Beavers v. Conner

• Decision Date: 22 February 1972
• Docket Number: No. 71--445,71--445
• Citation: 258 So.2d 330
• Parties: Thomas M. BEAVERS et al., Appellants, v. F. A. CONNER, Appellee.
• Court: Florida District Court of Appeals

Page 330

258 So.2d 330

Thomas M. BEAVERS et al., Appellants, v. F. A. CONNER, Appellee.

No. 71--445.

District Court of Appeal of Florida, Third District.

Feb. 22, 1972.

Rehearing Denied March 15, 1972.

Horton, Schwartz & Perse, Goodman & Petersen, Miami, W. Emory Daugherty, Jr., Miami Springs, for appellants.

Nicholson, Howard, Brawner & Lovett, Miami, for appellee.

Before PEARSON, CHARLES CARROLL and BARKDULL, JJ.

PER CURIAM.

This action was commenced below by the appellee filing a complaint seeking to impress a trust on certain capital stock in a Panamanian corporation which he had previously formed. At the time of the inception of the corporation, he was to own 49% Of the stock; 51% Was to be owned by Panamanian nationals. The stock and corporate papers were left in the possession of the Panamanian nationals, and the corporation was to act when it received an operating certificate from the Panamanian government entitling it to act as a cargo carrier.

Subsequent to the formation of the corporation, the appellants, through the appellee's Panamanian associates, acquired control of the stock of the Panamanian corporation and its operating certificate. At this time they had notice of the appellee's rights. The appellee, after the appellants' refusal to cease their efforts to obtain control of the corporation, instituted the instant proceedings seeking, among other things, to impose a trust on certain of the capital stock of the Panamanian corporation, a temporary injunction, and other relief. The temporary injunction was issued; subsequently an amended complaint was filed and the cause became at issue. At the time the matter came on for final hearing, it is apparent from the record that all parties conceded the matter would proceed as an equity cause and that only in the event the plaintiff did not prevail would the issues framed by the affirmative answers in the nature of a counterclaim be presented to a jury.

At the outset of the final hearing, counsel for the defendants attempted to invoke the rule, which was denied. During the course of the trial, one of the counsel from the firm representing the plaintiff testified on behalf of the plaintiff and the counsel in chief for the plaintiff was called as an adverse witness by the defense. Subsequent to the final hearing, the trial court entered a final judgment in favor of the plaintiff, finding that the appellants had wrongfully acquired the capital stock in the Panamanian corporation and appropriated its operating certificate for their own use which, by the time of the final hearing, had become worthless because the operating certificate had been cancelled by the Panamanian government. He found the certificate to be worth $125,000.00 and awarded the plaintiff-appellee 85% Of said sum, apparently based upon the proposition that notwithstanding the fact that the plaintiff held only 49% Of the capital stock of the corporation he was entitled to 85% Of the profits under his original agreement with the Panamanian nationals with whom he formed the corporation. ¹

This appeal ensued; three points are preserved for review: First, the failure to grant a jury trial. Second, the failure of the trial judge to invoke the rule excluding witnesses from the courtroom and error in permitting counsel for the plaintiff to testify in the cause. Third, that there is no evidence in the record to support a finding that the certificate lost by the actions of the defendants had a value of $125,000.00.

As to the first point, it is apparent from the record that at the opening of the final hearing all parties conceded before the court that the matter should be tried non-jury, and only in the event the defendants were to go forward with their affirmative actions was there to be a jury trial. Further, it is not uncommon for a chancery suit seeking a resulting trust to ultimately end in an award of damages to the plaintiff when the chancellor finds in his favor and it is impossible to return him to the status quo as in the instant case. Winn & Lovett Grocery Co. v. Saffold Bros. Produce Co., 121 Fla. 833, 164 So. 681; Superior Uniforms, Inc. v. Neway Uniform & Towel Supply of Florida, Inc., Fla.App.1964, 166 So.2d 464. Therefore, no error has been made to appear in proceeding as the trial judge did in this matter.

As to the second point, we find no error in failing to invoke the rule excluding witnesses. This is a matter within the discretion of a trial court. Romano v. Palazzo, 83 Fla. 243, 91 So. 115; New Amsterdam Casualty Company v. Utility Battery Manufacturing Company, 122 Fla. 718, 166 So. 856; City of Miami Beach v. Washburn, Fla.1956, 88 So.2d 555. And, unless an abuse of discretion is shown, such ruling will not be disturbed. Romano v. Palazzo, supra; Brown v. State, Fla.App.1959, 111 So.2d 296; 32 Fla.Jur., Trial, § 14. No such abuse of discretion in this ruling is made on this record. A member of the law firm representing the plaintiff was permitted to testify about uncontroverted matters by the trial judge. This seems to be within the provisions of Disciplinary Rule DR 5--101(B)(1), Canon 5, Code of Professional Responsibility, 32 F.S.A. ² This counsel was not the counsel-in-chief representing the plaintiff and did not testify to anything which was not conceded by the defendants. It certainly would appear that, in order not to jeopardize a client's...