Wilson v. Clark, AG-181

• Citation: 414 So.2d 526
• Decision Date: 01 April 1982
• Docket Number: No. AG-181,AG-181
• Parties: Ray WILSON, Appellant, v. W. Max CLARK, Personal Representative of the estate of Effie Steele, deceased, Appellee.
• Court: Court of Appeal of Florida (US)

Page 526

414 So.2d 526

Ray WILSON, Appellant, v. W. Max CLARK, Personal Representative of the estate of Effie Steele, deceased, Appellee.

No. AG-181.

District Court of Appeal of Florida First District.

April 1, 1982.

Rehearing Denied June 8, 1982.

Ferrin C. Campbell, Sr., P. A., Crestview, for appellant.

John P. Townsend of Selby, Chesser, Wingard & Barr, Fort Walton Beach, for appellee.

ERVIN, Judge.

Application of Rule 1.260(a)(1), Florida Rules of Civil Procedure, to the facts of this case suggests that the case will have to be remanded to the lower court to determine whether this cause should be dismissed because the plaintiff/appellee failed to file a timely motion for the substitution of the party plaintiff after the death of the original plaintiff, or whether the time for filing the motion for substitution should be enlarged due to appellee's excusable neglect. We otherwise affirm on all of the remaining points presented in this appeal.

A complaint was filed by Effie Steele against appellant Ray Wilson seeking cancellation and rescission of three leases entered into by the parties in 1972 and 1973. Steele's prayer for relief in count I of her complaint was based on allegations of inadequate consideration for the leases and undue influence and misrepresentation by Wilson in securing Steele's signature on the leases.

A motion to dismiss count I of the complaint was filed by Wilson charging that the facts constituting undue influence were not stated with particularity and constituted a general allegation of ultimate fact which was insufficient to make out a cause of action. The lower court denied the motion to dismiss finding that the allegations were sufficient to state a cause of action of undue influence.

Count I of the complaint sounded not only in undue influence but also in misrepresentation and inadequate consideration. The appellant did not contest the propriety of the latter two charges in the pleadings.

Without rendering any opinion as to the correctness of the reason for the lower court's determination that sufficient allegations of undue influence were presented, we find that the denial of the motion to dismiss was proper. A motion to dismiss was an improper vehicle to employ. By failing to challenge the allegations of misrepresentation and inadequate consideration, appellant admitted these allegations as having been well pleaded. Because count I stated a cause of action based on allegations of misrepresentation and inadequate consideration, a motion to dismiss all the allegations of count I was improper. See Bond v. Koscot Interplanetary, Inc., 246 So.2d 631, 633 (Fla. 4th DCA 1971); Beck v. Barnett National Bank of Jacksonville, 117 So.2d 45, 50 (Fla. 1st DCA 1960).

Appellant had two avenues upon which to rectify the improper pleading of undue influence. He could have filed a motion for a more definite statement pursuant to Rule 1.140(e), Florida Rules of Civil Procedure, in an effort to seek a clarification of vague and ambiguous allegations of undue influence. Calhoun v. Epstein, 121 So.2d 828, 830 (Fla. 2d DCA 1960); Beck, supra, at 50. Alternatively, he could have filed a motion to strike the allegations of undue influence. Rule 1.140(f), Fla.R.Civ.P.; Beck, supra, at 50. Appellant filed neither of these motions, and denial of the motion to dismiss was quite proper.

The case was finally tried without a jury, final argument to the lower court having been made on December 30, 1980. On January 22, 1981, plaintiff Effie Steele passed away. Appellant promptly filed a suggestion of death, pursuant to Rule 1.260(a)(1), Florida Rules of Civil Procedure, ¹ on January 26, 1981.

Eighty-eight days later on April 24, 1981 the lower court entered an order cancelling and rescinding the leases. On April 28, 1981, ninety-two days after the suggestion of death, plaintiff Effie Steele's counsel served a motion by mail to substitute W. Max Clark, administrator of the late plaintiff's estate, for the decedent as the party plaintiff. On the same day appellant filed a motion to dismiss for failure to move for substitution within the ninety-day period set forth in Rule 1.260(a)(1).

The lower court denied appellant Wilson's motion to dismiss and entered an order substituting Clark as the proper party plaintiff. The court then denied a timely filed motion for rehearing, and Wilson appealed in a timely manner. We are compelled to remand the case to the lower court for further consistent proceedings.

The appellee has suggested that the final judgment extinguished the cause of action by merging it into the final judgment; therefore, there was no action to dismiss, and the lower court correctly denied the motion to dismiss. Cited in support of this theory is the doctrine of merger. This doctrine stands for the proposition that a debt or cause of action, upon which an adjudication is predicated, merges into the judgment. 32 Fla.Jur.2d, Judgments and Decrees, § 85 (1981). Consequently, the debt or cause of action's independent existence perishes upon entry of a judgment. The doctrine of merger is set out in the Restatement of the Law, Judgments, Section 47 (1942). ² However, there can be no merger of an action into a judgment, if the action is equitable in nature. Id. at comment h. Obviously, the doctrine is inapplicable to an action, such as the case at bar, that seeks cancellation and rescission of various leases.

As support for his merger argument, Wilson cites Sessions v. Stevens, 1 Fla. 233 (1847), which involved a judgment against a garnishee on a note, but the case suggests that it was the note that was extinguished by the entry of a final judgment. By entry of a judgment, "... the note in legal contemplation becomes extinguished, loses its identity and character, and ceases to be the subject of future action." Sessions, supra at 240.

Sessions and the doctrine of merger seem to rest more on principles of res judicata or estoppel by judgment than on the extinguishment or termination of an existing action and are, therefore, inapplicable to the case at bar. See 32 Fla.Jur.2d, Judgments and Decrees, § 88 (1981). Because the doctrine of merger is inapplicable, it still remains to be determined at what point a cause of action finally terminates.

The general rule is that an action remains pending in the trial court until after a final judgment and such time as an appeal is taken or time for an appeal expires. If an appeal is taken, the action is still pending until final disposition. Southern Title Research Co. v. King, 186 So.2d 539, 544-545 (Fla. 4th DCA 1966); State, ex rel. Andreu v. Canfield, 40 Fla. 36, 23 So. 591 (1898). Even an order dismissing a complaint and allowing twenty days to file an amended complaint does not terminate a cause of action. Berman Leasing Co. v. C. R. Brumage, 217 So.2d 359 (Fla. 3d DCA 1969).

By virtue of the fact that this opinion is being rendered based on a timely appeal, it is fair to say that the action appellee professes to have become terminated or extinguished by virtue of the lower court's final judgment is still very much alive. In essence an action continues to have life until there is a final determination on an appeal. 1 Fla.Jur.2d, Actions, § 35 (1977); see also Braddock v. Braddock, 542 P.2d 1060, 1064 (Nev.1975); Olson v. Hickman, 25 Cal.App.3d 920, 102 Cal.Rptr. 248, 249 (1972). Finality of a determination does not of course occur until time expires to file a rehearing petition and disposition thereof if filed, or until a timely filed petition for review in the Florida Supreme Court is acted upon. Therefore, it is apparent that the lower court's final judgment did not extinguish this action. ³

Because of the filing of the suggestion of death, the appellee's counsel should have filed a timely motion for substitution. Canter v. Hyman, 363 So.2d 29, 30 (Fla. 3d DCA 1978), cert. denied, 368 So.2d 1368 (Fla.1979); Nationwide Mutual Fire Insurance Co. v. Holmes, 352 So.2d 1233, 1234 (Fla. 4th DCA 1977).

We also reject appellee's argument that the motion for substitution was timely filed pursuant to Rule 1.090(e), Florida Rules of Civil Procedure, which states in part: "When a party ... is required to do some act ... within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail, five days shall be added to the prescribed period." (e.s.) Appellee argues that had we applied the five-day enlargement period, that he would be entitled to no less than ninety-five days within which to respond, since appellant's suggestion of death was served on January 23, 1981, and appellee's motion for substitution was served and filed on April 28, 1981, exactly ninety-five days later.

We consider that the five-day extended period authorized by Rule 1.090(e) is inapplicable to the time provisions of Rule 1.260(a)(1). The latter rule states that the time for taking action begins to run as of the date the suggestion of death appears "upon the record"--not as of the date the suggestion is served. ⁴ Thus, the time provisions of Rule 1.260(a) are triggered simply by the recording or the filing of the suggestion of death--not by the pleading's service. If Rule 1.260(a) required a party to take some specified action following simply the date of service of the suggestion--compare the provisions of Rule 1.140(a), requiring a defendant to serve and answer within 20 days after service of the initial pleading--the enlargement provisions of Rule 1.090(e) would unquestionably apply.

We consider that the key words governing a response to a suggestion of death are the words "upon the record." Compare the words "within 30 days of rendition of the order to be reviewed ...", in Florida Rule of Appellate Procedure 9.110(b), which requires the time for filing a notice of appeal within the applicable period irrespective of any additional time for service by mail. Compare also the language of Florida Rule of Civil...