L.V. MCCLENDON KENNELS, INC., APPELLANT,
v.
INVESTMENT CORPORATION OF SOUTH FLORIDA, APPELLEE

Fla. 3d DCA | 1986-07-15
No. 85-2595
Before NESBITT, BASKIN and FERGUSON, JJ.
490 So. 2d 1374 Florida District Court of Appeal, Third District (1986) Negative Treatment
Cited by 15 cases

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Synopsis

McClendon Kennels appealed a summary judgment in favor of Investment Corporation of South Florida (ICSF), arguing it had a right to assign its greyhound booking contract. The appellate court reversed, holding that while not absolute, McClendon Kennels possessed a limited right of assignment subject to ICSF's non-arbitrary refusal based on qualifications.


Holding

McClendon Kennels possessed a limited right to assign the booking contract, not an absolute right. While the contract did not prohibit assignment and was not a personal service contract, ICSF retained a right of refusal based on the assignee's qualifications and fitness. ICSF could not arbitrarily or unreasonably refuse consent, and disputed factual questions regarding the reasonableness of ICSF's refusal precluded summary judgment.


Headnotes

[1] Contractual rights are generally assignable unless the contract prohibits assignment, the obligations are personal in nature, or public policy dictates otherwise.

[2] A contract to supply greyhounds to a racing track is not a personal service contract for purposes of assignment.

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Key Quotes

“Generally, all contractual rights are assignable unless the contract prohibits assignment, the contract involves obligations of a personal nature, or public policy dictates against assignment.”

Establishes the foundational rule of contract law governing assignment rights

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Facts & Procedural History

McClendon Kennels held a booking contract with ICSF to supply greyhounds to the Hollywood Dog Track for the 1983-84 and 1984-85 racing seasons. When L…

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Opinion of the Court
NESBITT, Judge.

NESBITT, Judge.

L.V. McClendon Kennels, Inc. (McClen-don Kennels) contends that the trial court erred in entering a summary final judgment in favor of Investment Corporation of South Florida (ICSF). We agree and reverse.

McClendon Kennels entered into a booking contract with ICSF, owner and operator of the Hollywood Dog Track (the Track), which was approved and signed by Perrine Palmer, the executive vice president of ICSF and general manager of the Track. The contract provided that McClendon Kennels would furnish greyhounds to the Track for the 1983-84 and 1984-85 racing seasons. In March 1984, Leo and Pearl Green approached L.V. McClendon concerning the sale of McClendon Kennels. The sale which they agreed upon included the booking contract at the Track. McClendon Kennels claims that both L.V. McClendon and the Greens asked Palmer if ICSF would consent to the assignment of McClendon Kennels’ booking contract to the Greens and that Palmer stated that ICSF would refuse to do so. Palmer disputes this.

Since the value of McClendon Kennels without the booking contract was much lower, the Greens chose not to purchase it. They later purchased another kennel and, after making application on their own, the Track entered into a separate booking contract with the Greens.

McClendon Kennels brought suit against ICSF for: I) anticipatory breach of contract; II) tortious interference with an advantageous business relationship; and III) a declaratory judgment to determine if the Track had a right of refusal, and whether such a right was absolute or limited.

ICSF moved for summary judgment, contending that not only did it have a right of refusal, but that this right was absolute. In granting the summary judgment, the trial court found that “[McClendon Kennels] possesses no absolute right of assignment of the subject greyhound booking contract and accordingly ... [McClendon Kennels] has no right of recovery under counts I and II of the amended complaint.” McClendon Kennels contends that it has a right of assignment and that the right is absolute, and therefore the summary judgment was erroneous.

Generally, all contractual rights are assignable unless the contract prohibits assignment, the contract involves obligations of a personal nature, or public policy dictates against assignment. Hall v. O’Neil Turpentine Co., 56 Fla. 324, 47 So. 609 (1908); Brunswick Corp. v. Creel, 471 So. 2d 617 (Fla. 5th DCA 1985); Kitsos v. Stanford, 291 So. 2d 632 (Fla. 3d DCA), cert. denied, 307 So. 2d 447 (Fla.1974).

Though the contract obviously contemplates a delegation of rights in paragraph six,1 it is silent as to the right of assignment. Thus, the contract, by its terms, does not prohibit an assignment.

ICSF claims that the booking contract involves obligations for the personal services of McClendon Kennels, and therefore an assignment of it is forbidden. However, the Florida supreme court in Wilson v. Sandstrom, 317 So. 2d 732 (Fla.1975), cert. denied, 423 U.S. 1053, 96 S.Ct. 782, 46 L.Ed.2d 642 (1976), held that a contract to supply greyhounds to a racing track is not a personal service contract. Though ICSF urges us to distinguish Wilson from the present case, we find its argument unpersuasive and hold that the proposed assignment of this booking contract was not invalid as one involving a personal service.

Finally, ICSF contends that the public policy of this state, as evinced by the Department of Business Regulation, Division of Pari Mutuel Wagering and the Florida Administrative Code, dictates against assignment of booking contracts. It is true that the Division of Pari Mutuel Wagering regulates the ownership of kennels, see Fla.Admin.Code Rule 7E-2.01, -2.05, -2.25, -2.29, and that a kennel’s license is not assignable, see 51 Am.Jur.2d Licenses and Permits § 3 (1970). However, we find that these provisions do not articulate a public policy which would forbid the assignment of a booking contract.

Since none of the exceptions to the general right of assignment apply, McClendon Kennels possessed the right to make an assignment of the booking contract to the Greens. What remains is the question of whether the right was absolute or limited. While the trial court was correct in finding no absolute right of assignment, it erred in failing to find a limited right of assignment.

ICSF is required by Florida Administrative Code Rule 7E-2.36(2) to exercise discretion in granting a booking contract so as to maintain the highest level of integrity in greyhound racing.2 In a contract in which one party selects the other party through the exercise of discretion based upon the qualifications and fitness of the selected party, the selected party may not assign the contract at his pleasure. Parker v. Evening News Publishing Co., 54 Fla. 544, 45 So. 309 (1907). Since ICSF grants booking contracts based upon the qualifications of the kennels, McClendon Kennels’ right of assignment must be subject to ICSF’s right of refusal. ICSF may only refuse consent to a proposed assignment through the exercise of its discretion based upon an assignee’s qualifications and fitness. Its refusal may not be arbitrary and unreasonable. See Fernandez v. Vazquez, 397 So. 2d 1171 (Fla. 3d DCA 1981) (lessor may not arbitrarily refuse consent to an assignment of a commercial lease, and acting unreasonably constitutes breach of contract).

Based upon the foregoing analysis, the trial court’s entry of a summary final judgment was erroneous, as it failed to even reach the issue of whether McClendon Kennels possessed a limited right of assignment. Since there remain disputed issues of material fact concerning ICSF’s refusal and whether the refusal was commercially reasonable, the trial court should have allowed this case to go to trial. Accordingly, we

Reverse and remand.

. Paragraph six of the booking contract provides:

The kennel owner agrees that he will be present in person at the racing plant of the track operator during each entire racing meeting within the period of time covered by this contract or will appoint a responsible representative acceptable and satisfactory to the track operator with due and properly executed power of attorney to act for and to conduct all of the affairs of the kennel owner with respect to the operation, execution, and performance of the contract as fully and completely as if the kennel owner were present; but that such person so designated as such representative shall act for that kennel owner only.

McClendon Kennels and ICSF contend, respectively, that this paragraph provides for and against an assignment. However, this paragraph clearly deals only with the power of delegation. Since the contract is silent on the power of assignment, we may not, "under the guise of construction, impose on [the] parties contractual rights and duties which they themselves omitted." BMW of North America, Inc. v. Krathen, 471 So. 2d 585, 587 (Fla. 4th DCA 1985).

. Florida Administrative Code Rule 7E-2.36(2) reads:

2. In determining which kennel owners shall be awarded bookings by a permit holder during any year, the permit holder shall endeavor to maintain the highest degree of competition among kennel owners so as to insure the highest quality of entries and the basic integrity of the race.

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Citator

Cited By

  • Jenkins v. Eckerd Corp., 913 So. 2d 43 (Fla. 1st DCA 2005)
    …Florida law, contracts are assignable unless assignment is specifically prohibited, the contract involves obligations of a personal nature, or public policy prohibits assignment. See L.V. McClendon Kennels, Inc. v. Investment Corp. of South Florida, 490 So. 2d 1374, 1375 (Fla. 3d DCA 1986). Sandhill asserts that, since the Delchamps Lease was assignable, the term “Delchamps” in article 2B of the K & B Lease should be interpreted to include its successors or assigns to be consistent with Florida law. If the K &…
  • W.S. Badcock Corp. v. Webb, 699 So. 2d 859 (Fla. 5th DCA 1997)
    …ly prohibited by the contract. Kitsos v. Stanford, 291 So. 2d 632 (Fla.App.), cert. denied, 307 So. 2d 447 (Fla.1974); New Holland, Inc. v. Trunk, 579 So. 2d 215 (Fla. 5th DCA 1991); L.V. McClendon Kennels, Inc. v. Investment Corp. of South Florida, 490 So. 2d 1374 (Fla. 3d DCA 1986); Brunswick Corp. v. Creel, 471 So. 2d 617 (Fla. 5th DCA 1985). Contract rights that can be assigned include choses in action arising out of the parties’ contract. Liberty Mut. Ins. Co. v. Davis, 412 F. 2d 475 (5th Cir.1969) (chose…
  • Classic Concepts, Inc. v. Poland, 570 So. 2d 311 (Fla. 4th DCA 1990)
    …contractual rights are assignable unless the contract prohibits the assignment, the contract involves obligations of a personal nature or public policy dictates against the assignment. L.V. McClendon Kennels, Inc. v. Investment Corp. of So. Florida, 490 So. 2d 1374 (Fla. 3d DCA 1986). Section 627.422, Florida Statutes (1989), provides that an insurer has the option of requiring or not requiring its consent to an assignment. That statute reads in pertinent part that: A policy may be assignable, or not assignab…

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