Investors Tax Sheltered Real Estate, Ltd. v. Laventhol, Krekstein, Horwath & Horwath

• Decision Date: 01 May 1979
• Docket Number: No. 78-95,78-95
• Parties: INVESTORS TAX SHELTERED REAL ESTATE, LTD., etc., Appellant, v. LAVENTHOL, KREKSTEIN, HORWATH & HORWATH, Appellee.
• Court: Florida District Court of Appeals

Page 815

370 So.2d 815

INVESTORS TAX SHELTERED REAL ESTATE, LTD., etc., Appellant, v. LAVENTHOL, KREKSTEIN, HORWATH & HORWATH, Appellee.

No. 78-95.

District Court of Appeal of Florida, Third District.

May 1, 1979.

Rehearing Denied June 1, 1979.

Bailey & Dawes and Guy B. Bailey, Jr., Miami, for appellant.

Fowler, White, Burnett, Hurley, Banick & Knight and Richard S. Banick; Turner & Ashe, Miami, for appellee.

Before HENDRY, HUBBART and KEHOE, JJ.

PER CURIAM.

In November of 1972, appellant, Investors Tax Sheltered Real Estate, Ltd. entered into a sale/leaseback transaction whereby it purchased an apartment complex in Dallas, Texas from U.S. Capital Corporation, a wholly-owned subsidiary of Hallmark Group Companies, Inc., a New York corporation; simultaneously, the complex was leased back to U.S. Capital to operate and to pay Investors in excess of.$2.5 million, payable in monthly installments. Both U.S. Capital and its parent corporation gave their guaranties on the rental payments. Thereafter the lease aspect of the transaction went into default, and U.S. Capital became a defunct corporation and the Hallmark Group filed a petition in bankruptcy. ¹

In 1974 Investors filed suit in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County against Laventhol, Krekstein, Horwath & Horwath, a national accounting firm, ² alleging that it had negligently audited, prepared and rendered its unqualified opinion as to Hallmark's 1971 financial statements. ³ The crucial allegations of the cause of action below were that the appellant was caused to rely upon said financial statement which allegedly failed to fully disclose that a certain line item entry (listed under "Assets" as "Notes receivable on mobile home park sales . . . ") was related to Hallmark's lease obligations on a series of sale/leaseback transactions ⁴ that were, in reality, merely conditional contractual rights predicated upon a number of critical variables and conditions precedent and, thus, should not have been listed as it was. Appellant asserted, Intra alia, that Laventhol performed the Hallmark audit inadequately, and that its methods in preparing the financial statements were in contravention of the dictates of generally accepted accounting principles (GAAP) and generally accepted auditing standards (GAAS) of the accounting profession.

The two issues raised by this appeal are: (1) whether the trial court erred in directing a verdict for defendant/appellee at the close of Investor's liability evidence, and (2) whether privity of contract is required in a negligence action such as this under Florida law. In order for a trial judge to properly grant a directed verdict it must be shown that there has been no invalid encroachment upon the right of a litigant to a jury trial, and the authority to direct a verdict should be exercised with great caution and only when, as a matter of law, no proper view of the evidence and testimony could sustain a verdict in favor of the non-moving party. Mathis v. Lambert, 274 So.2d 601 (Fla.3d DCA1973) and Sun Life Ins. Co. v. Evans, 340 So.2d 957 (Fla.3d DCA1976).

The court should direct a verdict if the evidence falls short of the minimum on which a jury could lawfully find for a party. Buhler v. Travelers Indemnity Company, 174 So.2d 59 (Fla.3d DCA1965). Hence, the trial court must place its own valuation on the evidence to determine the question of its minimum sufficiency. Traurig v. Spear, 102 So.2d 165 (Fla.3d DCA1958) and Alterman Transport Lines, Inc. v. McCahon, 168 So.2d 707 (Fla.3d DCA1964).

On reviewing such a judgment, the court is required to observe the settled rule that we should consider the testimony in the light most favorable to the plaintiff, disregarding conflicts in the evidence and indulging in the plaintiff's favor every reasonable inference therefrom. Guerriero v. Adams, 190 So.2d 432 (Fla.3d DCA1966); Wilson v. Bailey-Lewis-Williams, Inc., 194 So.2d 293 (Fla.3d DCA1967); Mathis v. Lambert, supra; Kilburn v. Davenport, 286 So.2d 241 (Fla.3d DCA1973); and Lovings v. Seaboard Coastline Railroad Company, 340 So.2d 1279 (Fla.2d DCA1977).

A review of the voluminous record reveals that the evidence shows that the financial statement does, in fact, disclose the relationship between the notes receivable asset entry and Hallmark's sale/leaseback transactions; the customary explanatory notes following the consolidated statements puts the reader on notice as to the origin and nature of the asset entry as it relates to the lease obligations to purchasers. Ironically the testimony of one of the appellant's expert witnesses was that a financial statement should be read as a whole, including the notes thereto, and "anyone who took the trouble to read the financial statement should be prepared to put the pieces together." The same expert testified that: (a) the standard user ⁵ would be able to relate the instant notes to the entry, (b) the subject financial statement was acceptable to the Securities and Exchange Commission, and (c) even though he personally might have explained...