Robinson v. Loyola Foundation, Inc.

• Decision Date: 17 March 1970
• Docket Number: No. M--13,M--13
• Citation: 236 So.2d 154
• Parties: Melvin A. ROBINSON, Dorothy G. Robinson, Daniel Melnick, Janice Melnick, Nick Basiliko and Helen Basiliko, Appellants, v. LOYOLA FOUNDATION, INC., a nonprofit corporation, Appellee.
• Court: Florida District Court of Appeals

Page 154

236 So.2d 154

Melvin A. ROBINSON, Dorothy G. Robinson, Daniel Melnick, Janice Melnick, Nick Basiliko and Helen Basiliko, Appellants, v. LOYOLA FOUNDATION, INC., a nonprofit corporation, Appellee.

No. M--13.

District Court of Appeal of Florida, First District.

March 17, 1970.

Rehearing Denied April 10, 1970.

Paul R. Stern, Daytona Beach, for appellants.

Louis Ossinsky, Jr., of Ossinsky & Krol, Daytona Beach, for appellee.

WIGGINTON, Judge.

Appellants, who were defendants in the trial court, seek review of a summary final judgment rendered in favor of plaintiff appellee.

Appellee landlord sued appellants in the Circuit Court of Volusia County, Florida, for damages suffered as a result of the alleged breach of a real estate lease by the tenants. Both the landlord and tenants are nonresidents of Florida, and the apartment complex which forms the subject of the lease is located in the State of Maryland. Upon the tenants' failure to comply with the financial requirements of the lease a supplemental agreement was entered into between the parties by which the tenants acknowledged their several defaults and agreed that the landlord could reenter and repossess the leased premises without institution of legal proceedings, preserving its right to recover against the tenants all damages, both past and future, incurred as a result of the tenants' defaults. Upon the execution of this supplemental agreement the landlord reentered the leased premises and proceeded to manage the property for approximately the next ensuing eight months prior to the institution of this action. Since the tenants were not amenable to personal service of process in this state, constructive service of process was obtained predicated upon an attachment of real property owned by them and situate in Volusia County.

The tenants filed in the cause their motion to abate the action because of lack of jurisdiction over their person, and to dismiss the complaint for insufficiency of service of process, which motion was denied.

By their first point appellants seek reversal of the judgment appealed on the ground that the trial court lacked jurisdiction over their person to maintain the proceeding or to render the judgment in personam against them. Appellants contend that the attachment of their lands which forms the basis of the constructive service of process on them was void for the reason that the debt alleged in the complaint was unliquidated in character. The statute under which the attachment was made provides as follows:

'When the debt is actually due, the motion shall state the amount of the debt that is actually due, and that movant has reason to believe in the existence of one (1) or more of the special grounds in section 76.04, Florida Statutes, stating specifically the grounds.' ¹

To support their position appellants rely upon the decision rendered by the Third District Court of Appeal in the case of Papadakos v. Spooner. ² In the cited case an attorney filed suit against a former client for the recovery of a reasonable attorney's fee for services rendered the client in prior litigation. In an effort to obtain service of process on the defendant who at that time was a nonresident of Florida, the plaintiff attached real property owned by the defendant in Dade County where the suit was instituted. The Third District Court of Appeal, speaking through Judge Pearson, held that the claim sued upon for recovery of a reasonable attorney's fee, the amount of which had not been agreed upon between the parties, rendered the demand wholly unliquidated in character. The court then proceeded to refer to authorities which establish the proposition that the term 'debt' referred to in the attachment statute contemplates a liquidated as distinguished from an unliquidated claim or demand, and that if the claim is for an unliquidated sum which the parties had neither agreed upon and which could not be definitely ascertained by ordinary mathematical calculation, it could not form the basis for an attachment under the statute.

In an annotation appearing in American Law Reports dealing with the subject of 'Attachment or Garnishment--Debt', the author comments:

'At common law the action for debt lies for the recovery of a certain or definite sum of money. This has not always meant a particular, fixed sum, but such a sum as can be ascertained from fixed data by computation, or which is capable of being reduced readily to a certainty.

'It also lies on various kinds of contracts, including contracts of record such as a judgment or decree on simple contracts, express or implied, on a speciality (sic) or bond in which the demand is for the penalty, and for the recovery of statutory penalties and import duties.' ³

It has been generally held that liquidated claims arise ex contractu rather than ex delicto. A claim for debt or damages is held to be liquidated in character if the amount thereof is fixed, has been agreed upon, or is capable of ascertainment by mathematical computation or operation of law. ⁴

In the case sub judice the basis of plaintiff's claim or demand as alleged in its complaint is for the following items of damage, to wit:

(a) The unpaid monthly installments of rent accruing between the date of first default and the date of the institution of suit;

(b) The monthly mortgage payments which the tenants bound themselves to pay to the first mortgage holder, which payments the tenants had defaulted in making over the period of time alleged in the complaint;

(c) The amount of ad valorem taxes which the tenants were obligated to pay under the terms of the lease and which, upon default, were paid by the landlord;

(d) A legal fee of $6,000.00 which the landlord was required to pay for reinstatement of the outstanding mortgage which became delinquent due to the defaults of the tenants in failing to make the monthly payments thereon as agreed in the lease (e) A stated amount of money which the landlord was required to deposit in escrow for the protection of the mortgage holder on account of certain furnishings and equipment in the leased premises having been removed by the tenants prior to redelivering possession back to the landlord.

In addition to the above, the complaint prayed for a judgment awarding it the cost of the suit together with reasonable attorney's fee incurred by the landlord for bringing the action as provided by the terms of the lease. The complaint further alleged that the tenants were entitled to a credit against the amount owed by them for the net rentals collected by the landlord during the time it managed the property under the supplemental agreement prior to the institution of the suit.

Tested by the above-referred-to principles, it must be held that with the exception of the claim for attorney's fees all remaining claims or demands alleged in the complaint are for definite sums of money agreed upon by the parties in the lease contract which can be ascertained with certainty by mathematical computation. Each of such items is therefore a liquidated claim and forms a proper basis for the attachment under the principle of law enunciated in the Papadakos case, supra. With respect to the unliquidated claim for attorney's fees, the trial court held, and we agree, that such claim arises out of the necessity for instituting the action and forms no part of the claim arising from the tenants' default in performance of the financial obligations of the lease, nor is it included in the amount of the debt alleged to be due for which the attachment issued. The court further held that if the inclusion of the claim for attorney's fees in the complaint was improper in any respect because of its unliquidated character, such inclusion would not affect the validity of the attachment based on liquidated claims properly included in the complaint but might be subject to being struck or disallowed on proper defensive motion filed by the defendants. No such motion was filed, however, so the defendants are considered to have waived their objection to the inclusion of this claim as part of the damages sought to be recovered. The reasoning of the trial court is sound and we approve its application to the facts and circumstances of this case.

Appellants take the alternative position that even if the attachment of their property in Volusia County as a basis for the constructive service of process was properly accomplished, the process should nevertheless be considered void and ineffectual for the reason that the statute under which the attachment was made is unconstitutional. Appellants contend that this being so, the trial court never acquired jurisdiction over their person and the judgment rendered against them is void.

The constitutionality of the attachment statute was neither raised nor passed upon by the trial court prior to final judgment. Appellants urge, however, that if the statute is unconstitutional, then the assertion of jurisdiction over them pursuant to the terms of the statute constitutes fundamental error which may be raised for the first time on appeal in this court under the doctrine pronounced by the Supreme Court of Florida in the case of Florida East Coast Railway Company v. Rouse ⁵ and the Third District Court of Appeal in Rubin v. Sanford. ⁶ It is appellants' position that the invalidity of the attachment statute stems from its provisions which permit property to be attached on an ex parte presentation by the plaintiff without notice to or an opportunity to be heard by the defendant. Appellants submit as authority for their position the recent decision rendered by the Supreme Court of the United States in the case of Sniadach v. Family Finance Corporation ⁷ in which the opinion was filed subsequent to the taking of this appeal. The Sniadach case involves the validity of the Wisconsin garnishment statute which permitted the in rem seizure of a defendant's wages held by his garnishee employer without affording the defendant...