Hightower v. Bigoney, 32209

Decision Date25 September 1963
Docket NumberNo. 32209,32209
Citation156 So.2d 501,17 A.L.R.3d 1308
PartiesC. E. HIGHTOWER, Appellant, v. William F. BIGONEY, Jr., Appellee.
CourtFlorida Supreme Court

McCune, Hiaasen, Crum & Ferris and Davis W. Duke, Jr., Fort Lauderdale, for appellant.

James E. Edwards, Fort Lauderdale, for appellee.

TERRELL, Justice.

William F. Bigoney, Jr., an architect, entered into a contract with the Hightowers wherein he agreed to furnish 'complete Architectural Services consisting of plans, specifications and supervision of construction, for the architectural work for a residence' to be located on certain real property owned by the Hightowers. The contract provided that Bigoney be paid specified percentages of the construction costs as compensation for his professional services. The total cost of the house was in excess of $200,000. As construction proceeded, disagreements arose over the design and other factors of the house in which the contractor, the architect and the Hightowers were involved. On or about July 1, 1959, pursuant to Chapter 84, Florida Statutes, F.S.A., Bigoney filed a claim of lien against the property, claiming that unpaid architectural fees in the amount of $14,393.44 were due him. Thereafter Bigoney instituted this suit in chancery to foreclose said architect's lien.

In their answer to the complaint the Hightowers challenged the validity of Bigoney's architect's lien and asserted that the bulk of the sum claimed by him was based on padded, fictitious or unsupportable items. In addition to their answer, the Hightowers filed a compulsory counterclaim for damages allegedly caused by Bigoney's careless and negligent performance of his contract for architectural services. The compulsory counterclaim included a request for trial by jury of the issues presented by said counterclaim. On motion, the trial judge struck the request for a jury trial and the Hightowers appealed that order to the district court of appeal.

The primary question presented to the district court of appeal was whether or not one may be denied a jury trial of legal issues and claims raised by a compulsory counterclaim filed in response to an equity suit notwithstanding Section 3, Declaration of Rights, Constitution of Florida, F.S.A., the request for jury trial having been seasonably made.

Before the district court of appeal, Hightower urged 'that the denial of a jury trial on his counterclaim, which was a compulsory pleading, is error in view of Section 3 of the Declaration of Rights of the Florida Constitution, F.S.A. and Rules 1.13(1) and 2.1 of the 1954 Florida Rules of Civil Procedures, 30 & 31 F.S.A.'

F.R.C.P. Rule 1.13(1), 30 F.S.A., provides:

'Compulsory Counterclaim. The defendant, at the time of the filing of his answer, shall state as a counterclaim, any claim, whether the subject of a pending action or not, which he has against the plaintiff, arising out of the transaction or occurrence that is the subject matter of the action and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.'

It should be noted that failure to file a compulsory counterclaim, such as was involved in the instant case, would have foreclosed any right of action the Hightowers may have had because of such a claim. See Pesce v. Linaido, Fla.App.1960, 123 So.2d 747.

Upon consideration of the case, the district court of appeal affirmed the chancellor's decision denying the Hightowers' right to a jury trial on the issues presented by their counterclaim. (145 So.2d 505.) The district court's opinion emphasized that Bigoney's original suit sought enforcement of a statutory lien unknown at common law; that the determination of the issues raised in the complaint and the counterclaim 'undoubtedly necessitates extensive accountings and the consideration of numerous change orders * * *' and that 'the pleadings comprehend some issues that are equitable and others that are legal in character; but these issues are very closely interwoven.'

Answering the request for jury trial as provided by Section 3, Declaration of Rights, the court said:

'Does the defendant have the absolute right to a jury trial of the legal issues raised by his compulsory counterclaim to the plaintiff's original complaint in equity? The question is answered in the negative. It is our opinion that, notwithstanding the compulsory pleading rule, a counterclaimant's demand for a jury trial in an equity suit rests within the reviewable discretion of the chancellor. The request may be granted or denied according to the circumstances. If the issues are interdependent and not clearly separable, and equity jurisdiction has been properly invoked, the chancellor may adjudicate all interposed claims, permissive, compulsory, equitable and legal, and grant full and complete relief as among all the parties. Such is the situation here, and we think the chancellor acted discreetly and correctly in deciding to adjudicate in equity all the pleaded claims, including the counterclaim that otherwise would be peculiarly cognizable at law. Cf. 12 Fla. Jur., Equity, §§ 43 and 44; Cone v. Cone, Fla.1953, 62 So.2d 907, 908; Coleman v. Davis, Fla.App.1958, 106 So.2d 81. This broad exercise of equity jurisdiction does not, in the juridical sense, constitute a deprivation of the right to a jury trial.'

The Hightowers, being dissatisfied with the district court's disposition of their appeal, seek review of said decision by the dual means of certiorari alleging direct conflict and by appeal on the theory that the district court of appeal initially construed a controlling provision of the Constitution of Florida, to wit, Section 3, Declaration of Rights, guaranteeing the right to trial by jury.

The appeal and the appeal by certiorari were consolidated for consideration and disposition.

The gist of the court's answer to the request for jury trial is a positive no, that notwithstanding the compulsory pleading rule, a counterclaimant's demand for jury trial in an equity suit rests within the reviewable discretion of the chancellor and may be granted or denied according to the circumstances. The answer then states some qualifications to the chancellor's discretion and concludes with this sweeping statement: 'This broad exercise of equity jurisdiction does not, in the juridical sense, constitute a deprivation of the right to jury trial.'

We realize that the language of some of the decisions when read in isolation may lead to the district court's answer but it is not supported by the cases we rely on and will presently discuss. We do not think it is the law. It is settled that one may by affirmative plea or by silence waive his right to a jury trial but when a litigant timely appears, as he did in this case, and enters a plea for it or claims it in proper manner, that claim and not the chancellor's discretion is the final word and it is the duty of the court to make provision for it because Section 3, Declaration of Rights, guarantees it.

The district court construed Section 3, Declaration of Rights, Constitution of Florida, guaranteeing jury trial. One cannot read the opinion and the record and not be driven to the conclusion that it was construing the applicable provision of the constitution initially. The district court of appeal was authorized to do this. Art. V, Sec. 4(2), Constitution of Florida; In re Kionka's Estate, Fla.1960, 121 So.2d 644. So we must have jurisdiction of the appeal.

So much in support of jurisdiction; now let us consider briefly the status of the historical aspect of the concept of trial by jury.

In Wiggins v. Williams, 36 Fla. 637, 18 So. 859, 30 L.R.A. 754 (1895), this court had occasion to consider problems related in principle to those involved in the instant case. The Wiggins case involved a complaint in equity by the owner of certain turpentine producing lands seeking an injunction and accounting for turpentine unlawfully taken. An injunction was granted and the chancellor held the complainant was entitled to recover damages from defendants for removal of the turpentine crop. In its opinion the Supreme Court made the following pertinent pronouncement:

'* * * The third section of the bill of rights does not grant the right of trial by jury, but secures or guaranties such right existing at the time of the adoption of the constitution. We said in Buckman v. State [ex rel. Spencer], 34 Fla. 48, 15 South. 697 , that 'when the right of trial by jury is secured by constitutional provision in general terms like ours, and without any qualification or restriction, it must be understood as retained in all those cases that were triable by jury according to the course of the common law. The provision in the first constitution, framed in 1838, that the right of trial by jury shall forever remain inviolate, contemplated, without doubt, a continuation of jury trials in all cases where such was the practice at the common law, and there is nothing in the subsequent constitutions to indicate a change in meaning in this respect.' * * *

'Courts of chancery were not, strictly speaking, courts of common law, their jurisdiction and practice being derived principally from the civil law, where no jury was employed; hence the guaranty of a trial by jury has no reference to such courts in their sphere of equity jurisdiction, nor does it extend to all cases at law; as it is perfectly clear that there were many proceedings in common-law courts in which juries were not used. * * * A principle has been established in the jurisprudence of this country that new rights unknown to the common-law procedure of trial by jury may be created, and provision made for their determination in the absence of a jury, without violating the constitutional provision we are considering. But, while it may be competent for the legislature to create new tribunals without common-law powers to adjudicate new rights without a jury, the mere change in form of an action will...

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39 cases
  • David Steed and Associates, Inc. v. Young
    • United States
    • Idaho Supreme Court
    • September 6, 1988
    ...Corp. v. Strasser, 99 N.M. 788, 664 P.2d 986 (1983); Sanguinetti v. Strecker, 94 Nev. 200, 577 P.2d 404 (1978); Hightower v. Bigoney, 156 So.2d 501, 17 A.L.R.3d 1308 (Fla.1963). While stressing the right to a jury trial on legal issues, the Court explained in Beacon Theatres, The basis of i......
  • Tollius v. Dutch Inns of America, Inc.
    • United States
    • Florida District Court of Appeals
    • November 17, 1970
    ...A legal counterclaim in equity does not deprive the party asserting the legal claim of the right to a jury trial. Hightower v. Bigoney, Fla., 156 So.2d 501, 17 A.L.R.3d 1308, quashing Fla.App.1962, 145 So.2d 505; Declaration of Rights, § 22, Fla.F.S.A.Const.1885; Ch. 82, Fla.Stat.1967, F.S.......
  • Norris v. Paps
    • United States
    • Florida District Court of Appeals
    • February 19, 1993
    ...entitled to a jury trial, however, on issues raised in a compulsory counterclaim that are common to the equitable claim. Hightower v. Bigoney, 156 So.2d 501 (Fla.1963); Dykes; Spring. By severing the counterclaim in this case, the court either determined the factual issues of fraud without ......
  • Harada v. Burns
    • United States
    • Hawaii Supreme Court
    • September 26, 1968
    ...Some state courts have also held that the right to a jury trial extends to the compulsory counterclaimant. Hightower v. Bigoney, 156 So.2d 501, 17 A.L.R.3d 1308 (Fla.Sup.Ct.1963). Recent federal litigation arose because of the practice of trying without a jury issues common to both an equit......
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2 books & journal articles
  • Chapter 13-2 Setting Trials
    • United States
    • Full Court Press Florida Foreclosure Law 2020 Title Chapter 13 Foreclosure Trials and Evidence
    • Invalid date
    ...Norris v. Paps, 615 So. 2d 735, 737 (Fla. 2d DCA 1993).[5] Norris v.Paps, 615 So. 2d 735, 737 (Fla. 2d DCA 1993); Hightower v. Bigoney, 156 So. 2d 501 (Fla. 1963) ("[W]e hold that the filing of a compulsory counterclaim for relief cognizable at law in an action for equitable relief does not......
  • Chapter 13-2 Setting Trials
    • United States
    • Full Court Press Florida Foreclosure Law 2022 Chapter 13 Foreclosure Trials and Evidence
    • Invalid date
    ...are to be tried without a jury).[4] Norris v. Paps, 615 So. 2d 735, 737 (Fla. 2d DCA 1993).[5] Id.; See also Hightower v. Bigoney, 156 So. 2d 501 (Fla. 1963) ("[W]e hold that the filing of a compulsory counterclaim for relief cognizable at law in an action for equitable relief does not cons......

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