Keathley v. Larson, 76-1809
| Decision Date | 22 July 1977 |
| Docket Number | No. 76-1809,76-1809 |
| Citation | 348 So.2d 382 |
| Parties | Harold L. KEATHLEY, Appellant, v. Walter LARSON et al., Appellees. |
| Court | Florida District Court of Appeals |
Dennis P. Thompson and David E. Platte, Richards, Nodine, Gilkey, Fite, Meyer & Thompson, P. A., Clearwater, for appellant.
John R. Bonner, Sr., Bonner & Hogan, P. A., Clearwater, for appellees.
In this interlocutory appeal Keathley, plaintiff below, seeks reversal of an order dismissing with prejudice Count I of his third amended complaint, an action for specific performance. We think he's right.
This cause commenced with appellant's filing of a two-count complaint against appellees. Count I sought specific performance of a contract whereby appellees agreed to sell to appellant all of the stock of a closely held corporation known as Gay Ranch, Inc. Appellant alleged that the main asset of said corporation is a mobile home park in Pinellas County, known as Gay Ranch. Count II sought recovery of monetary damages allegedly suffered by appellant as a result of appellees' breach of the aforesaid contract, i. e., appellees' refusal to close the transaction.
After obtaining leave to amend, appellant subsequently filed an amended complaint containing two counts, requesting the same relief as did the original complaint. Appellees moved to dismiss and, alternatively, to strike certain portions of the amended complaint, including all references to the purported contract between the parties (which was attached to the amended complaint) because Schedules A and B (the legal description of the real property upon which the Gay Ranch Mobile Home Park is situated) referred to in said contract were not attached thereto. By order dated January 22, 1976, Circuit Judge William Walker denied appellees' motion to dismiss, but granted their motion to strike.
Appellant then filed his second amended complaint requesting the same relief as his two prior complaints. Appellees again moved to dismiss and, alternatively, to strike certain paragraphs because, inter alia, appellant still had not attached Schedules A and B thereto.
By order dated April 5, 1976, Judge Walker found that Schedules A and B referred to in the contract sued upon "obviously contain the legal description of the property for which Plaintiff seeks the order of this Court for specific performance"; that said schedules are not included in the second amended complaint; that they are material; and that the legal description contained in Schedules A and B must be alleged or sufficient allegations otherwise made "whereby the Court could identify the property for which the specific performance is sought." Thereupon, Judge Walker granted appellees' motion to dismiss Count I of the second amended complaint for specific performance, with leave to appellant to amend within ten days.
Appellant timely filed his third amended complaint, again consisting of two counts seeking specific performance of an agreement of sale of closely held stock and monetary damages. Appellees again moved to dismiss or strike on the grounds that appellant had not complied with the order of April 5, 1976, by neither attaching Schedules A and B, nor alleging the legal descriptions contained in said schedules, nor otherwise making sufficient allegations to identify the property.
This time appellees' motion came on to be heard before Circuit Judge B. J. Driver, who entered the order appealed from, dated October 13, 1976, stating that, "the Court has limited itself to the issue of whether or not the requirements of Judge Walker's Order aforesaid (relating to the legal description) were complied with" and, finding that said requirements had not been fulfilled, dismissing Count I of the third amended complaint with prejudice.
The principal underlying issues in the case are, of course, whether a suit for specific performance will lie for enforcement of a contract for the sale and purchase of the stock (personalty) in a closely held corporation the main asset of which is realty and, if so, whether it is essential in such suit that the legal description of the corporate owned realty be pleaded and proved. We think each issue must be resolved in favor of appellant. In Carman v. Gunn 1 this court expressly held that such a contract was amenable to specific performance notwithstanding no attempt was made in the contract legally to describe the corporate owned realty. It necessarily follows, therefore, that the legal description of such realty is irrelevant; and it was error for Judge Walker to require appellant to plead it as a condition precedent to maintaining his specific...
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