Provence v. Palm Beach Taverns, Inc., No. 95-0544

CourtCourt of Appeal of Florida (US)
Writing for the CourtGUNTHER; GLICKSTEIN; KLEIN; KLEIN
Citation676 So.2d 1022
Parties21 Fla. L. Weekly D1490 David P. PROVENCE, Appellant, v. PALM BEACH TAVERNS, INC., John Lind and Jayne C. Lind, Appellees.
Docket NumberNo. 95-0544
Decision Date26 June 1996

Page 1022

676 So.2d 1022
21 Fla. L. Weekly D1490
David P. PROVENCE, Appellant,
v.
PALM BEACH TAVERNS, INC., John Lind and Jayne C. Lind, Appellees.
No. 95-0544.
District Court of Appeal of Florida,
Fourth District.
June 26, 1996.

Page 1023

Leon C. Baker, Boca Raton, for appellant.

Lauri Waldman Ross of Maland & Ross, Miami, and Bruce Benefeld, Sunrise, for appellees.

GUNTHER, Chief Judge.

Appellant, David P. Provence, plaintiff below (Provence), appeals a trial court order dismissing his amended complaint with prejudice. Because Provence alleged sufficient facts to confer standing, we reverse.

The appellees formerly owned and operated a tavern in West Palm Beach known as the "Dark Horse Tavern." In 1991, Provence purchased 100% of the shares of the corporation from Jacob Gilliken for $15,000 and various installment payments secured by the pledge of the stock. Thereafter, in January of 1992, appellee Jayne Lind purchased 50% of the shares from Provence either for herself or as a nominee for her son, appellee John Lind.

Nine months later, Gilliken sued to foreclose his lien on the pledged shares of stock due to non-payment. According to Provence, this suit was settled whereby the corporation agreed to pay all past due arrearages and Provence and John Lind agreed to become co-makers on the remaining obligation. According to the amended complaint, Provence entrusted the Linds to deliver the signed copies of the settlement agreement to Gilliken prior to the scheduled auction sale. However,

Page 1024

this purported delivery never occurred and the Linds purchased the remaining shares at the public auction.

As a result of the above, Provence filed a shareholder's derivative action against the appellees claiming that, after obtaining 100% of the corporate stock, the Linds stripped the corporation of its cash and movable assets thereby leaving the same insolvent. Importantly, the amended complaint alleged that the Linds held 50% of the shares in a constructive trust for Provence due to their intentional non-delivery of the settlement papers and deceptive purchase of the outstanding stock at the auction sale. Eventually, the appellees moved to dismiss the complaint claiming that Provence lacked standing to bring a derivative action. Following a hearing, the trial court granted the motion and dismissed Provence's amended complaint. In so doing, the trial court relied on and cited to section 607.07401, Fla.Stat. (1993).

It is well settled that a motion to dismiss is utilized to determine whether the complaint has alleged a cause of action upon which relief can be granted. Alexander Hamilton Corp. v. Leeson, 508 So.2d 513 (Fla. 4th DCA 1987). The trial court must look only to the four corners of the complaint and the allegations contained therein should be taken as true without regard to the pleader's ability to prove the same. Id.; Gamma Dev. Corp. v. Steinberg, 621 So.2d 718 (Fla. 4th DCA 1993). Generally, one has standing to sue when he or she has a sufficient interest at stake in the controversy which will be affected by the outcome of the litigation. Gieger v. Sun First Nat'l Bank of Orlando, 427 So.2d 815 (Fla. 5th DCA 1983).

A derivative action is one in which a stockholder seeks to sustain in his own name a right of action existing in the corporation. James Talcott, Inc. v. McDowell, 148 So.2d 36, 37 (Fla. 3d DCA 1962). Accordingly, the corporation is the real party in interest with the stockholder being only a nominal plaintiff. Id. However, in order to avoid predatory strike suits, Florida has expressly enacted the "contemporaneous stock ownership rule" in...

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60 practice notes
  • Springel v. Prosser (In re Innovative Comm'n Corp.), Bankruptcy No. 07-30012
    • United States
    • Bankr. V.I.
    • August 5, 2011
    ...acquired originally without fraud, it is against equity that it should be retained by him who holds it." Provence v. Palm Beach Taverns, 676 So.2d 1022, 1025 (Fla. Dist. Ct. App. 1996). The purpose of a constructive trust is two-fold: restoration of property to the rightful owner and preven......
  • City of Gainesville v. STATE, DOT, No. 1D99-4548.
    • United States
    • Court of Appeal of Florida (US)
    • March 5, 2001
    ...the attachments incorporated in it, and all well pleaded allegations are taken as true. See, e.g., Provence v. Palm Beach Taverns, Inc., 676 So.2d 1022 (Fla. 4th DCA 1996)." Alevizos v. John D. and Catherine T. MacArthur Found., 764 So.2d 8, 9 (Fla. 4th DCA III. On the merits, the threshold......
  • Bernardele v. Bonorino, Case No. 08-22781-CIV.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • March 30, 2009
    ...as an equitable remedy in a situation where there is a wrongful taking of the property of another. Provence v. Palm Beach Taverns, Inc., 676 So.2d 1022, 1025 (Fla.Dist.Ct.App.1996); Finkelstein v. Southeast Bank, N.A., 490 So.2d 976, 984 (Fla.Dist.Ct.App.1986). The necessary elements for im......
  • Talisman Capital Alt. Invs. Fund, Ltd. v. Mouttet (In re Mouttet), Bankruptcy No. No. 12–14490–LMI.
    • United States
    • United States Bankruptcy Courts. Eleventh Circuit. U.S. Bankruptcy Court — Southern District of Florida
    • May 16, 2013
    ...that something held by a party is actually the property of the party seeking the relief. Provence v. Palm Beach Taverns, Inc., 676 So.2d 1022, 1025 (Fla. 4th DCA 1996); Finkelstein v. Southeast Bank, N.A., 490 So.2d 976, 984 (Fla. 4th DCA 1986). In order to establish a constructive trust a ......
  • Request a trial to view additional results
60 cases
  • Springel v. Prosser (In re Innovative Comm'n Corp.), Bankruptcy No. 07-30012
    • United States
    • Bankr. V.I.
    • August 5, 2011
    ...acquired originally without fraud, it is against equity that it should be retained by him who holds it." Provence v. Palm Beach Taverns, 676 So.2d 1022, 1025 (Fla. Dist. Ct. App. 1996). The purpose of a constructive trust is two-fold: restoration of property to the rightful owner and preven......
  • City of Gainesville v. STATE, DOT, No. 1D99-4548.
    • United States
    • Court of Appeal of Florida (US)
    • March 5, 2001
    ...the attachments incorporated in it, and all well pleaded allegations are taken as true. See, e.g., Provence v. Palm Beach Taverns, Inc., 676 So.2d 1022 (Fla. 4th DCA 1996)." Alevizos v. John D. and Catherine T. MacArthur Found., 764 So.2d 8, 9 (Fla. 4th DCA III. On the merits, the threshold......
  • Bernardele v. Bonorino, Case No. 08-22781-CIV.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • March 30, 2009
    ...as an equitable remedy in a situation where there is a wrongful taking of the property of another. Provence v. Palm Beach Taverns, Inc., 676 So.2d 1022, 1025 (Fla.Dist.Ct.App.1996); Finkelstein v. Southeast Bank, N.A., 490 So.2d 976, 984 (Fla.Dist.Ct.App.1986). The necessary elements for im......
  • Talisman Capital Alt. Invs. Fund, Ltd. v. Mouttet (In re Mouttet), Bankruptcy No. No. 12–14490–LMI.
    • United States
    • United States Bankruptcy Courts. Eleventh Circuit. U.S. Bankruptcy Court — Southern District of Florida
    • May 16, 2013
    ...that something held by a party is actually the property of the party seeking the relief. Provence v. Palm Beach Taverns, Inc., 676 So.2d 1022, 1025 (Fla. 4th DCA 1996); Finkelstein v. Southeast Bank, N.A., 490 So.2d 976, 984 (Fla. 4th DCA 1986). In order to establish a constructive trust a ......
  • Request a trial to view additional results

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