Hallock v. Holiday Isle Resort & Marina

• Decision Date: 27 October 2004
• Docket Number: No. 3D03-589.,3D03-589.
• Citation: 885 So.2d 459
• Parties: Thomas HALLOCK, Appellant, v. HOLIDAY ISLE RESORT & MARINA, INC., et al., Appellees.
• Court: Florida District Court of Appeals

885 So.2d 459

Thomas HALLOCK, Appellant, v. HOLIDAY ISLE RESORT & MARINA, INC., et al., Appellees.

No. 3D03-589.

District Court of Appeal of Florida, Third District.

October 27, 2004.

Tom Woods, Jacksonville, for appellant.

John A. Jabro, Tavernier; and Rogers, Morris & Ziegler, and Mark F. Booth, Fort Lauderdale, for appellees.

Before FLETCHER, RAMIREZ, and SHEPHERD, JJ.

RAMIREZ, J.

Thomas Hallock appeals the trial court's Order granting the defendants' Motion for Summary Judgment and the Summary Final Judgment entered for the defendants, the Order dismissing with prejudice Hallock's tortious interference claim, and the Order denying Hallock's motion to reconsider dismissing Hallock's tortious interference claim. We affirm all three of the trial court's orders, but because we find there was a genuine issue of material fact regarding the breach of fiduciary duty issue, we reverse the summary judgment entered in favor of Holiday Isle as to that count only. In addition, we dismiss without prejudice the appeal against defendant Rip Tosun.

I. FACTS AND PROCEDURE

In 1984, Holiday Isle Resort & Marina, Inc., one of the defendants in the trial court, entered into a "Joint Venture Agreement" with another defendant, Rip Tosun, to own and operate a restaurant called Rip's — A Place For Ribs (Rip's), located at Holiday Isle Resort & Marina, Windley Key, Islamorada, Florida. Under the 1984 joint venture agreement, Tosun was to operate the restaurant as a partnership, each party owning fifty percent interest. The agreement would expire in five years. The joint venture agreement provided that "Tosun may not assign or alienate his interest in the Venture, and in the event of death of Tosun, the Venture shall terminate."

The joint venture was later extended and modified by an undated "Extension of Modification of Joint Venture Agreement," which limited the extension periods to one-year, effective March 1, 1996. During the time period that Rip's was in business, it was managed and operated by Tosun. During this time, Holiday Isle owned and operated at least four other restaurants and five other bars and various food kiosks, all located on the Holiday Isle Resort property. In 1997, Tosun entered into a Contract for Sale and Purchase whereby Tosun sold fifty percent of his half interest in Rip's to Thomas Hallock, the plaintiff in the trial court. That sale provided that in return for payments totaling $125,000, Hallock would receive fifty-percent of Tosun's interest in Rip's, as well as continue to receive his present salary. This purchase agreement granted Hallock the option to purchase Tosun's remaining interest in Rip's, subject to Holiday Isle's consent. Hallock admits that while he asked for Holiday Isle's consent to purchase Tosun's remaining interest in Rip's, Holiday Isle never responded to his request for Holiday Isle's consent.

In March of 1999, Tosun informed Hallock that Tosun was going to open and manage the Olde Florida Steakhouse on the Howard Johnson's property, which was adjacent to Rip's. Tosun told Hallock that he and Holiday Isle were opening the Olde Florida Steakhouse to protect Rip's because if the Howard Johnson's property was leased to a chain restaurant business, it would be detrimental for Rip's and the other restaurants in the resort.

Holiday Isle also ordered that the breakfast shift cease at Rip's and a breakfast shift was started at the Steakhouse. In addition, the breakfast cook was moved from Rip's and the head waitress was also moved. Other employees and equipment were also shifted to the Steakhouse.

Hallock objected to the partners about the cessation of the breakfast shift and Holiday Isle's lack of response to his request for consent to his purchase. Hallock alleged that personnel and equipment were diverted from Rip's to the Steakhouse to increase profits of the Steakhouse, to the detriment of Rip's. Holiday Isle responded by threatening to terminate the agreement. On March 1, 2000, Holiday Isle terminated the joint venture agreement.

Hallock sued Holiday Isle, Tosun and Joe Roth, Jr., alleging claims for tortious interference, fraud, breach of contract, libel and slander. After several motions to dismiss, amended complaints and motions for summary judgment, the trial court disposed of all counts except Hallock's breach of contract and breach of fiduciary duty against Tosun. Also pending is Tosun's counterclaim against Hallock for breach of contract.

II. AS TO TOSUN

First, with respect to Tosun, we agree with his position that the appeal against him is premature. The rule in Florida is that an appeal may be taken only from orders and judgments that are final, except as otherwise provided by statute. See Howard v. Ziegler, 40 So.2d 776, 777 (Fla.1949). A judgment or order is final when it adjudicates the merits of the case, disposes of the pending action, and leaves nothing further to be done by the trial court. Id.; Southwinds Riding Academy v. Schneider, 507 So.2d 782, 783 (Fla. 3d DCA 1987).

Florida Rule of Appellate Procedure 9.110(k) provides that, "partial final judgments are reviewable either on appeal from the partial final judgment or on appeal from the final judgment in the entire case." However, Florida case law holds that this exception only applies to partial judgments which are unrelated to the remaining portions of the case. See Bay & Gulf Laundry Equip. Co., Inc. v. Chateau Tower, Inc., 484 So.2d 615, 616 (Fla. 2d DCA 1985)

. Thus, not all partial judgments are immediately appealable.

In the case before us, as it applies to Tosun, the January 28, 2003 Order Granting Defendants' Motion for Summary Judgment and Summary Final Judgment is not a final order and is not appealable under Florida Rule of Appellate Procedure 9.110. This order, which is the only order for which Hallock seeks review as to Tosun, does not dispose of Hallocks' claims against Tosun for breach of contract and breach of fiduciary duty. Nor does the January 28, 2003 order dispose of Tosun's counterclaim against Hallock for breach of contract. Thus, the order under review is a partial summary judgment as to Tosun. Hallock's claims against Tosun and Tosun's counterclaim against Hallock are based upon the parties' conduct relating to the January 27, 1997 contract for sale and purchase whereby Hallock agreed to purchase Tosun's interest in the Rip's restaurant. Thus, the January 28, 2003 partial summary judgment in favor of Tosun against Hallock on Hallock's claims of defamation and fraud in the inducement, which are interdependent with Hallock's remaining claims of breach of contract and breach of fiduciary duty against Tosun, is not a final order and is not immediately appealable. Furthermore, this order is not one of the enumerated non-final orders under Florida Rule of Appellate Procedure 9.130(a)(3) which this Court is authorized to review.

Consequently, we find that this Court is without jurisdiction to review Hallock's appeal as it relates to Tosun. Accordingly, we dismiss without prejudice the appeal as to Tosun.

III. AS TO HOLIDAY ISLE

Next, turning to Hallock's appeal as it relates to Holiday Isle, we find merit to Hallock's breach of fiduciary duty issue. Hallock contends that as a matter of law, Holiday Isle owed him a fiduciary duty and that there is a genuine issue of material fact as to whether Holiday Isle breached its fiduciary duty to Hallock, thus precluding summary judgment. We agree with Hallock that as a matter of law, a joint adventurer such as Holiday Isle owes a fiduciary duty to the other partners not to open a competing restaurant and not to divert assets of the joint venture to that competing restaurant. In addition, the record before us reflects a genuine issue of material fact regarding whether Holiday Isle breached this duty.

As previously discussed, Hallock and Holiday Isle entered into a joint venture agreement. When Hallock purchased half of Tosun's interest, he became a partner in the partnership. Although joint ventures and partnerships are separate legal entities, both are governed by the same rules of law. As such, the laws governing partnerships are applicable to joint ventures. See Kislak v. Kreedian, 95 So.2d 510, 514 (Fla.1957)

. They are both governed by the Florida's Revised Uniform Partnership Act, chapter 620, Florida Statutes. Regarding the general duties and obligations of joint adventurers toward each other, they, like co-partners owe to one another, as long as the relationship continues, the duty of the finest and highest loyalty. See Donahue v. Davis, 68 So.2d 163, 171 (Fla.1953). According to section 620.8404(2), Florida Statutes (2000), a partner's duty of loyalty to the partnership and the other parties includes, without limitation the following:

(a) To account for the partnership and hold as trustee for the partnership any property, profit, or benefit derived by the partner in the conduct ... or derived from a use by the partner of partnership property, including the appropriation of a partnership opportunity;

(b) To refrain from dealing with the partnership in the conduct... of the partnership business as or on behalf of a party having an interest adverse to the partnership; and

(c) To refrain from competing with the partnership in the conduct of the partnership business before the dissolution of the partnership.

In light of this, we agree with Hallock that as a matter of law, Holiday Isle had a fiduciary duty to Hallock. Specifically, section 620.8404(2)(c) prevented the partners in this joint venture from competing against each other.

Next, turning to whether the summary judgment standard was met by Holiday Isle, we follow the long-standing principle that summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000)

. As such, the standard of review here is de novo....