Amey, Inc. v. Gulf Abstract & Title, Inc.
| Citation | 758 F.2d 1486 |
| Decision Date | 29 April 1985 |
| Docket Number | Nos. 83-3393,83-3520,s. 83-3393 |
| Court | United States Courts of Appeals. United States Court of Appeals (11th Circuit) |
| Parties | , 1985-1 Trade Cases 66,586 AMEY, INC., and John C. Amis, Jr., Plaintiffs-Appellants, v. GULF ABSTRACT & TITLE, INC., et al., Defendants-Appellees. AMEY, INC., and John C. Amis, Jr., Plaintiffs-Appellees, v. GULF ABSTRACT & TITLE, INC., et al., Defendants-Appellants. |
Britt Whitaker, Tampa, Fla., James Ponsoldt, Athens, Ga., for plaintiffs.
Christopher L. Griffin, Tampa, Fla., Lewis R. Mills, Audrey G. Fleissig, St. Louis, Mo., for Alderman & Taminosian and 1st Nat. Bank of Fort Myers.
Charles W. Pittman, Tampa, Fla., for Lee County Bank.
Marilyn Holifield, Tampa, Fla., Robert R. Feagin, III, Tallahassee, Fla., for Exchange Bank, NCNB Nat. Bank of Fla.
Richard E. Wolverton, St. Petersburg, Fla., Gregory W. Hootman, Sarasota, Fla., for Goldberg, Rubenstein & Buckley, P.A., and Allen, Knudsen, etc.
Donald A. Gifford, Sharyn Zuch, Tampa, Fla., for Gulf Abstract.
G. Hunter Gibbons, Gregory W. Hootman, Sarasota, Fla., for Henderson, Franklin, Starnes & Holt.
William H. Adams, III, Robert J. Winicki, Jacksonville, Fla., for Barnett Bank.
Appeals from the United States District Court for the Middle District of Florida.
Before JOHNSON and HATCHETT, Circuit Judges, and LYNNE *, District Judge.
In this antitrust appeal we review the district court's ruling on issues of standing to sue, commencement of the statute of limitations, tying arrangements, exclusive dealing, price-fixing, discovery, and attorney's fees. We affirm.
Amey, Inc. is a closely-held corporation involved in the business of construction, commercial investment, and real estate development in the state of Florida. In late 1976, John Amis, its president, approached Lee County Bank for financing to purchase property owned by Sharon Hogue and the estate of Adrian Hogue. Appellants, John Amis and Amey, Inc. (Amey), contend that Lee County Bank's provision of financing was conditioned upon Amey's agreement "to purchase a real estate title search and opinion" from appellees, Henderson, Franklin, Starnes & Holt, P.A., a law firm, (Henderson), or to pay Lee County Bank $325 for the same title search and opinion to be provided by Henderson. Amey agreed to this condition, and the bank requested a title opinion from the Henderson law firm.
Prior to October 10, 1976, an abstract of title for the Hogue property was furnished to appellee, Gulf Abstract and Title, Inc. (Gulf Abstract), to be updated and certified as complete and correct. This abstract was updated through October 10, 1976, and certified by Gulf Abstract as being a true copy of all the public records affecting title to the Hogue property. On October 29, 1976, Henderson rendered its "Preliminary Opinion of Title" covering the period up to and including October 10, 1976.
On the afternoon of November 3, 1976, the Internal Revenue Service (IRS) recorded a lien in the amount of $32,107.52 against the property owned by Sharon Hogue and the estate of Adrian Hogue in the Public Records of Lee County, Florida, for taxes due. Neither Amey, Lee County Bank, nor Henderson was aware of the IRS After discovery of the IRS lien in 1977, Amey brought a negligence action against Henderson and its insurer, Gulf Insurance Company in Florida state court. The complaint alleged that Henderson owed Amey a reasonable duty of care in the preparation of the title opinion, including a duty to disclose whether the preliminary opinion of title fell below the usual standard for title examinations. The Circuit Court of Lee County granted summary judgment for Henderson and Gulf Insurance finding that "no attorney-client relationship existed between the defendant law firm, Henderson, Franklin, Starnes & Holt, P.A., and the plaintiff and that Henderson ... owed no legal duty to the plaintiff, Amey, Inc." Amey, Inc. v. Henderson, Franklin, Starnes & Holt, P.A., No. 77-2958 (20th Cir. Fla. March 7, 1978) (Summary Judgment Order). The Florida Second District Court of Appeals affirmed, Amey, Inc. v. Henderson, Franklin, Starnes & Holt, P.A., 367 So.2d 633 (Fla.Dist.Ct.App.), cert. denied, 376 So.2d 68 (Fla.1979).
recording, and no one requested that the law firm make a title search covering the period subsequent to October 10, 1976. Lee County Bank made the loan and Amey purchased the property on November 23, 1976. At the closing, Lee County Bank charged Amey the $325 fee it had paid to Henderson.
In late 1980, Amey filed the present action in federal district court under the Clayton and Sherman Acts. 1 The complaint named Gulf Abstract, Henderson, Lee County Bank, and other banks and law firms involved in the practice of real estate law and the provision of commercial mortgage financing in the Lee County area.
The issues presented are: (1) whether Amey has standing to sue for damages; (2) whether the antitrust statute of limitations bars Amey's claims; (3) whether Amey provided sufficient evidence of the existence of a typing arrangement, of exclusive dealing, of price-fixing and customer allocation agreements, and of exchange of price information to survive summary judgment; (4) whether the district court abused its discretion in staying discovery; and (5) whether the district court erred as a matter of law in denying appellees' attorney's fees.
Section 4 of the Clayton Antitrust Act allows treble damage recovery to: "Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws...." 15 U.S.C.A. Sec. 15, as amended Pub.L. No. 96-349, Sec. 4(a)(1), 94 Stat. 1156 (1980) (current version at 15 U.S.C.A. Sec. 15 (Supp.1984)). Amey asserts standing to sue for treble damages under this statute. The district court determined that Amey has only "questionable standing." 3 Amis v. Gulf Abstract & Title, Inc., 564 F.Supp. 1121, 1124 n. 1 (M.D.Fla.1983).
To sue for treble damages under section 4 of the Clayton Act, the complaint must facially satisfy that section's requirements. First, the complainant must be a "person." The United States is not a person under this section, but can sue under section 4A of the Clayton Act, 15 U.S.C.A. Sec. 15a (Supp.1984). Second, actual injury must be alleged. The Supreme Court has provided the lower courts with some assistance in the identification of a "person injured." In Hanover Shoe, Inc. v. United Shoe Machinery Corp., the Court restricted the "passing on" defense by which a defendant could argue that a plaintiff/purchaser was not a "person injured" where the defendant passed on to those customers the higher, inflated price caused by the antitrust violation. Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S.
481, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968). See Note, Private Antitrust Standing, 61 Wash.U.L.Q. 1069 n. 4 (1984); Gardner, Private Enforcement, 25th Annual Antitrust Law Institute 711, 715 (1984). In Illinois Brick Co. v. Illinois, 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977), the Supreme Court addressed the question of whether the passing on of inflated prices caused by an antitrust
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