Dauer v. Freed
| Citation | 444 So.2d 1012 |
| Decision Date | 17 January 1984 |
| Docket Number | 82-2091 and 82-2305,Nos. 82-2090,s. 82-2090 |
| Parties | Maxwell DAUER and Reva B. Dauer, Appellants, v. Leonard FREED, Appellee. Leonard FREED, Appellant, v. Roger DAUER and Edward Dauer, Appellees. |
| Court | Court of Appeal of Florida (US) |
Holland & Knight and Julian Clarkson, Tallahassee, Greenberg, Traurig, Askew, Hoffman, Lipoff, Quentel & Wolff and Albert G. Caruana, Greene & Cooper and Robyn Greene, Miami, for the Dauers.
Bailey & Dawes and Sara Soto, Daniels & Hicks and Sam Daniels, Miami, Sibley, Giblin, Levenson & Glaser, Miami Beach, for Freed.
Before HUBBART, DANIEL S. PEARSON and JORGENSON, JJ.
ON MOTIONS TO DISMISS
Case Nos. 82-2090 and 82-2091, consolidated here, are appeals from two interlocutory orders entered by the trial court after a four-and-one-half month bifurcated jury trial on the liability issues only in a multi-faceted action arising from a business dispute between the parties. Freed, the plaintiff/appellee, has moved to dismiss these appeals on the ground that this court has no jurisdiction to review these interlocutory orders under Article V, Section 4(b)(1) of the Florida Constitution and Florida Rule of Appellate Procedure 9.130(a). We agree with Freed's contention and dismiss these appeals on the ground urged by him.
Case No. 82-2305 is an appeal and cross-appeal from a judgment entered in this same cause, after a non-jury trial, in favor of two defendants on all claims brought against them. Freed, in this case the plaintiff/appellant, has moved to dismiss the defendants' cross-appeal on the ground that they are not aggrieved by this judgment. We agree as to the defendants Maxwell Dauer, Reva B. Dauer and the corporate defendants herein and dismiss the cross-appeal taken by these defendants; we disagree as to the defendants Edward Dauer and Roger Dauer and deny the motion to dismiss the cross-appeal as to these defendants.
The relevant facts are undisputed. On November 21, 1978, the plaintiff Leonard Freed filed an amended complaint below against the defendants Maxwell Dauer, Reva B. Dauer, Edward Dauer, Roger Dauer and three corporate entities. The complaint pled causes of action sounding in breach of contract, fraud, breach of fiduciary duty, civil conspiracy, constructive trust and unjust enrichment. The defendants filed answers denying liability and setting up certain affirmative defenses. Because of the extreme complexity of the factual issues in this case, the trial court entered an order bifurcating the liability issues in the case for a separate trial, with the damage issues reserved for a second trial if necessary.
In February 1982, after a prior abortive mistrial, the case proceeded to jury trial on the liability issues of all claims, except for the equitable claims of constructive trust and unjust enrichment, which were tried simultaneously (as to liability) to the court. At the close of all the evidence after four and one-half months of testimony, the trial court submitted to the jury the liability issues on the claims of breach of contract, fraud, and breach of fiduciary duty against the defendant Maxwell Dauer and the liability issues on the claim of civil conspiracy against the defendants Maxwell Dauer and Reva B. Dauer. The trial court directed a verdict in favor of the defendants Roger Dauer and Edward Dauer on the civil conspiracy claim; all other legal claims were apparently dismissed against the defendants Roger Dauer and Edward Dauer, as such claims were not submitted to the jury. On June 21, 1982, the jury returned an extensive special interrogatory verdict finding for the plaintiff Freed on the liability issues as to all claims submitted to it. The equitable claims of constructive trust and unjust enrichment against all defendants, as to liability, were apparently taken under advisement by the trial court at the close of all the evidence.
On June 29, 1982, the defendants Maxwell Dauer and Reva B. Dauer filed a motion to vacate the jury verdicts and to enter judgment for the defendants in accord with their prior motions for directed verdict or, in the alternative, to order a new trial. On July 1, 1982, all defendants in the cause filed a motion to enter a final judgment in favor of all defendants or, in the alternative, a final order of involuntary dismissal with respect to the equitable claims of constructive trust and unjust enrichment. On September 7, 1982, the trial court, after a full hearing, entered an order which (1) denied the defense motion to vacate the jury verdicts and to enter a judgment for the defendants in accord with the prior defense motions for directed verdict or, in the alternative, to order a new trial; (2) granted the motion for final judgment in favor of the defendants Edward Dauer and Roger Dauer as to the equitable claims of constructive trust and unjust enrichment; (3) granted the motion for final judgment or involuntary dismissal on the unjust enrichment claim and denied the same motion on the constructive trust claim, as to the remaining defendants. On September 22, 1982, the trial court entered a final judgment in the cause in favor of the defendants Edward Dauer and Roger Dauer on all claims in the lawsuit, legal and equitable, in accord with the above order and the court's prior order directing a verdict at trial for these defendants.
On September 17, 1982, the defendants Maxwell Dauer and Reva B. Dauer filed a motion requesting the trial court to enter an order determining liability in accord with the prior special interrogatory jury verdict for the stated purpose of allowing the defendants Maxwell Dauer and Reva B. Dauer to take an interlocutory appeal to this court from a non-final order which "determines the issue of liability in favor of a party seeking affirmative relief" under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv). On September 29, 1982, the trial court, after a full hearing, entered an order which, in effect, grants the above defense motion and states as follows:
The defendants Maxwell Dauer and Reva B. Dauer filed timely notices of appeal below seeking review of the September 7, 1982 (DCA Case No. 82-2090) and September 29, 1982 (DCA Case No. 82-2091) non-final orders. The plaintiff Leonard Freed filed a timely notice of appeal below seeking review of the September 22, 1983, final judgment in favor of the defendants Edward Dauer and Roger Dauer (DCA Case No. 82-2305). All defendants in this cause including the corporate defendants, filed a notice of cross-appeal seeking review of the same final judgment.
We turn first to a consideration of the motion to dismiss the appeal taken by the defendants Maxwell Dauer and Reva B. Dauer in Case No. 82-2090 from the interlocutory order of the trial court denying defense motions for a directed verdict or new trial (the September 7, 1982, order). It is apodictic that such order does not determine the issue of liability in favor of Freed (the party seeking affirmative relief) and is not appealable under Florida Rule of Appellate Procedure 9.130(a). Cf. Seigle v. Barry, 422 So.2d 63 (Fla. 4th DCA 1982) (); Lliteras v. Lliteras, 413 So.2d 859 (Fla. 4th DCA 1982) (same); Habelow v. Travelers Insurance Co., 389 So.2d 218 (Fla. 5th DCA 1980) (same); Peavy v. Parrish, 385 So.2d 1034 (Fla. 4th DCA 1980) (same); Vanco Construction, Inc. v. Nucor Corporation, 378 So.2d 116 (Fla. 5th DCA 1980) (); State Farm Mutual Automobile Insurance Company v. Morris, 370 So.2d 828 (Fla. 1st DCA 1979) (same).
We next consider Freed's motion to dismiss the appeal taken by the defendants Maxwell Dauer and Reva B. Dauer in Case No. 82-2091 from the interlocutory order of the trial court determining liability in accord with the prior jury verdict (the September 29, 1982, order). The order in question, although purporting to be an order determining liability in favor of the party seeking affirmative relief is, in fact, even as the order of September 7, 1982, nothing more than an order which, in another form, again denies the defendants' motion for new trial and motion to enter judgment for the defendant in accordance with a prior motion for a directed verdict. Orders which deny a defendant's motion for new trial and motion for judgment notwithstanding the verdict, which, as we have said, are not appealable, are not made appealable simply because the trial court, as here, explicitly adopts and lets stand the jury verdict, 1 a ruling which is always and necessarily implicit in the very denial of the motions. Thus, since an adverse jury verdict is itself not appealable, Ballard v. Hopkins, 142 So.2d 738 (Fla. 2d DCA 1962), the right to appeal an order the effect of which is to leave the verdict undisturbed must await the entry of a final judgment entered pursuant to the verdict.
Finally, turning to Case No. 82-2305, we consider Freed's motion to dismiss the cross-appeal taken by all defendants from the final judgment entered in favor of the defendants Edward Dauer and Roger Dauer on all claims filed against said defendants. We have no difficulty in concluding that a...
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