MONTGOMERY PIPE & TUBE CO. OF FLORIDA, A FLORIDA CORPORATION, AND DAVID H. SMITH, ERVIN GREENBAUM AND STANLEY SPITZER, INDIVIDUALLY, APPELLANTS,
v.
SIDNEY MANN, APPELLEE
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This interlocutory appeal is from an order which granted a temporary injunction tO' the plaintiff below, Sidney Mann (appel-lee).
The appellant, Montgomery, is a Florida corporation. Its stockholders consisted of the appellants, Smith, Greenbaum, Spitzer and the appellee, Sidney Mann.
Appellant’s corporate by-laws contained, in Article V, Section 5, the following language:
“The officers of the corporation shall hold office for one year or for such period as may be designated by the board of directors. Any officer elected or appointed by the board of directors may be removed at any time, with or without cause, by the affirmative vote of a majority of the whole board of directors. If the office of any officer becomes
*661vacant for any reason, the vacancy shall be filled by the board of directors.”
All of the stockholders of this close corporation had entered into a stockholders’ agreement which provided that the corporation would conduct its business subject to the provisions of the stockholders’ agreement.
Paragraph 10 of thé stockholders’ agreement provided as follows:
“Employment of Stockholders. The stockholders shall vote their stock so as to provide the following:
“(a) Each of the Stockholders shall be a member of the Board of Directors of the Corporation.
“(b) The Stockholders shall hold the following officerships:
Mann President
Smith Vice President — Secretary
Greenbaum Vice President
Spitzer Treasurer and Assistant Secretary
“(c) The Stockholders shall receive the following annual compensation for their services; Mann shall receive $50,000;
then various amounts were provided for the other stockholders.
Apparently, officers were elected, stockholders employed and salaries paid under the stockholders’ agreement until June 17, 1967. At that time, a meeting of the board of directors of Montgomery was held and Mann was removed as president of Montgomery and his salary of $50,000 per annum was suspended.
Mann thereafter filed his complaint, seeking, essentially, reinstatement to the office of president of Montgomery and restoration of his salary benefits.
After various hearings, the court below entered its injunctive order on August 8, 1967, from which this appeal arises. The order did not reinstate the appellant, Mann,1 as president of Montgomery, but directed the corporation to reinstate his salary retroactively until June 17, 1967, and directed it to continue paying his salary until the final hearing. It continued an injunction bond of $10,000 previously filed and permitted Mann to visit the corporate plant two days each week to inspect the books and premises of the corporation.
The appellants challenge the validity of this order.
Usually, a mandatory injunction in Florida will not be granted until after a final hearing on the merits as its effect before that time has been compared to awarding execution before trial and judgment. Florida East Coast Ry. Co. v. Taylor, 56 Fla. 788, 47 So. 345 (1908); Kellerman v. Chase & Co., 101 Fla. 785, 135 So. 127 (1931); 17 Fla.Jur. Injunctions, § 10.
A mandatory injunction may be granted prior to final hearing, however, in rare cases where the right is clear and free from reasonable doubt. American Fire & Casualty Co. v. Rader, 160 Fla. 700, 36 So.2d 270 (1948); Kline v. State Beverage Department of Florida, Fla.1955, 77 So.2d 872.
We find that the right of Mann to continue drawing a salary of $50,000 per year from the corporation, under these circumstances, is not so clear and free from reasonable doubt as to warrant the *662granting of a mandatory injunction prior to final hearing on the merits.
A reasonable doubt arises as to whether the by-laws and the agreement are in direct conflict or are ambiguous, and if so, which controls ? Does Paragraph 10(c) of the agreement contemplate an employment contract of Mann’s services by the corporation? If so, it is generally held that the courts wil not compel specific performance of personal service contracts. Bacon v. Karr, Fla.App.1962, 139 So.2d 166. These matters should be fully explored at a final hearing on the merits.
We therefore reverse that portion of the order which required the appellant Montgomery to pay Mann’s salary from June 17, 1967 until the final hearing and remand this issue for determination at final hearing.
We affirm all other parts of the challenged order but direct that the injunction bond, on remand, should be amended and made payable to the proper parties.
Affirmed in part, reversed in part and remanded with directions.
It is so ordered.
Cases With Similar Vibessemantic neighbors from the corpus
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Wilson v. Sandstrom, 317 So. 2d 732 (Fla. 1975)…ceeded the jurisdiction of the circuit court. It is contended the mandatory injunction could not be granted until after final hearing, citing F. E. C. Railway Co. v. Taylor, 56 Fla. 788, 47 So. 345 (1908), and Montgomery Pipe & Tube Company v. Mann, 205 So. 2d 660 (Fla.App. 3d 1968). Flagler says that temporary mandatory in [*736] junction may be granted where it appears that plaintiff has a clear right to invoke the remedy free from reasonable doubt. In Kellerman v. Chase & Co., 101 Fla. 785, 135 So. 127 (1…
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DELTA Gen. Corp. v. Priess, 389 So. 2d 1083 (Fla. 3d DCA 1980)…ht to it is clear and free from reasonable doubt. American Fire & Casualty Co. v. Rader, 160 Fla. 700, 36 So. 2d 270 (1948); Florida East Coast Railway Company v. Taylor, 56 Fla. 788, 47 So. 345 (1908); Montgomery Pipe & Tube Co. of Florida v. Mann, 205 So. 2d 660 (Fla. 3d DCA 1968). This case does not fall within the exception. Indeed, the record reflects serious disputes over whether the completion date called for by the original contract was extended by a second contract to a date well beyond the date orde…
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Mosely v. de Moya, 497 So. 2d 696 (Fla. 3d DCA 1986)…ctual basis for his continued presidency of the corporation is misplaced. There is no cause of action either for specific performance or for an injunction against breach of a contract for personal services. Montgomery Pipe & Tube Co. v. [*698] Mann, 205 So. 2d 660 (Fla.3d DCA 1968); Robinson v. Sax, 115 So. 2d 438 (Fla.3d DCA 1959). If de Moya is removed from the presidency of the corporation, his appropriate remedy, if any, is an action for breach of contract. Frank, 107 So. 2d at 138-39; see Mike Smith Pont…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fla. E. Coast Ry. Co. v. Taylor, 56 Fla. 788 (Fla. 1908)
- Eve Bacon v. Karr, 139 So. 2d 166 (Fla. 2d DCA 1962)
- E. H. Kellerman & Frank Whitelock v. Chase & Co., 101 Fla. 785 (Fla. 1931)
- Am. Fire & Cas. Co. v. Rader, 160 Fla. 700 (Fla. 1948)
- Kline v. The State Bev. Dep't OF Fla., 77 So. 2d 872 (Fla. 1955)