Mabie v. Tutan, 70--418

• Decision Date: 30 March 1971
• Docket Number: No. 70--418,70--418
• Citation: 245 So.2d 872
• Parties: Lefferts L. MABIE, r., and J. W. Crews, Appellants, v. C. B. TUTAN, Appellee.
• Court: Florida District Court of Appeals

Page 872

245 So.2d 872

Lefferts L. MABIE, r., and J. W. Crews, Appellants, v. C. B. TUTAN, Appellee.

No. 70--418.

District Court of Appeal of Florida, Third District.

March 30, 1971.

Pallot, Silver, Pallot, Stern, Proby & Adkins, Miami, for appellants.

Frates, Floyd, Pearson & Stewart and Alan G. Greer, Miami, for appellee.

Before CHARLES CARROLL, BARKDULL and SWANN, JJ.

CARROLL, Judge.

On December 20, 1966, appellants filed a complaint against the appellee, as follows:

'COME NOW the Plaintiffs, LEFFERTS L. MABIE, JR., and J. W. CREWS, and sue Defendant, C. B. TUTAN, and allege:

1. This is an action for damages which exceed $5,000.00.

2. On or about December 22, 1962, the said Defendant converted to his own use 33 1/2% Of the capital stock of SURINAM TIMBER CORPORATION of the value of in excess of $50,000.00, which was then the property of the Plaintiffs.

WHEREFORE, Plaintiffs demand judgment for damages against Defendant.'

A motion of the defendant to dismiss the complaint was denied. The defendant answered, denying the allegation relating to conversion, and averring the action was barred by the statute of limitations and by acquiescence, ratification and estoppel. The defendant moved for judgment on the pleadings, invoking the three year statute of limitations applicable to such actions, § 95.11(5)(c) Fla.Stat., F.S.A. The motion was denied. Thereupon the parties plunged into extensive discovery proceedings, after which the defendant moved for summary judgment. That motion was denied without prejudice to renew it after further discovery. Some additional discovery was made by both parties. Defendant renewed the motion, and summary judgment was entered in favor of the defendant on January 14, 1969, without statement therein of the ground or grounds therefor.

Upon consideration of the pleadings and the evidentiary matter that was before the court on the hearing on the defendant's motion for summary judgment, we hold the trial court was eminently correct in granting summary judgment because in our view no conversion was shown.

The evidence before the trial court revealed certain dealings between the parties to this action and other persons, relating to a speculative venture in a lumber business in South America. In 1960, one Joe W. Harris interested these parties, and others, in supplying capital for the purpose of obtaining a concession in Surinam, South America, to conduct timber operations there, for the cutting and milling of timber and export of the lumber. A corporation was formed to conduct such operations. The stock of the corporation was purchased by these parties and others. After some shifting of interests by certain of the original investors, the stock holdings of the plaintiffs and of Tutan were approximately one-third and one-fourth respectively. Upwards of $100,000 was paid in for the stock. In addition, certain of the stockholders subsequently made advances to the corporation. However, prior to reaching a point of production, the investors were faced with a continuing need for substantial additional capital to cover cost of the construction of the necessary mill and for equipment and the expenses of the lumbering operations.

It was concluded by all of the stockholders that it would be to their interest to find a buyer for the project. In 1961 Tutan and Harris requested of the other stockholders that they place their stock with Tutan so it would be available for prompt delivery upon a sale. The stockholders complied. Mabie delivered his stock and that of certain others to Tutan. At that time Tutan was authorized to sell for the benefit of all. However, a sale which then was in prospect did not occur. In a period which followed it appeared that some if not all of the stockholders were actively seeking a sale of the business. Prior to sale of the business which occurred in December of 1962, Mabie made a number of requests or demands upon Tutan for return of the stock he had delivered to the latter. Tutan retained the stock, not for himself, but for the continuing purpose of selling as originally planned. That purpose was evidenced by Tutan so stating in response to requests made upon him for return of the stock, and by the nature of the sale which later was made.

Sale of the business, by transfer of the assets of the corporation and transfer of the corporate stock was made by Tutan and Erwin, two of the stockholders, by a written contract entered into by them on behalf of all the stockholders. The sale was made to Harris and one J. Carey Scott, Jr., on ...