Opinion
September 7, 1951. Rehearing Denied October 18, 1951.
R.C. Lohmeyer, Miami Beach, for petitioner.
Otto C. Stegemann, Miami Beach, for respondents.
On September 19, 1950, Petitioner filed in the Circuit Court in and for Dade County, Florida, her Bill of Complaint against Louis Fisher, wherein she prayed for the rescission of a certain agreement termed "Deposit Receipt" dated August 28, 1950, made between Petitioner and the said Louis Fisher for the sale by the latter to the Petitioner of a certain house situate in Miami Beach, Florida, which was at said time under construction, for the sum of $24,000, $2400 whereof was paid to the vendor. The substance of the Bill is that Louis Fisher, the vendor, by and through his agent, J.C. Kimball, made certain false and fraudulent representations concerning the character and quality of the house and other false and fraudulent representations of certain additional work to be included, all of which representations were false and were made with the knowledge of their falsity with the intention to deceive Petitioner, and did in fact deceive her, by reason whereof she was induced to enter into said agreement to her injury. The Bill prayed that a decree be entered for the $2400 paid as a part of the purchase price of the property above referred to and that the Court decree a lien thereon in favor of the Petitioner for the money so paid.
The said Louis Fisher on October 9, 1950, filed his Answer to said Bill, the general purport of which was the denial of the misrepresentations charged in the Bill and that the Petitioner had "informed said defendant that she had changed her mind and had decided not to buy a home." Fisher incorporated in his said Answer what he terms a "Counterclaim", wherein he reavers all of the matters asserted in his Answer and alleges that by reason of the wilful breach of the contract by the Petitioner, he has suffered damages to the extent of $5000, and demands judgment in the amount of $2600, the difference between the amount paid on the purchase price and the said $5000.
On May 10, 1951, J.C. Kimball filed his Petition to Intervene in said proceedings, alleging that he was the broker who negotiated the deal. He prayed that he may be allowed to intervene "in order to protect his rights" and to "defend against the unfounded claims of the plaintiff and to assert his claim for commission against the defendant Louis Fisher."
On May 25, 1951, the Court entered an order allowing the intervention and permitted the Intervenor to adopt for himself the Answer of the defendant, Louis Fisher, and allowed him "within ten (10) days from date of order to file his Cross Complaint against the defendant, Louis Fisher, who shall answer or otherwise move in respect to said Cross Complaint in accordance with the rules of this Court within the time therein set forth." In pursuance of said order, the said broker, on June 4, 1951, filed his Answer adopting the allegations of the Answer of Fisher. He incorporated in his Answer a Counterclaim or Cross Complaint, wherein he alleges in substance his negotiation of said sale as broker, payment by the vendee to the vendor of the sum of $2400 on the purchase price, for which services said Fisher promised and agreed to pay "the sum of $1200, or one-half of the deposit in case the said deposit was forfeited by the purchaser, provided the same shall not exceed the full value of the commission." He further alleges that he has received no part of his commission and prays as follows: "That the complaint herein be dismissed with costs, and that he do have and recover judgment against the defendant Louis Fisher in the amount of Twelve Hundred ($1200) Dollars, together with interests and costs." (Italics supplied)
On July 2, 1951, the cause came on for trial before the Honorable Charles A. Carroll, one of the Judges of the said Circuit Court, whereupon the plaintiff, Marie Jermak, moved to dismiss the case without prejudice, announcing that later action at law might be filed thereon, whereupon the Court dismissed said Bill without prejudice on plaintiff's motion, and provided therein that "the dismissal is held not to operate to the counterclaim filed by the Intervenor, J.C. Kimball, on the date of June 4, 1951", and that the plaintiff be "allowed ten days to answer the counterclaim" and provided in said order that "the effect of this order is that the Intervenor herein now appears in the position of the plaintiff, and the original plaintiff and original defendant appear in the position of defendants to affirmative action of counterclaim", and that the "Intervenor has assumed the burden of establishing the material facts necessary to his position by a preponderance of proof against the original plaintiff and defendant, who are defendants to his counterclaim."
Petitioner contends that the Chancellor committed harmful error in directing that the dismissal of the Bill should not operate as against the Counterclaim filed by the Intervenor Kimball and in declaring that the effect of his order was to place Petitioner in the position of defendant to Intervenor's affirmative action or Counterclaim. It is Petitioner's position that the Chancellor should have dismissed not only Petitioner's Bill of Complaint but should likewise have dismissed Petitioner from the litigation rather than retain her in the suit and require her to answer the Intervenor's Counterclaim because said Counterclaim does not form a basis for any relief against Petitioner, but is solely a demand for a money judgment against Fisher for the recovery of a real estate commission which demand is purely legal in nature and properly cognizable only in a court of law.
The prayer of Intervenor's Counterclaim does not request any decree or judgment against the Petitioner, Marie Jermak, except one dismissing her complaint with costs. In and by his order the Chancellor dismissed Petitioner's complaint and we can see no justification for the Chancellor's order making her a party to the suit for a commission asserted in Intervenor's Counterclaim against Louis Fisher.
In all probability the learned Chancellor was of the opinion that Intervenor Kimball could not establish his right to a money judgment against Fisher without a determination of Petitioner Jermak's alleged right to rescission and cancellation of the contract and agreement and the return of her deposit in the sum of $2400. The nature of Intervenor Kimball's alleged contract with Fisher suggests the foregoing assumption. Kimball alleged that Fisher promised and agreed to pay to him "the sum of $1200.00, or one-half of the deposit in case the said deposit was forfeited by the purchaser, provided the same shall not exceed the full value of the commission." (Italics supplied). If we are correct in our assumption then the Chancellor's view must have been that the Intervenor Kimball had by affirmative answer or counterclaim alleged matters which entitled him to a determination of the equity cause on its merits. If such were the situation, the Chancellor should have refused to grant plaintiff's (petitioner here) motion to dismiss her complaint without prejudice. See Davant v. City of Brooksville, 130 Fla. 229, 177 So. 544; Willson v. Buxton, 110 Fla. 286, 149 So. 329; Mayfield v. Wernicke Chemical Co., 65 Fla. 113, 61 So. 191, Ann.Cas. 1917A, 1193; Tilghman Cypress Co. v. John R. Young Co., 60 Fla. 382, 53 So. 939; 89 A.L.R. 39, Florida cases cited therein. No one is here complaining, however, with reference to that portion of the Chancellor's order which did dismiss the complaint without prejudice. Consequently, we should not, and do not, decide the propriety or correctness of that portion of the order. Fisher did not object to the granting of the motion at the time it was made but the Chancellor states in his order that counsel for Intervenor Kimball did object.
We hold only that the Chancellor committed error when after dismissing plaintiff's bill of complaint without prejudice he further ordered that she be retained in the cause to answer the counterclaim of the Intervenor, Kimball, which failed to allege any facts as a basis for equitable relief against either the plaintiff-petitioner or the original defendant. Moreover, the Intervenor likewise failed to set forth in his prayer any request for an equitable order or decree against Petitioner Jermak.
It is, therefore, ordered that the Writ of Certiorari be granted and that portion of the Interlocutory Order made and entered on July 2, 1951, in Chancery Cause No. 135452, which directed that Petitioner Jermak be retained as a party defendant in Intervenor Kimball's legal action against Fisher, be, and it is hereby, quashed.
SEBRING, C.J., and TERRELL, and THOMAS, JJ., concur.