Anderson v. Potential Enterprises, Ltd., 91-1264
| Citation | 596 So.2d 488 |
| Decision Date | 27 March 1992 |
| Docket Number | No. 91-1264,91-1264 |
| Parties | 17 Fla. L. Weekly D808 John A. ANDERSON, Appellant, v. POTENTIAL ENTERPRISES, LTD., etc., et al., Appellees. |
| Court | Florida District Court of Appeals |
Ronald W. Brown of Dobson & Christensen, P.A., St. Augustine, for appellant.
Howard L. Cauvel, DeLand, for appellees.
John A. Anderson appeals an amended final judgment of foreclosure of a mortgage. The real property encumbered by the mortgage was owned by a general partnership which was not included as a party to the foreclosure. We vacate the judgment.
John Anderson, Robert Crawley, and Luis Villacres formed a general partnership, Triad Properties (Triad), on March 22, 1985, for the purpose, inter alia, of buying and selling real property. The percentages of initial investment and share of profit and loss in Triad were Anderson 40%, Crawley 20%, and Villacres 40%.
A parcel of real estate which had been purchased by Triad was titled in "Triad Properties, a General Partnership." The mortgage upon which the instant foreclosure was initiated shows Triad as mortgagor of the parcel and was executed in the following manner:
TRIAD PROPERTIES
By Luis Villacres, General Partner
John Anderson, General Partner
Robert L. Crawley (no designation)
The promissory note secured by the mortgage was executed in the same manner except that Crawley was designated as a general partner. Neither the mortgage nor the note indicates the respective interest of each of the partners in Triad, and no requirement exists that such interests be shown.
This foreclosure is complicated by the fact that Luis Villacres, one of Triad's general partners, not only executed the note and mortgage but also was named as a promisee in the note and as a mortgagee in the mortgage.
When Triad defaulted under the terms of the note and mortgage, a foreclosure complaint was filed by Villacres and two other co-holders of the note and mortgage, naming the three mortgagees as plaintiffs. The two defendants were "John A. Anderson and Robert L. Crawley, individually and as general partners of Triad Properties, a general partnership." Neither Villacres nor the partnership was named as a defendant. Anderson filed a motion to dismiss for failure to join Villacres as an indispensable party defendant, but this motion was denied. Crawley then filed an answer. Neither the motion nor the answer raised the issue of the plaintiffs' failure to name Triad as the titleholder of the real property described in the mortgage.
When the trial court denied the motion to dismiss, it asked the plaintiffs to file an amended complaint alleging Anderson's and Crawley's interests in the real property. The plaintiffs complied, alleging that Anderson and Crawley had undivided interests of 40% and 20%, respectively, in the real property pursuant to the terms of the partnership agreement. The plaintiffs further alleged that the named defendants were jointly and severally liable for payment of the entire indebtedness due under the promissory note secured by the mortgage. Review of the partnership agreement, however, shows that it provides for their respective interests in the "partnership" and not for an undivided interest in any specific partnership property. The agreement also provides that profits and losses are to be shared in accordance with the respective interests of the partners, and that the partners were to make future contributions in proportion to their respective interests for taxes, insurance, maintenance, and mortgage payments incurred with respect to any real estate purchased by the partnership. None of the documents contained in the record and reflecting the transaction prescribes the respective rights and liabilities of the parties resulting from the unusual circumstance of Villacres' simultaneously being a co-creditor and a partner in the debtor/partnership.
Anderson's answer to the foreclosure complaint admitted and denied various allegations of the complaint without asserting any affirmative defenses. Crawley's attorney withdrew, and no response to the amended complaint was filed by Crawley. A final judgment of foreclosure was entered following the plaintiff's motion for summary judgment, and a March 13, 1991, sale date was ordered. While the sale date was being advertised, Anderson moved to correct the judgment because of an incorrect interest calculation. On the date of the sale, the trial court entered an amended judgment changing the interest calculation and ordering the clerk to announce at the sale that only the 60% interest in the real estate owned by Anderson and Crawley was being offered. Although the sale took place, Anderson was successful in having it set aside on the grounds, inter alia, that section 45.031, Florida Statutes (1989), prohibits a sale within twenty days from the date of a final judgment. An amended final judgment was then entered, rescheduling the sale and adopting the previous instruction to announce at the sale that only a 60%...
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...partner cannot levy directly on a partner's interest in a partnership, nor on the partnership assets. Anderson v. Potential Enterprises, Ltd., 596 So.2d 488 (Fla. 5th DCA 1992); Century Bank of Lee County v. Gillespy, 399 So.2d 1109 (Fla. 5th DCA 1981); Myrick v. Second National Bank of Cle......
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