Sodikoff v. Allen Parker Co., 66--755

• Decision Date: 18 July 1967
• Docket Number: No. 66--755,66--755
• Citation: 202 So.2d 4
• Parties: Maurice SODIKOFF and Goldie Golob Sodikoff, his wife, d/b/a Superman's Super Motor Sales, Appellants, v. ALLEN PARKER COMPANY, a corporation, Appellee.
• Court: Florida District Court of Appeals

Page 4

202 So.2d 4

Maurice SODIKOFF and Goldie Golob Sodikoff, his wife, d/b/a Superman's Super Motor Sales, Appellants, v. ALLEN PARKER COMPANY, a corporation, Appellee.

No. 66--755.

District Court of Appeal of Florida, Third District.

July 18, 1967.

Rehearing Denied Sept. 8, 1967.

Fuller Warren and Verne L. Freeland, Miami, for appellants.

Dubbin, Schiff, Berkman & Dubbin, Miami, for appellee.

Before CHARLES CARROLL, C.J., and PEARSON and HENDRY, JJ.

PEARSON, Judge.

The appellants were the plaintiffs in the circuit court where they brought a suit in in equity for an accounting and other relief. The cause was assigned to the division of the Honorable Pat Cannon, who heard all motions and conducted all proceedings, through and including three days of trial. The chancellor, at the conclusion of the trial, directed respective counsel to file written closing arguments and submit copies of proposed final decrees. The chancellor died in office prior to the date scheduled for submission of the written closing arguments and proposed final decrees. The parties stipulated: 'That the Honorable Raymond G. Nathan, circuit judge and successor to the Honorable Pat Cannon, circuit judge, deceased, may continue to hear this case and enter a final decree on the basis of the record which was pending before Judge Cannon before his death.' The successor chancellor found: (1) that the three-year statute of limitation applied, and that plaintiffs did not bring their suit within three years after they discovered or could have discovered the alleged fraud; (2) that a general release which had been executed by appellants was a bar to the claim of appellants; (3) that inasmuch as the cause of action was predicated upon fraud, it was the burden of the appellants to prove their case by clear and convincing evidence, and that they had failed to do so. This appeal is from that decree.

The appellants present four points:

'I. Did the successor chancellor misapprehend the nature of the proceedings and governing principles and maxims of equity in entering a final judgment at law in an equity accounting action?

'II. Where affirmative defenses of bar and estoppel by statute of limitations, laches, and release, had been twice raised, heard and rejected by the chancellor who proceeded in the equity action through full trial on the merits and died in office before entering final decree, may his successor, upon the completed and unchanged record, overrule and reverse such rulings by applying such affirmative defenses in entry of final judgment dismissing the action?

'III. Did the successor chancellor misapprehend the evidence in denying recovery where the manifest weight of the evidence established a minimum indebtedness of defendant to plaintiffs in the sum of $100,000.00?

'IV. Do the facts and circumstances apparent (on) the face of the record on this appeal reflect a substantial departure from the essential requirements of law and a resulting injustice to the litigant plaintiffs?'

The gist of appellants' argument under their point I is that the chancellor must have misapprehended the nature of the proceedings because the decree appealed was erroneously labelled 'final judgment' and in the style of the cause preceding the final decree, the cause was erroneously styled 'at law'. In addition, it is alleged that the chancellor misconceived the nature of the proceedings when he applied a statute of limitation rather than the equitable doctrine of laches. We believe that an examination of the final decree ¹ effectively refutes appellants' inferences from the terminology employed. The decree is a well written and lengthy discussion of the case, containing the court's findings of fact and his conclusions therefrom. It evidences an earnest effort to comply with the difficult task which had been imposed upon the successor chancellor by the stipulation of the parties.

It has often been stated that there are no magic words in the practice of law under the Florida Rules of Civil Procedure. See Florida Civil Practice Before Trial, Pleadings § 12.16; Chasin v. Richey, Fla.1957, 91 So.2d 811. A pleading will be considered what it is in substance, even though mislabelled. Therefore, the use of the words 'final judgment' and 'at law' do not indicate a misapprehension by the chancellor of the principles of equity involved in his decision.

An action for accounting was formerly cognizable, both at law and in equity. Campbell v. Knight, 92 Fla. 246, 109 So. 577 (1926). The basis for the equity jurisdiction in accounting matters was the complexity of the issues and the fact that there were often numerous issues which made the use of a common law jury impracticable. See Jurisdictional Prerequisites for an Equitable Accounting, 6 U.Fla.Rev. 232. The statute of limitations is applicable to the individual allegations for an accounting. See Stringer v. Dortch, 136 Fla. 567, 188 So. 590 (1939); H.K.L. Realty Corporation v. Kirtley, Fla.1954, 74 So.2d 876; Wall v. Johnson, Fla.1955, 78 So.2d 371. It therefore was proper for the trial judge to use terminology relative to the statute and to test the appellants' cause of action by this standard.

Appellants' second point quoted above raises essentially the question of the power of a successor chancellor to decide the cause upon the basis of the defenses tendered. Appellants rely upon the rule stated in Groover v. Walker, Fla.1956, 88 So.2d 312. See also Lawyers Co-operative Pub. Co. v. Williams, 149 Fla. 390, 5 So.2d 871 (1942); and Olin's Inc. v. Rader, Fla.App.1964, 161 So.2d 711. The rule cited, which is to the effect that a successor judge may not review, modify or reverse upon the merits on the...