758 F.2d 1486 (11th Cir. 1985), 83-3393, Amey, Inc. v. Gulf Abstract & Title, Inc.

Docket Nº:83-3393, 83-3520.
Citation:758 F.2d 1486
Party Name: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.
Case Date:April 29, 1985
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1486

758 F.2d 1486 (11th Cir. 1985)

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.

Nos. 83-3393, 83-3520.

United States Court of Appeals, Eleventh Circuit

April 29, 1985

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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.

HATCHETT, Circuit 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.

FACTS

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

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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.

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).

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.

Count I alleges that the banks and law firms forced Amey to pay inflated prices for legal services and mortgage financing because of a price fixing conspiracy. Count II alleges that the exchange of fixed price information between banks and law firms caused an unreasonable restraint of real estate legal practice and commercial and residential mortgage financing in Lee County. Count III alleges that Lee County Bank and Henderson had a tying arrangement by which all those purchasing mortgage financing from Lee County Bank were "required to purchase and pay for title services and title opinions provided by Henderson at inflated prices." This arrangement purportedly prevented other lawyers in the Lee County area from receiving Lee County Bank's 30 percent share of the market for commercial legal title work and its 20 percent share of all legal title work and mortgage financing in the county. Count IV repeats the allegations of Count III under the heading of "exclusive dealing." Count V alleges that Lee County Bank required each of its real estate mortgage financing customers to

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agree to purchase the real estate title opinion services of Henderson at purchase or upon resale at a prearranged fixed price. Count VI alleges market and customer allocation arrangements between the respective combinations of banks and law firms by which the law firms agreed not to advertise or otherwise compete for the work of any bank other than their "partner." Similarly, the banks also agreed not to deal with any law firm other than their "partner." The injury Amey alleged is the inflation of the price for title opinion work. Count VII alleges that the law firms have engaged in a group boycott and have refused to deal with non-lawyers who are capable of performing title opinion work, by causing the providing of real estate title searching and opinion services to be included within the definition of "the practice of law." Count VIII alleges a monopoly based on the previous counts, and Count IX alleges an attempt to monopolize the practice of real estate legal services and commercial mortgage financing in Lee County. Count X makes a general claim under the Florida antitrust statutes (Fla.Stat.Ann. Sec. 542.01-542.13, repealed in part by Laws 1980, C. 80-28 Sec. 3 (1980) and amended by Laws 1980, C. 80-28 Sec. 2 (1980)). 2 Count XI alleges a breach of a fiduciary duty owed by Lee County Bank to Amey through its failure to disclose that the $325 paid to Lee County Bank for Henderson's services was an "add on cost to the cost of obtaining said loan, and that [Amey] received absolutely no protection or benefit therefrom." Finally, Count XII alleges state claims to be addressed through the district court's pendent jurisdiction.

ISSUES

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.

STANDING

  1. Suit Under Section 4 of the Clayton Act.

    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.

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    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...

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