Pollock v. T & M INVESTMENTS, INC.

420 So. 2d 99
CourtDistrict Court of Appeal of Florida
DecidedJune 22, 1982
Docket81-2051, 81-2102
StatusPublished
Cited by11 cases

This text of 420 So. 2d 99 (Pollock v. T & M INVESTMENTS, INC.) 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
Pollock v. T & M INVESTMENTS, INC., 420 So. 2d 99 (Fla. Ct. App. 1982).

Opinion

420 So.2d 99 (1982)

Benjamin POLLOCK, Appellant,
v.
T & M INVESTMENTS, INC., Appellee.
T & M Investments, Inc., Appellant,
v.
Benjamin Pollock, Appellee.

Nos. 81-2051, 81-2102.

District Court of Appeal of Florida, Third District.

June 22, 1982.
Rehearing Denied October 19, 1982.

*100 Sydney L. Syna, Miami, for Benjamin Pollock.

Louis Vernell, Miami Beach, for T & M Investments, Inc.

Before HENDRY and BASKIN, JJ., and GAVIN K. LETTS, Associate Judge.

HENDRY, Judge.

These consolidated interlocutory appeals seek review of the circuit court's August 26, 1981 Order on Motion to Modify. The appealed order vacated certain terms of a May 20, 1974 final judgment entered in the instant cause and affirmed on appeal, Pollock v. Morton, 311 So.2d 206 (Fla. 3d DCA 1975), which terms provided:

"... the Defendant, T & M INVESTMENTS, INC., shall pay to the Plaintiff the sum of $175.00 per month as resonable [sic] rental value toward the rental of Plaintiff's efficiency apartment and said monthly payments shall continue each month until, under the terms of the lease agreement, the new building to be erected by the Defendant is available for occupancy and the further terms of the lease agreement come into effect."

The record before us reflects a long history of non-compliance by T & M with the requirement of the final judgment that it make $175.00 monthly payments to the plaintiff, Dr. Benjamin Pollock, and numerous contempt proceedings resulting in orders determining T & M's liability for arrearages and imposing fines against it for contempt, which have been affirmed by this court on appeal: Pollock v. T & M Investments, Inc., 346 So.2d 620 (Fla. 3d DCA 1977); T & M Investments, Inc. v. Pollock, 374 So.2d 110 (Fla. 3d DCA 1979). The plaintiff also brought a separate action *101 seeking to set aside a fraudulent conveyance by T & M of the property which it had acquired from him, which action resulted in a final judgment setting aside the fraudulent conveyance and affirmance by this court on appeal, Morton v. Pollock, 386 So.2d 1327 (Fla. 3d DCA 1980).

Notwithstanding its prior history of non-compliance, T & M filed with the trial court in November, 1980 a motion to modify and/or vacate the final judgment and subsequent orders entered thereon. Its stated ground therefor was the impossibility of its performance of a term reflected in the parties' agreements and incorporated in the final judgment, that it was to construct a high-rise apartment building on property purchased from the plaintiff and properties to be acquired from surrounding landowners in a three block area of Miami Beach. (T & M had bound itself in connection with the purchase of plaintiff's property to provide him with an ocean-front, two bedroom, top floor apartment in the building to be constructed, rent-free, for the rest of his life.) T & M contended that it was impossible for it to perform under this part of its agreement, due to its inability to purchase the necessary additional lots because some property owners were unwilling to sell at any price. Thus, the subject terms of the final judgment should be regarded as a nullity. T & M stated in its supporting memorandum that it had become aware of this impossibility in June, 1975.

Plaintiff Pollock thereafter also sought to modify the final judgment to provide for an increased monthly rental allowance, in light of increased rental values in the area since the time of entry of the final judgment. The trial court held an evidentiary hearing on the motions and took testimony of the parties regarding their understandings at the time they executed the agreements which formed the basis for the final judgment. The following findings were made by the court in its Order on Motion to Modify:

"1. The final judgment entered in this case contemplated that the `new building' would be built within a reasonable period of time after the entry of that order. It was not intended to be a lifetime annuity forever continued even if the desired oceanfront highrise could not be built.
2. While there might have been different forms of relief requested, only two were presented, one to seek an increase in the monthly allowance, and the other to terminate the monthly payments.
3. It would be inequitable, unconscionable, and inconsistent with the contemplation of the final judgment to allow the existing situation to continue.
4. Any penalties or other punitive sanctions levied by the Court to date can be properly purged upon defendant's compliance with the provisions of this Order.
5. If the Court has the power to do so, it would restrict plaintiff's recovery to the total sum of $5,000, together with interest since May 20, 1974, through November 7, 1980."

The order further provided, in pertinent part:

"Therefore, it is
ORDERED AND ADJUDGED that the joint applications made by both parties for the modification of the final judgment entered by this Court on May 20, 1974, be and the same are hereby granted in part and denied in part. Effective with the date of the filing of the Motion to Modify And/Or Vacate Final Judgment and Subsequent Orders Entered Thereon, the monthly sums of $175.00 per month to plaintiff shall terminate. The plaintiff shall be entitled to recover from T & M those monthly payments from the date of the final judgment May 20, 1974, through the date of the filing of defendant's motion, November 7, 1980, together with interest at the legal rate, offset by any payments made to date and shall be entitled to no further relief.
In the event that an appeal is taken in this matter and if the District Court of Appeal, Third District, were to free this Court to reconsider the award of monthly payment between the final judgment *102 date of May 20, 1974, and the date of the filing of T & M's motion to modify, this Court would enter a final judgment in favor of plaintiff in the total amount of $5,000, together with interest calculated from May 20, 1974, less any payments made by T & M to plaintiff since that date, this Court having not done so only because it believes itself otherwise bound to those monthly awards by the earlier action in this case by the District Court of Appeal, Third District."

Appellant Pollock has raised numerous issues on appeal concerning, in summary, the following points: whether the trial court was authorized to consider T & M's motion in light of the equitable doctrines of laches and "clean hands" and if so, whether T & M made a sufficient showing of impossibility of performance to entitle it to the relief awarded, including the purging of prior orders adjudicating it in contempt and requiring it to pay attorney's fees and costs incurred by the plaintiff. Pollock also urges error in the denial of his motion for relief from judgment. T & M contends by its appeal that the trial court erred in failing to vacate the subject terms of the final judgment and provide instead for such damages as were allegedly in the contemplation of the parties, i.e., the amount of $5,000 plus interest which the court stated it would award if it had the power to do so.

In regard to the propriety of the trial court's consideration of the motions to modify and/or vacate we note at the outset that such motions are governed by Florida Rule of Civil Procedure 1.540, which provides, in pertinent part:

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420 So. 2d 99, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pollock-v-t-m-investments-inc-fladistctapp-1982.