Spring v. Ronel Refining, Inc.

• Decision Date: 26 October 1982
• Docket Number: No. 82-1481,82-1481
• Citation: 421 So.2d 46
• Parties: Jerome L. SPRING and Ava Spring, Petitioners, v. RONEL REFINING, INC., a Florida corporation, Respondent.
• Court: Florida District Court of Appeals

Page 46

421 So.2d 46

Jerome L. SPRING and Ava Spring, Petitioners, v. RONEL REFINING, INC., a Florida corporation, Respondent.

No. 82-1481.

District Court of Appeal of Florida,

Third District.

Oct. 26, 1982.

William A. Cain, North Miami Beach, for petitioners.

Abrams, Anton, Robbins, Resnick, Schneider & Mager and Gary M. Farmer, Hollywood, for respondent.

Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.

NESBITT, Judge.

The respondent brought an action seeking to foreclose a second mortgage on the petitioners' property. The petitioners filed their answer, affirmative defenses, and counterclaim seeking damages for fraud and misrepresentation, and cancellation of the note and mortgage. They requested a jury trial on all issues so triable. The trial judge placed the entire cause on the court's nonjury calendar. By way of petition for writ of certiorari, petitioners seek review of the order setting this cause for a nonjury trial. We grant the petition.

In setting the cause for nonjury trial, the trial court departed from the essential requirements of law. Foreclosure is a traditional equitable remedy as is the counterclaim for cancellation. It is equally unassailable that the counterclaim for fraud and misrepresentation presents a legal claim for which the petitioners were entitled to a jury trial. The mixture of equitable and legal claims in the same case cannot deprive a party of its right to a jury trial of issues traditionally triable to a jury. Padgett v. First Federal Savings & Loan Association of Santa Rosa County, 378 So.2d 58 (Fla. 1st DCA 1979) and cases cited therein. The more difficult question, however, is the order in which these issues must be tried. In Adams v. Citizens Bank of Brevard, 248 So.2d 682 (Fla. 4th DCA 1971), the court held:

[I]f a compulsory legal counterclaim entitles the counter-claimant to a jury trial on issues which are not common to any issue made by the equitable complaint, the trial court should proceed to try the equitable issue nonjury with appropriate provision made for a jury trial as to the law issues if disposition of the equitable issues does not conclude the case. Southwestern Life Insurance Co. v. Gerson, [187 So.2d 63 (Fla. 3d DCA 1966) ]. But where the compulsory counterclaim entitles the counter-claimant (upon timely demand) to a jury trial on issues which are sufficiently similar or related to the issues made by the equitable claim that a determination by the first fact finder would necessarily bind the later one, such issues may not be tried nonjury by the court since to do so would deprive the counterclaimant of his constitutional right to trial by jury.

248 So.2d at 684.

In the present case, we find that the issues in the fraud claim are sufficiently similar to the issues in the foreclosure action so as to first require a jury trial of the legal claim. If, after the jury verdict, there are unrelated equitable issues remaining, the trial court may then consider those claims. Padgett, supra, at 64; Adams, supra, at 685.

The respondent contends that the petitioner's application is not cognizable by common law certiorari because the error is one which may be rectified by plenary appeal. A succinct analysis of the purpose and function of the writ is stated in Kauffman v. King, 89 So.2d 24, 26 (Fla.1956):

It is only in exceptional cases, such as those where the lower court acts without or in excess of jurisdiction, or where the interlocutory order does not conform to the essential requirements of law and may reasonably cause material injury throughout the subsequent proceedings for which the remedy by appeal will be inadequate, that this court will exercise its discretionary power to issue the writ.

Accord...