Woodfield v. Pace

Full title: GARY A. WOODFIELD, AS RECEIVER OF CONGRESS MORTGAGE CORP. INC. OF PALM…

Court: District Court of Appeal of Florida, Fourth District

Date published: Sep 26, 1990

566 So. 2d 949 (Fla. Dist. Ct. App. 1990)

Opinion

No. 89-3231.

September 26, 1990.

Appeal of a non-final order from the Circuit Court for Palm Beach County; Jack H. Cook, Judge.

Howard K. Coates, Jr., of Squire, Sanders Dempsey, Palm Beach, for appellant — Gary A. Woodfield.

Mark P. Dikeman, Davia Odell Mazur, Robert C. Owens and Sharon Quinn Dixon of Stearns Weaver Miller Weissler Alhadeff Sitterson, P.A., Miami, for appellant — United Bank of Kuwait, PLC.

Lawrence S. Krieger, Deputy General Counsel, West Palm Beach, for appellant — State, Dept. of Banking and Finance.

Linda H. Gottlieb and Lewis N. Brown of Gilbride, Heller Brown, P.A., Miami, for appellee — William B. Pace.

PER CURIAM.

We affirm on the authority of Guidry v. Sheet Metal Workers Nat'l Pension Fund, ___ U.S. ___, 110 S.Ct. 680, 107 L.Ed.2d 782 (1990). We reject appellants' arguments based on Kwatcher v. Massachusetts Serv. Emp. Pension Fund, 879 F.2d 957 (1st Cir. 1989), because they are raised for the first time on appeal. See Brickell Biscayne Corp. v. Palace Condominium Ass'n, 526 So.2d 982 (Fla. 3d DCA 1988).

DELL and WALDEN, JJ., concur.

GLICKSTEIN, J., concurs specially with opinion.

GLICKSTEIN, Judge, concurring specially.

I agree with all of the majority opinion, but write because the trial court will still have the opportunity, prior to final judgment, to consider what may be appropriately called to its attention so that the final judgment is a fully informed one. See Motorola Communications Elecs., Inc. v. Nat'l Patient Aids, Inc., 427 So.2d 1042 (Fla. 4th DCA 1983); Keathley v. Larson, 348 So.2d 382 (Fla. 2d DCA 1977), cert. denied, 358 So.2d 131 (Fla. 1978); Tingle v. Dade County Bd. of County Comm'rs, 245 So.2d 76 (Fla. 1971).

Appellants' counsel, in my view, had an obligation to the trial court to call the following authorities to its attention: Kwatcher v. Massachusetts Serv. Emp. Pension Fund, 879 F.2d 957 (1st Cir. 1989); Giardono v. Jones, 867 F.2d 409 (7th Cir. 1989); Dodd v. John Hancock Mut. Life Ins. Co., 688 F. Supp. 564 (E.D.Cal. 1988); McHugh v. Teamsters Pension Trust Fund, 638 F. Supp. 1036 (E.D.Pa. 1986); and Peckham v. Board of Trustees of Int'l Bhd. of Painters Allied Trades Union, 653 F.2d 424 (10th Cir. 1981).

Justice may be blind, but it need not be ignorant. Had appellants' counsel done their job, the trial court could have entered a fully informed, non-final order. It still has the opportunity to do so.