United Yacht Brokers, Inc. v. Gillespie

• Decision Date: 06 December 1977
• Docket Number: Nos. 76-1445 and 76-1933,s. 76-1445 and 76-1933
• Citation: 353 So.2d 574
• Parties: UNITED YACHT BROKERS, INC., a Florida Corporation, Appellant, v. Betty J. GILLESPIE, Robert J. Mortimer and Seymour M. Klein, Personal Representatives of the Estate of Keith Wold Johnson, and Arthur Siewert and Edgar Anstett, Appellees.
• Court: Florida District Court of Appeals

Page 574

353 So.2d 574

UNITED YACHT BROKERS, INC., a Florida Corporation, Appellant, v. Betty J. GILLESPIE, Robert J. Mortimer and Seymour M. Klein, Personal Representatives of the Estate of Keith Wold Johnson, and Arthur Siewert and Edgar Anstett, Appellees.

Nos. 76-1445 and 76-1933.

District Court of Appeal of Florida, Fourth District.

Dec. 6, 1977.

Michael D. Stewart of Fleming, O'Bryan & Fleming, Fort Lauderdale, for appellant.

Gary B. Sack and Donald E. Van Koughnet of Retter & Sack, Miami, for appellees Gillespie, Mortimer and Klein.

Brian R. Hersh and Jeffrey A. Bernstein of Law Offices of Brian R. Hersh, Miami, for appellees Siewert and Anstett.

ALDERMAN, Chief Judge.

This appeal is brought by the plaintiff following orders dismissing with prejudice Count I of its second amended complaint for failure to state a cause of action, dismissing the action as to certain defendants, and entering final summary judgment in favor of the remaining defendants.

We conclude that the trial court initially and directly passed on the validity of a state statute, and that the Supreme Court of Florida has jurisdiction of this appeal pursuant to Article V, Section 3(b)(1), Florida Constitution. Both counts of the second amended complaint included or incorporated the following language:

. . . (T)he plaintiff alleges that § 537.05 is unique in the field of regulatory legislation controlling the conduct of brokers. That no other form of brokerage business is subjected to such a requirement or to the consequential deprivation of the right of compensation where said statute is not complied with. The statute is, therefore, unfairly discriminatory against yacht brokers and the plaintiff herein and is violative of Article II of the Florida Constitution and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

The trial judge did not specifically mention Section 537.05 nor its validity, "but this fact does not alter the effect of the decree as a negative disposition of all pertinent questions properly raised by appellant." Evans v. Carroll, 104 So.2d 375, 377 (Fla.1958). If Section 537.05 had been declared void by the trial court in concurrence with the plaintiff's pleadings, neither dismissal nor summary judgment would have been appropriate because the parties may then have had a valid contract. The statutory issue was a genuine and essential element in the litigation, a decision on the validity of the statute was necessary...