Amis v. Gulf Abstract & Title, Inc.

• Citation: 564 F. Supp. 1121
• Decision Date: 25 April 1983
• Docket Number: No. 80-88 Civ-Ft.M-K.,80-88 Civ-Ft.M-K.
• Parties: John C. AMIS, Jr., et al., Plaintiffs, v. GULF ABSTRACT & TITLE, INC., et al., Defendants.
• Court: United States District Courts. 11th Circuit. United States District Court of Middle District of Florida

564 F. Supp. 1121

John C. AMIS, Jr., et al., Plaintiffs, v. GULF ABSTRACT & TITLE, INC., et al., Defendants.

No. 80-88 Civ-Ft.M-K.

United States District Court, M.D. Florida, Fort Myers Division.

April 25, 1983.

COPYRIGHT MATERIAL OMITTED

Britt Whitaker, Tampa, Fla., for plaintiffs.

Donald A. Gifford, Shackleford, Farrior, Stallings & Evans, P.A., Tampa, Fla., for Gulf Abstract & Title Co., Inc.

G. Hunter Gibbons, Dickinson, O'Riorden, Gibbons, Quale, Shields & Carlton, P.A., Sarasota, Fla., for Henderson, Franklin, Starnes & Holt.

Charles W. Pittman, Macfarlane, Ferguson, Allison & Kelly, Tampa, Fla., for Lee County Bank.

Richard E. Wolverton, Lyle & Skipper, P.A., St. Petersburg, Fla., for Allen, Knudsen & Schwartz, P.A. and Goldberg, Rubenstein & Buckley, P.A.

William H. Adams, III, Mahoney, Hadlow & Adams, Jacksonville, Fla., for Barnett Bank of Fort Myers.

Sylvia H. Walbolt and Christopher L. Griffin, Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, Fla., and Lewis R. Mills, Peper, Martin, Jensen, Maichel & Hetlage, St. Louis, Mo., for First Nat. Bank of Fort Myers.

Preston Moore and Marilyn Holifield, Holland & Knight, Tampa, Fla., for NCNB Nat. Bank of Florida.

ORDER

KRENTZMAN, Senior District Judge.

This is an antitrust action brought under sections one and two of the Sherman Act, 15 U.S.C. §§ 1, 2 (1976), and under the Florida Antitrust Act, Fla.Stat. Ch. 542 (1981), in which plaintiffs seek damages and injunctive relief under sections four and sixteen of the Clayton Act. 15 U.S.C.A. §§ 15, 26 (Supp.1982). The complaint alleges certain conduct of several of the major banks and law firms in the Fort Myers, Florida area, and describes various theories under which this conduct assertedly violated the antitrust laws. Substantial discovery was conducted, including a great many depositions taken by plaintiffs during 1981 and early 1982. Defendants began filing motions for summary judgment in early 1982, and, with certain specified exceptions, discovery was stayed by order of the Court on June 25, 1982. Plaintiffs were directed to and did respond to the motions for summary judgment, and the Court heard oral argument.

The sad history of this dispute should be briefly stated. Amey, Inc. is a closely held corporation of which John Amis is president. In 1976, Amey contracted to purchase certain real property and approached Lee County Bank to arrange financing. According to plaintiffs, the bank's willingness to make the loan was conditioned upon Amey's agreement "to purchase a real estate title search and opinion" from the defendant Henderson, Franklin, Starnes & Holt, P.A. (Henderson, Franklin), or "to pay $325 for the search and opinion, which would be given by Henderson, Franklin." Complaint ¶ 34. Amey agreed, and the bank requested a title opinion from the Henderson, Franklin firm. On October 29, 1976, the firm rendered its preliminary opinion covering the period to and including October 10, 1976. The loan was closed and the property purchased on November 23, 1976, but, unknown to the parties, the Internal Revenue Service had filed a tax lien against the property on November 3, 1976. Neither plaintiffs nor the bank had requested an update on Henderson, Franklin's title opinion. The bank charged Amey, as borrower, the $325 fee it paid to Henderson, Franklin for the title work.

In late 1977, Amey filed an action in state court against Henderson, Franklin and its malpractice insurance carrier, alleging that the firm was negligent in failing to discover the tax lien. The trial court granted the defendants' motion for summary judgment, concluding that the firm owed a duty of care to the bank as its client, but owed no duty to Amey as an alleged third-party beneficiary. That view was upheld on appeal:

It may be that in transactions such as this the buyer often chooses to rely on the expertise of the lender's lawyer on the premise that the lawyer would not approve the title for a loan unless the title were clear. However, this is a calculated risk, and if it proves to be unfounded, the buyer has no claim that the lawyer violates a duty owed to him .... The fact that the buyer had to pay the law firm's fee did not establish a lawyer-client relationship.

Amey, Inc. v. Henderson, Franklin, Starnes & Holt, P.A., 367 So.2d 633, 635 (Fla.App.), cert. denied, 376 So.2d 68 (Fla.1979).

Amey and Amis filed this action just over a year after the Florida Supreme Court denied certiorari in the state litigation. In count one of their complaint, plaintiffs allege that "defendants and their co-conspirators" engaged in price-fixing by circulating and adhering to a "printed uniform fee schedule for real estate legal services." This conspiracy allegedly injured plaintiffs because of its inflationary effect on the "price for legal services and all mortgage financing" since 1976. Count two contains essentially the same allegations, but is headed "Exchange of Price Information."

Counts three through six contain challenges to the relationships allegedly in effect between each bank and its putative law firm partner. In count three, plaintiffs contend that defendants Lee County Bank and Henderson, Franklin — the two with whom they dealt in 1976 — have engaged in an illegal tying arrangement by which all those purchasing mortgage financing from the bank were "required to purchase and pay for title services and title opinions provided by Henderson , Franklin at inflated prices." Plaintiffs also complain that this arrangement "forecloses" other attorneys from Lee County Bank's "30% share of the market for commercial legal title work and 20% share of all legal title work and mortgage financing in Lee County;" count four contains the same allegations, but is headed "Exclusive Dealing."¹ Next, plaintiff again challenges the "illegal tying" arrangement between Lee County Bank and Henderson, Franklin, this time suggesting that the relationship contained aspects of resale price maintenance. Finally, in count six, plaintiffs contend that the several law firm-bank relationships result from an agreement among the firms not to advertise or otherwise compete to do work for any bank other than their respective "partner." The banks allegedly also conspired not to deal with any firm other than their respective "partner." In each of these claims, plaintiffs allege injury in that the price for title work has been inflated.

Count seven comprises plaintiffs' claim that the defendant law firms and certain "unnamed co-conspirators" have agreed "without the express approval of the State of Florida to cause the services of real estate title searching and describing and opinions to be included within the definition of `the practice of law,' as recognized in the State of Florida." Complaint ¶ 88. The alleged effect of this "combination" was "to boycott and refuse to deal and cause the refusal to deal by defendant banks and others with persons who are capable of and would be desirous of performing real estate title searches in competition with defendants in Lee County but who are not members of the Florida Bar." Id. ¶ 89.

Finally, counts eight and nine draw all the preceding alleged antitrust violations together and assert that they were the means by which the defendants — banks and firms — sought to monopolize "the practice of real estate legal services and commercial mortgage financing" in Lee County. Id. ¶ 92. Count eight alleges monopolization and count nine attempt to monopolize.

I. The Statute of Limitations.

The standard to be applied in considering summary judgment on limitations grounds is the familiar one: the motion is to be granted if the pleadings, discovery, and the documentation supporting the motion reveal no "genuine issue of material fact" and indicate "that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A properly supported motion for summary judgment cannot be resisted on mere allegations alone, for such a motion "pierces" the pleadings and tests whether the factual dispute is "genuine." Joe Regueira v. American Distilling Co., 642 F.2d 826, 829 (5th Cir.1981).

An antitrust action must be brought "within four years after the cause of action accrued." 15 U.S.C.A. § 15b (1973 & Supp. 1982).² The traditional rule is that an antitrust action accrues when the alleged conspiracy or other antitrust violation has an impact on the plaintiff. "If a plaintiff feels the adverse impact of an antitrust conspiracy on a particular date, a cause of action immediately accrues to him to recover all damages incurred by that date and all provable damages that will flow in the future from the acts of the conspirators on that date." Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 339, 91 S.Ct. 795, 806, 28 L.Ed.2d 77 (1971).

Plaintiffs contend that the limitations period did not begin to run in this case until the date of the closing, November 23, 1976; as they put it, that was "the first time at the very least that the Plaintiffs would have had occasion to be made aware of the existence of the tax lien were it not for the omission and/or negligence of those responsible for furnishing accurate title information." Memorandum, August 17, 1982, at 23.³ But plaintiffs' claim that Henderson, Franklin was negligent in failing to discover the IRS tax lien prior to closing has been thoroughly litigated, see Amey, Inc. v. Henderson, Franklin, supra, and is not now to be transformed into an antitrust claim. If plaintiffs suffered any injury cognizable under the antitrust laws, it was having to pay a fee for legal services that was inflated by the allegedly anticompetitive acts of defendants. See Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489, 97 S.Ct. 690, 697, 50 L.Ed.2d 701 (1977).⁴ The issue, then, is when their claim for that alleged injury arose.

Both the old and the new Fifth Circuits have concluded that an antitrust claim is barred if brought over four years after the...