Thomas v. Cilbe, Inc.

• Decision Date: 11 July 1958
• Docket Number: No. 166,166
• Citation: 104 So.2d 397
• Parties: John F. THOMAS, Jr., Appellant, v. CILBE, INC., a Florida corporation, Rivalto, Inc., a Florida corporation, and Orlando Amusement Company, a Florida corporation, Appellees.
• Court: Florida District Court of Appeals

Page 397

104 So.2d 397

John F. THOMAS, Jr., Appellant, v. CILBE, INC., a Florida corporation, Rivalto, Inc., a Florida corporation, and Orlando Amusement Company, a Florida corporation, Appellees.

No. 166.

District Court of Appeal of Florida, Second District.

July 11, 1958.

Rehearing Denied July 29, 1958.

R. M. Hart and Hal H. McCaghren, West Palm Beach, for appellant.

Pallot, Cassel & Marks, Miami, for appellees.

KANNER, Chief Judge.

Two orders of the circuit court of Palm Beach County issued subsequent to that court's declaratory decree, the effect of which was a denial of supplementary relief sought under the declaratory decree statute, give rise to this appeal. No appeal was taken from the final decree itself. Notice of appeal to the Supreme Court of Florida was filed, and the cause on appeal was by that court transferred to the Second District Court of Appeal of Florida for consideration and determination, pursuant to authority of section 26(6), Article V of the Constitution of the State of Florida, F.S.A. as amended in the general election of November, 1956.

Appellant's suit was for a declaratory decree concerning the construction and validity of certain leases, subleases, and other related instruments involving properties owned by him, and for other relief. The chancellor entered a declaratory decree on June 18, 1956, incorporating certain findings of fact and determining that these instruments were of no force and effect either because of abandonment, expiration, or because they were void from inception.

On July 3, 1956, appellant filed a petition for supplemental relief based on the declaratory decree, and on July 7, 1956, filed what he styled 'Notice of Additional Claims for Supplemental Relief'. Notice was promptly given in each instance for hearing. The initial petition sought relief for rents and repairs and the later one sought additional supplemental relief, in connection with the original petition, for taxes, costs, and attorneys' fees. At the request of one of the appellees the court entered an order cancelling the hearing set on the petition for July 16, 1956, with leave to set the hearing after September 30, 1956. The matter was again set at the request of appellant on the petition for supplemental relief and on the additional claim for relief in connection therewith. After hearing, the court entered an order dated November 6, 1956, determining that the final decree should stand as entered, that appellant was entitled to possession of the premises, the keys, the rents and profits therefrom as of the date of the final decree. Leave was given to appellant to apply upon due notice for assistance requiring conformance to the order.

On November 20, 1956, appellant filed a motion for judgment and costs based on the order of November 6. This was denied by court order of November 28, 1956, on the ground that the court lacked jurisdiction to grant the relief. On December 12, 1956, notice of appeal was filed directed to the orders of November 6 and of November 28, 1956. The appeal was taken to the Supreme Court of Florida and transferred as stated to this court for decision.

The appellees contend that the orders are not appealable orders. So, precursive to consideration by the court of this appeal is the question of the appealability of these orders rendered subsequent to the declaratory decree. No appeal was taken from the declaratory decree; the time for appeal had expired when the notice of appeal was filed. Under the declaratory decree or judgment statutes, all decrees, judgments or orders may be appealed or reviewed and such appeal or review is governed by the same principles as govern decrees, judgments, and orders in other actions. See section 87.06 Florida Statutes, F.S.A.; and North Shore Bank v. Town of Surfside, Fla.1954, 72 So.2d 659. This appellate proceeding was brought prior to the effective date, July 1, 1957, of section 26(6), Article V of the Constitution of the State of Florida and of the Florida Appellate Rules effective under the same date. This appeal, therefore, is governed by the rules theretofore in effect. See 31 F.S.A. Rule 1.4, Florida Appellate Rules.

Not all orders entered subsequent to final decree are interlocutory, but in a proper case an order entered after final decree may of itself constitute a distinct adjudication so final in nature as to partake of the character of a final decree and may, therefore, sustain an appeal. Thus it is stated in the case of Hollywood, Inc., v. Clark, 1943, 153 Fla. 501, 15 So.2d 175, at page 179:

'That inquiry suggests a preliminary question: Was the order of June 26, 1942, an appealable order? Leaving aside for the present the question as to whether the decree of February 2, 1942, and the amendatory order of June 26, 1942, together formed one final decree, we hold that the last order was an appealable order. It certainly was not a mere interlocutory or supplemental order (Kooman's Fla.Chanc.Pldg.Prac. §§ 153, 186, 187) but was a final and distinct adjudication of rights which had not been, but which could have been, adjudicated in the original decree, and was, in and of itself, as to the distinct and particular matter adjudicated therein, so final in its nature as to give it the character of a final decree. Hence it was an appealable order or decree, whether the effect was to bring the original decree up for review as a part of it, or not, and it was not necessary or appropriate for the appellant to resort to review by special certiorari under Supreme Court Rule 34. See Theo. Hirsch Co. v. Scott, 87 Fla. 336, 100 So. 157; Fullerton v. Clark, 142 Fla. 200, 194 So. 481; Berns v. Harrison, 100 Fla. 1105, 131 So. 654; Heverle v. Rasmussen, 103 Fla. 76, 139 So. 259; Dade County v. Snyder, 134 Fla. 756, 184 So. 489; McKell v. Jackson, 107 Fla. 668, 145 So. 418; 3 C.J. 518; 4 C.J.S. Appeal and Error § 130, p. 259; Id., §§ 93-95, pp. 184-190; 2 Am.Jur. 858-865.'

And further in this same case, quoting from page 182 of 15 So.2d, it is said:

'This is somewhat in line with a principle announced in Theo. Hirsch Co. v. Scott, supra, to the effect that: 'An appeal may be taken upon matters arising after a final appealable judgment or decree which require the judicial action of the court in relation to the rights litigated in the main suit making necessary a substantive and important order or decree, when such order or decree partakes of the nature of a final decision of those rights.'"

The principle thus stated was reiterated by the Supreme Court of Florida in the case of Eristavitchitcherine v. Miami Beach Federal Savings and Loan Ass'n, 1944, 154 Fla. 100, 16 So.2d 730. However, in that case, as distinguished from the case of Hollywood, Inc., v. Clark and the line of authorities preceding it, the orders appealed from were interlocutory in nature because they were made pursuant to and in connection with the mere enforcement of a final decree and were without the characteristics of a distinct and final adjudication. So the Supreme Court of Florida in that case considered the notice of appeal as a petition for writ of certiorari under the applicable rule and statute.

It is to be noted that neither the case of Hollywood, Inc., v. Clark nor the Eristavitchitcherine v. Miami Beach Federal Savings and Loan Ass'n case was brought under the declaratory decree statute, but that the first named case was a suit to quiet title and the second to foreclose a mortgage.

The supplemental relief sought, the denial of which is the substantive basis of this appeal, was predicated upon and pursuant to provisions of section 87.07, Florida Statutes, F.S.A., as follows:

'Further relief based on a declaratory decree, judgment or order may be granted whenever necessary or proper. The application therefor shall be by petition to the circuit court having jurisdiction to grant the relief. If the application be deemed sufficient, the circuit court shall, on reasonable notice, require any adverse party whose rights have been adjudicated by the declaratory decree, judgment or order, to show cause why further relief should not be granted forthwith.'

It is immediately perceived that a petition for relief based on a declaratory decree as authorized by the statute gives the right to the adverse party to show cause why further relief should not be granted. Thus it is apparent that the statute authorizes in a proper case an additional and distinct adjudication based upon and to supplement the declaratory decree.

In a declaratory proceeding, a circuit court's declaration may be either affirmative or negative in form and effect and such circuit court declaration shall have the force and effect of a final decree, judgment or order. Section 87.01, Florida Statutes, F.S.A.

We are of the opinion that these orders rendered in a declaratory proceeding under specific statutory authority were orders substantive in their nature and constituted a distinct and separate adjudication of rights not dealt with in the original decree and were therefore appealable.

This was a suit in equity. As heretofore indicated, this appeal is governed by the appellate procedure operative prior to the effective time for the functioning of the district courts of appeal. So even if the orders here were interlocutory in nature, the notice of appeal could be considered as a petition for writ of certiorari. See Eristavitcherine v. Miami Beach Federal Savings and Loan Ass'n, 1944, 154 Fla. 100, 16 So.2d 730; Johnson v. Every, Fla.1957, 93 So.2d 390; and section 59.45, Florida Statutes, F.S.A.

The appellees also urge that the petition for supplemental relief and the motion for judgment and costs were filed too late to be effective as a petition for rehearing under Rule 3.16(a) of the Florida Rules of Civil Procedure, 31 F.S.A. because of the ten day limitation of that rule, that the petition may not be interpreted as a bill of review, and that it cannot be construed as a motion so as to bring it...