Napolitano v. HL Robertson and Associates, Inc.

311 So. 2d 757

• Court: District Court of Appeal of Florida
• Decided: April 22, 1975
• Docket: 74-1760
• Status: Published

Opinion

311 So.2d 757 (1975)

Angelo NAPOLITANO and Helen Napolitano, Appellants,
v.
H.L. ROBERTSON AND ASSOCIATES, INC., and Crockett-Bradley, Inc., Appellees.

No. 74-1760.

District Court of Appeal of Florida, Third District.

April 22, 1975.

Myers, Kaplan, Levinson & Kenin and Peter H. Leavy, Miami, for appellants.

Robert W. Shaughnessy, Perrine, for appellees.

Before BARKDULL, C.J., and PEARSON, J., and CHARLES CARROLL, (Ret.), Associate Judge.

PER CURIAM.

The appellees brought a two-pronged action seeking damages for breach of a construction contract and/or foreclosure of an equitable lien and other equitable relief. The appellants answered asserting certain affirmative defenses, and counterclaimed seeking damages for breach of the same contract. The appellants requested a jury trial on all the issues. The appellees moved to strike the demand for jury trial, on the ground that the appellants were not entitled as a matter of right to a jury trial in an equitable lien foreclosure. After hearing on the motion, the trial court entered the order appealed herein.

We reverse. The trial court erred in entering the order under review and, in so doing, the appellants were deprived of their constitutional right to a jury trial. The compulsory counterclaim was an action at law, entitling the appellants to a jury trial as a matter of right, and the issues involved in the counterclaim were so related to the issues made by the damage and equitable claims that a jury trial should be afforded on all issues. Hightower v. Bigoney, Fla. 1963, 156 So.2d 501; Adams v. Citizens Bank of Brevard, Fla. App. 1971, 248 So.2d 682; Westview Community Cemetery of Pompano Beach v. Lewis, Fla.App. 1974, 293 So.2d 373.

Reversed and remanded, with directions to grant to the appellants a jury trial as requested.