Arizona Properties Marketing Co. v. Allen

392 So. 2d 1359, 1981 Fla. App. LEXIS 28251
CourtDistrict Court of Appeal of Florida
DecidedJanuary 16, 1981
DocketNo. OO-463
StatusPublished

This text of 392 So. 2d 1359 (Arizona Properties Marketing Co. v. Allen) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Arizona Properties Marketing Co. v. Allen, 392 So. 2d 1359, 1981 Fla. App. LEXIS 28251 (Fla. Ct. App. 1981).

Opinion

McCORD, Judge.

This appeal is from an order denying appellant’s motion for an order directing levy upon appellees’ homestead located in Franklin County, Florida. The appellant was plaintiff below and appellees were defendants. The order states as follows:

THIS CAUSE came on to be heard before the Court on the Plaintiff’s Motion for an Order Directing Levy on real property of the Defendants known as Sportsman’s Lodge in Franklin County, Florida pursu[1360]*1360ant to a General Judgment rendered in the State of Arizona on April 5, 1976, in Case No. 152,731 against the Defendants on the grounds that said Judgment in Arizona represented a claim by Plaintiff against Defendants on an obligation wherein Defendants were a party to a contract in Arizona that provided among other things for the Plaintiff to be given a simultaneous mortgage upon the Sportsman’s Lodge property in Franklin County, Florida as well as other properties in Arizona in consideration of an exchange by Plaintiff of certain Arizona property to a third party who had conveyed Sportsman’s Lodge to the Defendants. The Defendants filed a Motion to Dismiss or Strike the Motion for Order Directing Levy on the ground that the contract on Sportsman’s Lodge property was involved in the Arizona lawsuit where an election was made by Plaintiff to waive the enforcement of the contract and seek damages for breach of contract which resulted in the General Judgment entered in the Arizona case. Plaintiff now seeks to enforce this Judgment claiming a specific lien against the real property of Defendants known as Sportsman’s Lodge in Franklin County, Florida. The Court has examined the authenticated copies of the proceedings in Arizona which discloses that the Arizona Court has jurisdiction over the persons of the Defendants Allen. At the trial of said cause the Plaintiff elected to waive the enforcement of the contract involving the Sportsman’s Lodge property and sought damages for breach of contract. A Final Judgment was entered against the Defendants in the amount of $83,500.00 for compensatory damages plus interest at the rate of 8% per annum from December 12,1974, attorney’s fees of $14,500.00 and punitive damages in the amount of $5,000.00 plus interest at the rate of 6% per annum. A partial Satisfaction of Judgment was filed on August 10,1976 in the amount of $23,510.31 which should be credited to the total amount of the Judgment and interest. This Court recognized that Judgment under the full faith and credit clause of the Constitution as a General Judgment against the Defendants by Summary Judgment on May 6, 1977.
The Court having considered the motion of the Plaintiff and evidence in said cause is of the opinion that the Plaintiffs election of remedy in the Arizona case to waive enforcement of specific performance of the contract which provided for a mortgage on the Sportsman’s Lodge property and seek damages for breach of contract merged the claim into the judgment and that this Court is now precluded from changing the nature of the Arizona Judgment to provide for a specific lien upon the real property in Florida which the Plaintiff abandoned claim to in the Arizona court.

It is thereupon, on consideration thereof

ORDERED AND ADJUDGED as follows:

1. That the Summary Judgment heretofore entered in this cause on May 6,1977, recognizing the Arizona Judgment as being entitled to full faith and credit in the State of Florida, be, and the same is hereby ratified and confirmed that the Plaintiff do have and recover from the Defendants the sum of $111,335.55 as the balance due on this Judgment as of this date, for all of which let execution issue.
2. That the claim of the Plaintiff for a specific lien against Florida real property, be, and the same is hereby denied.

Prior to this order the trial court had entered an order of summary judgment on May 6, 1977, in which it found that the Arizona judgment constitutes a valid judgment entitled to full faith and credit in the State of Florida with the same effect as a Florida judgment and directed that execution issue. Then subsequently, on May 18, 1977, the trial court reserved ruling on the question of whether the judgment creates a lien against Florida property which can be reached by execution or levy. While this May 18 order appears to conflict with the May 6 order, the apparent intent of the trial court was to reserve ruling on whether or not execution or levy could be made on appellee’s homestead property. Appellant [1361]*1361sought levy on the property in question, but the Franklin County Sheriff refused to levy on the ground that he had been served a copy of a judicial determination that the property constituted homestead. Appellant then filed with the trial court a motion for order directing the sheriff to levy upon and sell the property pursuant to appellant’s judgment lien, appellant contending that its claim against appellees represented by the judgment “constitutes an obligation contracted for the purchase of the property against which plaintiff seeks to levy and thus this property as to the plaintiff is not exempt from forced sale within the meaning of Article X, Section 4, Florida Constitution of 1968.” The above-quoted order of May 1, 1979, from which this appeal is taken, was the trial court’s ruling on that motion.

Appellant argued before the trial court and argues here that the obligation upon which appellant’s judgment is based arose from an agreement between the parties in 1974 providing for a three-party simultaneous closing of an exchange of property and obligations for payment; that appellant agreed to transfer certain real and personal property in Arizona to appellees, who in turn agreed to simultaneously transfer the same property to a third party who would in turn transfer to appellees real property in Franklin County, Florida (the property upon which appellant now seeks to levy); that as consideration, appellees agreed to execute a promissory note in favor of appellant secured by a first mortgage on the Florida property; that all parties agreed to place the necessary documents of title in other instruments with an escrow agent prior to the date of closing; that without appellant’s knowledge and consent, appellees obtained appellant’s deed and other documents of title, transferred the property in order to acquire Florida property, and immediately moved to Florida as residents of the Florida property never paying appellant the amount agreed nor delivering the note and mortgage required by the agreement. It appears that in the Arizona action (as the trial court pointed out in its order) appellant sought alternative relief seeking on the one hand a monetary judgment for breach of contract and on the other specific enforcement of the contract which, if granted, would have required appellees to deliver to appellant the note and mortgage of the Florida property; that in the course of the trial in Arizona, appellant elected to proceed on breach of contract and waived the remedy of specific enforcement of the contract. Appellant contends that the trial court erred in applying the doctrine of merger to deny it the relief sought. We agree.

Article X, Section 4, of the Florida Constitution provides in pertinent part as follows:

(a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for ... obligations contracted for the purchase .. . thereof, . . . the following property owned by the head of a family:

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Related

Porter v. Teate
17 Fla. 813 (Supreme Court of Florida, 1880)

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Bluebook (online)
392 So. 2d 1359, 1981 Fla. App. LEXIS 28251, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arizona-properties-marketing-co-v-allen-fladistctapp-1981.