Heyman v. Kline, Civ. No. B-12.
| Decision Date | 26 June 1970 |
| Docket Number | Civ. No. B-12. |
| Citation | 344 F. Supp. 1088 |
| Court | U.S. District Court — District of Connecticut |
| Parties | Annette HEYMAN, Individually, Annette Heyman, as Executrix of the Estate of Lazarus S. Heyman, Late of Danbury, and Prudential Management Company, a Connecticut corporation, Plaintiffs, v. Robert S. KLINE, Defendant. |
COPYRIGHT MATERIAL OMITTED
Jon O. Newman, Hartford, Conn., for plaintiffs.
John R. Bush, of MacFarlane, Ferguson, Allison & Kelly, Tampa, Fla., William B. Rush, of Pullman, Comley, Bradley & Reeves, Bridgeport, Conn., and Thomas J. Dolan, of Coles, O'Connell & Dolan, Bridgeport, Conn., for defendant.
In this diversity action commenced in this Court on February 12, 1970 by the filing of a verified complaint, plaintiffs seek declaratory and injunctive relief plus damages arising out of defendant's alleged breach of his employment contracts with plaintiffs and defendant's various alleged tortious acts which are claimed to have been injurious to plaintiffs. Specifically, plaintiffs seek (i) a declaratory judgment that defendant has no right, title or interest in certain real property in Tampa, Florida; (ii) preliminary and permanent injunctions enjoining defendant from interfering with plaintiff's ownership and development of the Tampa property; (iii) damages; and (iv) other relief, including reasonable expenses incurred by plaintiffs as a result of acts of alleged civil contempt committed by defendant and his counsel in violating this Court's temporary restraining order of February 12, 1970.
Defendant's verified answer filed March 31, 1970 denies the material allegations of the complaint; alleges certain affirmative defenses; and asserts a counterclaim seeking to establish defendant's interest in the Tampa property and claiming damages.
For the reasons stated below, the Court holds that plaintiffs are entitled to the relief sought by them, and that defendant's counterclaim must be dismissed.
Jurisdiction is founded upon diversity of citizenship and requisite jurisdictional amount. 28 U.S.C. § 1332(a) (1) (1964).
Plaintiff Annette Heyman is a Connecticut citizen residing in Danbury; she sues individually and as executrix of the estate of her late husband, Lazarus S. Heyman, who died a resident of Danbury.
Plaintiff Prudential Management Company is a Connecticut corporation with its principal place of business in Danbury.
Defendant Robert S. Kline is a Florida citizen residing in Largo, Florida.
The matter in controversy exceeds $10,000, exclusive of interest and costs.
The Court, in a memorandum of decision filed March 19, 1970,1 denied defendant's motion to dismiss this action for lack of in personam jurisdiction over defendant, holding that defendant as a Florida resident was amenable to service of process in Florida pursuant to Connecticut's long arm statute, Conn.P.A. No. 744 (Jan. 1969), formerly Conn. Gen.Stat. § 52-59a (1958), and that service was properly made on defendant in Florida pursuant to Conn.P.A. No. 635 (Jan. 1969), formerly Conn.Gen.Stat. § 52-59a (1958).
Pursuant to agreement of the parties, the Court held an eight day consolidated hearing at Bridgeport, beginning April 27, 1970 and concluding May 7, 1970, on plaintiffs' and defendant's applications for preliminary injunctions, plaintiffs' contempt motion and trial on the merits. Rule 65(a) (2), Fed.R.Civ.P.
The record before the Court consists of the pleadings; facts established by stipulation and requests for admissions; answers to interrogatories; some 105 documentary exhibits; depositions read in evidence; and the trial testimony of 25 witnesses.
Counsel for the respective parties have been fully heard in oral argument; and they have submitted helpful briefs, together with proposed findings of fact and conclusions of law.
After trial and based upon the entire record, the Court makes the following findings of fact.
(1) On February 15, 1968, Lazarus Heyman acquired an option (PX-13)2 to purchase 73 acres of land in Tampa, Florida (the Tampa property). He paid $10,000 for the option which was exercisable within 120 days, i. e. by June 15, 1968.
(2) On March 31, 1968, after preliminary discussions, Kline entered into a one year written employment contract (PX-22; DX-B) with Lazarus Heyman to begin April 15, 1968. By the terms of this contract, Kline was to devote his full time exclusively to Heyman's business in connection with the acquisition and development of commercial and industrial real estate—particularly the leasing thereof—and Kline was to receive (a) a salary of $20,000 per annum, (b) a year end bonus to be determined at the discretion of Heyman on the basis of leases closed during the year, and (c) the right to invest such bonus payments in Heyman's real estate developments, to the extent of 15% of the equity thereof, subject to the agreement of Heyman's co-venturers and provided Kline indicated his intention to so invest at the inception of the deal. Kline was to open a small office in the Tampa area. His first order of business under this employment contract was the development of the Tampa property upon which Heyman recently had acquired an option.
(3) Lazarus Heyman died on May 22, 1968.
(4) His widow, Annette Heyman, was appointed executrix of his estate. She continued the real estate business of Lazarus Heyman.
(5) Lazarus Heyman was survived also by a daughter, Abigail Heyman, and by a son, Samuel J. Heyman.
(6) Samuel J. Heyman, a lawyer and former Assistant United States Attorney, assisted his mother, Annette Heyman, in the conduct of the family real estate business after the death of his father. At all times here pertinent, he acted as agent of his mother; he also was an officer and stockholder of plaintiff Prudential Management Company.
(7) Shortly after the death of Lazarus Heyman, Samuel Heyman, acting on behalf of his mother, orally agreed with Kline that the latter's employment contract with Lazarus Heyman would continue, except that Kline would work in Danbury rather than Tampa.
(8) On June 15, 1968, Annette Heyman, as executrix, upon the payment of $5,000, obtained an extension to July 15, 1968 of the option to purchase the Tampa property (PX-14; DX-C); and on July 15, 1968, upon the payment of an additional $5,000, she obtained a further extension to August 15, 1968.
(9) On August 13, 1968, Annette Heyman, individually, exercised the option to purchase the Tampa property upon the payment of an additional $30,000 (PX-6). The closing took place on December 9, 1968. On February 1, 1969, Annette Heyman entered into a lease (PX-8) of the Tampa property to Tampa Mall, Inc., a subsidiary of Edward J. De Bartolo Company, by the terms of which the tenant is required to commence construction of a shopping center on the Tampa property by August 1, 1970.
(10) Between early July and the middle of August 1968, Samuel Heyman and Kline discussed Kline's continued employment by Annette Heyman. The upshot was an understanding, reached just prior to Samuel Heyman's departure on August 15 for two weeks of military reserve duty, that Kline would be given a new one year employment contract; that his new salary would be $30,000 per annum; and that he would have the right to invest to the extent of 15% in the Tampa venture, subject to certain conditions specified below in paragraph 19.
(11) On September 9, 1968, Kline entered into a new one year written employment contract with Annette Heyman for the period from September 1, 1968 to August 31, 1969 (PX-21; DX-G). This contract superceded the earlier contract of March 31, 1968 between Kline and Lazarus Heyman. The new contract provided that Kline would devote his full time exclusively to the Heyman business, including the acquisition, sale, development and management of commercial and industrial real estate; that he would receive a salary of $30,000 per annum, the use of a leased car, plus reimbursement of reasonable, necessary and ordinary business expenses incurred pursuant to his employment; that he would have the right to invest his own money in his employer's real estate ventures, to the extent of 15% of the equity thereof; and that his 15% participation in the Tampa venture was subject to certain conditions specified below in paragraph 19. Kline was to perform his duties under the new contract at the Heyman office in Danbury and was to take up residence in the Danbury area.
(12) On January 17, 1969, Samuel Heyman, acting for his mother, discharged Kline for cause. See paragraphs 23 and 24 below.
(13) On July 16, 1968, Annette Heyman executed a simple form of assignment of the option agreement (DX-D) with respect to the Tampa property, under the following circumstances.
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