Donofrio v. Matassini, 85-2726
| Decision Date | 28 January 1987 |
| Docket Number | No. 85-2726,85-2726 |
| Citation | 12 Fla. L. Weekly 427,503 So.2d 1278 |
| Parties | 12 Fla. L. Weekly 427 Dorothy DONOFRIO, Appellant, v. Pasquale MATASSINI, Robert E. Rodriguez, and Howard Bernstein, Appellees. |
| Court | Florida District Court of Appeals |
Stevan T. Northcutt of Levine, Hirsch, Segall, Northcutt & Hanlon, P.A., Tampa, for appellant.
Pasquale Matassini, pro se.
Thomas A. Smith, Tampa, for appellee Rodriguez.
Michael A. Linsky of Linsky, Reiber & Scruggs, Tampa, for appellee Bernstein.
Appellant Dorothy Donofrio, plaintiff below, seeks reversal of the directed verdicts granted in favor of appellees, defendants in the trial court. Because appellant attacks the trial court's entry of directed verdicts, we review and recite the facts in the light most favorable to her.
Throja, Inc. was a Florida corporation which owned one asset, a parcel of commercial real estate located in Tampa, Florida, encumbered by a first mortgage. Appellant Dorothy Donofrio and appellees Pasquale Matassini and Robert E. Rodriguez each owned one-third of the stock in Throja. They were also sole officers and directors of Throja. Throja's parcel of real estate was leased to Deep South Plantation Foods, Inc., which operated a bar on the premises. The stock in Deep South was owned equally by Matassini, Rodriguez, and Donofrio's husband, James.
In late 1973 and early 1974, discord arose among the parties. James Donofrio had been convicted of a felony, and this resulted in the revocation of Deep South's license to sell alcoholic beverages. Without the liquor license, Deep South was unable to make rental payments to Throja which, in turn, was unable to make the mortgage payments on its property. Additionally, the Donofrios had been unwilling to invest capital or work in either Throja or Deep South throughout the existence of these two corporations.
In June 1974, Matassini and Rodriguez formed Hillsborough Investments, Inc., each owning one-half of the stock and being its sole officers and directors.
In July 1974, Matassini and Rodriguez removed Mrs. Donofrio as a director and officer of Throja. Her removal was admittedly motivated by the desire of Matassini and Rodriguez to exclude her from subsequent transactions. In September of that year, Matassini and Rodriguez caused Throja to sell and Hillsborough Investments to buy the real estate owned by Throja on which Deep South had operated the bar. A total purchase price of $110,000 was agreed upon, which included Hillsborough Investments assuming a $14,000 first mortgage, and executing an $88,000 purchase money second mortgage and a $7,400 unsecured note to Throja.
In October 1974, Throja was involuntarily dissolved for failure to file its annual report with the Secretary of State.
Hillsborough Investments made monthly payments on the mortgage to Throja by depositing the monies into a Throja bank account on which Rodriguez and Matassini were the sole signatories. In February 1976, Matassini and Rodriguez caused Throja to purchase two $5,000 certificates of deposit. Thereafter, Matassini and Rodriguez each obtained a $5,000 personal loan, using Throja's certificates of deposit as collateral. These loans were not repaid, and on April 1, 1976, the bank redeemed the certificates of deposit.
In March 1976, Rodriguez sold his shares in Deep South, Throja, and Hillsborough Investments to appellee Howard Bernstein. Bernstein replaced Rodriguez as a director and officer in the three corporations. Thereafter, Hillsborough Investments ceased making payments on its mortgage to Throja. On April 2, 1976, Matassini withdrew about $4,300 which remained in Throja's bank account.
As a part of the transaction to purchase the corporate shares from Rodriguez, Bernstein approached Joseph Licata, Jr., who is not a party to this appeal. Licata agreed to transfer a liquor license he owned to the property and operate a bar with Bernstein and Matassini. These three then proceeded to arrange for the purchase of the property from Hillsborough Investments. Bernstein had been under the impression that Matassini and Rodriguez were to "take care of" the mortgage to Throja so that Hillsborough Investments would own the real estate free and clear of any obligations. He agreed to complete the purchase provided he could review a title binder. Because the title binder reflected Throja's mortgage as an encumbrance against the property, it was necessary to obtain a satisfaction of that mortgage before Bernstein and Licata would agree to proceed with the transaction. A satisfaction of mortgage was presented by Bernstein and executed on behalf of Throja by Matassini and Rodriguez as its officers. At this point, Rodriguez was apparently no longer an officer of Throja, although he had not yet received remuneration from Bernstein for his shares in Deep South, Throja, and Hillsborough Investments. Later, Rodriguez, on advice of counsel, marked this satisfaction "void," and on April 15, 1976, Matassini executed a new satisfaction as president of Throja. Bernstein witnessed Matassini's signature on the second satisfaction. Bernstein was aware that no money was paid to Throja in exchange for the satisfaction.
On April 20, 1976, Matassini and Bernstein caused Hillsborough Investments to transfer the real estate to Bernstein and his wife, Licata and his wife, and Matassini's son in trust for Matassini. The property was valued at $225,000 for purposes of the sale; however, Bernstein and Matassini paid no consideration. Licata paid $25,000 in cash and transferred his liquor license to the property. The cash was apparently used for repair and improvement of the bar. The owners began operating a bar on the property but it failed, and the property was eventually sold to a third party for $225,000. Net proceeds from this sale were divided among Matassini, the Bernsteins, and the Licatas.
The net effect of the series of transactions was that Mrs. Donofrio, who retained a one-third interest in Throja, received nothing.
Mrs. Donofrio was unaware of these events until 1977. In November of that year, more than three years after dissolution of Throja, she filed her lawsuit for compensatory and punitive damages, alleging the existence of a conspiracy to deprive her of the value of her stock in Throja, and seeking imposition of an equitable lien against the property to compensate her for her loses.
Following several amendments to the initial complaint, the case came on for jury trial in 1985 on the conspiracy theory. 1 At the conclusion of Mrs. Donofrio's case, the trial judge granted a directed verdict in favor of Bernstein on the ground that there was insufficient evidence to show his participation in the alleged conspiracy. Rodriguez and Matassini rested without presenting any evidence. The trial judge granted directed verdicts in their favor on the theory that Mrs. Donofrio's suit was actually a stockholder's derivative claim that by law should have been filed within three years of Throja's dissolution. The judge further ruled that the evidence was insufficient to show Rodriguez and Matassini participated in any alleged conspiracy. On this appeal, Mrs. Donofrio challenges the trial court's entry of these directed verdicts.
Mrs. Donofrio argues that there was sufficient evidence of app...
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