Ward v. Forde

• Decision Date: 25 April 1944
• Citation: 154 Fla. 383,17 So.2d 691
• Parties: WARD et al. v. FORDE et al.
• Court: Florida Supreme Court

17 So.2d 691

154 Fla. 383

WARD et al. v. FORDE et al.

Florida Supreme Court

April 25, 1944

Rehearing Denied May 17, 1944.

Appeal from Circuit Court, Dade County; George E. Holt judge.

Ward &amp Ward and Worley, Gautier & Cannon, all of Miami, for appellants.

J. H Mercer and L. J. Cushman, both of Miami, for appellees.

CHAPMAN, Justice.

The City of Miami Beach, during the latter part of 1930, adopted Zoning Ordinance No. 289 pursuant to the several provisions of Chapter 9837, Special Laws of Florida, Acts of 1923. The ordinance affected Block 1 (and other lands) situated in Second Ocean Subdivision of Miami Beach. Block 1 has a 1500 foot frontage lying between the Atlantic Ocean and Collins Avenue with an average depth, when originally platted, of approximately 240 feet, but erosion, ocean currents, hurricanes and other elements materially reduced over the years the depth of the ocean strip. The terms and conditions of the Zoning Ordinance restricted the uses of Block 1, supra, to single family estates.

Prior to June 22 1938, Thomas H. Forde and wife, Aimee B. Forde, owned by the entireties, Lots 40, 41, and 42 of Block 1 of Second Ocean Subdivision (being a part of the aforesaid 1500 feet frontage) and concluded that the Zoning Ordinance as applied to their property was unreasonable, arbitrary, confiscatory and unconstitutional; that no demand existed for private estate uses; the annual assessment of taxes was based upon a high valuation and the cost of carrying the property was prohibitive; the restriction imposed by the terms of the ordinance placed on the property an unpredictable future; that the money placed in the lots by them would be a total loss because of the limited restrictive uses of the property, but if the restrictions of the Zoning Ordinance were altered or changed from single family estate uses so as to permit the construction thereon of multiple family dwellings or hotels, then their original investment in the purchase price of the lots, supra, would not only be a sound but a profitable investment.

Thomas H. Forde, early in 1938, contacted and engaged the professional services of the legal firm of Stapp, Gourley, Ward & Ward, of Miami, Florida, for the purpose of obtaining a court decree cancelling of record and removing the objectionable restrictions imposed by the Zoning Ordinance to the lands, supra, owned by the entireties on the part of Thomas H. Forde and wife, Aimee B. Forde. The terms and conditions of employment of the firm by the Fordes, as well as the handling of the litigation, were had through attorney W. G. Ward. He conducted on behalf of his firm not only the litigation in the lower court, but prepared the record, perfected the appeal, filed briefs and orally argued at the bar of this court the cause on appeal.

On April 23, 1938, W. G. Ward, in behalf of his firm, outlined in a letter addressed to Dr. T. H. Forde the terms and conditions under which this firm would accept employment and undertake the responsibility of obtaining a court decree cancelling and removing the restrictions to the Forde lots, supra, imposed by the ordinance. Pertinent parts of the letter was viz.:

'There are two ways in which fees could be computed. If you are planning on selling this property immediately then we could consider a reasonable retainer and a contingent fee of a certain percentage of the difference between what the lots would be worth unencumbered as against what they are worth now with the zoning ordinances against them. Since, however, you are planning to use the property yourself that could not be definitely determined. We have never undertaken one of these cases under $2500.00 guaranteed fee. In some instances they have run higher than that amount. However, in those cases there were numerous defendants involved and in this particular case only the City of Miami would be defendant. Under the conditions above set forth we would be willing to undertake this litigation on the following basis: for the lower court litigation a fee of $1,000.00 to be paid $500.00 retainer, $250.00 when the master's report is filed at the close of taking testimony, and $250.00 upon the entry of the final decree. Regardless of whether you win or lose the case in the lower court this case would no doubt be appealed and if it is our fee would be $500.00 for representation in the Supreme Court, plus traveling expenses in the approximate amount of $65.00 in the event the Supreme Court granted oral argument.

'The above mentioned fee would be solely for our services and in addition thereto you would have to take care of the court costs, sheriff's fees for services, special master's fee for taking the testimony and a court reporter's services in making up the record and attending the hearings and taking the testimony. * * *

'* * * We would naturally expect your assistance on the testimony in view of your familiarity with the section involved.' (Emphasis supplied.)

The terms of employment expressed in the letter, supra, were acceptable to and approved by Dr. T. H. Forde, and, pursuant thereto, suit was instituted by the aforesaid firm in behalf of Thomas H. Forde and wife, Aimee B. Forde, against the City of Miami Beach in the Circuit Court of Dade County, Florida. The suit was in Chancery and sought a final decree which would remove and cancel of record the restrictive uses imposed by the terms of the Ordinance against Lots 40, 41 and 42 of Block 1 of Second Ocean Subdivision owned by Thomas H. Forde and wife, Aimee B. Forde, by the entireties. The Chancellor below, on August 30, 1938, heard a petition and entered an order permitting and allowing intervention in the cause by other parties owning lands located within the zoning area. Thus the order not only increased the number of parties to the suit, but Lots 23, 24, 25, 26, 27, 28, 29, 33, 34, 38, 39, and the South 25 feet of Lot 35 in Block 1 and many other lots situated in Blocks 3 and 7, similarly affected by the restrictions of the Zoning Ordinance and situated in the same subdivision, were not considered or contemplated by the Fordes or their counsel when the letter of April 23rd was written, received and acted upon.

The issues having been made by the pleadings, the cause was then referred by the Chancellor below to a Special Master, who held approximately thirty hearings, and each thereof was attended by Thomas M. Forde and wife, Aimee B. Forde. Numerous witnesses in behalf of the plaintiffs, defendants and intervenors appeared, testified and were examined and cross examined by counsel engaged in the trial of the cause. A large number of exhibits consisting of deeds, ordinances, sketches, drawings, blue prints, photographs, etc., were adduced before the Special Master as evidence for the respective parties. The record certified to this court consists of 1,071 pages and is reported under the name of Forde et al. v. City of Miami Beach, 146 Fla. 676, 1 So.2d 642.

The cause was submitted to the Chancellor for final hearing on (1) the bill of complaint; (2) bill of intervention of the several intervenors; (3) answer of the defendant to the bill of complaint; (4) answer of the defendant to the bill of intervention; (5) the report of the Special Master; (6) exceptions filed to the Master's report; (7) exceptions filed by the intervenors to the Master's report; (8) the testimony; and (9) the argument of counsel for all interested parties; and on September 27, 1939, a final decree was entered finding the equities of the bill of complaint against the Fordes and in behalf of the City of Miami Beach, and plaintiffs' bill of complaint on the aforesaid hearing was dismissed. On March 25, 1940, an appeal was taken by Thomas H. Forde and wife, Aimee B. Forde, from the final decree to the Supreme Court of Florida.

Domestic trouble developed between Thomas H. Forde and wife, Aimee B. Forde, resulting in a divorce on December 9, 1941. The title to the property here involved passed to Aimee B. Forde under the terms of the divorce decree. A receiver had been previously appointed and was in possession of the property and neither of the Fordes assisted counsel in financing the appeal to the Florida Supreme Court. The costs of the appeal here were paid by counsel (W. G. Ward) and the costs later taxed against the City of Miami Beach, resulting in a return to him of costs previously advanced.

During the month of May, 1942, Aimee B. Craft (formerly Aimee B. Forde) died intestate, leaving as her sole heir at law John Dee Craft, a minor. Jessie Chisebro was by an order of the County Judge's Court of Dade County, Florida, duly appointed administratrix of the estate of Aimee B. (Forde) Craft, deceased. An order of revival was entered in the cause by the Circuit Court of Dade County, Florida, on the theory that an administratrix, under the Florida probate law, has possession of real estate and the power to sell and convey a fee simple title thereto. John Dee Craft, a minor, was through his guardian made a party. A lis pendens notice describing the property was filed in the cause in the Clerk's office of Dade County, Florida.

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