Ilgen v. Henderson Properties, Inc.
| Citation | 683 So.2d 513 |
| Decision Date | 10 April 1996 |
| Docket Number | No. 95-00302,95-00302 |
| Parties | 21 Fla. L. Weekly D898 John ILGEN and Carol Ilgen, husband and wife, Appellants, v. HENDERSON PROPERTIES, INC., a Florida corporation; Frank M. Henderson, Jr.; and Arthur Rutenberg Homes, Inc., a Florida corporation, Appellees. . Opinion filed |
| Court | Court of Appeal of Florida (US) |
Herbert O. Brock, Jr. of Becker & Poliakoff, P.A., Clearwater, for Appellants.
Kenneth G. Turkel and V. Stephen Cohen of Williams, Reed, Weinstein, Schifino & Mangione, P.A., Tampa, for Appellee Arthur Rutenburg Homes, Inc.
John and Carol Ilgen (the Ilgens) appeal an order granting appellee Arthur Rutenberg Homes, Inc.'s motion to dismiss certain counts of an amended complaint with prejudice. We reverse the dismissal of the apparent agency count and affirm the dismissal with prejudice of the agency count.
On or about August 1, 1991, the Ilgens contracted with appellee Henderson Properties, Inc. for construction of a new home. Appellee Arthur Rutenberg Homes, Inc. ("Rutenberg" or "Appellee") was the franchisor of Henderson Properties. On or about January 28, 1993, the Ilgens terminated Henderson Properties' services. Thereafter, litigation was commenced against Henderson Properties and Frank Henderson, Jr., asserting breach of contract, violation of building codes, and negligence; deceptive trade practices were alleged as to Henderson Properties only. Subsequently, a second amended complaint was filed adding Rutenberg as a named defendant, and alleging breach of contract under theories of apparent agency and agency.
The counts as to Rutenberg were subject to several motions to dismiss, and to third, fourth, and fifth amended complaints. Rutenberg's motion to dismiss with prejudice as to the fifth amended complaint was granted by order entered December 20, 1994.
In count XII of the fifth amended complaint (apparent agency), the Ilgens alleged that Rutenberg represented to the public and to them that Henderson Properties was part of Rutenberg and that the Ilgens and the public would find a high level of quality in the homes constructed by Henderson Properties; that Rutenberg entered into a course of conduct designed to lead the public and the Ilgens to believe that Henderson Properties was a part of Rutenberg; that Rutenberg's representations to the public and to the Ilgens included the fact that the contract was captioned with the name and logo of Rutenberg; that the contract states that the residence is to be "Contractor's Arthur Rutenberg custom home;" and that Rutenberg would control the performance of the work and the manner in which the work was done. The Ilgens further alleged that in reliance upon those representations, they entered into the contract to their detriment. In count XIII (agency), the Ilgens alleged that Rutenberg exercised control over Henderson Properties by the manner in which the work was to be performed and by the level of quality to be maintained in the construction of the home. No contract between Rutenberg and the Ilgens was pleaded nor attached to the fifth amended complaint.
Three elements are needed to establish an apparent agency: (1) a representation by the purported principal; (2) reliance on that representation by a third party; and (3) a change in position by the third party in reliance upon such representation. Mobil Oil Corp. v. Bransford, 648 So.2d 119, 121 (Fla.1995). In Mobil Oil, the supreme court held that logos or trademark symbols alone cannot create an apparent agency. Id. The court stated that franchisors may, however, enter into agency relationships with franchisees if the franchisor has directly or apparently participated in some substantial way in directing or managing acts of the franchisee, beyond the mere fact of providing contractual franchise support activities. Id...
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...by a third party; and (3) a change in position by the third party in reliance upon such representation." Ilgen v. Henderson Props., Inc., 683 So.2d 513, 514 (Fla. 2d DCA 1996). Actual agency requires a showing of: "(1) acknowledgment by the principal that the agent will act for him; (2) the......
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