Royal Palm Sav. Ass'n v. Pine Trace Corp., 89-82-CIV-FTM-17(A).

• Decision Date: 20 July 1989
• Docket Number: No. 89-82-CIV-FTM-17(A).,89-82-CIV-FTM-17(A).
• Citation: 716 F. Supp. 1416
• Parties: ROYAL PALM SAVINGS ASS'N., Plaintiff, v. PINE TRACE CORPORATION, et al., Defendants.
• Court: U.S. District Court — Middle District of Florida

716 F. Supp. 1416

ROYAL PALM SAVINGS ASS'N., Plaintiff, v. PINE TRACE CORPORATION, et al., Defendants.

No. 89-82-CIV-FTM-17(A).

United States District Court, M.D. Florida, Tampa Division.

July 20, 1989.

Andrew Shaw, Fergeson, Skipper, Shaw, Keyser, Baron & Tirabassi, P.A., Sarasota, Fla., Michael R. McKinley, Batsel, McKinley & Ittersagen, P.A., Englewood, Fla., for plaintiff.

Robert J. Gill, Isphording, Korp, Payne, Muirhead White & Horlick, Chartered, Sarasota, Fla., William R. Korp, Venice, Fla., John B. Mizell, Leo Wotitsky, Punta Gorda, Fla., for Pine Trace Corp. and Albert W. Bader.

ORDER ON MOTIONS

KOVACHEVICH, District Judge.

This cause is before the Court on Plaintiff/Counter-Defendant's motion and supplementary motion to dismiss amended counterclaim (as amended), Plaintiff's motion to strike affirmative defenses, Plaintiff/Counter-Defendant's motion to strike demand for jury trial and to sever amended counterclaim, and responses thereto.

A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that Plaintiff can prove no set of facts that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). A trial court, in ruling on a motion to dismiss, is required to view the complaint in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).

Motions to strike on the grounds of insufficiency, immateriality, irrelevancy, and redundancy are not favored, often being considered "time wasters", and will usually be denied unless the allegations have no possible relation to the controversy and may cause prejudice to one of the parties. Poston v. American President Lines, Ltd., 452 F.Supp. 568, 570 (S.D.Fla. 1978), citing Augustus v. Board of Public Instruction, 306 F.2d 862 (5th Cir.1962). In evaluating a motion to strike, the Court must treat all well pleaded facts as admitted and cannot consider matters beyond the pleadings. U.S. Oil Co., Inc. v. Koch Refining Co., 518 F.Supp. 957, 959 (E.D.Wis. 1981).

The amended counterclaim (as amended) in this cause names as counter-plaintiffs Pine Trace Corporation and Albert W. Bader and contains the following counts: 1) breach of covenant of good faith; 2) fraud; 3) breach of contract; and 4) breach of oral contract. Plaintiff/Counter-Defendant moves this Court to dismiss the counterclaim with prejudice.

MOTIONS TO DISMISS

COUNT I

As to Count I, the motion asserts dismissal is proper on two grounds. First, the motion contends Count I fails to state a cause of action on behalf of Pine Trace because there are no allegations that Pine Trace suffered any damages as result of Plaintiff's actions.

Count I does not specifically allege any damages to Pine Trace, although it specifically alleges damage to Mr. Bader. Counter-Plaintiffs assert that the ultimate fact of damages to Pine Trace is sufficiently alleged by fair inference from the allegations that are set forth and from the allegations relating to Mr. Bader's damages. Rule 8, Fed.R.Civ.P., requires that the complaint contain a "short and plain statement of the claim showing that the pleader is entitled to relief." The Court has to agree that the complaint is deficient in its failure to allege that Pine Trace was damaged by the actions of Plaintiff/Counter-Defendant.

Secondly, the motion asserts that, as to Mr. Bader, Count I fails to state a cause of action because he was not a party to the various contracts and that Bader has no standing to assert claims of a duty of fair dealing and good faith.

Counter-Plaintiffs counter the motion saying that Bader, as guarantor, may state a claim if Plaintiff/Counter-Plaintiff dealt with Pine Trace, the debtor, in a manner as to harm its interest as guarantor. Dorsy v. Maryland National Bank, 334 So.2d 273 (Fla. 3d D.C.A.1976). For the purposes of this motion to dismiss, the Court finds the argument of Counter-Plaintiff's persuasive.

In the supplemental motion to dismiss, Plaintiff/Counter-Defendant seeks dismissal of Count I, II, and IV (the Court has concluded that that is what is sought, even though the memorandum states at one point that it seeks dismissal of Counts I, II, and II), as to both counter-plaintiffs, on the basis that the causes of action rely on oral agreements or modifications, which are unenforceable and void under 12 U.S.C. Section 1823(e). Section 1823(e) provides:

No agreement which tends to diminish or defeat the right, title or interest of the Corporation in any asset acquired by it under this section, either as security for a loan or by purchase, shall be valid against the Corporation unless such agreement (1) shall be in writing, (2) shall have been executed by the bank and the person or persons claiming an adverse interest thereunder, including the obligor, contemporaneously with the acquisition of the asset of the bank, (3) shall have been approved by the board of directors of the bank or its loan committee, and (4) shall have continuously, from the time of its execution, an official record of the bank.

Counter-Plaintiffs assert that Section 1823(e) is applicable only to FSLIC acting in its corporate, rather than receiver, capacity.

The Court, upon due consideration of the motion, response, statute, and cases related thereto, finds that this issue should be resolved in favor of the non-moving parties, the Counter-Plaintiffs. The court in FDIC v. Fulcher, 635 F.Supp. 27, 30 (W.D.Tex. 1985), citing FDIC v. Vogel, 437 F.Supp. 660, 663 (E.D.Wis.1977), summarized the purpose of Section 1823(e) as follows:

It is clear that the quoted section operates to insure that the FDIC, when it expends monies entrusted to it to purchase assets of a closed insured bank, can relay on the bank's records and will not be risking an impairment of the assets through an agreement not contained in the bank's records.

The Fulcher court stated that Section 1823(e) applies "when the FDIC acts in its corporate capacity, as opposed as a receiver for a closed insured bank ..." Plaintiff/Counter-Defendant has not alleged that the subject note and mortgage has been purchased in its corporate capacity; rather it alleges that it has been appointed conservator of the same.

In the supplemental motion to dismiss, Plaintiff/Counter-Defendant seeks dismissal of all counts as to Counter-Plaintiff Bader based on his express waiver in paragraph 5 of the guaranty document. The Guaranty is appended to and incorporated in the complaint in this cause at Exhibit L. Paragraph of that document states, in relevant part:

Guarantors hereby specifically waive any and all defenses to any action or proceeding brought to enforce this Guaranty or any part of this Guaranty, either at law or in equity, except to the single defense that the sum claimed has actually been paid to Lender. Without limiting the foregoing in any way, but merely by way of illustration, Guarantors specifically waive all technical, dilatory or nonmeritorious defenses, and any defenses predicated upon:

(a) Disability on the part of Borrower;

(b) Change or modification in the terms of the Loan;

(c) Indulgence or forbearance in the enforcement of any term of the Loan;

(d) A release of all or any part of the security for the Loan, whether for valuable consideration or otherwise;

(e) Lender's acquiring additional security for the Loan;

(f) The substitution of different security in exchange for all or any part of the original security for the Loan;

(g) The fact that there may be persons other that Guarantors solvent and responsible for the payment of all or any part of the Loan by having assumed such obligation in connection with any transfer of the title to the security for the Loan;

(h) The fact that there may hereafter be another guarantor or other guarantors of all or any part of the Loan; and/or

(i) The full or partial release of the obligations of any one or more of the Guarantors or any other or future guarantors of all or any part of the Loan.

A person may waive any legally entitled rights, including rights guaranteed by the Constitution, conferred by statute or secured by contract. 22 Fla.Jur.2d, Estoppel and Waiver, Section 86. If the waiver is clear and unambiguous it shall be given intended force and effect. Central Investment Associates, Inc. v. Leasing Service Corp., 362 So.2d 702, 704 (Fla. 3d D.C.A. 1978).

Count IV of the complaint in this cause is an action for enforcement of the guaranty executed by Mr. Bader and seeks judgment against Bader for the money due and owing on the promissory note and mortgage guaranteed by Bader. The counterclaim asserts four causes of action: breach of covenant of good faith dealing, fraud, breach of contract, and breach of oral contract.

Pursuant to the Guaranty, if the claims of the counterclaim are no more than defenses to the complaint they may have been waived by Mr. Bader. However, the Court finds that the claims of the counterclaim are independent causes of action which could be pursued by Counter-Plaintiffs in independent court action. Counter-Plaintiffs had a right to bring the causes of action as permissive counterclaims in this action. There is nothing in the Guaranty that could serve as a waiver of Mr. Bader's rights to pursue his independent causes of action against Plaintiff/ Counter-Defendant.

COUNT II

As to Count II of the counterclaim (fraud), Plaintiff/Counter-Defendant contends that the count fails to state a cause of action because it is based on alleged failure to perform a future promise, and, as to Pine Trace, there is no allegation of damage to Pine Trace. As to the latter allegation, the Court has previously...