Washington Sec. Co. v. Tracy's Plumbing & Pumps, Inc., 4542

• Decision Date: 05 August 1964
• Docket Number: No. 4542,4542
• Court: Florida District Court of Appeals
• Parties: WASHINGTON SECURITY CO., Appellant, v. TRACY'S PLUMBING & PUMPS, INC., Tracy Plumbing and Pump Corporation, Appellees.

Page 680

166 So.2d 680

WASHINGTON SECURITY CO., Appellant, v. TRACY'S PLUMBING & PUMPS, INC., Tracy Plumbing and Pump Corporation, Appellees.

No. 4542.

District Court of Appeal of Florida, Second District.

Aug. 5, 1964.

M. W. Wells, Jr., of Maguire, Voorhis & Wells, Orlando, for appellant.

Carl L. Thompson, Jr., Orlando, for appellees.

WHITE, Judge.

The appellant plaintiff sought a decree which would subrogate its mortgage to a prior mortgage and decree it superior to an intervening judgment obtained by the defendant materialman whose claim the plaintiff offered to pay in full. Upon the granting of motion to dismiss the complaint, the plaintiff entered timely appeal but followed the plenary procedure as distinguished from interlocutory.

Thus, before getting to the merits we encounter a hurdle of a jurisdictional nature deriving from varying applications of the appellate rules. These variations stem from the differences between appeals in law and equity or chancery cases and the distinctions drawn between interlocutory and final orders with respect to their appealability--and the extent to which the courts have either implemented or relaxed the pertinent rules in particular instances.

Plaintiff's full appeal was from a chancery order which merely granted the defendant's motion to dismiss the complaint 'with leave to amend.' The order neither dismissed the cause nor set a time limit for amendment. The record reflects no formal election not to amend, and there was no disposition of the cause in terms of finality at any time prior to the filing of the notice of appeal.

This court has held that an order merely granting a motion to dismiss a complaint is interlocutory ¹ and may not be made subject to a full appeal whether it be in chancery or at law. In Thatcher v. Sullivan, Fla.App.1962, 138 So.2d 532, an equity suit, the chancellor announced that he was going to grant the defendant's motion to dismiss with prejudice. The plaintiff appealed and this court dismissed the appeal sua sponte in the absence of a final judgment on which it could be based. As to actions at law this court has held that orders merely dismissing the complaint without dismissing the cause lack the finality requisite to full appeal. ² Altiere v. The Atlantic National Bank of West Palm Beach, Fla.App.1963, 155 So.2d 386; Weinmann v. Ligon, Fla.App.1958, 105 So.2d 204; Baker v. Colley, Fla.App.1958, 104 So.2d 473; Herpel, Inc. v. Pfundston, Fla.App.1958, 104 So.2d 620. The Third District Court of Appeal has held likewise in Shotkin v. Deehl, Fla.App.1963, 148 So.2d 538, (Law); cf. Mitchell v. Italian-American Club, Fla.App.1960, 122 So.2d 228 (Chancery). The character of the order remains interlocutory whether granted at law or in chancery, and we have dismissed plenary appeals improperly taken from interlocutory orders. See e. g. Finneran v. Finneran, Fla.App.1962, 137 So.2d 844, cert. den. 150 So.2d 444; Rules 3.2(b) and 4.2 Florida Appellate Rules, 31 F.S.A.

The Third District Court of Appeal has reached interesting conclusions. In Womack v. Goldberg, Fla.App.1960, 117 So.2d 758, a law action, the trial court granted a motion to dismiss with leave to amend within fifteen days. The plaintiff elected not to amend and later obtained a formal order dismissing the complaint 'without day' which was made subject to the notice of appeal. In dismissing the appeal as untimely the majority held that because of its final form and content the initial order granting the motion was the appealable 'final order' and not the subsequent order, notwithstanding the fact that the initial order of dismissal was 'with leave to amend.' ³ Judge Pearson's dissent stated, among other things, that the point had been determined contrarily by the Second District Court of Appeal in Shaw v. Hill, Fla.App.1959, 114 So.2d 721.

The Womack decision, supra, would appear to have projected a vexful conflict had it not been for the import of later decisions of the same court in Shotkin v. Deehl, Fla.App.1963, 148 So.2d 538, also a law action, and Mitchell v. Italian-American Club, Fla.App.1960, 122 So.2d 228, a chancery suit. Incidentally the Womack case, a law action as stated, has recently been cited with approval by the first District Court of Appeal in Shute v. Keystone State Bank, Fla.App.1963, 159 So.2d 106, an equity case.

In the Shute case the plaintiff improperly brought an interlocutory appeal from a summary final decree in favor of two of the four defendants. ⁴ The court noted the impropriety but, in its discretion, chose to treat the appeal as plenary despite the fact that a full appeal requires the presence of a record on appeal which normally is not furnished on interlocutory appeal. Rule 4.2(d) Florida Appellate Rules. In a converse situation the First District Court of Appeal treated a full appeal as interlocutory in Crepaldi v. Wagner, Fla.App.1961, 128 So.2d 759. However, the same court in Shannon v. Shannon, Fla.App.1962, 136 So.2d 253, 256 stated:

'* * * the only jurisdiction possessed by a District Court of Appeal to review an interlocutory order entered in a suit in equity, whether entered before or after final decree, is in accordance with the procedure prescribed by the Supreme Court and contained in Rule 4.2, Florida Appellate Rules, relating to interlocutory appeals.'

The court in Shannon nevertheless went on to hold that an interlocutory order entered subsequent to final decree which is so final in nature as to partake of the character of a final decree may be entertained on full appeal.

The precise question considered here arose in the Third District Court of Appeal in Mitchell v. Italian-American Club, supra. Full appeal was taken from an interlocutory order granting a motion to dismiss the chancery suit. The court held that full appeal was improper, but treated the appeal as interlocutory. On this point it is fitting that we attempt at least a partial clarification of the obfuscation ⁵ created by us and company--and hold that this case should follow the Mitchell decision just cited.

The plaintiff here, as stated, brought a full appeal from an interlocutory order in chancery granting a motion to dismiss the complaint. Plaintiff could have pursued an interlocutory appeal under Rule 4.2 F.A.R. or, upon obtaining a definitely final decree, could have brought a full appeal under Rule 3.2 F.A.R. The plaintiff did neither, but in our discretion we treat the appeal as interlocutory because: (1) Progress of this case did not go beyond the complaint and therefore we would have the very same appeal papers before us under either type of appeal except that on interlocutory appeal the complaint would be in an appendix to appellant's brief rather than in a record on appeal. Rule 4.2(d) F.A.R.; and (2) Dismissal of this appeal would occasion only expense and delay inasmuch as plaintiff would merely be required to obtain a final decree and file another notice of appeal in accordance with Rule 3.2 F.A.R. ⁶ We therefore do not apply the Finneran decision, supra, but entertain this appeal as though the interlocutory appeal procedure had been followed. We do not flatly renounce the Finneran decision, and our action here is not to be construed as meaning that in the converse situation we would treat an improperly filed interlocutory appeal as plenary where we would not have the benefit of a certified record on appeal.

Getting to the merits, it appears in substance from the amended complaint that on 28 March 1960 Park Manor Development Company executed and delivered to Citizens National Bank in Orlando a note for $211,450.00. secured by a mortgage on 45 lots. This appeal concerns two of said lots. On the same date aforesaid Park Manor Development Company, Inc. conveyed the two lots to Park Manor Construction Company by deed recorded 13 April 1960. On 3 April 1962 Tracy's Plumbing & Pump Company obtained a judgment against Park Manor Construction Company in the amount of $2,686.03 recorded 19 April 1962. In May 1962 Park Manor Construction Company conveyed the lots in question to F. & S. Construction Corporation which thereafter sold them separately.

The first lot, being lot 8, Block E. Park Manor Estates, section 1, was sold by F. & S. Construction Corporation to Joseph Franklin Smith and wife by deed of 24 September 1962. On the same date plaintiff Washington Security Company loaned $11,000.00 to the Smiths for the purpose of discharging, as to said lot, the first mortgage to Citizens National Bank pursuant to agreement that Washington Security Company would in turn have the first mortgage on the lot. Plaintiff alleges that the mortgagors represented that there were no prior liens on the lot, and plaintiff alleges that it had no knowledge of any outstanding lien and that the proceeds of the loan were in fact used for the agreed purpose of discharging the pre-existing first mortgage as to said lot.

Similarly on 13 July 1962 the second lot, being lot 27, Block A, Park Manor Estates, section 1, was conveyed by F. & S. Construction Company to Leo England and wife. On the same date the Englands delivered to plaintiff Washington Security Company their mortgage for $10,950.00 pursuant to agreement that the loan secured thereby would be used for the purpose of discharging the pre-existing first mortgage so that plaintiff would have a first mortgage. It was alleged, as in the case of the first lot, that the mortgagors represented that there were no prior liens on the lot, and plaintiff alleged it had no knowledge of any prior liens and that the loan was in fact used for the agreed purpose. Since England and wife did not join as parties plaintiff they were named parties defendant in plaintiff's suit.

As previously noted, defendant Tracy's Plumbing & Pump, Inc.'s $2,686.03 judgment against Park Manor Construction Company was subordinate to the mortgage held by Citizens National Bank, the first and original mortgagee. Writ of execution on the judgment was...