Opinion
No. 69-300.
March 6, 1970.
Appeal from the Circuit Court, Brevard County, Thomas R. Waddell, Jr., J.
David U. Strawn of Strawn Herring, Melbourne, for appellants.
Ralph Geilich of Williams, Geilich Potter, Melbourne, for appellee Melbourne Golf and Country Club.
A.T. Rossetter, Eau Gallie, for appellee Melbourne Civic Improvement Board.
Plaintiffs' thirty page, five count, third amended complaint was dismissed with prejudice in the circuit court without comment or reason stated. We reverse.
Plaintiffs are residents and tax payers of the City of Melbourne. Their chief grievance centers upon the act of the City, through the Melbourne Civic Improvement Board, in constructing with public monies an irrigation system at the city-owned golf course, which course is under lease to a private party, the Melbourne Golf and Country Club, Inc. The complaint is prolix and seeks an injunction, an accounting, declaratory relief and other remedies based upon multiple theories.
We do not believe it would be helpful to extend this opinion by the reproduction here of the complaint. Suffice it to say we have carefully assayed it in the light of the most general grounds found in the Motions to Dismiss and are of the opinion that it states a cause of action sufficient to survive these assaults based primarily and at least upon the allegations of the complaint concerning a misuse of public money. See Lewis v. Peters, Fla. 1953, 66 So.2d 489; Mayes Printing Company v. Flowers, Fla.App. 1963, 154 So.2d 859; 43 C.J.S. Injunctions § 122.
As grounds for their motion to dismiss the defendant, The Melbourne Civil Improvement Board, M.H. Arbogast, Orren M. Cross, James Adsit, Earl Carmichael and John B. Yeisley, maintained:
"1. The said Complaint does not conform to the general rules of pleading in that it fails to contain a short and plain statement of the ultimate facts which would entitle Plaintiffs to the relief sought against Defendants.
"2. The said Complaint does not conform to the general rules of pleading in that said Complaint is based upon improper conclusion of law and improper conclusion of fact and not upon allegations of ultimate fact which would entitle Plaintiffs to the relief sought against Defendants.
"3. That the said Complaint fails to state a cause of action in that the cause sought to be instituted is not a proper class action as alleged.
"4. The said Complaint fails to state a cause of action in that it does not allege that the Plaintiffs or the class which Plaintiffs purport to represent have sustained or will sustain any injuries of a special nature or otherwise."
The defendant, Melbourne Golf and Country Club, Inc., alleged as grounds for its motion to dismiss that the complaint:
"1. It is predicated upon an improper conclusion of law, to wit: that the expenditure of funds to improve a city owned property is illegal if the property is leased to a private corporation.
"2. It is predicated upon an improper conclusion of fact, that the expenditure of funds to improve public property is for the benefit of the private concern.
"3. It is predicated upon an improper conclusion of law that there must be a legal obligation to improve city owned property before money can be spent to improve it.
"4. It is predicated upon an improper conclusion of law that the defendant owes some duty to the plaintiffs to prevent the other defendants from improving the property."
Reversed.
REED, J., concurs.
CROSS, C.J., dissents, without opinion.