Lieberbaum v. Levine

• Decision Date: 28 August 1951
• Parties: LIEBERBAUM et al. v. LEVINE et al.
• Court: Florida Supreme Court

Page 159

54 So.2d 159

LIEBERBAUM et al. v. LEVINE et al.

Supreme Court of Florida, Division A.

Aug. 28, 1951.

Petition for Rehearing Withdrawn Oct. 3, 1951.

Loftin, Anderson, Scott, McCarthy & Preston and Robert H. Anderson, Miami, for appellants.

Sibley & Davis and Marion E. Sibley, Miami Beach, for appellee.

TERRELL, Justice.

Surfcomber Hotel Corporation and Seacomber Hotel Corporation own a 99-year lease on the Surfcomber Hotel and the Seacomber Hotel. The said properties are located at Miami, Florida, and the stock in the corporations is owned by three groups of individuals or stockholders. The Lieberbaums compose group one, the Mirmellis compose group two, and the Levines compose group three.

July 24, 1951, the Levines instituted this suit by bill of complaint against the Lieberbaums and the Mirmellis. The Seacomber Hotel Corporation, the Surfcomber Hotel Corporation and Levleeb Investments, Inc. were made parties defendant. Levleeb Investments, Inc. was formed before the bill of complaint was filed for the purpose of leasing the Seacomber Hotel. The bill prayed for dissolution of the partnership, liquidation of corporations, appointment of a receiver and for other relief. Considerable testimony was taken and the application for receiver was granted. Petition for supersedeas was denied and defendants appealed. When the appeal was perfected, application was made to this Court for an order staying the appointment of receiver and to fix the terms and conditions of a supersedeas bond. Account of the situation presented we deem it advisable to dispose of the cause on the merits.

It is first contended that under the law of Florida a court of equity cannot liquidate a corporation except in the manner prescribed by statute.

In support of this contention appellants rely on Tampa Waterworks Company v. Wood, 97 Fla. 493, 121 So. 789 and 19 C.J.S., Corporations, § 1647, page 1418. Appellants also rely on the fact that the bill of complaint declares for 'dissolution of partnership, liquidation of corporations, appointment of a receiver and other relief.' They say that it was not intended that Levleeb Investments, Inc. should succeed the corporation which held the 99-year lease on the Surfcomber Hotel but instead its purpose was to save income taxes. It is asserted that such creations have been repeatedly approved. Ross v. Commissioner of Internal Revenue, 5 Cir., 129 F.2d 310; Epsen Lithographers, Inc. v. O'Malley, D.C. 67 F.Supp. 181; Buffalo Meter Company v. Commissioners of Internal Revenue, 10 T.C. 83, are relied on to support this contention.

Appellees admit the general rule that a court of equity has no power to dissolve a corporation but they contend that a receiver may be appointed for a corporation and that such appointment does not necessarily work a dissolution of the corporation. Tampa Waterworks Co. v. Wood, cited in the preceding paragraph is relied on to support this contention. From the judgment appealed from it appears that the receiver was appointed for the properties and assets of every kind held by defendants. It appears that the parties to the cause participated in the management of the properties in different capacities and it is not possible to say at this time what form the final decree will take. There were many stockholders and different interests were involved. Appellees assert that they do not expect the corporation to be dissolved but that their objective is a dissolution of the partnership or joint venture on the part of the three groups of stockholders which may or may not actuate the sale of the corporate stock. Trustees System Company of Pennsylvania v. Payne, 3 Cir., 65 F.2d 103; Chicago Milwaukee and St. Paul Railway Co. v. Minneapolis Civic and Commerce Association, 247 U.S. 490, 38 S.Ct. 553, 62 L.Ed. 1229; and In re Rieger, Kapner & Altmark, D.C., 157 F. 609, are...