Keyes Co. v. Sens

Decision Date15 April 1980
Docket NumberNo. 79-1058,79-1058
Citation382 So.2d 1273
PartiesThe KEYES COMPANY, a Florida Corporation, Sophy Farkas, Lori Rutkin and Frank Arata, Appellants, v. Gilbert SENS, Appellee.
CourtFlorida District Court of Appeals

Lapidus & Stettin and Richard L. Lapidus, Miami, for appellants.

Charles L. Neustein, Miami, for appellee.

Before HUBBART and NESBITT, JJ., and CHARLES A. CARROLL (Ret.), Associate Judge.

PER CURIAM.

This is an appeal by the defendants below from an adverse judgment entered on jury verdicts. The appellee Gilbert Sens filed an action against the appellants the Keyes Company (Keyes) and three of its employees, Sophy Farkas, Lori Rutkin and Frank Arata.

Summarized, the facts alleged were that Keyes agreed to act as plaintiff's broker-agent for the purchase by him of a certain property, as evidence by a written contract (copy of which was attached) in which the plaintiff agreed to pay, and Keyes agreed to accept from plaintiff a commission (in the form of a second mortgage) for so acting in said transaction, in an amount equal to 71/2% of the unpaid balance on the outstanding first mortgage on the property. Following certain negotiations the owner agreed to sell on terms more favorable to the plaintiff purchaser than those originally specified; that thereupon the plaintiff agreed to the purchase, and a written contract was prepared, which was to be signed by the parties the following day; that the next morning, at a divisional meeting of sales personnel, when defendants knew of the plaintiff's transaction, the defendant Arata who was presiding at the meeting informed the sales employees present as to the terms on which the property could be purchased; that two of said salespersons, Keyes' employees, the defendants Farkas and Rutkin, knowing of plaintiff's transaction, purchased the property, thereby preventing plaintiff from purchasing the same, which it was alleged had a value in excess of that for which he was to have purchased the property. Based thereon the complaint, in separate counts, charged the defendants with malicious interference with an advantageous business relationship, breach of fiduciary duty and unjust enrichment, and sought compensatory and punitive damages.

On trial of the case the jury was provided with separate verdict forms for use as to the four defendants, in event the jury should find in favor of the plaintiff and against the defendants. The jury returned four verdicts, against Keyes for $50,000 for compensatory damages, and against the individual defendants for varying amounts of punitive damages with no compensatory damages. The defendants objected to the verdicts. When the jury was polled the foreman announced, "Our thoughts were that that the company would pay the compensatory damages and the individuals would pay the punitive damages." The court then rejected the verdicts, and directed the jury to deliberate further with regard to the verdicts, and gave the jury the following instruction:

"In view of the fact that the foreman and the other members of the jury have said they did not understand my instructions, I am going to instruct you again.

"You cannot have punitive damages unless you have compensatory damages.

"The amounts, of course, are in your hands and no one else's hands, but the amount of compensatory can be any amount you want, but you cannot have punitive unless you have compensatory, nor can you have compensatory against one person and punitive against another person, because here again, it's the same thing. You can't have punitive unless you have compensatory.

"So, you can go back and decide exactly what you want to do, who, if anyone, you are going to assess for compensatory damages, who, if any you are going to assess with punitive. None for both, no punitive. I mean, on anybody else you have compensatory. Is that plain now?"

No objection was made on behalf of the defendants to the above instructions to the jury. After further deliberation the jury again returned four verdicts. The one against Keyes was for $25,000 compensatory damages and $25,000 punitive damages. The verdict against Farkas was for $5,000 compensatory damages and $5,000 punitive damages. The verdict against Rutkin was $5,000 compensatory damages and $5,000 punitive damages. The verdict against Arata was $10,000 compensatory damages and $10,000 punitive damages.

No objection to those verdicts was made on behalf of the defendants. The verdicts were published and the jury was discharged. After the jury had been discharged the defendants' counsel objected and moved for mistrial which was denied. Subsequently judgment was entered on the verdicts.

The verdicts and the judgment based thereon were contrary to law in two respects. It is the established rule that when defendants are jointly liable the verdict for the damages should run against all, 1 and under the law the jury was not permitted to apportion the compensatory damages among them. Jones v. Griffin, 103 Fla. 745, 138 So. 38 (1931); Davis v. First National Bank & Trust Co. in Orlando, 112 Fla. 485, 150 So. 633 (1933); Kellenberger v. Widner, 159 So.2d 267 (Fla. 2d DCA 1964); Licenberg v. Issen, 318 So.2d 386 (Fla.1975); Moore v. St. Cloud Utilities, 337 So.2d 982 (Fla. 4th DCA 1976). Fla.Std. Jury Instr. (Civ.) 9.11(b) is designed to so inform the jury. In this case that instruction was not requested, nor was it given by the court. See Miami Coca-Cola Bottling Co. v. Mahlo, 45 So.2d 119, 120-121 (Fla.1950).

Secondly, as to defendant Keyes whose liability for the acts of its employees was vicarious, based on respondeat superior, Keyes was not subject to a verdict or judgment for compensatory damages in excess of the amount of damages determined and found against its defendant-employees, the active tortfeasors. 2 Cf. Williams v. Hines, 80 Fla. 690, 86 So. 695 (1920); Colle v. Atlantic Coast Line Railroad Company, 153 Fla. 258, 14 So.2d 422 (1943); Hinton v. Iowa National Mutual Insurance Company, 317 So.2d 832 (Fla. 2d DCA 1975).

On this appeal from the judgment, the appellee-plaintiff argues that notwithstanding that the judgment may be legally defective in the above respects, it should be affirmed because defendants did not object to the instruction given to the jury prior to rendition of the final verdicts, and because of failure of defendants to object to said verdicts prior to the discharge of the jury, citing cases holding that errors in judgments predicated on verdicts that were incorrect in form, or which were inconsistent, are not preserved for review on appeal where such verdicts were not objected to prior to discharge of the jury. 3

We hold those arguments of the appellee are not controlling in this case. The defects of these verdicts were not merely as to form, or for inconsistency. The judgment was predicated on verdict awards that were contrary to law,...

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17 cases
  • Security Bank, N.A. v. BellSouth Advertising & Pub. Corp.
    • United States
    • Florida District Court of Appeals
    • July 24, 1996
    ...enforcement of such a judgment would constitute a taking of property from the defendant without due process of law. Keyes Co. v. Sens, 382 So.2d 1273, 1276 (Fla. 3d DCA 1980) (emphasis added; citations omitted); see Bowman, 432 So.2d at 663-64, citing Parker v. Dekle, 46 Fla. 452, 35 So. 4 ......
  • Marks v. Delcastillo
    • United States
    • Florida District Court of Appeals
    • August 5, 1980
    ...requires reversal notwithstanding the lack of appropriate objection at the trial. 17 As this court recently held in Keyes Co. v. Sens, 382 So.2d 1273, 1276 (Fla.3d DCA 1980): The rule that questions not presented to and ruled upon by the trial court are not reviewable on appeal is subject t......
  • Moorman v. American Safety Equipment
    • United States
    • Florida District Court of Appeals
    • January 29, 1992
    ...after the jury has departed. ASE contends that the exception is part of the fundamental error doctrine. See, e.g., Keyes Co. v. Sens, 382 So.2d 1273 (Fla. 3d DCA 1980) (failure to object to jury verdict assessing greater damages against principal than agent's conduct caused may be excused b......
  • Molina v. Watkins, No. 3D98-1747
    • United States
    • Florida District Court of Appeals
    • August 14, 2002
    ...liable for malpractice, where association's liability was only vicarious and jury found in favor of physician); Keyes Co. v. Sens, 382 So.2d 1273, 1275 (Fla. 3d DCA 1980) (holding that: "defendant ... whose liability for the acts of its employees was vicarious, based on respondeat superior ......
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1 books & journal articles
  • Pop quiz: why is fundamental error like pornography?
    • United States
    • Florida Bar Journal Vol. 76 No. 10, November - November 2002
    • November 1, 2002
    ...requires reversal notwithstanding the lack of appropriate objection at the trial." (50) Quoting its prior decision in Keyes Co. v. Sens, 382 So. 2d 1273, 1276 (Fla. 3d DCA 1980), the Third District The error of imposing on a defendant compensatory damages which are not authorized by law and......

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