Chenery v. Crans, 85-1946

• Decision Date: 12 September 1986
• Docket Number: No. 85-1946,85-1946
• Citation: 497 So.2d 267,11 Fla. L. Weekly 1963
• Parties: 11 Fla. L. Weekly 1963 Augustine J. CHENERY, Mary H. Chenery, Jane Hunt Alander, Elizabeth R. Koss, Eleanor F. Crowell, and William Pillsbury, Appellants, v. Robert R. CRANS, Appellee.
• Court: Florida District Court of Appeals

Page 267

497 So.2d 267

11 Fla. L. Weekly 1963

Augustine J. CHENERY, Mary H. Chenery, Jane Hunt Alander, Elizabeth R. Koss, Eleanor F. Crowell, and William Pillsbury, Appellants, v. Robert R. CRANS, Appellee.

No. 85-1946.

District Court of Appeal of Florida,

Second District.

Sept. 12, 1986.

Mark B. Schorr of Becker, Poliakoff & Streitfeld, Fort Lauderdale, for appellants.

George Vega, Jr., of Vega, Brown, Nichols, Stanley & Martin, Naples, for appellee.

SANDERLIN, Judge.

Appellants, certain unit owners in Naples Bay Club Condominium, appeal a final judgment which denied all of their claims against appellee Crans, the developer. They also challenge a post trial order which awarded Crans attorney's fees and costs. For the reasons stated below, we reverse both the judgment and the order, and remand for further proceedings consistent with this opinion.

Appellants filed a complaint against Crans, Count I of which sought the imposition of a constructive trust on lands retained by Crans

for the benefit of plaintiffs to provide them with the parking required by law because of defendant's inequitable, unconscionable or fraudulent conduct, or abuse of confidence in first submitting as developer said land to condominium ownership and then not using it all for the benefit of the condominium and required parking, in representing that he would provide more parking spaces than he actually provided, and in not providing the parking space[s] required by the Naples zoning ordinances.

Count II sought damages under section 718.506, Florida Statutes (1983), relating to publication of false and misleading information. Count III alleged Crans, as president of the condominium association, had breached his fiduciary duty, and, again, sought a constructive trust as the remedy. The complaint demanded a jury trial "for those issues triable by a jury," money damages, injunctions, and a constructive trust.

Thereafter, the trial court issued an order bifurcating the suit, with the equitable issues to be tried by the court and the remaining issues to be tried by a jury. At the beginning of the bench trial, appellants' counsel announced that he was only presenting their case for a constructive trust. He reiterated this in his written closing argument.

After considering the evidence and argument of counsel, the trial court issued its final judgment which denied all of appellants' claims. Following entry of final judgment and upon Crans' amended motion to tax costs, the trial court awarded attorney's fees and costs to Crans.

As their first point on appeal, appellants argue that the trial court erred in hearing their equitable claims before a jury could determine their interrelated legal claims. We agree.

In Magram v. Raffel, 443 So.2d 396 (Fla. 3d DCA 1984), the third district held:

[W]here one is entitled to a jury trial on issues sufficiently similar or related to the issues not triable to a jury, and where a determination by the first factfinder would necessarily bind the later factfinder, such issues may not be tried non-jury by the court because to do so would deprive the litigant of his constitutional right to trial by jury. [Citations omitted.]

Id. at 397 (approving Adams v. Citizens Bank of Brevard, 248 So.2d 682 (Fla. 4th DCA 1971)). See also Beacon Theatres, Inc., v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959); Cerrito v. Kovitch, 457 So.2d 1021 (Fla.1984); Kies v. Florida Insurance Guaranty Association, 435 So.2d 410 (Fla. 5th DCA 1983); Cheek v. McGowan Electric Supply Co., 404 So.2d 834 (Fla. 1st DCA 1981); Sarasota-Manatee Airport Authority v. Alderman, 238 So.2d 678 (Fla. 2d DCA 1970).

In the present case, there is no question that appellants' claim for damages under section 718.506 is triable by jury, and that their constructive trust claim is generally triable by the court. Cf. K.M.A. Associates, Inc. v. Meros, 452 So.2d 580 (Fla. 2d DCA 1984) (trial court erred in severing legal malpractice claim from claim for constructive trust and setting the former claim for jury trial, with a bench trial for the latter claim to follow, where issues involved in both claims were so related that a jury trial should have been afforded on all issues). It is arguable, however, whether appellants' cause of...