Western Group Nurseries, Inc. v. Ergas

• Decision Date: 12 February 1999
• Docket Number: No. 96-4570,96-4570
• Citation: 167 F.3d 1354
• Parties: WESTERN GROUP NURSERIES, INC., an Arizona corporation; Western United Nurseries, Inc., an Arizona corporation, Plaintiffs-Appellants, v. Martin ERGAS, World Nurseries, Inc., a Delaware corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1354

167 F.3d 1354

WESTERN GROUP NURSERIES, INC., an Arizona corporation;

Western United Nurseries, Inc., an Arizona

corporation, Plaintiffs-Appellants, v. Martin ERGAS, World Nurseries, Inc., a Delaware corporation,

Defendants-Appellees.

No. 96-4570.

United States Court of Appeals, Eleventh Circuit.

Feb. 12, 1999.

Howard Kelly Coates, Jr., Proskauer, Rose, Goetz & Mendelsohn, Boca Raton, FL, Joel D. Eaton, Podhurst, Orseck & Josefsberg, Miami, FL, for Plaintiffs-Appellants.

Neil Jay Berman, Berman, Wolfe & Rennert, Miami, FL, for Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before COX and BARKETT, Circuit Judges, and SMITH ^*, Senior Circuit Judge.

EDWARD S. SMITH, Senior Circuit Judge:

Western Group Nurseries, Inc. ("Western Group") appeals the May 18, 1995 order of the District Court for the Southern District of Florida, entering summary judgment for defendant Martin Ergas ("Ergas"). Western Group sued Ergas, a limited partner of a tax shelter partnership, to force him to pay his pro rata share of a promissory note entered into by the partnership. Ergas defended on the ground that, as part of a related transaction, Western Group had agreed not to sue the limited partners. The District Court held the disputed contract language to be an unambiguous covenant not to sue and granted summary judgment to Ergas. We hold that the contract language at issue is ambiguous when viewed in the proper context and therefore reverse and remand for its interpretation in light of extrinsic evidence.

Facts

This case arises out of a complex series of transactions in which nursery owners sold their properties to a tax shelter syndicator, who in turn sold the properties to a limited partnership as a tax shelter.

At the end of 1984, thirteen Arizona nursery owners ("Sellers") contracted to sell their nursery businesses and properties to World Nurseries, Inc. ("Syndicator"), a tax shelter promoter. Of the $22.1 million purchase price, $3 million dollars was to be paid in cash at closing, $17 million was to be paid pursuant to a promissory note from Syndicator, and $2.1 million was contingent on the sale of certain nursery stock.

In a separate transaction contemplated by the Sellers/Syndicator agreement, Syndicator immediately sold the nursery assets to Arizona World Nurseries Limited Partnership ("Partnership") for $33 million. The increased purchase price reflected the additional value of the tax benefits to the limited partners. ¹ Partnership paid $6.57 million of the purchase price in cash and promised to pay the remaining $26.43 million pursuant to a promissory note. Partnership's note (referred to as the "Wraparound Note") was nonrecourse as to the partnership itself, ² but the limited partners were liable for $260,000 per unit purchased. Partnership conveyed a purchase money security interest (PMSI) in the nursery assets to Syndicator to secure the Wraparound Note.

To secure payment of its note to Sellers, Syndicator conveyed a PMSI in the nursery assets to Sellers. As additional collateral for its debt to Sellers, Syndicator conveyed the Wraparound Note to Sellers. The note was nonrecourse as to Syndicator.

Paragraph 1 of the Sellers/Syndicator security agreement established the Sellers' security interest in the Wraparound Note and reads, in pertinent part:

Security Interest. To secure the timely payment of the Purchase Price, including but not limited to the timely payments of principal and interest under the [Syndicator's] Note, the payment of the Additional Purchase Price and the payment and performance of all obligations and liabilities of Debtor [Syndicator] to Secured Party [Sellers] under the Maintenance Contracts, the Note, the Purchase Agreement ... and this Security Agreement (such payments under the Note and the payment and performance of such obligations and liabilities are hereinafter referred to, collectively, as the "Obligations"), Debtor shall, and hereby does, grant, convey, assign, pledge and transfer to Secured Party, a purchase money security interest in and to the Properties and the [Wraparound] Note (except that Secured Party shall not have the right to sue the Limited Partners or General Partners of the Partnership personally thereon other than to the extent of payments made to them by the Partnership )

(emphasis added). The intended effect of the emphasized parenthetical phrase is disputed by the parties and is the critical issue in this case.

After barely a year, Partnership found itself unable to make payments on its promissory note to Syndicator. Consequently, Syndicator could not make its payments to Sellers. Sellers declared Syndicator in default and filed suit in Arizona for foreclosure. In October 1986, the trial court ordered foreclosure. The Arizona Court of Appeals affirmed.

On December 1, 1986, Western United Nurseries, Inc. ("Western United"), which obtained judgment in its name as representative of Sellers, assigned part of its judgment against Syndicator to Sellers' newly formed entity, Western Group Nurseries, Inc. ("Western Group"), to bid at the Arizona sheriff's sale of Syndicator's collateral securing its debt on December 2, 1986. Western Group purchased the Wraparound Note at the sale. Western Group's efforts to collect on this note have led to a string of lawsuits including the instant case.

Procedure

After Western Group purchased the Wraparound Note, it sued Partnership and its limited partners (including Ergas) in Arizona state court. The limited partners were dismissed for lack of personal jurisdiction. The court entered judgment against Partnership accelerating the entire principal balance and interest accrued on the Wraparound Note. Western Group then sued the limited partners individually to collect the partners' pro rata shares of the amount due under the note. ³

Western Group filed suit against Ergas in 1989 in a Florida circuit court. After Ergas filed a motion to dismiss, Western Group filed a notice of voluntary dismissal. Ergas moved for attorney's fees under a Florida statute which allows sanctions for filing suits in which "the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the complaint or defense of the losing party." FLA. STAT. ANN. § 57.105(1) (West 1993). The state circuit court granted Ergas the relief sought. Western Group appealed to the Third District Court of Appeal of Florida. The appellate court affirmed Ergas's final judgment against Western Group on November 2, 1994, and subsequently denied motions for rehearing.

After Western Group took a voluntary dismissal of the state court case, they filed the same complaint, adding federal jurisdictional allegations, in the United States District Court for the Southern District of Florida. Ergas moved to dismiss the case for failure to state a claim and in July 1991, the district court dismissed the complaint, finding that the covenant not to sue was clear and unambiguous on its face, and that Western Group's predecessor had unequivocally contracted not to sue the limited partners. Western Group filed an amended complaint, adding allegations about the parties' intentions in making the contract. Ergas again moved to dismiss, contending that intentions are irrelevant when an agreement is clear and unambiguous on its face.

In October 1993, the district court dismissed the amended complaint and Western Group filed a second amended complaint in November 1993. This complaint added Western United as plaintiff and Syndicator as defendant and added a claim for reformation of the contract between these added parties. On Ergas's motion to dismiss, the district court found the reformation claim to be barred by the applicable statute of limitations, dismissed the allegations against Syndicator and entered final judgment in Ergas's favor. Western Group appeals the decision of the district court dismissing its claims against Ergas. Western Group has not appealed its reformation claim.

Both parties have filed motions for attorney's fees, which were carried with the case. Ergas also filed a motion to have the case mooted under the doctrine of res judicata, claiming that the decision by the Florida appellate court precludes this litigation. That motion was also carried with the case.

Ergas's Motion to Dismiss the Appeal as Moot under the Doctrine of Res Judicata

Before we consider the merits of the case, we must first decide whether this appeal is rendered moot by the doctrine of res judicata. "Under Florida law, res judicata bars parties from bringing actions which raise issues that have already been adjudicated in a previous action between the same parties or their privies. To successfully invoke res judicata as a defense to an action, a defendant must establish (1) identity in the thing sued for, (2) identity of the cause of action, (3) identity of parties, and (4) identity of the quality or capacity of the person for or against whom the claim is made." Meshulam v. General Motors Corp., 995 F.2d 192, 194 (11th Cir.1993) (footnote and citations omitted). "To support a defense of res judicata, it must be clear that the court in the previous action intended that the disposition there was to be without right to further proceedings by the plaintiff." Equitable Fire & Marine Ins. Co. v. Bradford Builders, Inc., 174 So.2d 44, 45 (Fla.Dist.Ct.App.1965).

The Florida statute governing the award of attorney fees for filing frivolous lawsuits reads, in pertinent part:

The court shall award a reasonable attorney's fee to be paid to the prevailing party in equal amounts by the losing party and the losing party's attorney in any civil action in which the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the complaint or defense of the losing party.

FLA. STAT. ANN. § 57.105(1) (West 1993) (emphasis added). Ergas contends that because the state...