Al Springer Roofing Co., Inc. v. Flagler Federal Sav. and Loan Ass'n of Miami

• Decision Date: 18 April 1978
• Docket Number: No. 77-714,77-714
• Parties: AL SPRINGER ROOFING CO., INC., a Florida Corporation, Appellant, v. FLAGLER FEDERAL SAVINGS AND LOAN ASSOCIATION OF MIAMI, a National Corporation, Appellee.
• Court: Florida District Court of Appeals

Page 478

357 So.2d 478

AL SPRINGER ROOFING CO., INC., a Florida Corporation, Appellant, v. FLAGLER FEDERAL SAVINGS AND LOAN ASSOCIATION OF MIAMI, a National Corporation, Appellee.

No. 77-714.

District Court of Appeal of Florida, Third District.

April 18, 1978.

Robert S. Korschun, Miami, for appellant.

Keith, Mack, Lewis & Allison and Kim Ronald Blackman, Miami, for appellee.

Before PEARSON, HUBBART and KEHOE, JJ.

PEARSON, Judge.

The question to be decided on this appeal is whether a final judgment of foreclosure upon appellee's complaint left pending appellant-defendant's counterclaim which sought relief against the plaintiff upon the theory that materials furnished to the foreclosed property constituted an unjust enrichment to the plaintiff. The order appealed is described in the notice of appeal as "an order removing cause from non-jury trial calendar and amending a Summary Final Judgment." ¹

A complaint for foreclosure of mortgage was filed by the appellee, Flagler Federal Savings and Loan Association of Miami, against Original Concepts, Inc., a Florida corporation, and numerous other defendants. The appellant, Al Springer Roofing Co., Inc., subsequently filed an answer to an amended complaint filed by the appellee, and a counterclaim against the appellee, Flagler Federal Savings and Loan Association of Miami. The counterclaim purported to allege an action for unjust enrichment or other equitable relief. In essence, the counterclaim alleged that the appellant had furnished material, labor and services for the improvement of the real property involved, which enhanced its value and increased the value of the appellee's lien in equity in the property and which would unjustly benefit the appellee in the event it acquired the property through foreclosure. As a result, it was alleged (1) that the appellee would be unjustly enriched unless required to compensate the appellant for the material, labor and services furnished in the event the appellee acquired the property and (2) that the appellant had no adequate remedy at law in connection with this claim for compensation based upon improvement of the real property subject to the foreclosure action. We do not address the legal sufficiency of the counterclaim because that issue was not raised or decided in the trial court.

The appellee filed a reply to the counterclaim of the appellant, and subsequently filed a motion for summary judgment on August 18, 1976, moving the trial court for the entry of a summary judgment under the provisions of Fla.R.Civ.P. 1.510, on the grounds that the pleadings and affidavits on file therein showed that there was no genuine issue of any material fact and that the plaintiff was entitled to a summary judgment as a matter of law. There was no reference in the motion of whether or not it was a motion for summary judgment on the original complaint filed by the appellee or whether it was a motion for summary judgment on the counterclaim filed by the appellant. A hearing was held on the motion after proper and due notice and a summary final judgment was entered by the circuit court on the 15th of September, 1976. Pursuant to the provisions of the final judgment, the property described in the complaint and in the mortgage was sold on November 15, 1976, to the appellee and a certificate of title was subsequently issued to the appellee on November 30, 1976.

After the sale, the appellant filed a notice for trial on December 21, 1976, stating that its counterclaim was now at issue and ready to be set for non-jury trial. An order was entered by the circuit court setting the counterclaim for trial. Thereafter, the appellee filed a motion to strike the notice for trial, and an order was entered by the circuit court removing the...