Opinion
No. 74-1044.
December 10, 1974.
Appeal from the Circuit Court, Dade County, Francis J. Christie, J.
Lazan Trute, Bay Harbor Islands, for appellant.
Litman Muchnick and Jeffrey P. Wasserman, Hollywood, for appellees.
Before PEARSON and NATHAN, JJ., and GREEN, ROBERT A., Jr., Associate Judge.
By this interlocutory appeal the appellant, plaintiff in the trial court, seeks review of an order of the trial court dismissing the appellant's claim against the appellee, David Rubin, and granting the corporate appellee a change of venue. The action in the trial court sought an accounting.
The appellant was employed as a salesman by the appellee, Cameo Cabinet Co., working on a commission basis plus certain other compensation. Allegedly by some fraudulent method, the appellant was not fully compensated for his services so he brought the instant action seeking an accounting. The appellees moved to dismiss the complaint against the individual appellee, David Rubin, and moved for a change of venue as to the corporate appellee. After hearing on the motions, the trial court entered the order appealed dismissing the complaint as to the individual appellee and transferred the cause to Broward County.
This court is of the opinion that the trial court erred in dismissing the complaint as to David Rubin, individually, for failure to state a cause of action. The complaint, though inartfully drawn, does state a cause upon which relief can be granted.
In view of our ruling reversing the granting of the motion to dismiss, the point of venue is moot and will not be considered at this time.
Reversed and remanded, with directions to reinstate the cause of action.
I must respectfully dissent. This is an action for accounting against a Broward County corporation. The only excuse for bringing it in Dade County is a claim for fraud against a corporate officer residing in Dade County. It is claimed that this officer has personal liability because:
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"(f) The Plaintiff has reasonable grounds to believe that the individual Defendant, in computing and paying to the Plaintiff some or all of the commissions and additional compensation due the Plaintiff, did wilfully, maliciously and with wanton disregard of the rights of the Plaintiff, state the cost on some or all of said contracts to be more than the corporate Defendant's actual costs, and did not properly compute costs and compensation, this being to the detriment of the Plaintiff, thereby denying the Plaintiff of his proper compensation for this employment."
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The claim does not state a cause of action in fraud. As expressed in Douglas v. Ogle, 80 Fla. 42, 85 So. 243, 244 (1920), "`The distinguishing element of actual fraud . . . is always untruth between the two parties to the transactions, so that actual fraud may be reduced to misrepresentation and concealment.' . . . Pomeroy's Eq.Jur. (4th Ed.) § 992." See also Skinner v. Hulsey, 103 Fla. 713, 138 So. 769 (1931), where it is asserted that "[t]he right to sue the directors for gross negligence and mismanagement of the corporate affairs . . . is ordinarily not such a right as pertains to creditors of the corporation . . ." 138 So. 769, 772.