Green v. Roth

• Decision Date: 09 December 1966
• Docket Number: No. 7126,7126
• Citation: 192 So.2d 537
• Court: Florida District Court of Appeals
• Parties: Irving GREEN, Hyman Green, Green Bros. Builders, Inc., and Union Trust Company of St. Petersburg, Appellants, v. Alex ROTH, Appellee.

Page 537

192 So.2d 537

Irving GREEN, Hyman Green, Green Bros. Builders, Inc., and Union Trust Company of St. Petersburg, Appellants, v. Alex ROTH, Appellee.

No. 7126.

District Court of Appeal of Florida, Second District.

Dec. 9, 1966.

Emerson L. Parker, St. Petersburg, for appellants Green.

Lubin & Samuels, St. Petersburg, for appellee.

PIERCE, Judge.

In this case appellants-defendants bring this interlocutory appeal from an 'Order on Motions' entered by the Pinellas County Circuit Court.

Appellee-plaintiff filed complaint in chancery in the Pinellas County Circuit Court against Green Bros. Builders, Inc., Union Trust Company of St. Petersburg, Irving Green, and Hyman Green, alleging various manipulations of the capital assets of the Green corporation by the individual Greens to the detriment of plaintiff. Upon the filing of the sworn complaint, Circuit Judge C. Richard Leavengood issued a restraining order enjoining the individual Greens and their corporation from making certain assignments, and also enjoining the Union Trust from paying out certain moneys, pending further order of the Court. In the order plaintiff was required, as a condition therefor, to post a $5,000 bond to indemnify the defendants. And a notice of lis pendens was filed by plaintiff.

Thereafter, a motion was filed on behalf of the Green corporation to dismiss the cause for insufficiency of service of process upon the corporation, alleging that personal service of process had been had upon one Royce Kilpatrick ostensibly to bind the corporation, but that on the date of such service said Kilpatrick was not such an officer or agent of the corporation as to legally bind it. Sworn affidavit of Kilpatrick was attached to the motion in support. On February 1, 1965, order was entered by the Circuit Judge denying said motion of the Green corporation, with leave to file additional affidavits if desired. On September 3, 1965, motion was filed on behalf of the Green corporation and also Both of the individual Greens 'to discharge (the) Lis pendens' theretofore filed by plaintiff, which motion, among other things, alleged that 'the Lis Pendens, as filed by the Plaintiff herein, is totally without merit and justification' and also that 'laches has attached to the Plaintiffs cause'. On September 9, 1965, the Court entered order denying the motion to discharge the lis pendens but requiring plaintiff to file an amended complaint 'showing justification for the lis pendens'.

Amended complaint against all defendants was thereupon filed by plaintiff, incorporating more extensive and elaborate allegations of fact and enlarging upon the prayers. Thereafter, on October 29, 1965, motion was filed on behalf of All defendants for an order requiring plaintiff to increase his bond theretofore posted pursuant to previous order of the Court, alleging affirmatively that 'the amount of the bond heretofore posted by the Plaintiff is wholly disproportionate to the Defendant's property which is herein encumbered' and that 'there is (sic) insufficient allegations in the amended complaint to support the Lis Pendens or to justify the Restraining Order'. On December 2, 1965, this latter motion was denied by the Court.

Plaintiff forwith filed motion which, after alleging substantially the foregoing record facts, set forth that plaintiff had 'experienced difficulty in getting the Defendants before the Court; that the Defendants have litigated those portions of the law suit which are objectionable to them without pleading to the Plaintiff's Complaint; that the Defendants will not be prejudiced by the continuation of the Lis Pendens.' The motion asked that the Court 'extend the duration of the Lis Pendens' and 'require the Defendants to file an Answer or responsive pleading to the Plaintiff's Complaint within short date set by this Court, or, in default thereof, suffer a Default Judgment against them'. On April 14, 1966, Honorable James T. Smith, Circuit Judge, entered his 'Order on Motions', holding that the individual defendants, Irving Green and Hyman Green, were properly before the Court for all purposes because they had filed pleadings reaching the merits of the cause, and requiring them to file their Answer or other defensive pleadings to the Amended Complaint within a stated time. This is the Order now before this Court.

The Order of Judge Smith of April 14, 1966 was buttressed by a scholarly re sume supporting the entry of the order and is so cogent, logical and coherent that we quote it at length herein, and specifically adopt it as a part of the opinion of this Court, as follows:

'This suit was instituted by the plaintiff against the defendants above captioned alleging certain manipulations of the capital assets of Green Bros. Builders, Inc., by the defendants, Irving Green and Hyman Green, to the great detriment of the plaintiff.

No actual process of service was obtained upon the corporation or upon the defendants, Irving Green and Hyman Green. However, an attempted service was made upon the corporation by serving one Royce Kilpatrick as an officer or agent of said defendant corporation.

On January 5, 1965, the corporation filed its Motion to Dismiss for insufficiency of service of process. The defendants, Irving Green and Hyman Green, did not join in this motion, nor have they at any time questioned the jurisdiction of this Court over their persons.

On September 7, 1965, the corporation And Irving Green and Hyman Green moved to discharge the lis pendens in this cause. In said motion they failed to challenge the jurisdiction over their persons or the property involved in this litigation.

On November 1, 1965, the...