In re Estate of Lindsay (207 So. 2d 736, 1968)

CROSS, Judge.

This is an appeal by judgment creditors from orders of a successor judge of the county judge’s court authorizing an administrator of an estate to pay as an administration expense the rental of premises used for the storage and preservation of assets of an estate.

Prior to the orders on appeal a predecessor judge had entered an order classifying the claims of the judgment creditors to have a Class 6 priority and the claims of the landlords-lessors for rentals either due or to become due under a lease to have a Class 7 priority.

The judgment creditors contend the subsequent orders entered by the successor judge reclassified the landlords-lessors’ Class 7 priority to. a Class 1 priority.

Our conclusion necessitates elucidation upon the sequence of events prior and subsequent to the decedent’s demise up to the time of taking the appeal.

Philip Lindsay and his wife operated a hardware store in Orlando, Florida. They as lessees entered into a leasing agreement with S. S. Henderson and Bertha Henderson, as lessors, for the rental of a store building for a term of five years. After the lease had run for approximately seventeen months Philip Lindsay died and in accordance with his will his wife was named executrix. The wife later resigned as executrix and an administrator c. t. a. was duly appointed.

Among others, judgment creditors and lessors under a lease filed proof of claims against the estate, and on December 14, 1964, the predecessor judge, pursuant to a petition, after hearing, entered an order establishing the status and payment of claims. It was by this order that the judgment creditors were given a Class 6 priority and the lessors a Class 7 priority. Subsequent to the entry of the aforesaid order the county judge was appointed to the circuit court and a new county judge was appointed to fill the resulting vacancy. After the appointment of the successor judge the lessors filed a motion to amend the order of December 14, 1964, so. as to reclassify their standing as creditors of the Lindsay Estate. The judgment creditors, filed a motion to strike the lessors’ motion to amend on the basis that: (1) the order of December 14, 1964, was a final order and the lessors not having appealed within the time allotted by law they could not now complain of the classification assigned to their claim by virtue of the said order, and (2) under Section 733.20, F.S.1965, F.S.A., the claim of the lessors could not be accorded a higher classification of priority than said claim had been accorded in the order of December 14, 1964.

Pursuant to a hearing on the motion to amend the order of December 14, 1964, the court on June 22, 1965, entered an order granting the judgment creditors’ motion to strike the lessors’ motion to amend. The court in its order of June 22, 1965, determined that the administrator had entered into an agreement with the lessors for the storage of the estate’s assets in the building previously leased from the lessors by the deceased and his wife. The successor judge further determined from the agreement between the administrator and the lessors that the storage of the estate’s assets constituted a representation by the administrator to the lessors that the rental of these premises would be paid as an administrative expense of the estate for the period of time the estate’s assets were stored.

The judgment creditors then petitioned the county judge’s court for a rehearing on the question of whether or not the rentals accruing under the lease agreement from the date of the death of the deceased was an expense of administration of the estate as well as a claim against the said estate. The court on August 3, 1965, entered an order denying the petition for rehearing and set forth in said order, the pertinent parts of which are as follows:

“2. That this Court does enter its Supplemental Order supplementing its Order of June 22, 1965, and finding that it was determined, in connection with such order of June 22, 1965, that the lease in question was binding upon the personal representatives of the above estate, after the death of the decedent, and did not terminate with the death of the decedent.” (Emphasis added.)

On August 6, 1965, the county judge by ■order authorized and directed that the estate pay as an administrative expense from the date of the deceased’s death the sum of $250.00 per month rental for the storage of the estate’s assets until such time as the estate’s use of the premises in which the ■assets had been stored had been terminated. Said sum was to be set off against any amount later determined to be payable by the estate to the lessors as a result of the claim under the lease. It is from these orders of June 22d, August 3d and August 6th that an appeal was taken on September 30, 1965.

Prior to the appeal being taken on September 30, 1965, the record reveals on September 17, 1965, the court by order established the amount of the claim of the lessors for rent as an administrative expense for the storage of the estate’s assets from which order no appeal has been taken of which this court takes judicial notice. Tower Credit Corporation v. State, Fla.App.1966, 183 So.2d 255; McNish v. State, 1904, 47 Fla. 69, 36 So. 176.

It follows that whatever disposition would be taken by this court in disposing of the orders appealed would in no way offset or disturb the order of September 17th. Thus, the judgment creditors having failed to appeal the order dated September 17, 1965, the appeal from the earlier orders is moot.

Accordingly since no practical result can be attained by reviewing the orders appealed the appeal is dismissed. Dehoff v. Imeson, 1943, 153 Fla. 553, 15 So.2d 258.

Appeal dismissed.

WHITE, JOSEPH S., Associate Judge, concurs.

WALDEN, C. J., dissents with opinion.

WALDEN, Chief Judge

(dissenting).

I respectfully dissent from the decision of the majority to dismiss sua sponte by giving dispositive effect to the order dated September 17, 1965, which order was entered some months following the entry of the orders appealed. It is noted that this was done on the motion of the majority in that none of the parties attached any appellate significance to the order of September 17, 1965. It was foreign to the points, arguments and positions taken by every party, whether appellant or appellee, in this appeal.

Recognizing fully that a dissenting opinion is of dubious value, it is still this writer’s disposition to treat the matter on the merits, at least for the purpose of registering a caution in light of the importance of maintaining the concept of finality as applied to orders, judgments and decrees.

Proceeding independently, then, it is seen that this is an appeal from certain orders entered in the county judge’s court during the course of certain probate proceedings. Indexing and introducing further, it is to be understood that these orders appealed, plus others, the propriety and effect of all of which are the center of appellate concern, are properly catalogued as a trio with dates and authors as follows:

1. Order of December 14, 1964, entered by the Honorable George E. Adams.

2. The orders being appealed which were entered by the Honorable Richard B. Keating on June 22, 1965; August 3, 1965; and August 6, 1965.

3. Order of September 17, 1965, entered by the Honorable Richard B. Keating.

Creditors filed proofs of claims and by order of December 14, 1964, the county judge classified them under the provisions of Section 733.20, F.S.1965, F.S.A., and thereby determined priorities.

Appellants were judgment creditors and their claims were denominated as Class 6. Appellees, S. S. Henderson and wife, were lessors under a written lease agreement, and their claim was for rent due under the lease that had accrued before and for a period after the death of the testator. The Hendersons’ entire claim was given a Class 7 priority.

Time passed. The time for rehearing and appeal expired. The office of county judge was vacated and a successor judge appointed.

On May 3, 1965, appellees, Hendersons, by motion to amend asked the new county judge to amend his predecessor’s order of December 14, 1964, and as a basis therefor, said, “[cjontrary to the law of the State of Florida, the Honorable George E. Adams entered an order in this Court, rendering Class 7’ as creditors to the movants.” Although this motion was formally stricken by the new county judge in the order of June 22, 1965, the appealed order went on to reflect a response to the motion in the form of a reconsideration of the merits of the matter. The fruit of the reconsideration was the assignment of a new classification to the Hendersons’ earlier claim as-concerns rent accruing after the death of the testator. It was changed from Class 7 to the higher priority of Class 1, and given the status of an expense of administration. This action represented a material modification of the earlier order of December 14, 1964, as it re-arranged the priorities to the disadvantage of appellants. It is to be emphasized that the Hendersons filed but one claim and the facts concerning it were the same and equally available at the time of both adjudications.

The broad governing appeal point stated by appellants and acceded to by appellees is-as follows:

“Question 2: Whether or not a claim against an estate based on rents due or to become due after the death of a lessee and judicially decreed by one judge to have a priority of class seven (pursuant to Chapter 733.20, Florida Statutes) may be challenged in same court before a successor judge, after the lapse of sixty (60) days from the date of the rendition of such decree.”

As I analyze the problem, it is apparent that it must be first determined if the order of December 14, 1964, assigning classification was a final appealable order. If it was such an order, then it was not subject to modification after the time for rehearing and appeal had expired absent the existence of some special circumstances such as mistake or fraud perpetrated on the court as contemplated by F.R.C.P. 1.38