Jerome v. William A. Reid Const. Ltd.

• Decision Date: 10 January 1975
• Docket Number: Nos. 74--4 and 74--262,s. 74--4 and 74--262
• Citation: Jerome v. William A. Reid Const. Ltd., 307 So.2d 248 (Fla. App. 1975)
• Parties: Virginia JEROME, Appellant, v. WILLIAM A. REID CONSTRUCTION LIMITED, a company incorporated under the laws of the Province of Ontario, Canada, et al., Appellees. Virginia JEROME, Appellant, v. WILLIAM A. REID CONSTRUCTION LIMITED, etc., et al., Appellees.
• Court: Florida District Court of Appeals

Page 248

307 So.2d 248

Virginia JEROME, Appellant, v. WILLIAM A. REID CONSTRUCTION LIMITED, a company incorporated under the laws of the Province of Ontario, Canada, et al., Appellees.

Virginia JEROME, Appellant, v. WILLIAM A. REID CONSTRUCTION LIMITED, etc., et al., Appellees.

Nos. 74--4 and 74--262.

District Court of Appeal of Florida, Fourth District.

Jan. 10, 1975.

Rehearing Denied Feb. 5, 1975.

Maurice Rosen, Samuel Morris & George J. Blutstein, North Miami Beach, for appellant.

Fred J. Ward, Crouch, Ward & Africano, Hallandale, for all appellees except Reid.

WALDEN, Judge.

Plaintiff sued defendants for money damages. Her complaint was in two counts. At the end of the Complaint, that being at the conclusion of Count II, there were these final words, 'and demands Trial by Jury.'

The trial court refused jury trial to plaintiff on Count I and tried the cause non-jury with the result being the dismissal of Count I on the basis that plaintiff had failed to sustain the material allegations of her complaint.

Although the right to a jury trial on Count II was recognized, the issues did not reach that stage as the trial court earlier entered summary judgment in favor of defendants on Count II on the basis of the findings and the prior decision by the court as to Count I. Plaintiff appeals, presenting two points:

I. The court should have permitted trial by jury as to all counts when the complaint asked for trial by jury, the parties had previously stipulated to trial by jury, and no prejudice would have resulted by having a trial by jury.

II. The plaintiff set forth a prima facie case so as to create a factual question as to her earning of a commission and the dismissal of Count I and summary judgment as to Count II should not have been entered.

We reverse with directions to accord plaintiff a jury trial as to both counts.

The record reflects that court and counsel in the first instance recognized that plaintiff was entitled to a jury trial across-the-board as the court did, in fact, set the cause for trial by jury on both counts, stating that the 'cause is at issue.' The jury trial was continued by stipulation, Thereafter plaintiff made a special motion for jury trial, stating that the demand in the original complaint was intended to apply to both counts. The court denied the motion and ordered that only Count II was entitled to a trial by jury.

Although the issue is close, we are of the opinion that the trial court decision to limit the demand for jury trial to only County II was error. A reading of F.R.C.P. 1.430(c) ¹ reflects that unless specified to the contrary a demand for jury trial shall be deemed a demand for jury trial on All issues. Plaintiff's demand was not specifically limited; See 20 Fla.Jur. Jury § 26 (1958).

It would have been preferable to place the demand separately and include it in each count. However, we feel that the demand was sufficient and its adequacy was not destroyed by the plaintiff's subsequent effort to make it classically clear by including the words 'and demands a Jury Trial' at the end of both of the counts.

Expositive of this state's views as to the right to jury trial is the comment found in Wertman v. Tipping, 166 So.2d 666 (1st D.C.A.Fla.1964):

'The right to a trial by jury is a deeply cherished and jealously guarded fundamental precept. It will not be taken away when injustice would be the result. However, our rules do require of a litigant to have this right that he make a simple unsophisticated, short written demand for it either in his pleading, or separately, within ten days after service of the last pleading. If he doesn't ask for it by then, the court and his opponent may deem it waived and arrange their affairs accordingly. When this almost effortless prerequisite is not met, the tardy litigant must demonstrate that the award of a jury trial will not only be an accommodation of his desires but also will impose no injustice on his adversary and further will not unreasonably inconvenience the court in the performance of its duties.' Id. 166 So.2d at 667--668.

Here, as stated, the plaintiff's demand was sufficient and was initially so considered by all concerned. Further, the award of a jury trial will obviously accommodate her desires, will impose no injustice on the defendants, and will not unreasonably inconvenience the court.

And now as to Count II and its disposition via summary judgment. Since it was builded and bottomed upon the flawed and illegal procedures which produced the dismissal as to Count I, the disposition as to Count II must necessarily fall. Elminating from purview the Count I decision, we see that there are disputed issues of material fact which preclude summary judgment. There was ample evidence to show that the parties were clearly aware that the plaintiff was the one who brought the parties together initially, and that subsequent thereto, being aware of this fact, the parties proceeded to negotiate with each other directly thereby carrying on continuous negotiations between themselves without the knowledge or consent of the broker, a fair inference to be drawn being that this was done in order to avoid paying a commission to the broker. These issues should be decided at jury trial.

We reverse and remand for further proceedings consistent herewith.

Reversed and remanded.

OWEN, C.J., concurs.

CROSS, J., dissents with opinion.

CROSS, Judge (dissenting):

I respectfully dissent.

In February 1971 it became known to the appellant-plaintiff, Virginia Jerome, a licensed real estate broker, that a certain plot of improved property in Broward County, Florida which included thereon the Sea Banks Motel, was available for sale. Shortly thereafter William A. Reid, a Canadian builder and the president of appellee-defendant, William A. Reid Construction Limited, contacted the appellant and expressed a desire to look at improved property in Broward County which might be purchased for investment purposes. Appellant telephoned John C. Rizzo, the manager of the Sea Banks Motel, to inquire as to the terms of sale on the Sea Banks property and to seek permission to show the property to Reid. It was agreed that the appellant could show the property to Reid. A general information sheet containing the terms of sale was sent to the appellant. The appellant then showed Reid the Sea Banks property and several other plots of improved property.

After viewing the Sea Banks property, Reid contacted John C. Rizzo to inquire further about said property. Rizzo informed Reid that the property was part of the estate of Samuel Rizzo and that all offers for purchase should be made directly to the estate's attorney, Neil R. Farmelo. Several months later, in June 1971, Reid contacted Farmelo and made an offer to purchase the Sea Banks property. On November 15, 1971 the Sea Banks property was sold by the estate to William A. Reid Construction Limited.

The appellant filed a complaint alleging that she was entitled to a $40,500 brokerage commission from the sale of the Sea Banks property. The complaint was framed in two counts. Count one alleged that the appellant was entitled to a broker's commission from appellee-defendant, the Rizzo Estate, because she was the 'procuring cause' of the Sea Banks sale. Count two alleged that the appellant was entitled to damages from William A. Reid Construction Limited and the Rizzo Estate, because William A. Reid, as president of William A. Reid Construction Limited, conspired with the estate through the estate's attorney and executors to deprive appellant of her commission on the Sea Banks transaction. Appellant requested a jury trial as to count two. Trial was held before the court as to count one of the complaint. At the close of all the evidence, the trial court found that appellant had failed to sustain material allegations of count one of the complaint and entered an order dismissing said count. This order was the subject of appellant's first appeal. The appellees then moved for a summary judgment as to count two of the complaint. After a hearing on this matter, the trial court granted a motion for summary judgment as to count two. A final judgment in favor of the appellees was entered by the trial court. It is from this final judgment that appellant takes a second appeal. We consolidated the two appeals.

The initial point for our determination is whether the trial court erred in not permitting trial by jury as to both counts in the complaint.

Rule 1.430, RCP (1973), Demand For Jury Trial--Waiver, provides:

'(b) Demand. Any party may demand a trial by jury of any issue triable of right by a jury by serving upon the other party a demand therefor in writing at any time after commencement of the action and not later than ten days after the service of the last pleading directed to such issue. The demand may be endorsed upon the pleading of the party.

'(c) Specification of Issues. In his demand a party may specify the issues which he wishes so tried; otherwise, he is deemed to demand trial by jury for all issues so triable. If he has demanded trial by jury for only some of the issues, any other party may serve a demand for trial by jury of any other or all of the issues triable by jury ten days after service of the demand or such lesser time as the court may order.

'(d) Waiver. A party who fails to serve a demand as required by this rule waives trial by jury. If waived, a jury trial may not be granted without the consent of the parties but the court may allow an amendment in the proceedings to demand a trial by jury or order a trial by jury on its own motion. A demand for trial by jury may not be withdrawn without the consent of the parties.'

The Florida Rules of Civil Procedure...