadings, the trial court proceeded to take evidence in support of the petition and awarded damages in the amount of $32,356.26 and attorney's fees of $3,500. It is from this final judgment that this appeal has been prosecuted. The appellant urges, and we find correctly, that the appropriate procedure for determining damages for any alleged wrongful attachment would be by an independent action at law, wherein the parties would have an opportunity to file formal pleadings and request a jury trial if desired. This position seems amply supported by the authorities. See: Norman Babel Mortgage Company v. Golden Heights Land Company, Fla.App.1960, 117 So.2d 205; Kent v. Polk Grocery Co., 131 Fla. 139, 179 So. 136; State ex rel. Stevenson v. American Surety Co., Mo.App.1934, 74 S.W.2d 1094. This fundamental defect should have been raised by pleadings in the trial court prior to judgment. However, where there is jurisdictional or other fundamental error of law, it may be noticed initially be an appellate court, even though raised for the first time by post final judgment pleadings. See: Pittman v. Roberts, Fla.App.1960, 122 So.2d 333; Florio v. State ex rel. Epperson, Fla.App.1960, 119 So.2d 305; Florida Appellate Rules, rule 3.7, subd. i, 31 F.S.A.

The appellant has also questioned whether there was established a wrongful attachment in the first place, whether the evidence as to loss of profits was competent, and whether or not the damages should extend beyond the period that the vessel in question was under attachment and, also,...