Ojus Industries, Inc. v. Mann

• Decision Date: 15 April 1969
• Docket Number: No. 69--94,69--94
• Citation: Ojus Industries, Inc. v. Mann, 221 So.2d 780 (Fla. App. 1969)
• Parties: OJUS INDUSTRIES, INC., and Stanley Spitzer, Appellants, v. Sidney I. MANN, Appellee.
• Court: Florida District Court of Appeals

Page 780

221 So.2d 780

OJUS INDUSTRIES, INC., and Stanley Spitzer, Appellants, v. Sidney I. MANN, Appellee.

No. 69--94.

District Court of Appeal of Florida, Third District.

April 15, 1969.

Rehearing Denied April 30, 1969.

Kelly, Black, Black & Kenny, Miami, for appellants.

Kovner, Mannheimer, Greenfield & Cutler, Miami, for appellee.

Before CHARLES CARROLL, C.J., and PEARSON and BARKDULL, JJ.

CHARLES CARROLL, Chief Judge.

This is an appeal from an order denying a motion of the defendants to compel arbitration, and granting a motion of the plaintiff for production of records in his suit for accounting as to a matter which the parties had agreed should be determined by arbitration. On petition of the defendants to review the provision of the order which denied their request for a stay of the ordered production of records pending their appeal, we granted such stay.

The appellants Ojus Industries, Inc., and Stanley Spitzer (with two individuals not involved on this appeal) entered into a contract with the appellee Sidney I. Mann. The contract recited that litigation was pending by Mann against 'the Ojus Group' for alleged wrongful removal of Mann from the office of president of the corporation. The purpose of the contract, as recited therein, who to 'terminate their relationship' and to 'settle the litigation now pending between them and to prevent further suits against the other.'

The contract called for dismissal of the litigation, exchange of general releases, and payment of $25,000 cash to Mann. It also contained provision for the purchase of Mann's stock for an amount equal to 30 percent to the book value of the stock of the corporation as of the date of completion of contracts #0798 and #1240 which were being processed by the corporation. It was stated in the contract that the parties estimated such book value 'will be approximately $57,000,' and there were certain provisions relating to items to be included and excluded in determining the book value.

Paragraph 9 of the contract provided as follows: 'In the event of a dispute concerning the book value of as completion date, said dispute will be determined by Haskins and Sells and the decision of Haskins and Sells shall be binding upon both parties.'

Thereafter Mann filed a suit entitled 'Complaint for Accounting and Damages,' against the corporation and Spitzer, alleging that notwithstanding the settlement contract the corporation and Spitzer had done certain acts willfully and vindictively to injure Mann by interfering with a contract of group insurance in which he participated, by advising the insurer not to pay a claim he had made. The complaint further alleged completion of the corporation's work contracts #0798 and #1240, making due the payment to Mann of 30 percent of the book value as consideration for his stock, and the failure of the defendants to pay the same. And it was alleged that such default in payment was willful, malicious and wanton, and done to embarrass and harm Mann in his business. The complaint prayed for production of documents for the purpose of the accounting sought, and for compensatory and punitive damages.

By answer the defendants averred that a statement of assets and liabilities of the corporation, as of the date of completion of the work contracts, showed the book value of the stock of the corporation was $58,757.17, of which 30 percent was $17,627.45, and averred that the defendants had made and continued an offer to Mann of the latter amount in payment for his stock, and that he had refused to accept the same 'on the ground that he did not recognize that said amount represented 30 percent of the book value of Ojus Industries, Inc. as at completion of Contracts #0798 and #1240.' Defendants then averred they had demanded of Mann that the controversy by submitted to arbitration as provided for in paragraph 9 of the contract, and that Mann had 'failed and refused to submit said dispute concerning the book value as of completion date of the aforesaid Contracts to Haskins & Sells.'

Thereafter the defendants filed a motion to compel arbitration, alleging the agreement therefor, and Mann's refusal thereof while retaining other benefits of the contract. Mann moved for discovery by production of...