Attache Resort Motel, Ltd. v. Kaplan, s. 85-321
| Citation | 11 Fla. L. Weekly 2354,498 So.2d 501 |
| Decision Date | 12 November 1986 |
| Docket Number | 85-322,Nos. 85-321,s. 85-321 |
| Parties | 11 Fla. L. Weekly 2354 ATTACHE RESORT MOTEL, LTD., a California limited partnership, Harvey Cohen, Doreen Kates, as Personal Representative of the Estate of Howard M. Kates, deceased, and Robert Sherman, Appellants, v. Leonard KAPLAN, Appellee. |
| Court | Court of Appeal of Florida (US) |
Neil A. Shanzer, Miami, for appellant Attache Resort Motel, Ltd.
Weintraub & Rosen and Michael Rosen, Miami, for appellants Harvey Cohen, Doreen Kates and Robert Sherman.
Kaplan & Kusnick and Norman D. Kaplan, Sunrise, for appellee.
Before HUBBART, DANIEL S. PEARSON and FERGUSON, JJ.
These appeals are brought by Attache Resort Motel, a limited partnership, and three of its general partners from a final judgment rendered in favor of defendant Kaplan on his counterclaim.
The substantive question is whether a limited partnership may bring and maintain an action in the fictitious name of the partnership and consent to a judgment on defendant's counterclaim without exposing the general partners to liability on the counterclaim where the general partners are not served with process. The substantive question need not be addressed, however, as we find a procedural question dispositive, i.e., whether the statute of limitations barred the filing of Kaplan's counterclaim.
Attache Resort Motel, Ltd. (Attache), a California limited partnership, owned and operated the Attache Resort Motel in Hollywood, Florida. Cohen, Kates, and Sherman, the general partners of Attache, are all residents of California. On March 8, 1979, Leonard Kaplan entered into an employment contract with Attache. On or about November 30, 1979, he bought an interest in the limited partnership on an installment purchase plan. After a dispute arose out of that purchase, Kaplan filed a complaint in federal court on January 23, 1980, against Attache and the three general partners alleging fraud, violation of federal and state securities laws, and breaches of contract, implied warranty, and fiduciary duty. 1
On November 19, 1981, with Kaplan's federal suit still pending, the limited partnership, Attache, sued Kaplan in state court seeking to recover the balance due on the limited partnership interest purchased by Kaplan. The general partners were not plaintiffs in Attache's lawsuit. On March 22, 1982, Kaplan counterclaimed against Attache, as plaintiff/counterdefendant, and against the general partners, individually and in their representative capacities as "counterdefendants/third parties," on the same theories as the suit brought in federal court except for a claim under the federal securities laws. An amended counterclaim was filed on July 5, 1983. The general partners were not served with either the original or amended counterclaim.
The state court judge conditioned continuation of the state action on a dismissal of identical claims pending in the federal action. Kaplan, accordingly, dismissed his federal suit and proceeded on the counterclaim in state court. An order was entered by the state court judge on stipulation by the parties, Attache and Kaplan, that the matters of discovery in the federal case would be adopted in the state case.
Attache filed two motions to dismiss the counterclaim alleging, inter alia, a statute of limitations defense under section 95.11(4)(e), Florida Statutes (1981). 2 In the motion filed on August 8, 1983, Attache argued that the filing of the federal action on January 23, 1980, which also alleged a violation under chapter 517, Florida Statutes (1981), was evidence that Kaplan had discovered the facts giving rise to his state court counterclaim more than two years before he filed that claim on March 22, 1982. Both motions were denied as to the statute of limitations defense. Attache repeated that defense in its separate answer and affirmative defenses to the counterclaim. Kaplan replied that he did not voluntarily dismiss the federal action but was required to do so by the court as a condition precedent "to pleading or defending a motion by Plaintiff."
Prior to trial Kaplan moved for a default against the general partners. At the hearing on the motion, a successor state judge denied the default against the general partners because they had never been served in the state action and were not parties in the case. The trial court rejected Kaplan's argument that the parties agreed in the stipulation order to the general partners' participation in the state action. Attache, as the limited partnership, then voluntarily dismissed its complaint, waived trial by jury, and consented to entry of a judgment of liability for Kaplan on the counterclaim. The case proceeded to trial on the issue of damages only.
The successor judge entered judgment in the amount of $500,650 against the limited partnership and the general partners, holding that although service of process had not been effected upon the general partners in the state action, the partners, nevertheless, were jointly liable with the limited partnership because "this matter had previously been in Federal Court where service was effected upon plaintiff [Attache] and the individual general partners and that case was subsequently adopted by stipulation of parties and approved in toto by order of [the predecessor judge]." Both the limited partnership and its partners appeal.
Attache contends that the trial court "lacked subject matter jurisdiction" over count I of Kaplan's counterclaim, which alleged a violation under the state securities statute, chapter 517, because the statute of limitations period set forth in section 95.11(4)(e), had expired.
Kaplan counters that the commencement of the...
To continue reading
Request your trial
-
Zola v. Gordon
...aff'd mem., 720 F.2d 686 (11th Cir.), reh'g en banc denied mem., 723 F.2d 920 (11th Cir.1983); Attache Resort Motel, Ltd. v. Kaplan, 498 So.2d 501, 502, 504 (Fla.3d Dist.Ct.App.1986). Section 95.11(4)(e) is similar to section 13 of the '33 Act in that it has two components. Under section 95......
-
Ramos v. Philip Morris Companies, Inc.
...the court is automatically divested of its inherent power to deal with the general subject matter. See Attache Resort Motel, Ltd. v. Kaplan, 498 So.2d 501, 503 (Fla. 3d DCA 1986),review denied, 511 So.2d 298 (Fla.1987). Therefore, timeliness is not a part of this initial determination of cl......
-
McBride v. Pratt & Whitney
...603 So.2d 88, 89 (Fla. 5th DCA 1992); Guerrero v. Fonte, 507 So.2d 620, 621 n. 2 (Fla. 3d DCA 1987); Attache Resort Motel, Ltd. v. Kaplan, 498 So.2d 501, 503 (Fla. 3d DCA 1986); Life Sciences, Inc. v. Emery Air Freight Corp., 341 So.2d 272, 272 (Fla. 2d DCA 1977); Hamilton v. Largo Paint & ......
-
Dade County v. Rohr Industries, Inc.
...the federal action has the effect of placing the parties in a position as if the suit had never been filed. Attache Resort Motel, Ltd. v. Kaplan, 498 So.2d 501 (Fla. 3d D.C.A.1986), See Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir.1982) (dismissal of an earlier suit without pre......