ALECHMAN v. EDWARDS, 56 So.2d 327 (Fla. 1952)

ALECHMAN v. EDWARDS.

Supreme Court of Florida, Division B.
January 15, 1952. Rehearing Denied February 6, 1952.

Appeal from the Circuit Court for Dade County, Vincent C. Giblin, J.

Sidney Robbins, Miami, for appellant.

Herman M. Berk, Miami Beach, and Joseph A. Wanick, Miami, for appellee.

MATHEWS, Justice.

The appellee here, plaintiff below, George M. Edwards, filed a suit in equity for a rescission of a contract on the ground of fraud. The appellant, defendant below, filed a motion to dismiss the bill of complaint, and the trial Judge by a special order deferred the matter until the trial and ordered the defendant to serve an answer to the bill within 10 days. This answer which included a counterclaim was filed in due course in which he also sought a rescission and cancellation of the contract. The plaintiff filed a motion to dismiss the appellant’s counterclaim and the Court, on March 27, 1951, by special order, deferred the hearing and determination of the motion to dismiss until the trial.

On April 17th voluminous testimony was taken before an Examiner and the transcript was filed on April 25, 1951. On May 7th, the Court entered its opinion on which it based its final decree, in which it found for the plaintiff, appellee here, and ordered the contract rescinded and terminated and also denied the motion to dismiss the bill of complaint and the motion to dismiss the counterclaim. In due course a petition and amended petition for rehearing was filed and the amended petition was denied by the Court below on May 14, 1951.

The appellant raises three questions. The first question propounded is: “In an action for rescission of a contract on the ground of fraud, is the complaint sufficient in stating a cause of action when the fraud is not pleaded in particularity?” The defect in this question is that it assumes that the fraud was not pleaded in particularity. The bill of complaint alleged that at the time of the agreement and all times thereafter the appellant here, defendant below, had a secret undisclosed intent not to perform the contract and entered into the same for the purpose of defrauding the appellee for the considerations paid. This was a general charge of fraud, and specific and particular acts, overt and otherwise, to show fraud were alleged with great particularity. The bill of complaint was sufficient to state the cause of action and there is no merit in this argument.

Page 328

The next question propounded by the appellant is: “Did the appellee, as required by established principles of equity sustain the burden of proving his alleged claim of fraud, so decisively and convincingly as to overcome the presumption of innocence to which the appellant is entitled?” We have carefully read the testimony which was reviewed in detail by the Chancellor below in his opinion. There was abundant testimony to sustain the burden of proving the facts constituting fraud. The Chancellor reviewed this testimony in great detail and found the testimony sufficient to sustain the burden. His findings are correct and will not be disturbed on this appeal. There is no merit in this assignment of error.

The third question propounded by the appellant, and which he stresses at great length is: “Can the Court in an equity action deem the cause at issue prior to the expiration of ten days from the filing of a reply to a counter-claim, and prior to having ruled upon the defendant’s motion to dismiss the plaintiff’s bill of complaint and the plaintiff’s motion to dismiss the defendant’s counter-claim?” At the time the cause was referred to a special examiner there was then pending undisposed of the defendant’s motion to dismiss the bill of complaint and the plaintiff’s motion to dismiss the counterclaim. With reference to these two motions the Court made special orders deferring the hearing and determination of each of said motions until the trial. The last such order was made on March 27th, with reference to the motion to dismiss the counterclaim as follows:

“Counsel for the parties are before the court on the plaintiff’s motion to dismiss the defendant’s counterclaim and the plaintiff’s motion to strike certain parts of such counter-claim.

“The hearing and determination of the motion to dismiss are deferred until the trial.

“The motion to strike is denied.

“Counsel for the plaintiff has announced that the plaintiff’s reply to the counter-claim will be filed within one day from the date of this order.

“On the filing of such reply the cause will be at issue.

“The case will be finally heard on April 13, 1951 at two o’clock in the afternoon. At such time the undersigned judge will sit in his chambers for the purpose of hearing such testimony and receiving such proofs as shall be submitted by the parties. Except for necessary adjournments or recesses the hearing will be continuous and the parties will be expected to have all witnesses and proofs available.”

It will be observed that the Chancellor took particular notice in his order that the reply to the counterclaim would be filed within one day from the date of the order and then stated that on the filing of such reply the cause would be at issue.

After this order the record shows that a special examiner was appointed by the Court to take the testimony and the testimony was taken on April 17, 1951. An examiner was appointed after notice and there is no objection anywhere in the record to this procedure, except in the motion for rehearing and the assignments of error where complaint is made that the motions to dismiss the bill and the motion to strike the counterclaim should have been disposed of before the taking of testimony, or before the trial.

Section (d) of Rule 33 of the Florida Equity Rules, 31 F.S.A., provides: “Preliminary Hearings. The defenses 1 to 7, subdivision (b) of this rule, whether made in a pleading or by motion, and the motion for decree mentioned in subdivision (c) of this Rule shall be heard and determined before trial on application of any party, unless the court orders that the hearing and determination thereof shall be deferred until the trial.” The appellant here relies strongly upon Rule 39 of the Florida Equity Rules. All of the rules must be read and construed together.

It was in the discretion of the Chancellor to order and determine that the motions to dismiss the bill of complaint, and the motion to dismiss the counterclaim be deferred until tried. This he did in the exercise of his discretion. The trial was not

Page 329

completed until the taking of the testimony and the entering of a final decree. This he did and in the final decree he made his determination on the two motions above mentioned. There is no merit in this assignment of error.

Affirmed.

SEBRING, C.J., and CHAPMAN and ROBERTS, JJ., concur.