Venditti-Siravo, Inc. v. City of Hollywood, Fla., VENDITTI-SIRAV
| Decision Date | 08 September 1982 |
| Docket Number | No. 81-1702,INC,VENDITTI-SIRAV,81-1702 |
| Citation | 418 So.2d 1251 |
| Parties | , a Florida corporation, Appellant, v. CITY OF HOLLYWOOD, FLORIDA, a municipal Florida corporation, Appellee. |
| Court | Florida District Court of Appeals |
Andrew M. Chansen of Law Offices of Chansen & Chansen, Fort Lauderdale, for appellant.
Nancy A. Cousins, City Atty., and Andrew DeGraffenreidt, III, Deputy City Atty., Hollywood, for appellee.
The trial court entered a judgment on the pleadings in favor of defendant, City of Hollywood, and against plaintiff, Venditti-Siravo, Inc., hereafter called Venditti. Venditti appeals. We affirm in part and reverse in part.
Venditti's amended complaint contained three counts.
Count I was an action for damages based on a breach of contract. Paraphrasing, it appears that the parties entered into an oral contract in November, 1976, whereby Venditti, a property developer, advanced to the City, at the City's demand, the whole amount of a property assessment in the sum of $26,803.55 even though Venditti's proper share of the assessment for the property it owned amounted to only $10,274.10. It was alleged that the City agreed that thereafter the City would collect the differential or Venditti's over payment in the sum of $16,529.45 from other property owners in the vicinity as their property was later developed. It was alleged that the City promised that the money so collected from subsequent property developers would be repaid to Venditti so that he (and the other owners) would end up paying only their proper share. Attached was a list of subsequent property developed in the area and their respective assessments which, coincidentally, was in an amount sufficient to reimburse Venditti. Venditti alleged the breach in that the City refused to pay him the promised sum of $16,529.45, despite Venditti's demand.
Count II simply repeated Count I and said the City had been unjustly enriched in taking the money not owed to the City and refusing to repay it.
Count III was a petition for writ of mandamus seeking to compel the City to collect the money in question from other developers and pay same over to Venditti. We take it that Venditti agrees with the trial court's determination as concerns this count inasmuch as Venditti does not treat it or otherwise take exception in its brief. Regardless, we note that there was a manifest misconception of remedy in attempting to use mandamus under the circumstances. The payment of monies allegedly due under an oral contract is not ministerial. We affirm the disposition of Count III.
Back to Counts I and II, Venditti's original complaint was dismissed with leave to amend, "... in that the complaint fails to state the subsequent developers have developed the property." This lack was supplied in the amended complaint which, otherwise, was identical to the original complaint. We believe under these circumstances that, at least tacitly, the trial court did determine that the complaint, as amended, stated a cause of action.
The City answered in sum by general denial and offered the affirmative defenses of Statute of Frauds (oral contract not to be performed within space of one year), and Statute of Limitations, which defenses were denied by Venditti.
We now get closer. The City filed its Motion For Judgment on the Pleadings. Fla.R.Civ.P. 1.140(c). The sole reason advanced as the basis for the motion was that Count I was barred by the Statute of Frauds in that it was based on an oral contract.
Certain fundamentals are applicable as concerns a motion for judgment on the pleadings. Such motion has limited application. It is appropriate where the complaint fails to state a cause of action against the defendant or where the answer fails to state a defense or tender...
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