302 So.2d 404 (Fla. 1974), 45003, Blackhawk Heating & Plumbing Co., Inc. v. Data Lease Financial Corp.

Docket Nº:45003.
Citation:302 So.2d 404
Opinion Judge:Author: Adkins
Party Name:BLACKHAWK HEATING & PLUMBING CO., INC., an Illinois corporation, and Andrew Machata, Petitioners, v. DATA LEASE FINANCIAL CORP., a Florida corporation, Respondent.
Attorney:Jos. D. Farish, Jr. and F. Kendall Slinkman, of Farish & Farish, West Palm Beach, for petitioners.
Case Date:October 24, 1974
Court:Supreme Court of Florida
 
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Page 404

302 So.2d 404 (Fla. 1974)

BLACKHAWK HEATING & PLUMBING CO., INC., an Illinois corporation, and Andrew Machata, Petitioners,

v.

DATA LEASE FINANCIAL CORP., a Florida corporation, Respondent.

No. 45003.

Supreme Court of Florida.

October 24, 1974

Rehearing Denied Nov. 22, 1974.

Page 405

Jos. D. Farish, Jr. and F. Kendall Slinkman, of Farish & Farish, West Palm Beach, for petitioners.

Marshall M. Criser and Robert T. Scott, of Gunster, Yoakley, Criser, Stewart & Hersey, Palm Beach, for respondent.

ADKINS, Chief Justice.

By petition for certiorari, we have for review a decision of the District Court of Appeal, Fourth District (Blackhawk Heating & Plumbing Co. v. Data Lease Financial Corp., 287 So.2d 118 (Fla.App.4th, 1973), which allegedly conflicts with prior decisions of this Court and the District Courts of Appeal on the same point of law. Fla.Const., art. V, § 3(b)(3), F.S.A.

For clarity, the petitioners, plaintiffs in the trial court, are referred to as 'Blackhawk and Machata'; the respondent, defendant below, is referred to as 'Data Lease.'

In September, 1969, Data Lease entered into an agreement with the 'Cohen group' to purchase 870,000 shares of the common stock of Miami National Bank for a purchase price of $10,440,000. Under the terms of the purchase, Data Lease was obligated to pay $2,160,000 by July 1, 1970, but found it impossible to meet this immediate cash obligation.

Talmo, President of Data Lease, sought the assistance of Machata in borrowing $2,000,000. Machata proposed that he purchase 25 per cent of Data Lease's 870,000 shares of stock, but, at Talmo's request, this proposal was abandoned for tax reasons. Talmo proposed that Data Lease pay $1,500,000 to the Cohen group and secure the release of 200,000 shares in the bank which Data Lease agreed to pledge against the new $2,000,000 note. The remaining $500,000 of the $2,000,000 loan (except $40,000 in loan expense advanced by Machata) would be used by Data Lease as it saw fit in its own corporate activity. The Central States, Southeast and Southwest Areas' Pension Fund agreed to the proposal, in view of the credit rating of Blackhawk and Machata.

The initial proposition that Machata would immediately purchase 25 per cent of Data Lease's position in the bank was discarded at Talmo's suggestion that Machata's

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initial participation be in the form of an option to purchase, because so long as Data Lease maintained an 80 per cent ownership of the bank stock, Data Lease would qualify to file a consolidated tax return with the bank. 26 U.S.C. 1501 et seq.

Data Lease had accumulated operating losses of $3,760,000 over a period of three years prior to the proposed stock purchase. Control of the bank would permit Data Lease, by separate agreement with the bank, to obtain payments from the bank of approximately 95 per cent of the money that the bank would otherwise have paid to the Internal Revenue Service but for the aspect of consolidated tax reporting. These payments are referred to as 'upstream' tax payments. The parties could foresee immediate financial benefit to Data Lease by use of the upstream tax payments.

On May 18, 1970, Machata, Talmo and others went to Chicago and executed the option agreement which gave rise to this litigation. On the same day as the execution of the option agreement, a $2,000,000 loan was made by the Pension Fund. Under the terms of this loan, Blackhawk, Machata and Data Lease were co-obligors to the Pension Fund in the amount of $2,000,000. The promissory note was secured by a pledge agreement of the 200,000 shares of bank stock released by the Cohen group. Machata guaranteed the loan personally.

$1,500,000 of the $2,000,000 loan was paid directly to the Cohen group as partial payment for release of $200,000 shares of bank stock which was to go to Blackhawk upon exercise of the option. $40,000 of the loan was paid to Machata as reimbursement for money advanced by him personally, relative to initial loan costs. The balance, $460,000, went directly to Data Lease to be used as it saw fit.

Under the option agreement Blackhawk could purchase 217,500 shares (or 25 per cent of the 870,000 shares) from Data Lease. The purchase price was to be computed upon a rather complex mathematical formula set forth in the agreement.

The portion of the option agreement primarily involved in this litigation reads as follows:

6(b) 'Any cash flow benefit, including any tax benefits, derived by Data as a consequence of its holding, hypothecation, assignment, pledge, etc., of MNB Stock shall inure proportionately to Blackhawk in calculation of any payments due between the parties.'

Blackhawk, by lending its credit to Data Lease, not only rescued Data Lease from financial problems with reference to its purchase of the bank stock, but actually placed Data Lease in a position where, as an 80 per cent stockholder in the bank, Data Lease could derive substantial income as a result of the stock ownership. So long as Data Lease continued to retain an 80 per cent interest in the bank, it could avail itself of the advantage of consolidating its tax returns with the bank. Data Lease did so avail itself and obtained substantial benefit as a result thereof.

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