Markow v. Alcock

• Decision Date: 07 February 1966
• Docket Number: No. 21502.,21502.
• Citation: 356 F.2d 194
• Parties: Herbert L. MARKOW, Successor to J. Mark Stanley, as Trustee of Florida Carolina Lumber Company, Bankrupt, Appellant, v. Charles H. ALCOCK et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

356 F.2d 194 (1966)

Herbert L. MARKOW, Successor to J. Mark Stanley, as Trustee of Florida Carolina Lumber Company, Bankrupt, Appellant, v. Charles H. ALCOCK et al., Appellees.

No. 21502.

United States Court of Appeals Fifth Circuit.

February 7, 1966.

H. I. Fischbach, Miami, Fla., for petitioner.

John Gale, Miami, Fla., Milton E. Grusmark, Miami Beach, Fla., William B. Roman, Harold Friedman, Miami, Fla., for Eduardo Morales, Pan American Bank of Miami and Southern Creosoted Lumber Company.

Feibelman, Friedman, Hyman & Durant, Miami, Fla., for Leo Robinson, Dania Bank and Southern Creosoted Lumber Co.

Before WISDOM and COLEMAN, Circuit Judges, and DAWKINS, District Judge.

BENJAMIN C. DAWKINS, Jr., District Judge:

This is the third, and hopefully the final, occasion this matter has come before us for decision.¹ The action is brought by the Trustee in Bankruptcy of the Florida Carolina Lumber Company (Florida) in which, pursuant to § 70(e) of the Bankruptcy Act, he claims a mortgage transaction in favor of the defendant banks² was in fraud of general creditors of the bankrupt. The principal factual contention made by plaintiff is that the bankrupt owned, in law or in equity, the assets of the Southern Creosoted Lumber Company (Southern) which were mortgaged to the banks and executed upon in satisfaction of the debt of Florida.

Briefly reiterating the facts as more fully stated in our opinion in Coleman v. Alcock, 272 F.2d 618 (5 Cir. 1960), it appears that the capital stock of Florida was owned by certain individuals who acted as officers and directors of the corporation. In November, 1953, Southern was incorporated, the same individuals agreeing to subscribe to its capital stock in the same proportion as their ownership in Florida. Prior to that time, one of the officers of Florida, acting for the corporation, had agreed to purchase the assets of Florida Pole and Crossarm Company, either by Florida or its nominee, putting up a deposit of $3,750, which had been obtained from a lender on the note of Florida. One P. J. Davis, a stockholder and officer, put up the purchase price, taking a note and mortgage on the assets of Southern, which corporation was named to purchase and receive the assets of Florida Pole and Crossarm Company. Apparently no money was paid in for the stock of Southern until late 1954, but the separate corporate existence of Southern is not challenged here. Florida became insolvent in 1956, but Southern was still solvent and operating as of the date this suit was filed.

Sometime in 1956, when Florida was receiving adverse publicity because of a lawsuit brought against it by one McClellan, a former president and disgruntled shareholder, it found itself in financial difficulties. Because it was engaged in the factoring business, it never carried fixed assets and from its earliest beginnings operated on a very slim margin. The shareholders and officers settled the lawsuit, got rid of the dissident member, and entered into certain agreements with the defendant banks for refinancing Florida's factoring operation. In order to secure this refinancing, the shareholders, who also were officers and directors of both corporations, executed an open-end mortgage on the assets of both corporations, including those of Southern. When Florida subsequently failed, the banks executed against Southern pursuant to this agreement.

It is admitted by defendants that if Florida owned Southern, in law or in equity, this mortgage would be in fraud of the general creditors of the bankrupt in that it would have amounted to a voidable preference in favor of the banks. If Southern was a true separate entity, its assets would not be available to the Trustee for the benefit of creditors of the bankrupt.

The principal basis of appellant's contentions is the sequence of events occurring prior to the transaction of which he complains. In order to settle the McClellan lawsuit, adverted to above, the stockholders and parties in that suit entered into a stipulation of compromise, approved by the State court, in which it was asserted that Southern was a wholly owned subsidiary of Florida. The same day the settlement was approved by the State court the remaining stockholders signed a document refuting the assertion that Southern was a wholly owned subsidiary of Florida. It was these documents which prompted this Court in our previous reversal of summary judgment in favor of these defendants to say:

"Here, three of the parties to this action on the same day executed solemn writings which contradict each other on a very vital matter. One in search of the truth would have to delve deep to ascertain which of the statements was true. In such a situation, created entirely by parties to this suit whose credibility is inextricably bound up in its decision, the trier of the facts ought to be permitted to look the witnesses in the face as they testify in an effort to ascertain where the truth does lie. * * *"³

Upon trial on the merits, apparently by choice of all counsel, including the attorney for the Trustee, the parties presented no live witnesses, except the testimony of one Fahner, an officer of the Pan American Bank of Miami. When the case was submitted for decision, partially on the same record which had served as the basis of summary judgment, the trial judge relied principally upon the testimony and a letter written by Marion E. Sibley, the attorney who represented P. J. Davis in the McClellan lawsuit, to one Edwards, the corporations' accountant, clearly and reasonably explaining the reason for the stipulation and confirming its fictitious nature.⁴ Of this letter the court below said, "this letter convinces the court that said settlement stipulation was the device of one of Dade County's ablest attorneys acting in the interest of one particular client. It does not convince the court (contrary to all the other evidence) that there was any truth in the matter there asserted."

Sibley's client, P. J. Davis, who was a stockholder and officer of both corporations, had previously furnished the purchase price of the assets then held by Southern. It was he also who furnished the cash which was used by buy out McClellan and put an end to that dispute — thus the need for his protection in the settlement transaction.

The issue to be decided here, as suggested by our earlier opinion and now posed by these parties, is whether in fact Southern was a wholly owned subsidiary of Florida, or whether in equity Florida may be considered as owner either because the corporate existence of Southern may be disregarded or the defendant banks are estopped to deny the judicial stipulation. We hold in the negative and affirm the decision of the court below.

The record is totally devoid of any concrete evidence supporting appellant's contention that Florida in fact owned Southern. Moreover, there is no serious basis for finding that Southern is not a legally constituted separate corporate entity. Therefore, the proposition that Southern was the wholly owned subsidiary of Florida in law or equity is untenable.

As a general rule a corporation normally will be counted as a legal entity separate from the persons composing it until sufficient reasons to the contrary appear. A number of...