Danluck v. Lotspeich Co., 75--1217

• Decision Date: 17 March 1976
• Docket Number: No. 75--1217,75--1217
• Parties: Thomas R. DANLUCK, Individually and for the Use and Benefit of Environments, Inc., Petitioner, v. LOTSPEICH COMPANY and J. W. Lotspeich, Respondents.
• Court: Florida District Court of Appeals

Page 32

334 So.2d 32

Thomas R. DANLUCK, Individually and for the Use and Benefit of Environments, Inc., Petitioner, v. LOTSPEICH COMPANY and J. W. Lotspeich, Respondents.

No. 75--1217.

District Court of Appeal of Florida, Third District.

March 17, 1976.

Rehearing Denied July 6, 1976.

McCormick, Bedford & Backmeyer, Miami, for petitioner.

Koeppel, Stark, Marks & Newmark, Miami, for respondents.

Before BARKDULL, C.J., and HENDRY and HAVERFIELD, JJ.

HENDRY, Judge.

Petitioner, plaintiff below, seeks review of an order of the trial court on pending motions.

In February, 1971, petitioner entered into a written employment contract with respondent Lotspeich Company which, along with J. W. Lotspeich, were defendants below. The term of this agreement was from June 1, 1971, to May 31, 1973. Subsequently, on August 14, 1973, a memorandum was signed by respondent J. W. Lotspeich providing for a salary, profit participation, and bonus compensation for petitioner.

Thereafter, a disagreement arose between the parties, and on February 14, 1975, petitioner filed an amended complaint against respondents seeking, Inter alia, money damages for breach of the employment contract dated August 14, 1973. Respondents answered and demanded a jury trial. Later, respondents retained new counsel who filed a motion to dismiss the amended complaint on the grounds that the trial court lacked both personal and subject matter jurisdiction and that the amended complaint failed to state a cause of action. This motion along with petitioner's motion to dismiss respondents' counterclaim and the prayer in petitioner's amended complaint to appoint an arbitrator were set for a hearing before the trial court. On July 10, 1975, the trial court entered an order on these pending motions and prayer. From the order, petitioner brings this petition for certiorari.

Petitioner contends that the trial court erred in entering the order which held, Inter alia, that the August 14, 1973, memorandum revised the June 1, 1971 to May 31, 1973, employment contract; that the arbitration provision of the earlier contract was binding on the parties; and which appointed an arbitrator to review the controversy and report his findings to the court. Petitioner argues (1) that the order constituted fact finding by the trial court thereby denying him his right to a trial by jury of the issues framed by the amended complaint, answer and exhibits thereto; (2) that the order requires petitioner to arbitrate his dispute with respondents thereby denying him his right to a jury trial on those issues raised by Count I of the amended complaint; and (3) that the trial court's order is self-contradictory thereby placing him in doubt of his rights and obligations under the order.

Respondents contend (1) that the trial court's preliminary construction...