Schreiber v. Chase Federal Sav. & Loan Ass'n

• Decision Date: 12 October 1982
• Docket Number: No. 80-1213,80-1213
• Parties: Jerry B. SCHREIBER, personal representative of the Estate of Theadores W. Ross, Appellant, v. CHASE FEDERAL SAVINGS & LOAN ASSOCIATION, Luis Perez, and Gladys Perez, his wife, Appellees.
• Court: Florida District Court of Appeals

Page 911

422 So.2d 911

Jerry B. SCHREIBER, personal representative of the Estate of Theadores W. Ross, Appellant, v. CHASE FEDERAL SAVINGS & LOAN ASSOCIATION, Luis Perez, and Gladys Perez, his wife, Appellees.

No. 80-1213.

District Court of Appeal of Florida,

Third District.

Oct. 12, 1982.

Jerry B. Schreiber, Joseph A. McGowan, Miami, for appellant.

Therrel, Baisden, Stanton, Wood & Setlin and Frank R. Gramling, John H. Duhig, Miami, for appellees.

Before HUBBART, C.J., and BARKDULL, HENDRY, SCHWARTZ, NESBITT, BASKIN, DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.

ON MOTION FOR REHEARING EN BANC GRANTED

SCHWARTZ, Judge.

The court has granted the appellant's motion for rehearing en banc, because, as demonstrated by the uncontested factual recitals in the dissenting opinion, the panel majority's affirmance, 424 So.2d 799, has created a lack of uniformity within the meaning of Fla.R.App.P. 9.331(a) ¹ in this court's decisions in this case and in Florida National Bank & Trust Co. at Miami v. Havris, 366 So.2d 491 (Fla. 3d DCA 1979).

Upon consideration of the merits, we adhere to Havris and adopt the dissenting panel opinion as the opinion and decision of this court. ² , ³ Accordingly, the panel decision is vacated, the judgment below is reversed, and the cause is remanded with directions to cancel the deeds to Cournoyer and the Perezes and the Chase mortgage and for such further proceedings as are not inconsistent herewith.

Reversed and remanded.

HENDRY, DANIEL S. PEARSON and JORGENSON, JJ., concur.

FERGUSON, Judge (concurring in part, dissenting in part).

I concur in the results, deducing that the original panel could have affirmed the trial court only by departing from Florida National Bank and Trust Co. at Miami v. Havris, supra, which holds that a deed to a grantee not related by blood or marital affinity to grantor, in consideration for love and affection, is invalid and of no force and effect. Applying the rule of law to the undisputed facts of this case, cancellation of the deed is imperative.

On the question what is the standard for en banc review, I agree with both dissenting opinions. Decisional conflict, as articulated in Nielsen v. City of Sarasota, 117 So.2d 731 (Fla.1960) and discussed in the committee note to Fla.R.App.P. 9.331, is the ground for rehearing en banc. The proceeding is an extraordinary one, intended to be used sparingly. I specifically disagree with the standard suggested by Judge Schwartz--decisions are so inconsistent and disharmonious that they would not have been rendered by the same panel of the court--because it calls for speculation and is facilitative to excessive use of the en banc hearing.

NESBITT, Judge (dissenting):

I am disturbed by the ambiguous scope of review announced by Judge Schwartz for granting rehearings en banc as well as its application to the present controversy. ⁴

It is clear that Florida Rule of Appellate Procedure 9.331, authorizing en banc proceedings, is procedural in nature rather than a grant of substantive authority. State Farm Mutual Automobile Co. v. Judges, 405 So.2d 980 (Fla.1981). Notwithstanding a possible constitutional infirmity in the en banc rule due to Article V, Section 4(a) of the Florida Constitution, which provides: "Three judges shall consider each case and the concurrence of two shall be necessary to a decision," ⁵ its constitutionality is assumed. ⁶ Nonetheless, it is necessary to determine the purpose for the rule in order to understand its parameter.

There is nothing in Article V, Section 4 which expressly authorizes a district court of appeal to grant motions for rehearing en banc nor is there any express authority in Article V, Section 3, of the Florida Constitution authorizing the Supreme Court to delegate this function to the courts of appeal.

Under Article V, Section 4 of the Florida Constitution of 1956, the Supreme Court had discretionary jurisdiction to review a decision of a district court of appeal that conflicted with another district court of appeal. If the two decisions from the same district court of appeal conflicted, the decision that was later in time overruled the former. Little v. State, 206 So.2d 9, 10 (Fla.1968). In 1972, the Constitution was changed authorizing the Supreme Court discretionary jurisdiction to resolve conflicts between decisions of any district courts of appeal. Art. V, § 3(b)(3), Fla. Const.1972. The 1980 amendment restored the constitutional provision to its stature before 1972, when the Constitution first authorized the review of intradistrict conflicts. ⁷

The purpose of Rule 9.331, authorizing en banc proceedings, is, therefore, to permit a district court to harmonize its own intradistrict conflict because the Supreme Court can no longer do so. ⁸ The en banc rule owes its existence then to the substitution of the district court's jurisdiction for that formerly exercised by the Supreme Court--consequently, the power to be exercised by a district court of appeal must be the same as formerly exercised by the Supreme Court. If the scope of review for granting en banc rehearings is broader than the standard utilized by the Supreme Court in the exercise of its discretionary jurisdiction, then it will extend to the district court of appeal an unconstitutional power never contemplated under any version of the judicial articles of the Florida Constitution from 1956 to date.

This interpretation of the rule gains additional support from the Committee Note to Rule 9.331 which states: "The ground, maintenance of uniformity in the court's decisions, is the equivalent of decisional conflict as developed by Supreme Court precedent in the exercise of its conflict certiorari jurisdiction." ⁹ , ¹⁰

Of the many statements attempting to define "decisional conflict" in order to activate the discretionary jurisdiction of the Supreme Court, perhaps the most articulate comes from Nielson v. City of Sarasota, 117 So.2d 731 (Fla.1960), where it is stated:

While conceivably there may be other circumstances, the principal situations justifying the invocation of our jurisdiction to review decisions of Courts of Appeal because of alleged conflicts are, (1) the announcement of a rule of law which conflicts with a rule previously announced by this Court, or (2) the application of a rule of law to produce a different result in a case which involves substantially the same controlling facts as a prior case disposed of by this Court. Under the first situation the facts are immaterial. It is the announcement of a conflicting rule of law that conveys jurisdiction to us to review the decision of the Court of Appeal. Under the second situation the controlling facts become vital and our jurisdiction may be asserted only where the Court of Appeal has applied a recognized rule of law to reach a conflicting conclusion in a case involving substantially the same controlling facts as were involved in allegedly conflicting prior decisions of this Court. Florida Power & Light Co. v. Bell, 113 So.2d 697 [Fla.1959].

117 So.2d at 734. In Kyle v. Kyle, 139 So.2d 885 (Fla.1962), decisional conflict was also articulated to exist when one decision is so disharmonious with the prior decision by the court on the same point that it may be said to have overruled the former.

When that test is applied to the present case, it is apparent that the requisite conflict does not exist between this decision and Florida National Bank and Trust Company at Miami v. Havris, 366 So.2d 491 (Fla. 3d DCA 1979) relied upon in the majority decision. The majority would apply the rule of law enunciated in Havris, supra, to the facts of the present case. However, under the second test in Nielson, supra, the rule of law must be applied to "substantially the same controlling facts." Clearly, the two cases differ in their controlling facts.

In Havris, there was a direct attack made upon the deed of conveyance, by the guardian of the property of the original grantor against the original grantee who was a niece of the incompetent grantor's housekeeper. It was clear that there was no relationship by either consanguinity or affinity sufficient to support adequate consideration between the original parties. For this reason, the court quite correctly found from the record that the deed between the immediate parties --the grantor and grantee, based solely on love and affection, was not supported by consideration.

In the present case, the grantor, Mrs. Ross, delivered a deed for love and affection to a nonrelative who was a "con man." When the deed in the present case was recorded, a third party, the Perezes, relying upon the Marketable Title Act, Section 695.01, Florida Statutes (1979), gave valuable consideration to the con man in exchange for the deed. The purchaser then procured a purchase money mortgage from Chase Federal Savings and Loan Association. Mrs. Ross, the original grantor, brought an action against the original grantee (con man) as well as the third party purchaser and mortgage lender. The trial court granted a money judgment in favor of the grantor against the grantee; however, it refused to cancel the third party purchaser's deed. If this were a suit solely between Mrs. Ross and the con man, it would be unassailable that Havris would control. However, the present case does not concern the question of whether a deed given to a nonrelative is without consideration, but rather considers whether such a recitation places a third party purchaser on constructive, implied, or actual notice. Because Havris is concerned with the rights and remedies of immediate parties, in contradistinction to the rights and remedies of third party purchasers, any consideration of Havris, as directly conflicting with the present case, is erroneous.

Since the en banc rule is directed entirely to intradistrict conflict, to the extent that the minority opinion granting rehearing en banc relies upon apparent conflicts in the Supreme Court of Florida, or other...