Opinion
No. 94-488.
December 15, 1995. Rehearing Denied January 19, 1996.
Gus R. Benitez and Roger B. Butcher of Benitz Butcher, P.A., Orlando, for Appellants.
Richard D. Connor, Jr. of Pleus, Adams, Davis Spears, P.A., Orlando, for Appellees Independence and Lochaven.
No Appearance for Appellee, First Federal Sav. and Loan Ass'n.
AFFIRMED. See Orlando Light Bulb Serv. v. Laser Lighting Elec. Supply, 523 So.2d 740 (Fla. 5th DCA 1988); Goodbody Co. v. Rigel, 339 So.2d 272 (Fla. 2d DCA 1976); Bernard v. Kee Mfg. Co., 394 So.2d 552 (Fla. 2d DCA 1981), approved, 409 So.2d 1047 (Fla. 1982).
HARRIS, J., concurs and concurs specially with opinion.
GRIFFIN, J., concurs in part; dissents in part with opinion.
I concur with Judge Thompson but feel that some additional explanation is warranted.
It appears, without question, that appellee, Independence Mortgage Corporation of America, which admittedly has been a defendant from the inception of this action, is not the same Independence Mortgage Corporation of America which is alleged to have committed the wrongful acts on which the complaint is based.
It is equally apparent that for much of the extended time that this cause has been in litigation, counsel for appellee Independence was unaware of this distinction. Independence did, in fact, in response to the various and numerous amended complaints filed by the Moles, answer without asserting that it was truly an original Independence totally independent and separate from the Independence that allegedly committed the wrongful acts.
But eventually it did make such claim and the record supports it. Its predecessor corporation purchased certain assets of the original Independence from First Federal, a continuing defendant in this action. Those assets included the "Independence" name and, according to law, the predecessor corporation adopted the purchased name as its own. There is no indication that this name change was in any way intended to defraud anyone. Therefore, if Independence is to be held accountable, since it personally committed no wrongful act, such liability must be based on an estoppel theory — that it somehow led the Moles to rely on the fact that it was the one and the original Independence and that the Moles, in just reliance, were injured by the deception.
The record shows that the original Independence changed its name to Academy Mortgage Corporation of America in August, 1989, and that the name change was properly filed in the corporate records maintained by the Secretary of State and available to the Moles prior to filing this action. Since these public records were available to the Moles, it is difficult to see why they should not be charged with this knowledge. Further, there is no indication that the original Independence remained a viable corporation after the sale of its assets some three years before this action was filed. How were the Moles injured if they were "prevented" from suing a corporate shell? There is no basis in this record, in law or in equity, for substituting the assets of appellee Independence for those of an alleged tortfeasor who had no connection at all with the present company. Even the name was purchased from a corporation (First Federal) which had owned the original Independence, as a subsidiary. Trial counsel's confusion on the distinction between the two "Independences" simply should not be the basis for a windfall to the Moles.
The Moles filed suit in 1990 claiming, inter alia, that its lender breached their loan agreement by disbursing draws to the contractor in violation of an express draw schedule contained in the loan agreement. Independence Mortgage Corporation of America ("old Independence") was a subsidiary of First Federal, incorporated in 1986. On July 7, 1989 it entered into a loan agreement with the appellants, Thomas and Susan Mole. It immediately assigned this loan to First Federal on the same day. In August 1989, "old Independence" sold its name and certain assets to Loch Haven Mortgage Subsidiary Corporation, which then changed its own name to "Independence Mortgage Corporation of America." "Old Independence" was renamed Academy Mortgage Corporation of America, after the sale of the name, and was voluntarily dissolved in 1991. The Mole loan was then assigned by First Federal to Loch Haven ("new Independence") to service. It thus appears that this "new Independence" was not the entity that actually entered into the loan agreement with the Moles. Nevertheless, having repeatedly admitted, represented and acquiesced in the notion, over a four-year span of litigation, that it was the party that contracted with the Moles, "new Independence" cannot now avoid liability (if any there be) for claims arising out of the making of the loan by establishing that a different entity, "old Independence" was the true lender. See Sexton v. Panning Lumber Co., 260 So.2d 898 (Fla. 4th DCA), cert. denied, 271 So.2d 764 (Fla. 1972). According to the record, new Independence retained employees of the old Independence, the president and director of new Independence had been the president of old Independence. The record shows that both "old Independence" and "new Independence" had the same counsel. Indeed, the law firm representing both Loch Haven and Independence in this litigation was the same firm that had represented both the old and new Independence. It even did the legal work that transferred the name from old Independence and created the corporation that became "new Independence."
Also alleged is a claim for fraud in the inducement. Given the nature of the dispute in this case, viz what the contract required in terms of draw disbursement there is no viable claim for fraud in the inducement. There was no evidence that First Federal made any representations with knowledge of their falsity.
It is unclear whether the distinction between the actions of the old Independence and the acts of the new Independence was appreciated by the lawyer assigned to this litigation until shortly before the motion was filed four years into the lawsuit, or whether this four-year delay was a stratagem designed to permit the statute of limitations to expire or to otherwise avoid liability through the voluntary dissolution of "old Independence." But intent really isn't the issue. New Independence "knew" as a matter of law that it was not the Moles' lender and under Florida law had a duty to say so. Where a corporate litigant has a relationship with another corporation that is so close and so confused that for a period of four years of litigation, even it, and its own counsel, cannot identify with any degree of accuracy what acts are its own and what acts are those of its predecessor, the law will not relieve them of their admissions. As between a plaintiff who has relied to his detriment on such admissions made in the course of litigation, and the defendant, which now believes it never committed some of the acts which are alleged by the plaintiff to be wrongful, the burden of this error should fall on the defendant — in this case "new Independence." Accordingly, I would not affirm the summary judgment on the basis suggested by the cases relied upon by the majority. Although this is usually referred to as the law of "misnomer," it certainly is a form of estoppel.
Sexton, 260 So.2d at 900.