Ashland Oil, Inc. v. Pickard
| Decision Date | 28 November 1972 |
| Docket Number | Nos. 72--102,72--103,s. 72--102 |
| Citation | 269 So.2d 714 |
| Court | Florida District Court of Appeals |
| Parties | ASHLAND OIL, INC., and Cobia Boats, Inc., Appellants, v. Rod PICKARD et al., Appellees. MODERN FIBER GLASS, INC., and Harold L. Slama, Appellants, v. Rod PICKARD et al., Appellees. |
Bedell, Bedell, Dittmar, Smith & Zehmer, Jacksonville, for appellants.
Preddy, Haddad, Kutner & Hardy, Podhurst, Orseck & Parks, Miami, for appellees.
Before PEARSON, HENDRY and HAVERFIELD, JJ.
Two appeals have been consolidated. The primary issue in appeal No. 72--102 concerns the applicability of the statute of frauds provisions of § 725.01, Fla.Stat., F.S.A. requiring a written memorandum signed by the party to be charged for an agreement not to be performed within one year, and § 672.201 Fla.Stat., F.S.A., requiring a written memorandum for the sale of goods for a price of $500.00 or more. The primary issue in appeal No. 72--103 concerns the propriety of granting a new trial.
In appeal No. 72--102, defendants, Ashland Oil, Inc. and its wholly owned subsidiary, Cobia Boats, Inc., appeal from a final judgment entered upon jury verdicts which awarded compensatory and punitive damages to plaintiffs Captain Rod Pickard and his wholly owned companies Marine Dynamics Corporation and Transmarine Corporation in an action for deceit and breach of contract. In appeal No. 72--103 defendants Harold L. Slama and Modern Fiber Glass, Inc., seek review of a post-judgment order in the same action which set aside the jury verdict in their favor on the merits and the punitive damages award against them and then ordered a new trial on all issues as to these two defendants. We affirm the final judgment and post-judgment order appealed in all respects.
Plaintiff Captain Rod Pickard at all relevant times was president and sole owner of the two corporate plaintiffs. He acquired in 1967, Marine Dynamics Corporation to construct and sell large fiberglass vessels. Pickard incorporated Transmarine Corporation to construct and sell commercial fishing vessels, originally of wood, and at times material to this case, of fiberglass.
Defendant Ashland Oil, Inc., is a diversified national company and it wholly owns Cobia Boats, Inc. (formerly Southern Fiberglass, Inc.). In turn, Cobia Boats, Inc., at all times material, wholly owned Modern Fiber Glass, Inc. (formerly a privately held company known as Newport Trawlers, Inc.).
Harold L. Slama was, at various times, both president and chairman of the board of Southern Fiberglass, Inc., i.e., Cobia Boats, Inc., and president of Modern Fiber Glass, Inc.
Plaintiffs claim that from the outset of negotiations defendants formulated a scheme to lead Captain Pickard to rely on oral and written representations that he would have the first right to outfit and sell large fiberglass hulls manufactured by Southern Fiberglass, Inc., so that defendants could utilize his expertise in outfitting these hulls, while at the same time defendants secretly prepared to outfit the vessels in Tampa, themselves. An important aspect of the scheme came to be that the vessel 'Bonnie,' also known as hull No. 3, would be taken from plaintiffs' shipyard immediately before defendants inaugurated a saturation advertising compaign in connection with a commercial fishing exposition.
An amended complaint was framed in three counts for breach of contract and for fraud in the inducement and the trial proceeded upon those allegations and ones concerning the taking of the fiberglass shrimp trawler 'Bonnie'. Throughout, Slama was alleged to have acted in an individual and agency capacity.
Count I alleged the following matters: On August 23, 1968, Slama entered into an oral agreement with the three plaintiffs, which provided that Cobia and Ashland would sell all of their production of large fiberglass hulls to Marine Dynamics according to a certain cost formula. It averred that Slama's handwritten agreement dated August 23, 1968, and signed by Slama and Pickard, provided that Pickard and Transmarine would first outfit hull No. 3 for $70,000.00 and then Pickard and Transmarine would use their best efforts to sell it for $85,000.00. Material portions of that handwritten agreement attached to the amended complaint are as follows:
'August 23, 1968
'For the purpose of fitting out No. 3. Fiberglass 73 Shrimper Trawler hull as a new prototype with new ideas in pilot house, rigging, winch, etc. and to show at the Boston Fish Expo in Oct. of 1968 the following agreement has been made between Harold L. Slama of Southern Fiber Glass Products Inc. as owner of the vessel, and Rod Pickard of as contractor. Transmarine Corp
'* * *
'9. Every effort will be made to complete boat for Boston Fish Expo Oct. 1968.
'* * *
'10. This agreement is being made with the intention that Marine Dyamics (sic) will become sole agent for these Fiberglass shrimp trawlers.
'* * *' (Corrections in original.)
Count I also alleged that on December 24, 1968, Slama hand delivered to Pickard an unsigned letter confirming the agreement then existing between the parties and that defendants, knowingly and with a fraudulent intent, falsely represented to plaintiffs that defendants would supply all of Cobia's production of commercial fiberglass hulls. Slama represented that the typewritten and unsigned agreement of December 24, 1968, would remain in effect, thereby inducing Pickard and Marine Dynamics to sell for $65,000.00 certain plans, specifications and a 'plug' for a seventy-three foot fiberglass shrimp trawler, which had been designed by a prominent marine architecture firm, Gibbs & Cox. Slama made false representations to induce Pickard to sign the December 30, 1968 document, and in reliance thereupon, Pickard sold these assets. Thereafter representations were made that the prior agreements, rather than the signed December 30, 1968 document, were in force. Plaintiffs undertook an extensive advertising campaign and committed their resources to outfit hull No. 3. As a proximate result of defendants' actions orders were cancelled and the business was abandoned. Specific compensatory and punitive damages were sought.
In Count II the preceding matters were realleged and plaintiffs further stated that in March, 1969, Pickard and Transmarine advised defendants that they desired to purchase hull No. 3. Cobia and Ashland confirmed the agreement to sell by a letter from Morrison M. Bump, vice-president of Ashland Chemical Company, a division of Ashland Oil, attached as an exhibit to the complaint. Pickard and Transmarine secured financing and allegedly performed all conditions precedent and set a closing for May 12, 1969, in Dade County, Florida. Nevertheless, defendants towed away the vessel on May 12, 1969, even after reassuring Pickard and Transmarine that the closing would take place. Pickard and Transmarine had previously informed defendants that the reason for their purchasing the vessel was to use it as a prototype and to salvage the additional investment they made in the vessel. As a proximate result plaintiffs lost their additional investment of $52,000.00.
Count III reaverred these matters and stated that defendants with the intent to defraud plaintiffs falsely represented that the vessel would be sold to them, even though defendants actually had no intention of selling it. Based upon these knowingly made fraudulent misrepresentations, plaintiffs were induced to invest additional money and effort to develop and outfit the vessel. As a proximate result thereof the initial investment of $52,000.00 was lost. Plaintiffs sought compensatory damages in that amount and specified punitive damages.
Two motions to amend the pleadings were made. Plaintiffs' attempt at pretrial to add a cause of action for unfair trade practices was denied by the trial court. Near the conclusion of the trial, the court granted plaintiffs' motion to amend the complaint to reflect breaches of oral and written agreements, to correct typographical errors, and to amend the ad damnum clauses to read 'amounts within the jurisdiction of the court.'
Plaintiffs in support of their allegations adduced evidence which showed among other things that defendants initiated a plan to deceive the plaintiffs, obtain their resources and then extricate themselves from an association with Pickard by using any means at their disposal, 1 particularly if the venture were to turn out as profitably as they had thought it might. 2 Defendants were dealing with the plaintiffs with 'tongue in cheek', as documented by vice president Bump in his memorandum of March 5, 1969. 3
The jury returned these verdicts:
'We, the Jury, find for the Plaintiffs on the issue of compensatory damages and against Defendants, ASHLAND OIL, INC., and COBIA BOATS, INC., and for Defendants, MODERN FIBER GLASS, INC., and HAROLD L. SLAMA, and assess such damages in the amount of $250,000.
'So say we all.
'/s/ JACK L. ARNOLD
Foreman
Dated: December 4, 1971.'
and
'We, the Jury, find for the Plaintiffs on the issue of punitive damages and against Defendants, MODERN FIBER GLASS, INC., ASHLAND OIL, INC., COBIA BOATS, INC., HAROLD L. SLAMA, and assess such damages in the respective amounts as follows:
'So say we all.
'/s/ JACK L. ARNOLD
Foreman
'Dated: December 4, 1971.'
Defendants Ashland and Cobia present these points on appeal, which we have paraphrased:
I. Trial court erred in not entering judgment for defendants.
A. & D. Plaintiffs never tendered payment for any hull and defendants had no obligation to deliver.
B. Statute of frauds bars action based on the unsigned December 24, 1968 writing or claimed oral agreement to same effect.
C. No action in contract or fraud arose under the handwritten August 23, 1968 agreement.
E. Cobia properly cancelled the December 30, 1968 agreement preventing liability arising thereunder.
II. Trial court erred in receiving evidence as to lost profits and instructing...
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