Dean v. Gold Coast Theatres, Inc.
| Citation | 156 So.2d 546 |
| Decision Date | 02 October 1963 |
| Docket Number | No. 3476,3476 |
| Parties | Justina DEAN a/k/a Justine Knowles, and Reginald Dean, a/k/a Ben Dean, her husband, Appellants, v. GOLD COAST THEATRES, INC., Appellee. |
| Court | Florida District Court of Appeals |
William J. George, Pompano Beach, for appellants.
Sullivan, Musselman & Cochran, Pompano Beach, for appellee.
BARNS, PAUL D., Associate Judge.
This is an appeal from a summary final decree granted on motion of the defendant Gold Coast Theatres, Inc. We find error and reverse.
This suit for rescission of a transfer of land was brought by Justina Dean and her husband against Alfonso A. and Angelina DiMartino, his wife, E. E. Jordan, Joel Miller, North Broward Realty, Inc., and Gold Coast Theatres, Inc.; in sustaining defendants' motions to dismiss, the action was dismissed as to Jordan, Miller and North Broward Realty, Inc.; the motion to dismiss of Alfonso A. and Angelina DiMartino was denied and they have answered denying the allegations of the complaint.
The complaint among other things alleges:
'17. That to induce the Plaintiffs to execute said Contract of Sale (Exhibit A) and to execute and deliver said Warranty Deed (Exhibit B), the Defendants, Alfonso A. DiMartino, E. E. Jordan and Joel Miller conspired together and falsely and fraudulently represented to the Plaintiffs
'(a) between December 2, 1955 and December 13, 1955, that the offer made by said Charles E. Myers, presented by said P. H. Biscoe to purchase the said five (5) acres of land for $7,500.00 had been withdrawn by the said Charles E. Myers;
'(b) between December 2, 1955 and December 13, 1955, that the said Charles E. Myers' offer was no longer open and was no longer in existence;
'(c) between December 2, 1955 and December 13, 1955, that the said property had a market value of not more than Six Hundred and no/100 Dollars ($600.00) per acre.
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'21. That when the said representations were made by the Defendants, Joel Miller, E. E. Jordan and Alfonso A. DiMartino at the time of the execution of the said contract (Exhibit A), and at the time of the execution and delivery of said Warranty Deed (Exhibit B) and prior thereto, the Defendants, Joel Miller, E. E. Jordan and Alfonso A. DiMartino well knew said representations were false, inasmuch as
'(a) the offer made by said Charles E. Myers to purchase said five (5) acres of land for $7,500.00 had not been withdrawn; and
'(b) the said offer was still open and was still in existence and was intentionally and fraudulently concealed from the Plaintiffs by the Defendants, Joel Miller, E. E. Jordan and Alfonso A. DiMartino.
'(c) the said property had a market value of approximately Three Thousand and no/100 Dollars ($3,000.00) per acre, inasmuch as the Defendants, Joel Miller, E. E. Jordan and Alfonso A. DiMartino had knowledge of the willingness of said Charles E. Myers to pay Fifteen Thousand and no/100 Dollars ($15,000.00) for the said property.
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After filing a motion to dismiss and not having answered, the defendant Gold Coast Theatres, Inc., made a motion for summary judgment supported by an affidavit of Charles E. Myers stating that his offer of December 2, 1955 of $7500 for the 5 acres was not accepted; that he 'had no knowledge, either directly or constructively, as to any of the facts concerning dealings' between the plaintiffs and the other defendants; that on or about February 8, 1956 he learned the property had been sold to DiMartino but had no knowledge of the circumstances of the sale or the price paid; that he made DiMartino an offer of $15,000 for the property which was accepted on or about April 30, 1956 and the transaction was closed by a conveyance to the Gold Coast Theatres, Inc.; 'that at no time did he have any knowledge of any of the purported fraudulent circumstances alleged in the plaintiff's complaint until he was served with a copy of it on May 25, 1961'; that he acted in good faith with those parties who on the public records held title.
In opposition to the motion for summary judgment plaintiffs filed an affidavit of P. H. Biscoe which affidavit together with the complaint show the matter hereinafter stated.
Justina Dean was the owner of 5 acres. Joel Miller and E. E. Jordan doing business as Miller and Jordan were attorneys and represented Justina in some litigation. Miller and Jordan dissolved on or about Frbruary 1, 1956. Alfonso A. DiMartino was engaged in the real estate business in the name of North Broward Realty, Inc., and DiMartino was its preseident: Joel Miller and DiMartino were associated together in the operation of the aforesaid 'North Broward' by virtue of a real estate brokerage license held by Miller. Charles E. Myers was president of Gold Coast Theatres, Inc., which now holds title to the 5 acres.
Myers offered Justina $7500 for her 5 acres which was not accepted; Justina then shortly thereafter sold her 5 acres for $3000 to DiMartino who then sold it to Myers for $15,000. Justina brings suit for rescission based on fraud.
On December 2, 1955 P. H. Biscoe, a real estate broker consulted Justina Dean and presented to her an offer of Charles E. Myers of $7500 for her 5 acres; she considered the offer favorably but referred Biscoe to her attorneys, Miller and Jordan, and advised him that she would be guided by their advice: Biscoe in company with Myers on the same day delivered the proposed contract and check to the attorneys pursuant to her instructions; Mr. Jordan received the contract and commented that it was a good deal; that he would have it signed and that...
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