Oster v. Cay Const. Co.
| Decision Date | 07 December 1967 |
| Docket Number | No. 1056,1056 |
| Citation | 204 So.2d 539 |
| Parties | Harold OSTER, Harry Cohen, Joseph Silber, Joseph Segal, David Blaushild, Arthur Feldman, D. E. Rose, Bernard Newman, Edward Kirtz, S & M Manufacturing Co., a partnership trust by N. John Serbin, Trustee, and Arthur Haupt, Appellants, v. CAY CONSTRUCTION COMPANY, a Florida corporation, Sylvan B. Krause, individually, as an officer of Conlee Construction Company, as a director of Conlee Construction Company, as an officer of Cay Construction Company, as a director of Cay Construction Company, and as a stockholder of Cay Construction Company, J. Leon Kahn a/k/a N. Leon Kahn, individually, as a stockholder of Conlee Construction Company, as an officer of Cay Construction Company, as a director of Cay Construction Company, and as a stockholder of Cay Construction Company et al., Appellees. |
| Court | Florida District Court of Appeals |
Richard E. Reckson, of Heiman & Crary, Cocoa, for appellants.
Benjamin Smathers and Robert J. Pleus, Jr., of Smathers, Tepper & Pleus, Orlando, and Fogle & Fordham, Miami, for appellees.
The plaintiff in this action is a corporation suing a director and others for an accounting and other relief from damages allegedly arising out of a breach of fiduciary duties owed by the defendants to the plaintiff.
The appellants filed in the trial court a petition for leave to intervene, alleging themselves to be holders of the majority of the stock of the plaintiff corporation. This is an interlocutory appeal from the trial court's order denying the petition. The only assigned error is the trial court's denial of the petition.
The petition for leave to intervene alleges that on 3 August 1966, at a special meeting of the stockholders of the plaintiff corporation, the Defendant-Krause and Oster, the latter being one of the petitioners, were removed as trustees under a voting trust arrangement established by the stockholders of the plaintiff corporation and that other action was taken which included the retention of a C.P.A. for the plaintiff corporation; and termination of the trust agreement; the retention of attorneys to intervene in this suit on behalf of the appellants; the ratification of the main suit by the plaintiff corporation against Kahn, Cay Construction Company and Krause; the ratification of employment of attorneys to represent the plaintiff in connection with this suit; and the replacement of existing officers and directors. No allegation is made in the petition that the main suit is not being properly conducted.
The petition for leave to intervene indicates that the appellants desire: (a) a decree confirming the removal of Krause by the stockholders as a trustee under the voting trust and as an officer and director of the corporation or in the alternative an order of court doing the same; (b) a confirmation of the other action taken by the stockholders at the stockholders$' meeting of 3 August 1966; and (c) general relief, including the assertion of 'claims' on behalf of the appellants arising out of the facts alleged in the amended complaint.
The amended complaint filed by the plaintiff corporation alleges that the Defendant-Krause, while a director and officer of the plaintiff corporation, acquired for himself, Cay Construction Company and J. Leon Kahn certain land in which the plaintiff was interested and as to which the Defendant-Kahn had a duty to act for and in the plaintiff's interest. The amended complaint also alleges that certain property, money and facilities of the plaintiff corporation were knowingly used by the defendants for their individual or joint benefit all without the authority and to the detriment of the plaintiff. An accounting from all defendants and incidental relief is sought.
Basically the appellants argue that where the petition for leave to intervene is 'in subordination to and in recognition of the main proceeding' intervention is a matter of right. The appellants state that their petition does not inject new factual issues; therefore, they claim to be entitled to intervention as a matter of right, but alternatively argue that, if the matter is discretionary, the trial court abused its discretion by denying the petition.
The rule on interventions provides:
'Anyone claiming an interest in pending litigation may at any time be permitted to assert his right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding, unless otherwise ordered by the court in its discretion.' (Fla.R.C.P. 1.230, formerly Rule...
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Vanguard Ins. Co. v. Townsend
...unless it is in "subordination of" and "in recognition of" the propriety of the litigation in the main suit. See Oster v. Cay Construction Co., 204 So.2d 539 (Fla. 4th DCA 1967); Riviera Club v. Belle Mead Development Corp., 141 Fla., 538, 194 So. 783 (1939). In this case, Vanguard's attemp......
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Brickell Bay Condominium Association, Inc. v. Forte
...706 (Fla. 3d DCA 1970); compare Faircloth v. Mr. Boston Distiller Corporation, 245 So .2d 240 (Fla.1970); Oster v. Cay Construction Company, 204 So.2d 539 (Fla. 4th DCA 1967) (mere indirect interest not sufficient for intervention); (2) as is evident from the assignment, the developers' onl......
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Marks v. Marks, 92-1377
...not find appellee's interest sufficient to support his intervention in his parents' dissolution of marriage. In Oster v. Cay Construction Co., 204 So.2d 539 (Fla. 3d DCA 1967), the third district described the required interest to intervene as It is has generally been held that the interest......
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Division of Administration, State Dept. of Transp. v. Rice
...v. Howey, 75 Fla. 234, 78 So. 14, 15 (1918); accord, Miracle House Corp. v. Haige, 96 So.2d 417 (Fla.1957); Oster v. Cay Construction Co., 204 So.2d 539 (Fla.App.1967). As noted above, appellant's complaint in the case sub judice does not describe nor seek to acquire title to any part of or......