Tulip Realty Co. of Fla. v. Fuhrer, 3856

• Decision Date: 26 July 1963
• Docket Number: No. 3856,3856
• Citation: 155 So.2d 637
• Parties: TULIP REALTY CO. OF FLORIDA, Inc., a Florida corporation, Appellant, v. Carl H. FUHRER, Appellee.
• Court: Florida District Court of Appeals

Page 637

155 So.2d 637

TULIP REALTY CO. OF FLORIDA, Inc., a Florida corporation, Appellant, v. Carl H. FUHRER, Appellee.

No. 3856.

District Court of Appeal of Florida, Second District.

July 26, 1963.

Rehearing Denied Aug. 21, 1963.

Norman M. Sevin of Aronovitz, Aronovitz & Haverfield, Miami, for appellant.

No appearance for appellee.

KANNER, Acting Chief Judge.

Asserted insufficiency of the element of doubt to activate the Declaratory Judgments Act, sections 87.01 et seq., Florida Statutes, F.S.A., is brought into focus through a single appeal point on this interlocutory appeal, directed by defendant-appellant, Tulip Realty Co. of Florida, Inc., lessor, against the lower court's order denying its motion to dismiss the styled second amended petition of plaintiff-appellee, Carl H. Fuhrer, lessee, for failure to state a cause of action for which relief may be granted.

Essentially, appellee alleges in his second amended petition that on January 20, 1958, the parties entered into a ten-year lease agreement, paragraph 2(c) of which provides:

'That he will not either voluntarily or involuntarily assign or sublet or license to any licensee the whole or any part of the demised premises without the written consent of the Lessor. Such consent shall be required in each instance, and, if once granted, shall not excuse or relieve the Lessee or his assignee from thereafter, in each instance, again being required to obtain such consent. Lessor agrees not to unreasonably withhold such consent.'

Other allegations assert in effect that around April 17, 1962, appellee requested and was arbitrarily and unreasonably refused appellant lessor's consent to assign his leasehold interest in the leased property, whereon he operates a drugstore, to Eastgate Pharmacy, Inc., one hald of the capital stock of which is owned or controlled by himself and one half by another; that both he and the latter are registered pharmacists experienced in operating a retail drug and sundry business; that all information had been furnished appellant as to financial stability of the proposed assignee; and that, in the event of default by the latter, appellee would not be relieved of liability. It is additionally set out that the lease is in full force and effect between the parties, that appellee feels he could but is uncertain of his right to assign without consent, and that an actual controversy and dispute has arisen between the parties. The rights, status, and legal relationship between appellee and appellant under and by virtue of the terms of the lease above set forth are said to be in doubt, uncertain, and insecure due to refusal of appellant to consent to the assignment. The relief prayed for is a declaration and adjudication as to appellee's right to assign.

It is the position of appellant lessor that the second amended petition alleges no doubt sufficient to put in motion the Declaratory Judgments Act but that at most it raises a question of fact as to the reasonableness of the withholding of consent with no uncertainty as to the meaning and interpretation of the language of the lease.

A provision in a lease that a lessor will not unreasonably withhold his consent to sublet does not appear to have presented an issue decided in the Florida jurisdiction. Construction of leases, however, has been a favorite subject for declaratory judgments. 9 Fla.Jur., section 32, page 578. It is provided in section 87.02, Florida Statutes, F.S.A., with reference to power to construe, that 'Any person claiming to be interested or who may be in doubt as to his rights under a deed, will, contract or other article, memorandum or instrument in writing * * * may have determined any question of construction or validity arising under such * * * contract, deed, will, franchise, or other article, memorandum or instrument in writing, or any part thereof, and obtain a declaration of rights, status or other equitable or legal relations thereunder.' A written lease is such an instrument as is contemplated by the quoted section.

The test recognized in this state of whether or not a complaint will give rise to a proceeding under the Declaratory Judgments Act inquires whether or not the party seeking a declaration shows that he is in doubt or is uncertain as to existence or nonexistence of some right, status, immunity, power, or privilege and has an actual, practical, and present need for a declaration. There must be a bona fide controversy, justiciable in the sense that it flows out of some definite and concrete assertion of right, and there should be involved the legal or equitable relations of parties having adverse interests with respect to which the declaration is sought. Ready v. Safeway Rock Co., 1946, 157 Fla. 27, 24 So.2d 808; May v. Holley, Fla.1952, 59 So.2d 636; Colby v. Colby, Fla.App.1960, 120 So.2d 797; 9 Fla.Jur., Declaratory Actions, sections 8 and 9, pages 552-554.

In controverting the propriety of a declaratory acting in the light of that which has been alleged, appellant relies upon two cases decided by the Supreme Court of Florida, Halpert v. Oleksy, Fla.1953, 65 So.2d 762; and Barrett v. Pickard, Fla.1956, 85 So.2d 630; along with a district court's decision in Olin's, Inc. v. Avis Rental Car System of Florida, Inc., Fla.App.1958, 102 So.2d 159, (for later proceeding see Fla.1958, 104 So.2d 508). In the Halpert case, the Declaratory Judgments Act was deemed unavailable where the leased premises had burned down and cancellation of the lease admitted by both parties, where there was no request raised of lessees' right to a return of their deposit under the terms of the lease except and because of damages claimed by each of the parties based upon alleged breaches of various terms of the lease. The court found no doubt asserted by either party as to the terms or meaning of any provision of the lease and found in the lease itself no provision doubtful in meaning, uncertain, or ambiguous. Stating that there was no question of construction of any term of the written lease for the circuit court to determine, the Supreme Court continued by saying that doubt, because of disputed facts alone, is not sufficient, 'especially when the only relief sought is damages.' (Emphasis added.)

The second case, Barrett v. Pickard, ...