Cheek v. McGowan Elec. Supply Co., XX-37
| Decision Date | 14 October 1981 |
| Docket Number | No. XX-37,XX-37 |
| Citation | 404 So.2d 834 |
| Parties | Alan CHEEK, Appellant, v. McGOWAN ELECTRIC SUPPLY COMPANY, Appellee. |
| Court | Florida District Court of Appeals |
M. Stephen Turner of Culpepper, Beatty & Turner, Tallahassee, for appellant.
William C. Owen and J. Klein Wigginton of McClure, Wigginton & Owen, P. A., Tallahassee, for appellee.
The defendant, Alan Cheek, appeals a final judgment entered by the court without a jury. The single question presented is whether he was entitled to a jury trial upon the issues raised by the complaint and the answer. We hold that the trial judge improperly took the case from a duly impanelled jury and tried all of the issues without a jury.
The suit began as a common law action to collect an account stated which was evidenced by a promissory note. The defenses pleaded, with the exception of failure of consideration, were claims for equitable relief. They were: (1) The promissory note was mistakenly given as payment of an account balance for which the defendant had no liability since charges to the account in excess of payments were not in compliance with the conditions and restrictions of the account or defendant's guaranty; (2) the defendant should be discharged from liability because of the plaintiff knowingly making charges to the account which were not included in the guarantee of the defendant. The answer concluded with an equitable counterclaim that the defendant be found not liable to the plaintiff in any amount; that he be returned with interest any amounts paid to reduce the balance of the account in excess of his actual liability. 1
The alleged indebtedness and the promissory note arose out of the following facts. The plaintiff is an electrical materials supplier. The defendant is a general contractor who regularly used Thomas Cook, an electrical subcontractor, on defendant's construction projects. Cook became indebted to the plaintiff so that his credit with the plaintiff, supplier, was terminated. In order to keep Cook at work on defendant contractor's jobs, the defendant agreed to furnish his credit to Cook for those specific jobs where Cook was working for defendant. This was accomplished by establishing a special account with the plaintiff for those jobs where defendant was the contractor. Defendant guaranteed the payment of this special account. When the special account reached an amount of some $20,000.00 and Cook could not make payment, the special account was terminated. Cook and defendant signed a promissory note for the amount of the account. Suit was instituted on the note, when after a few payments both Cook and the defendant defaulted.
The defendant regularly demanded a jury trial and the cause proceeded for a jury trial. A pretrial order was entered which contained the following notation:
The parties have not reached complete agreement as to which issues will be tried by the Court and which issues will be tried by the jury, except that the parties agree the issue of usury shall be submitted to the Court. The Court reserves ruling on whether the affirmative defense of mistake creates an issue to be tried by the jury.
The cause came on for trial and a jury was regularly impanelled and the trial proceeded to the conclusion of all the evidence. The evidence was complicated and often technical as to the terms and practices of the building trades. After lengthy argument, the court decided to withdraw the case from the jury, noting that it was going to come down to a decision on equitable principles. In its judgment the court noted:
The claim and defenses to that claim posed certain legal and equitable issues, some of which the court initially felt should be heard by a jury. After the court and the jury heard the testimony of the parties, expert witnesses and other lay witnesses and having received into evidence the exhibits submitted by the parties, the court concluded that the legal and equitable issues, facts and arguments relating thereto were so intertwined and that the testimony and other evidence so complex and confusing that the jury could not comprehend and separate the issues to be determined only by the jury and thus the court concluded that it did not need the advisory opinion of the jury on any issue and without objection, withdrew the entire case from the jury's determination. 2
We are fortunate that this Court's decision in Padgett v. First Federal Savings & Loan Association, 378 So.2d 58 (Fla. 1st DCA 1979), has recently summarized the law of Florida relative to the question now before us. The applicable rule as set forth by the Court is:
... It is, however, clear that the mixture of the two kinds of claims in the same case, regardless of the parties by whom or the sequence in which they are raised by their respective pleadings, can not deprive either of the parties of a right to a jury trial of issues traditionally triable by jury as a matter of right. (cases cited omitted here) (emphasis supplied) 3
It remains only for us to decide if the instant cause included issues...
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...Corp., 413 So.2d 1236, 1237 (Fla. 3d DCA 1982), pet. for review denied, 426 So.2d 26 (Fla.1983); Cheek v. McGowan Electric Supply Co., 404 So.2d 834, 836 (Fla. 1st DCA 1981); Napolitano v. H.L. Robertson and Associates, Inc., 311 So.2d at 758. Applying this rule, we vacate the final judgmen......
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Cheek v. McGowan Elec. Supply Co.
...by the trial court without a jury was reversed and the case was remanded for a new trial before a jury. Cheek v. McGowan Electric Supply Co., 404 So.2d 834 (Fla. 1st DCA 1981).4 "It is implicit [under Federal Rule 68] that as long as the case continues--whether there be a first, second or t......
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Cheek v. McGowan Elec. Supply Co.
...that service of Cheek's offer of judgment, however, was made prior to the first trial, and that judgment was reversed for a new trial. 404 So.2d 834. After remand, Cheek did not renew his previous offers or serve a new offer of judgment. The trial court denied Cheek's demand for costs after......
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