Poller v. First Virginia Mortg. and Real Estate Inv. Trust, 84-690
| Decision Date | 28 May 1985 |
| Docket Number | No. 84-690,84-690 |
| Citation | 10 Fla. L. Weekly 1324,471 So.2d 104 |
| Parties | 10 Fla. L. Weekly 1324 Lou POLLER, individually and as General Partner for Landmark Plaza Associates and Landmark Palace Associates, and Rose Poller, Appellants, v. FIRST VIRGINIA MORTGAGE AND REAL ESTATE INVESTMENT TRUST, a Virginia business trust, First Advisors, Inc., Arlington Mortgage Company, a Virginia corporation, First Virginia Bankshares Corporation, a Virginia corporation, First Virginia Corporation, a banking corporation, et al., Appellees. |
| Court | Florida District Court of Appeals |
Greenfield & Duval and Leo Greenfield, North Miami, for appellants.
Tolbert, Smith, Fitzgerald, Ramsey & Stackhouse and Henry St. John FitzGerald, Arlington, Va., Kenny, Nachwalter & Seymour, and Corlett, Killian, Hardeman, McIntosh & Levi and Donna G. Levi and Leanne J. Frank, Miami, for appellees.
Before HENDRY, DANIEL S. PEARSON and JORGENSON, JJ.
Plaintiff Lou Poller, individually and as General Partner for Landmark Plaza Associates and Landmark Palace Associates, and counterplaintiff Rose Poller appeal from a final judgment and two additional orders entered against them in a non-jury trial of their lawsuit seeking damages, an accounting, rescission and injunctive relief.
The first order appealed is an order granting defendant Nova Real Estate Investment Trust's, f/k/a First Virginia Mortgage and Real Estate Investment Trust ("Nova"), motions for judgment of involuntary dismissal of Mr. Poller's claims that a credit was due him because of a Nova settlement recovery and that Nova and other corporate defendants had no separate corporate existence other than to serve as alter egos of each other. The final judgment decreed that Mr. and Mrs. Poller take nothing and awarded Nova over eleven million dollars from the appellants, plus interest including certain attorney's fees. The final appealed ruling is an order denying Mr. and Mrs. Poller's motion for a rehearing and/or a new trial.
There are numerous issues raised on appeal by the appellants, but only one issue that we find merits discussion. This issue is whether Mrs. Poller waived her right to jury trial with respect to her counterclaim against Nova.
The facts giving rise to this issue are as follows. Mr. Poller sued a number of defendants relative to several loans made by Nova to Landmark Plaza Associates and Landmark Palace Associates. These loans were guaranteed by Mr. Poller and Rose Poller, his wife. First Advisors, Inc. ("Advisors") an associated company, was under contract to provide services to Nova. The trial court dismissed on jurisdictional grounds all of the defendants except for Nova and Advisors.
In response to Mr. Poller's amended complaint Nova filed an amended counterclaim and a complaint against Mrs. Poller on September 3, 1981. Thereafter, on October 6, 1981, a pleading titled "Answer of Lou Poller and Rose Poller to Amended Counterclaim, Affirmative Defenses, Counterclaim of Rose Poller and Complaint of Rose Poller Against All Defendants" was filed. In this pleading Mrs. Poller demanded a jury trial. Throughout the proceedings in the trial court, the Pollers were represented by the same attorney.
On November 6, 1981, Mr. and Mrs. Poller and Nova entered into a written stipulation for the trial court to set the "pre-trial conference and trial at the earliest practicable date, on all non-jury issues." The stipulation was presented to the trial court and a conference held on December 15, 1981. At that conference Mr. and Mrs. Poller's counsel stipulated that, "we would waive the jury trial on those ... [counts where a jury trial had been requested]." Nova also stipulated to a non-jury trial. The trial court then announced from the bench that a non-jury trial would be held on all counts. Subsequently, Mr. Poller moved to withdraw his stipulation regarding waiver of a jury trial on all counts and additionally raised Mrs. Poller's demand for a jury trial. Mr. and Mrs. Poller filed a pre-trial memorandum, dated March 29, 1982, listing Mrs. Poller's counterclaim as an issue to be tried. At the non-jury trial no separate evidence was presented in support of Mrs. Poller's counterclaim. The trial court entered final judgment against Mrs. Poller on her counterclaim.
On appeal Mr. and Mrs. Poller contend that when their counsel stipulated for a non-jury trial on all counts, he was stipulating on behalf of Mr. Poller only and...
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