Widmeyer v. Olds, 2395
| Decision Date | 12 September 1962 |
| Docket Number | No. 2395,2395 |
| Citation | 144 So.2d 825 |
| Parties | John WIDMEYER, Appellant, v. Pearl M. OLDS, Appellee. |
| Court | Florida District Court of Appeals |
Eli Breger, Miami Beach, for appellant.
Mark Maurer of Maurer, Maurer & Maurer, Fort Lauderdale, for appellee.
Defendant John Widmeyer seeks reversal of a decree ordering him to return to plaintiff Pearl M. Olds the major portion of a $4200.00 deposit which the latter had delivered to said defendant in connection with an alleged unconsummated lease transaction.
Specifically the suit of Pearl Olds was for a declatory decree determining whether or not she had effectively contracted to lease from the defendant the Pink Flamingo Motel, Pompano Beach, Florida. The chancellor concluded that the parties had not entered into a binding agreement for the lease of the subject premises. Accordingly by 'final decree' of January 30, 1961 the defendant was ordered to return to the plaintiff the amount of the deposit, viz., $4200.00 less $135.00 expenses. These expenses were composed of $35.00 cost of preparation of proposed lease and $100.00 paid by the defendant to the motel manager.
The defendant asserts on appeal that during a hearing held December 8, 1960 the chancellor made a statement to the effect that a valid agreement to lease had been reached by the parties. Previously however, on November 15, 1960 the chancellor had entered a formal order labeled 'final decree' finding that the parties had not proceeded beyond the stage of negotiation at the time the plaintiff called off the proposed lease and requested return of the deposit. This previous order purportedly retained jurisdiction of the cause to determine 'damages,' if any, sustained by the defendant. At the later hearing on December 8, 1960 the defendant adduced testimony relating to his operation of the motel following the plaintiff's demand for restitution. Thereafter on January 30, 1961, as previously noted, the chancellor entered his ultimate order likewise labeled 'final decree' again holding that there was no binding agreement and ordering return of the deposit as aforesaid. This latter order is the decree here under attack.
We incline to the view that the chancellor's unappealed order of November 15, 1960 made a final determination that there was no binding contractual relationship between the parties; but even if such earlier order were not the final decree for the purpose of appeal on that principal issue, we still would not be in position to disturb the decree of January 30, 1961 from which this appeal was taken. Testimony at the hearing in November 1960 was not sent up in the transcript of record, and we are not authorized to consider and resolve assigned error where the record is thus deficient. See Joyner v. Andrews, Fla.App.1962, 137 So.2d 870, 872; Brown v. Householder, Fla.App.1961, 134 So.2d 801; Gross v. Gross, Fla.App.1961, 131 So.2d 487; also Lightsee v. First National Bank of Melbourne, Fla.App.1961, 132 So.2d 776, cert. denied, Fla.1962, 138 So.2d 334.
The defendant further complains that the decree, in allowing only $135.00 credit against the deposit, failed to apply the correct measure of damages. Strictly, since the chancellor held that no binding agreement to lease was established, there was no basis upon which damages as such could be awarded. The allowance of these expenses was, however, an equitable ministration properly within the discretionary power of the chancellor.
Affirmed.
I have hesitated to differ from my colleagues in the disposition of this appeal as I am well aware of the importance of adequate records for appellate review. From the transcript before us, however, it appears to me that the essential facts stand out in bold relief and are sufficiently cogent to justify a remand of this cause for the correction of error and the entry of a new decree free of equivocation and uncertainty.
On February 27, 1960 Pearl Olds paid to John Widmeyer $4200.00 covering one month's rent and security for six months' additional rent on a one year lease of the Pink Flamingo Motel in Pompano Beach, the term to begin May 1, 1960 with renewal option. During the interim between the aforesaid dates Pearl Olds declined to execute the contemplated formal instrument evidencing the lease contract. She retracted, declined to take possession of the premises and demanded return of the full $4200.00. Her demand was refused. She then sought and obtained, by declaratory decree of January 30, 1961, a determination that she had incurred no contractual obligation to the defendant and was entitled to full restitution less a small equitable deduction. I cannot subscribe to an affirmance of this decree.
The plaintiff delivered her $4200.00 check to the defendant prior to her departure on a trip to New York. The defendant concurrently handed the plaintiff a memorandum receipt as follows:
'Feb. 27-60
's/ John Widmeyer'
The defendant accordingly caused to be prepared a written lease in conventional form and mailed it to the plaintiff who refused to accept it and demanded return of the $4200.00. During the interim letters were delivered to the motel addressed to her as 'new manager.' On May 5, 1960 she wrote, offering no reason for rejecting the lease:
'May 5, 1960
'Dear Mr. Widmeyer:
'This is to notify you that any relation of Landlord and Tenant which I may have with you by virtue of our previous negotiations for leasing your motel, which I believe is the property at the above address and referred to as The Pink Flamingo Motel, be and the same is hereby terminated.
'Demand is hereby again made for the return of the $4,200.00 delivered to you.
'Pearl M. Olds'
(Emphasis added)
By order of November 15, 1960 designated 'final decree,' it was held that there was no valid lease agreement between the parties but only a memorandum to enter into a lease in contemplation of a formal rental agreement. Somewhat equivocally, however, jurisdiction was reserved to determine whether the defendant sustained 'damages' as a result of the plaintiff's failure to complete the rental agreement. After a later hearing the chancellor on January 30, 1961 entered a 'final decree' adjudging that the plaintiff recover from the defendant the amount of the deposit but allowing the defendant $135.00 expenses in salary to the motel manager and cost of preparing the proposed lease instrument. This last decree evidently expressed the chancellor's ultimate conclusion that the there was absolutely no obligatory agreement between the parties, so the $135.00 expense allowance was merely an equitable gesture.
According to the defendant the decree of January 30, 1961 was the true final decree which he had seasonably appealed. Conversely it was urged on behalf of the plaintiff that the previous unappealed order of November 15, 1960 was the final decree since it purported to adjudicate the basic rights of the parties. The plaintiff contended, moreover, that there was no error in the 'final decree' of January 30, 1961. The order of November 15, 1960 was in my opinion mislabeled 'final decree' since it reserved jurisdiction to determine defendant's damages. As stated in 2 Fla.Jur., Appeals, § 43, pocket part:
'A reservation of jurisdiction in a decree contemplating the further exercise of judicial labor in regard to questions unsettled in the case makes the decree interlocutory.'
and in 19 Fla.Jur., Judgments and Decrees, § 463, the text states:
'One having obtained jurisdiction, the court retains it until there is a final disposition of the cause * * * Until the rendition of a final adjudication, the interlocutory judgment or decree remains within the control of the court.'
In Bancroft v. Allen, 1939, 138 Fla. 841, 190 So. 885, 887 the Supreme Court of Florida said:
...
To continue reading
Request your trial
-
Stuco Corp. v. Gates
...deficient or where the testimony with reference to the order appealed is not sent up in the transcript of record. See Widmeyer v. Olds, Fla.App.1962, 144 So.2d 825, 1962; Joyner v. Andrews, Fla.App.1962, 137 So.2d 870; Brown v. Householder, Fla.App.1961, 134 So.2d 801; Gross v. Gross, Fla.A......
-
Anderson's Estate, In re, 3266
...record from which we can appropriately pass upon other questions of a substantantive nature suggested by this appeal. See Widmeyer v. Olds, Fla.App.1962, 144 So.2d 825. The nature of a family allowance is analogous to a temporary alimony award. The purpose of each is to provide immediate an......
-
Pence v. Ennis, 4682
...We must, therefore, affirm. See East Coast Dry Goods Co., Inc. v. Somerset Sportswear, Inc., Fla.App.1963, 151 So.2d 68; Widmeyer v. Olds, Fla.App.1962, 144 So.2d 825; Pan American Metal Products Co., Inc. v. Healy, Fla.App.1962, 138 So.2d 96, certiorari dismissed without opinion, Fla.1962,......