Berkan v. Brown

• Decision Date: 01 December 1970
• Docket Number: No. 69--909,69--909
• Parties: Joe K. BERKAN, Appellant, v. Aaron BROWN, Nathan Katz, Florence Weisberg and Samuel Kaye, Appellees.
• Court: Florida District Court of Appeals

Page 207

242 So.2d 207

Joe K. BERKAN, Appellant, v. Aaron BROWN, Nathan Katz, Florence Weisberg and Samuel Kaye, Appellees.

No. 69--909.

District Court of Appeal of Florida, Third District.

Dec. 1, 1970.

Rehearing Denied Dec. 18, 1970.

Joseph Pardo, Miami, for appellant.

Daniel Neal Heller, Miami, for appellees.

Before CHARLES CARROLL, BARKDULL and HENDRY, JJ.

HENDRY, Judge.

The primary question on appeal is whether the trial court was correct in granting summary judgment against a counter plaintiff alleging conspiracy in the commission of a civil wrong.

Plaintiff-appellees (Brown, Katz and Weisberg) and defendant-appellant (Berkan) operated Dubrow's Cafeteria. In September, 1965, the parties sold their interest in the cafeteria, as a result of which each became tenants in common of 25% Interest in notes secured by a chattel mortgage on the cafeteria accouterments and in an assignment of the tenant's lease. The purchaser discontinued the operation of the cafeteria and defaulted on rent and note payments due September 1, 1967.

Brown, Katz, Weisberg and Berkan discussed reopening a restaurant business on the premises, but Berkan apparently elected not to participate. Meanwhile, the appellees paid the rent and foreclosed their mortgage, but since the appellant also refused to fulfill his promise of pro rata rent and legal fee contributions, the appellees brought the instant suit. On default of the October 1967 rent, the co-tenants were evicted, and only at a later time did the appellees (with Katz) form a new corporation which obtained a new lease on the same premises and began to operate a different cafeteria.

The appellant, in his counterclaim and appeal, would characterize the former mutual relationship as a joint venture in which the fiduciary relationship owed him was breached by a conspiracy to deprive him of an interest in the valuable Lincoln Road lease.

Ultimately, the circuit court granted summary judgment to plaintiff-appellees on the counterclaim of defendant-appellant, Berkan, which later became final. (See Berkan v. Brown, Fla.App.1970, 231 So.2d 871, denying motion to dismiss appeal.)

We assume, but do not decide, that the issue of the joint venture was properly raised below, in view of the modern liberality in pleading facts. Nevertheless, we find that the trial court was correct in granting summary judgment against counter-plaintiff.

The existence of a joint venture can be dismissed, as there was no showing of equal share in control and management of the enterprise. See: Chisholm v. Gilmer, 81 F.2d 120, 124 (4th Cir., 1936), affirmed on procedural grounds, 299 U.S. 99, 57 S.Ct. 65, 81 L.Ed. 63, reh. den. 299 U.S. 623, 57 S.Ct. 229, 81 L.Ed. 458. There could be no joint venture for the further reason that there was lack of agreement to participate in any loss. Albert Pack Corporation v. Fickling Properties, Inc., 146 Fla. 362, 200 So. 907. There was a failure to establish a contract or existence of a combination between them. See: Bowmaster v. Carroll, 23...