Adler v. Seligman of Florida, Inc., 85-32

• Decision Date: 23 July 1986
• Docket Number: No. 85-32,85-32
• Citation: 492 So.2d 730,11 Fla. L. Weekly 1601
• Court: Florida District Court of Appeals
• Parties: 11 Fla. L. Weekly 1601 Samuel I. ADLER, John R. Frankenfield, Versatile Construction Systems, Inc., a Florida corporation, and J & R Forming Company, Inc., a Florida corporation, Appellants, v. SELIGMAN OF FLORIDA, INC., and Fidelity and Deposit Company of Maryland, Charles Donner, Howard Mescon and Al Ketchum, Appellees.

Page 730

492 So.2d 730

11 Fla. L. Weekly 1601

Samuel I. ADLER, John R. Frankenfield, Versatile Construction Systems, Inc., a Florida corporation, and J & R Forming Company, Inc., a Florida corporation, Appellants, v. SELIGMAN OF FLORIDA, INC., and Fidelity and Deposit Company of Maryland, Charles Donner, Howard Mescon and Al Ketchum, Appellees.

No. 85-32.

District Court of Appeal of Florida Fourth District.

July 23, 1986.

Rehearing Denied Sept. 5, 1986.

Sam Daniels of Daniels & Hicks, and Hugo L. Black, Jr., and Lauri Waldman Ross of Kelly, Black, Black, Byrne & Beasley, P.A., Miami, for appellants.

Julian Clarkson and Michael L. Rosen of Holland & Knight, Tallahassee, and Lisa Heller Green of Heller & Kaplan, Miami, for appellee Seligman of Florida, Inc.

ANSTEAD, Judge.

This is an appeal from a final judgment awarding the appellees compensatory and punitive damages on claims of fraud breach of fiduciary duty and conspiracy. The judgment was entered after a trial by the court without a jury and subsequent to this court's prior reversal and remand for a new trial on the issues of both compensatory and punitive damages. Adler v. Seligman of Florida, Inc., 438 So.2d 1063 (Fla. 4th DCA 1983). We are compelled to again reverse because we find that the appellants were erroneously denied a jury trial.

Much of the long history of this case can be found in this court's prior opinion so we will give only a brief background. Irving Seligman and Samuel I. Adler entered into a partnership to construct a large condominium housing development. The project was to be financed by Seligman, a Michigan businessman who founded Seligman of Florida, Inc. [Seligman] for that purpose, and constructed by Adler, a Florida general contractor and real estate developer. Seligman purchased the land upon which Adler was to build approximately 600 condominium units in 27 buildings in accord with plans prepared by architect William Clayton. However, allegedly, in an attempt to "skim" profits from the project, Adler conspired with others to switch the construction plans without Seligman's knowledge and thereafter submitted false construction cost estimates. In addition, Adler hired a construction company to do major work on the project without disclosing to Seligman that Adler was secretly a partner in the company, along with appellant, John K. Frankenfield. Adler's alleged misdoings resulted in a substantial loss of profit to Seligman. In addition, Seligman alleged that the construction performed was defective and ultimately resulted in additional losses, including a claim for defective construction made in a lawsuit brought by the condominium unit owners against Seligman which he eventually settled at substantial expense.

The present action commenced when the contractor brought a mechanic's lien foreclosure action against Seligman. Through discovery, Seligman learned of Adler's alleged double-dealing and fraud and filed a counterclaim for compensatory and punitive damages. After a non-jury trial a final judgment was entered in favor of Seligman and against various counterdefendants for compensatory damages in the amount of $615,564.65 and punitive damages in the amount of $1,310,000.00. On appeal, this court approved the trial court's determination of appellants' liability for conspiracy to defraud and breach of fiduciary duty but ordered a new trial on both compensatory and punitive damages. Prior to retrial, and upon counterdefendants' motion, the original trial judge recused himself from retrying the case. Subsequently the chief judge assigned Judge H. Mark Purdy to the case. Purdy denied appellant's motion for a jury trial made after Seligman was permitted to amend his pleadings to include a claim for damages arising from settlement of the unit owners' lawsuit. Subsequently, after a non-jury trial, a judgment was entered for compensatory damages in the amount of $1,642,582.56, together with prejudgment interest in the amount of $236,618.00, totaling $1,879,398.56; and punitive damages in the amount of $4,450,000.00 against Adler and $421,749.65 against Frankenfield.

Initially, we reject appellants' claim of fundamental error in the assignment and retrial of the case by Judge Purdy. After this action was remanded following the first appeal, Adler moved to disqualify the original trial judge, Judge Stephen R. Booher, from rehearing the case because Judge Booher had made negative observations in the final judgment about Adler's credibility as a witness. Judge Booher recused himself from retrying the case and immediately sent a memorandum to the chief judge, with copies to all parties, explaining the reason for his recusal and suggesting that he be replaced by Judge Purdy who presently presided over the administrative division of the court previously presided over by Judge Booher. The memorandum suggested that, in fact, the case would have ordinarily been assigned to Judge Purdy after remand on appeal, but the case was assigned to Judge Booher because it was a retrial of a case heard by Judge Booher originally. The memorandum also outlined various other methods contained in the statutes and court rules by which the chief judge could select a successor judge and concluded by simply asking the chief judge to assign a successor. Judge Purdy was assigned. Thereafter, and until this appeal, no objection was ever raised to the contents of the memorandum or Judge Purdy's assignment. The claim on appeal was raised apparently in response to a discovery by appellants in the record on appeal that upon Judge Booher's recusal the clerk of the court, unknown to the parties, had routinely assigned the case to a third judge. That assignment was superseded by the chief judge's action.

The appellants cite several cases to support their claim of fundamental error, none of which we believe to be on point since they all essentially hold that orders entered by a judge after his recusal from a case are null and void. See generally Rogers v. State, 341 So.2d 196 (Fla. 4th DCA 1977), cert. denied, 348 So.2d 953 (Fla.1977); Weiss v. Miami National Bank, 320 So.2d 466 (Fla. 4th DCA 1975). Of course, Judge Booher entered no subsequent orders in this cause. We also believe that appellants are estopped from crying foul at this late date, having received a copy of the very letter by which they now claim Judge Booher improperly "handpicked" Judge Purdy as his successor. More importantly, however, we reject the appellants' claim that there was any impropriety in Judge Booher's memorandum. Rule 2.050(b)(4) of the Rules of Judicial Administration provide that if a judge is temporarily absent, disqualified in an action, or is otherwise unable to perform his duties, the chief judge of the court or his designee may assign a proceeding to any other judge or any additional assigned judge of the same court. Judicial interpretation of this rule has held:

The assignment and reassignment of specific court cases between or among the judges of a multijudge court is a matter within the internal government of that court and is directed and controlled by policy adopted by the judges of that court, either directly or by and through their chief judge.

Allen v. Bridge, 427 So.2d 249, 250 (Fla. 4th DCA 1983). See also Kruckenberg v. Powell, 422 So.2d 994 (Fla. 5th DCA 1982). It is clear to this panel that Judge Booher was only doing his duty in reporting his recusal to the chief judge and attempting to be helpful in outlining to the chief the various alternatives available for picking a successor. None of the parties, including appellants, found this action to be objectionable at the time, and, upon review, we find nothing improper in the action.

We have a different view as to appellants' claim of error in the denial of their motion for a jury trial made after appellee was granted leave to file amended pleadings. On remand of this cause after appeal the appellants demanded jury trial primarily on the basis that the amended pleadings filed by appellee asserted new issues in that Seligman now referred to the class action filed by unit owners...