Ocala Loan Co. v. Smith, D-486
| Decision Date | 01 August 1963 |
| Docket Number | No. D-486,D-486 |
| Citation | 155 So.2d 711 |
| Parties | OCALA LOAN COMPANY, a Florida corporation, Appellant, v. W. Robert SMITH and Anne L. Cooper, individually and as Administratrix of the Estate of Samuel L. Cooper, Deceased, Appellees. |
| Court | Florida District Court of Appeals |
Owen McGovern, Jr., and E. R. Mills, Jr., Ocala, for appellant.
Chappell, Dunn & Miller, Savage & Krim, and Harry C. Dozier, Jr., Ocala, for appellees.
The appellant, Ocala Loan Company, a corporation, sued W. Robert Smith and Anne L. Cooper, individually, and Anne L. Cooper ex rel. administratrix of the estate of Samuel L. Cooper, deceased, in an action at law charging that the defendants, as officers and director of the plaintiff corporation, committed certain unlawful acts in furtherance of a conspiracy to cheat and defraud the plaintiff, and also charging them with gross negligence, said to result in damages for which recovery is sought. The trial court dismissed with prejudice appellant's third amended complaint, hence this appeal. We affirm the order appealed.
Subsequent to the order appealed appellee W. Robert Smith was dismissed pursuant to stipulation. So the remaining appellee is Anne L. Cooper, individually, and in her relation as administratrix of the estate of Samuel L. Cooper, her deceased husband.
The sole issue to the determined is whether or not the third amended complaint states a cause of action against said remaining defendant. The original and three amended complaints were filed on behalf of plaintiff by the law firms of Musleh & Musleh and Greene, Ayres & Greene who, subsequent to the order appealed, were permitted to withdraw as attorneys of record for plaintiff, whereupon counsel for appellant on this appeal were substituted in their stead.
Following the nomenclature of the first count of the subject complaint, it charges in substance:
(1) That from 1953 to September 20, 1961, W. Robert Smith, Samuel L. Cooper, and Anne L. Cooper were directors and officers of the plaintiff corporation; that during that period the corporation issued and sold upward of $200,000.00 of 'subordinate debentures' to various purchasers and borrowed $175,000.00 from a named bank, and that its promissory note evidencing the loan was secured by a chattel mortgage upon sundry of its accounts receivable.
(2) That during said period all of plaintiff's corporate stock was owned by defendants W. Robert Smith, Anne L. Cooper, and the decedent, Samuel L. Cooper, who as directors and officers of the corporation, exercised complete dominion and control over its property, policies and business affairs; that said persons entered into a 'design and conspiracy' to secure for themselves 'large profits and sums of money at the Company's [plaintiff's] expense and to its damage,' resulting in the loss to plaintiff 'of large sums of money, the exact amounts of which are unknown, but the minimum amount of which could not be less than the difference between the monies loaned to the corporation and the present value of its assets, a difference of approximately $230,000.00, which the Plaintiff alleges has been embezzled and otherwise improperly dissipated and distributed by said conspiracy.'
(3) That pursuant to said conspiracy to defraud plaintiff the following acts were committed:
(a) During the above stated period Sam L. Cooper, the decedent, and defendant Anne L. Cooper (his widow) deposited in bank to their joint personal checking account $247,000.00, of which at least ninety per cent was taken or received from the plaintiff corporation; and that during said period the decedent, Sam L. Cooper, 'was not entitled to receive salaries, bonuses, etc. in excess of $85,000.00 and the said Anne L. Cooper was not entitled to receive any monies at all; that the said Sam L. Cooper and Defendant Anne L. Cooper knowingly and willfully conspired together to take and convert to their own use these and other monies which were not deposited in said account, thereby defrauding and depriving the Plaintiff corporation.'
(b) '* * * that large amounts of the monies wrongfully taken as aforesaid' were used by the Coopers to 'purchase real and other properties, and that Defendant Anne L. Cooper now holds title to same and claims them as her own and/or as assets of the Estate of Samuel L. Cooper, Deceased.' The complaint does not describe the subject property or otherwise identify the transactions referred to.
(c) That the Coopers 'conspired to cancel obligations of plaintiff's customers to plaintiff and transfer said obligations to themselves and their children; the same being accomplished fraudulently and without consideration and the Plaintiff being thereby deprived and defrauded; and Defendant Anne L. Cooper now holds title to same and claims them as her own and/or as assets of the Estate of Samuel L. Cooper, deceased.' The 'what', 'who' and 'when' of these transactions, whatever they may be, is not specifically alleged.
(d) That the Coopers and W. Robert Smith 'borrowed money illegally by selling purported debentures of the Corporation without registering same,' and thereby acquired monies 'with which to further the conspiracy to defraud, as aforesaid,' and thereby rendered the corporation liable to the purchasers of said debentures for said funds 'which were unlawfully acquired and later on taken from the plaintiff illegally, as aforesaid.' The complaint fails, however, to charge that plaintiff has actually suffered a loss in the vague premises of this allegation.
(e) That the Coopers caused 'large sums of money taken from the Plaintiff Corporation, as aforesaid, to be converted to their own use and expended upon their home property' for extensive remodelling thereof, an imperfect description of the property being given. The 'as aforesaid' of this nebulous allegation is entirely too vague to assert a claim, assuming all else were sufficient, upon which an issue might be framed with certainty.
(f) That the Coopers purchased 'large amounts of life insurance' upon the life of Samuel L. Cooper 'with funds taken from the Corporation, as aforesaid, and converted to their own use, the premiums for which exceeded the sum of $4,000.00 and the proceeds of which Defendant Anne L. Cooper has collected and now holds and claims as her own.' The foregoing observations concerning subparagraphs (e) are applicable here also.
(g) That defendant Anne L. Cooper and former defendant W. Robert Smith knew that the decedent Samuel L. Cooper made expenditures and investments that exceeded 'the compensation he legitimately might be receiving from said Corporation, and consented to same knowing that said monies were being unlawfully taken from the Plaintiff corporation.' The dates, amounts, and details of such 'investments' and the present effect to plaintiff are not shown.
(h) 'That Defendant W. Robert Smith conspired with Samuel L. Cooper to cause the Plaintiff Corporation to pay to the said W. Robert Smith thousands of dollars annually as 'salary' for little or no consideration furnished by the said W. Robert Smith; that the said W. Robert Smith knew that the monies paid by Plaintiff corporation to him as 'salary' had not been earned by him and were far in excess of any reasonable charges he might have made for legal counsel for service to the Plaintiff corporation; that said conspirators attempted to cover up said fraudulent payments by reporting them as 'employees salaries'.'
(i) 'That the said Samuel L. Cooper and Defendant W. Robert Smith were co-partners or co-adventurers in business undertakings and maintained a joint bank account at the Munroe & Chambliss National Bank at Ocala, wherein funds derived improperly from the Corporation were mingled and through which funds were transferred to the joint account of Sam L. Cooper and the Defendant Anne L. Cooper and to the personal account of Defendant W. Robert Smith and vice versa; and Defendant W. Robert Smith and said Sam L. Cooper individually acquired properties in trust for each other, from time to time, and in general made joint investments and undertook joint enterprises; and said persons conspired to wrongfully take and use funds belonging to Plaintiff corporation for said purposes.'
(j) 'That the...
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