West Shore Restaurant Corp. v. Turk

• Decision Date: 05 March 1958
• Citation: 101 So.2d 123
• Parties: WEST SHORE RESTAURANT CORP., a Florida Corporation, Appellant, v. Irving TURK, Phil Turk, Joe Lefft and Alva Bartke, Appellees.
• Court: Florida Supreme Court

Page 123

101 So.2d 123

WEST SHORE RESTAURANT CORP., a Florida Corporation, Appellant, v. Irving TURK, Phil Turk, Joe Lefft and Alva Bartke, Appellees.

Supreme Court of Florida.

March 5, 1958.

S. E. Simmons, of Bussey & Simmons, St. Petersburg, for appellant.

Matt O'Brien, of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellees.

O'CONNELL, Justice.

West Shore Restaurant Corp., appellant, was plaintiff in the court below in a suit charging the defendant, Irving Turk, with violation of a restrictive covenant. The other defendants, Phil Turk, Joe Lefft and Alva Bartke, were charged with aiding and assisting Irving Turk in avoiding the effect of the restrictive covenant, each being fully aware of its existence and terms.

The complaint alleges that on May 30, 1955, plaintiff purchased for $400,000 a valuable restaurant known as 'Wolfies', located at 3200 Central Avenue in St. Petersburg, Florida; that said restaurant was owned by a Florida corporation and under the active management of the defendant, Irving Turk; that simultaneously and as part of the consideration for the purchase price, the stockholders of the vendor corporation, including defendant Irving Turk, executed and delivered to the plaintiff a restrictive covenant which in part provided that none of the stockholders of the seller corporation would become engaged directly or indirectly, as principal or as agent, as employer or as employee, as officer, director or stockholder of a corporation, as partner dormant, special or otherwise, or as licensee in a business involving the retail sale of food for consumption on the premises or for the retail sale of bakery products for consumption on or off the premises; and that such covenant, insofar as defendant Irving Turk is concerned, covers a period of five years and an area whose radius is seven miles from 'Wolfies' at 3200 Central Avenue, St. Petersburg.

The complaint further alleges that on or about September 30, 1955, the defendant, Phil Turk, who is the father of defendant, Irving Turk, and the defendant Joe Lefft pretended to purchase from the defendant Alva Bartke and her husband two restaurants known as 'Bartke's', one located at the International Airport in Tampa and the other at the Tropic Terrace Apartment Hotel, 11730 Gulf Boulevard on Treasure Island in Pinellas County, the latter being within a radius of seven miles of 3200 Central Avenue, St. Peterburg. The complaint avers that the plaintiff is unacquainted with the precise form under which this transaction was conducted, but avers that defendants Irving Turk and Joe Lefft were the actual purchasers and are now the true owners, that the restaurants are jointly owned and managed by the defendants, and that the entire arrangement is a mere subterfuge designed by all of the defendants to evade the effect of the restrictive covenants. In addition, the complaint avers that, at the time such complaint was made, defendants Joe Lefft and Irving Turk were negotiating to buy a third restaurant, known as 'Ciro's' (subsequently know as 'The Rainbow Room') located at 10803 Gulf Boulevard, Treasure Island; that the purchase was to be in the names of Lefft and Phil Turk, again being a cloak to conceal the idenity of the true purchasers, Lefft and Irving Turk; and that said restaurant is within the seven mile radius of 3200 Central Avenue in St. Petersburg.

In the complaint each of the defendants is charged with actual notice and knowledge of the terms and existence of the restrictive covenant; each is accused of deliberately having the purpose and design of aiding and assisting the defendant Irving Turk to avoid the effect of said covenant; and defendant Alva Bartke is further charged with conspiring with the other defendants in a scheme to avoid forfeiture of the nonassignable lease of the premises at the Tropic Terrace Hotel, the defendants pretending to retain her as operator of the restaurant there operated, whereas in truth she had no interest in the business except such as might exist by virtue of any unpaid portion of the purchase price due her and her husband in connection with the sale of such restaurant.

The complaint then prays that defendant Irving Turk be enjoined from engaging directly or indirectly in any business involving the retail sale of food for consumption on the premises at either of the two mentioned locations or anywhere else within the described radius within the five year period. Also, the complaint prays that the other defendants be similarly enjoined from engaging in business with Irving Turk and that, if necessary, they all be required to divest themselves of ownership of any beneficial interest in the two restaurants.

The court considered and denied motions by the defendants to dismiss and to strike portions of the complaint. Defedants then filed answers to the complaint.

The answers deny that Irving Turk has any beneficial interest in the two restaurants purchased from the Bartkes, allege that Phil Turk and Lefft are the actual purchasers, and claim that Irving Turk is merely an employee of the corporation known as Bartke, Inc., being such corporation's manager of the restaurant located at Tampa International Airport and supervisor of a commissary there located. Knowledge, on the part of the defendants Phil Turk and Joe Lefft, of the existence of the restrictive covenant affecting Irving Turk is admitted, but it is denied that Irving Turk's connection with the business constitutes a violation thereof, especially at Ciro's ('The Rainbow Room') which is alleged to be owned by a separate corporation known as Bartke's Treasure Island, Inc., and which is alleged to have no ties with Irving Turk, directly or indirectly.

In her separate answer, defendant Alva Bartke disclaims knowledge of the facts stated in the complaint except the father-son relationship between Phil and Irving Turk, the identity of Joe Lefft as one of the purchasers of the two restaurants from her and her husband, the non-assignability of the lease of the restaurant at the Tropic Terrace and her operation of such restaurant.

The case was then at issue and depositions were taken by plaintiff of each defendant and of Frank Bartke, husband of defendant Alva Bartke; of Harry King, manager of the restaurant at the Tropic Terrace; of Melvin Berger, a wholesale food distributor; and of Peter Cook, office manager of Bartke's Inc.

Each party then moved for summary decree, defendants supporting their motion with affidavits. After hearing thereon, the chancellor entered his order denying plaintiff's motion for summary decree but granting defendants', dismissing the cause. In his final decree, the chancellor recited that the parties had stipulated in open court that both the Tropic Terrace Restaurant and the Rainbow Room (formerly called 'Ciro's') were within a radius of seven miles from 3200 Central Avenue, St. Petersburg; that the lease, held by defendant Alva Bartke, of the Tropic Terrace Restaurant had been cancelled and none of the defendants were then carrying on business at that site, and that therefore the complaint be dismissed as to defendant Alva Bartke.

Defendants contend that the chancellor properly exercised his discretion in entering summary judgment for defendants and dismissing the cause. They argue that such discretion is specifically given him in Sec. 542.12(2), F.S.A., which pertains to restrictive covenants of the type here involved. It is true that the general rule is that the exercise of the chancellor's discretion will not be disturbed on appeal unless it affirmatively appears that his action constituted an abuse thereof.

However, in this case the chancellor did not hear witnesses. He acted on the same pleadings, affidavits, and depositions which make up the record now before us. Much of the evidence was taken from the defendants themselves and was not disputed, leaving to the chancellor only the task of interpreting the probative force and legal effect of what was before him. In such a case the presumption of correctness of the rulings of the chancellor are not as strong as where the evidence is conflicting or where the chancellor heard the witnesses himself. Harmon v. Harmon, Fla.1949, 40 So.2d 209, 212; Holland v. Gross, Fla.1956, 89 So.2d 255, 258.

The presumption of correctness due the ruling of a chancellor based on a written record, where his effort has been directed to determining the probative force and legal effect of the written record, is slight for the reason that we have everything before us that he had before him and we have the same opportunity to weigh it as did the chancellor.

Nor can we agree with defendants that the plaintiff is estopped to complain of the summary decree against it since it also had moved for summary decree. To follow this reasoning would mean that one who made such a motion would be precluded from contesting the correctness of any adverse order entered against him as a result thereof. Defendants rely for this point on the case of Rigel v. National Casualty Co., Fla.1954, 76 So.2d 285, but we do not find that case to be factually similar. It is not controlling. The decisions of this Court in Shaffran v. Holness, Fla.1957, 93 So.2d 94, and Macina v. Magurno, Fla., 100 So.2d 369, are in point and determine the point contrary to defendants' contention.

We proceed then for determination of the questions of (1) whether or not there was in fact no genuine issue of material fact remaining to be decided so as to entitle defendants to a summary final decree as a matter of law, or (2) whether plaintiff was entitled to such a decree.

Defendants do not contend that the restrictive covenant sought to be enforced is void as being unreasonable in any way. Consequently, we are concerned only with whether or not the covenant was being breached, and whether defendants should be enjoined from breaching it.

As we view the record, the plaintiff contends that the covenant not to compete has been and is...