Wolkowsky v. Goodkind

• Decision Date: 02 July 1943
• Citation: 14 So.2d 398,153 Fla. 267
• Parties: WOLKOWSKY v. GOODKIND.
• Court: Florida Supreme Court

14 So.2d 398

153 Fla. 267

WOLKOWSKY v. GOODKIND.

Florida Supreme Court

July 2, 1943

Redfearn & Ferrell, E. Clyde Vining, and Ward &amp Ward, all of Miami, for petitioner.

Marshall F. Sanders and Leonard Epstein, both of Miami, for respondent.

PER CURIAM.

This is the fourth appearance of this cause in this court. The previous history of the case as presented in this court will be found in Goodkind v. Wolkowsky, 132 Fla. 63, 180 So. 538; Goodkind v. Wolkowsky, 147 Fla. 415, 2 So.2d 723; Goodkind v. Wolkowsky, Fla., 9 So.2d 553. The present petition for certiorari is addressed to the judgment of the Circuit Court of Dade County, sitting as an appellate court, entered on December 29, 1942, which was several months after the last opinion and decision of this court, as reported in 9 So.2d 553, was handed down. The opinion and judgment of the Circuit Court now sought to be reviewed reads as follows:

'En Banc

'The above styled cause comes on before this court upon motion of the appellee to dismiss the writ of error, which motion is hereby overruled and denied.

'Said cause comes on before this Court to be further heard upon the motion of the appellant for the entry of an order on the mandate of the Supreme Court (9 So.2d 553), the Supreme Court having reversed the decision of this court pursuant to the controlling opinion and having approved the dissenting opinion in the following language reported in 9 So.2d text 560, towit:

"The trial court's order granting a new trial was reversed except as to damages by this court and the Supreme Court in turn has quashed our judgment.

"Our reasons were that we thought the trial court had accepted a statement of the Supreme Court too literally and that the correct law was as set forth in our quashed judgment.

"It now appears that such was not the correct law but that the true law was as stated by the Supreme Court initially.

"Upon examining the record we find that the trial court tried the cause upon the principle first enunciated by the Supreme Court which we erroneously classed as dicta.

"The new trial was granted by judges other than the trial judge; therefore we occupy the position of the judge granting the new trial with no disadvantages of record.

"I find no reversible error in the trial proceedings, and that the trial court erred in granting a new trial, and that the order granting a new trial should stand reversed.' and this Court having considered the entire record in said cause and being of the opinion that same should be made the judgment of this Court:

'It is therefore ordered and adjudged that the order of the trial court granting a new trial be and the same is hereby reversed, and the lower court is hereby directed to enter a judgment on the jury's verdict in favor of the plaintiff pursuant to law.'

The petition for certiorari to review this judgment was denied by this court without opinion.

The only ground of the petition for rehearing which calls for any discussion is the very earnest insistence on the part of counsel for the petitioner that the above quoted judgment of the Circuit Court was rendered under the misapprehension that this court in its last opinion 9 So.2d 553, approved and adopted a former dissenting opinion of one of the Judges of the Circuit Court and made it the law of the case in its entirety, and that this court in denying the present petition for certiorari overlooked the fact that in its last opinion this court had specifically stated that the first three grounds of the motion for new trial, addressed to the sufficiency of the evidence, were not passed upon.

It is true that in our former opinion we quoted Judge Barns' dissenting opinion, but our comments showed that it was not approved in its entirety. We think this is clearly shown by the language used in this Court's opinion. In this Court's opinion it was stated: 'The first three grounds of the motion for new trial are the usual grounds addressed to the sufficiency of the evidence to sustain the verdict. We cannot on this certiorari proceeding pass on that question. Furthermore, on this transcript, we do not have the evidence before us.'

We did review the other grounds of the motion for a new trial, which alleged errors committed by the Judge of the Civil Court of Record and held that no error had been committed by the trial Judge in those respects. In that regard we said: 'The trial judge evidently attempted, and we think quite successfully so far as this record discloses, to follow the law as laid down by this court in the opinion above referred to. 132 Fla. 63, 180 So. 538. The transcript of record presented here in support of the petition for writ of certiorari shows some of the charges given by the trial court.' It was these charges which the petitioner claimed were erroneous. We reviewed the charges and held that no error appeared.

Defendant Wolkowsky had filed a motion for a new trial after verdict and judgment had been rendered in favor of plaintiff Goodkind, which motion contained ten grounds. Soon after the trial, the Civil Court of Record Judge who tried the case was elevated to the Circuit Court and the motion for a new trial was, several months later, granted on each and all of the ten grounds. So the Judge who tried the case did not have an opportunity to rule upon the motion for a new trial.

To this order granting a new trial, writ of error was sued out by the plaintiff to the Circuit Court on July 3, 1940. The Circuit Court held that the contract of employment and the discharge of the plaintiff before complete performance seemed to have been well established and that plaintiff was entitled to his damages, 'and then comes the question of the measure of damages.' The Circuit Court was of the opinion that the plaintiff was not entitled to recover the fee agreed on in his contract but should only have been allowed to recover on a quantum meruit basis, that is, the reasonable value of his services up to the time of his discharge by the defendant. The Circuit Court's opinion and order concluded thus:

'It appears that liability of the defendant was regularly established by the rendition of the verdict by the jury but that a new trial should be had only as to the amount of damages.

'Wherefore

'It is ordered that the cause stand affirmed as to granting of a new trial insofar as damages are concerned, but in all other respects reversed and ordered remanded for trial upon the question of the amount of damages.'

This judgment was quashed on certiorari granted by this Court upon the ground that the measure of damages prescribed by the Circuit Court in said opinion and judgment was contrary to the holding of this Court on the first certiorari, 132 Fla. 63, 180 So. 538, wherein we held that under a contract of the kind here involved the plaintiff was entitled to recover the full amount of the fee provided for in the contract if he had engaged himself in the substantial performance of the contract up to the time of his discharge without cause, and accordingly held that the declaration stated a good cause of action.

Commenting on this former Circuit Court decision, in our last opinion in this cause, this Court said: 'In its said order the Circuit Court reversed the order granting a new trial on all the other grounds, and in this respect this court did not hold that the Circuit Court had erred. So the former order of the Circuit Court reversing the granting of a new trial on all the other grounds was left to stand, so far as the logic and effect of our opinion was concerned.'

Some five months after the mandate went down, three of the Circuit Judges, purporting to act for the court, considered the case and by a two to one vote, Judge Barns' dissenting, the order of the Civil Court of Record granting a new trial on all grounds stated in the motion was affirmed, a decision conflicting in large part with the former decision of said Court sitting en banc and also conflicting with the previous decision of this Court. In our last opinion in the case, we quoted the dissenting opinion of Judge Barns which concluded thus:

'Upon examining the record we find that the trial court tried the cause upon the principles first enunciated by the Supreme Court which we erroneously classed as dicta. The new trial was granted by judges other than the trial judge; therefore we occupy the position of the judge granting the new trial with no disadvantages of record. I find no reversible error in the trial proceedings, and that the trial court erred in granting a new trial, and that the order granting a new trial should stand reversed.'

We made these comments on that opinion; 'Judge Barns' opinion is consistent with the former opinion of the Circuit Court except as to the measure of recoverable damages, on which point, he, in this opinion, follows this court's ruling.' But we made it plain in the following paragraph that this Court was not passing upon those grounds of the motion for a new trial which went to the sufficiency of the evidence. The last stanza of that paragraph reads as follows:

'It necessarily follows that the question properly to be submitted to the jury under this declaration and plea was whether or not the plaintiff had engaged himself in the substantial performance of the contract up to the time of his discharge. It appears from the three charges...