Sapienza v. Karland, Inc.

• Court: Florida District Court of Appeals
• Writing for the Court: Before PEARSON, TILLMAN; PEARSON, TILLMAN
• Citation: Sapienza v. Karland, Inc., 154 So.2d 204 (Fla. App. 1963)
• Decision Date: 04 June 1963
• Docket Number: No. 62-595,62-595
• Parties: Joe SAPIENZA, Appellant, v. KARLAND, INC., a Florida corporation, d/b/a Sagamore Hotel, Appellee.

Page 204

154 So.2d 204

Joe SAPIENZA, Appellant, v. KARLAND, INC., a Florida corporation, d/b/a Sagamore Hotel, Appellee.

No. 62-595.

District Court of Appeal of Florida, Third District.

June 4, 1963.

Rehearing Denied June 26, 1963.

Richard K. Fink, Miami, for appellant.

Sheldon R. Rosenthal, Miami, for appellee.

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

PEARSON, TILLMAN, Chief Judge.

The appellant, who was plaintiff in the trial court, appeals an order striking his complaint as a sham pleading and entering judgment for the defendant. Plaintiff's complaint was founded upon the claimed conversion of certain personal property. The defendant filed a motion to strike the complaint as sham upon the following grounds:

'1. That the Plaintiff is not the owner of the entire personalty claimed, but did sell two-thirds (2/3) of the said property prior to the alleged date of the conversion in the above captioned matter.

'2. That the deposition of the Plaintiff was taken on or about the 4th day of June, 1962, at which time he did admit that he sold two-thirds (2/3) of the said property to JOHN TRONOLONE at a time prior to the alleged conversion date.

'3. That up to and including the present date, the Plaintiff is the owner of one-third (1/3) of the property allegedly converted.

'4. That the Plaintiff, during the date of his deposition, did admit and state that the market value of the said property allegedly converted was FIFTEEN-HUNDRED ($1500.00) DOLLARS less than the FIFTY-SEVEN HUNDRED ($5700.00) DOLLARS claimed.

'5. That the Plaintiff, through his own admissions is the owner of one-third (1/3) of the property allegedly converted, and would therefore, under the law, only be entitled to one-third (1/3) of the market value of the said property.

'6. That the Plaintiff, through his own admissions, is the owner of one-third (1/3) of the property allegedly converted, and would therefore, under the law, only be entitled to one-third (1/3) of the reasonable rental value of the said property, and one-third (1/3) of the loss of income to the Plaintiff for the alleged loss of use of the said property.'

The court entered an order on the motion to strike as follows:

'CONSIDERED, ORDERED AND ADJUDGED that ruling upon said Motion to Strike as sham be and the same is hereby reserved, and Plaintiff shall, within ten (10) days of the date of this Order file and serve an Amended Complaint.'

Thereafter, on the 23rd day of July, 1962, the court entered the judgment appealed in the following words:

'THIS CAUSE, coming on to be heard before me upon the Defendant's Motion to Strike as Sham, and the Court after having heard argument of counsel, and after having considered the evidence, exhibits and depositions on file, and statements and admissions of counsel, the Court finds that the material allegations essential to the validity of this Complaint are sham, false and untrue, and the Court, having granted the Plaintiff ten (10) days within which to file an Amended Complaint, and it appearing to this Court that the Plaintiff has failed to file same, it is thereupon:

'CONSIDERED, ORDERED and ADJUDGED as follows:

'1. That the Defendant's Motion to Strike Plaintiff's Complaint as Sham be and the same is hereby granted.

'2. That the Plaintiff's Complaint be and the same is hereby stricken as sham, and that judgment is hereby entered in favor of the Defendant, KARLAND, INC., a Florida corporation, and against the Plaintiff, JOE SAPIENZA, together with the Defendant's costs, to be subsequently taxed, and that the Defendant, KARLAND, INC., a Florida corporation, may go hence without day.'

Appellant's argument is centered upon the proposition that his cause of action should not have been dismissed with prejudice inasmuch as it affirmatively appears that the complaint was good for a portion of the personal property claimed to have been converted. It should be noted that the order appealed cannot be sustained as a dismissal of plaintiff's complaint for failure to file an amended complaint. Nenow v. Ceilings & Specialties, Inc., Fla.App.1963, 151 So.2d 28. It is apparent that the circuit judge attempted to give the plaintiff-appellant an opportunity to amend...