Property Management & Investments, Inc. v. Lewis

• Citation: 752 F.2d 599
• Decision Date: 08 February 1985
• Docket Number: No. 84-3142,84-3142
• Parties: PROPERTY MANAGEMENT & INVESTMENTS, INC., Plaintiff-Appellant, v. Gerald A. LEWIS, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 599

752 F.2d 599 1 Fed.R.Serv.3d 702 PROPERTY MANAGEMENT & INVESTMENTS, INC., Plaintiff-Appellant,
v.
Gerald A. LEWIS, et al., Defendants-Appellees. No. 84-3142. United States Court of Appeals,
Eleventh Circuit. Feb. 8, 1985.

Page 601

Jawdet I. Rubaii, Clearwater, Fla., for plaintiff-appellant.

R. Michael Underwood, Albert T. Gimbel, Asst. Attys. Gen., Tallahassee, Fla., for defendant-appellee Gerald Lewis.

Thomas R. Spencer, Jr., Coral Gables, Fla., for defendant-appellee Spencer, Sr.

Appeal from the United States District Court for the Middle District of Florida.

Before GODBOLD, Chief Judge, HILL, Circuit Judge, and PECK ^*, Senior Circuit Judge.

JAMES C. HILL, Circuit Judge:

This is an appeal of an order dismissing a complaint as to one defendant and granting summary judgment to the remaining defendants in a civil rights action brought under 42 U.S.C. Sec. 1983. Three issues are raised: (1) whether the trial court properly dismissed claims against a state court receiver on the basis of judicial immunity; (2) whether the district court acted properly by converting a 12(b)(6) motion to dismiss into a motion for summary judgment and granting that judgment; and (3) whether defamation is actionable under 42 U.S.C. Sec. 1983. We find it necessary to decide only the first two issues, and determine that the trial court acted properly in both instances. We thus affirm the district court's order.

I. FACTS

Appellant Property Management and Investment, Inc., ("PMI") was a Florida corporation involved in a novel real estate financing business. ¹ According to PMI, the Comptroller's Office of the State of Florida originally had indicated that Florida securities laws did not apply to PMI's financial activities, and thus PMI did not make various disclosures required by those laws. Following the election of appellee Gerald Lewis as the new state Comptroller, the Comptroller's Office changed its position, determining that PMI's financing transactions were covered by the securities laws and that disclosures were required. The Comptroller's Office filed suit in a Florida state court against PMI, alleging violations of the Florida securities laws, and seeking an injunction and the appointment of a receiver to restrain PMI from violating the securities laws. That suit was concluded by the entry of a court order that incorporated a stipulation agreement signed by the Comptroller's Office, PMI, and PMI's president and sole stockholder, Louis Rolontz.

The court order prevented PMI from selling securities without complying with state securities laws. Further, PMI was placed in receivership with appellee Thomas Spencer named as the receiver. In the stipulation, PMI and Rolontz agreed to "waive" and "release" Comptroller Lewis and the agents and employees of the Comptroller's Office "from any causes of action they may have for libel, slander, intentional tortious interference with advantageous contractual relationships and the like, arising out of the filing of the complaint herein," and "from any causes of action or claims for damages they may have arising out of the application for and granting of a Temporary Restraining Order without notice granted therein." Record at 281. The stipulation document also indicated that it was the final adjudication of the rights between PMI and the Comptroller's Office

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"with prejudice as to any future civil actions." Id. at 282.

Shortly after the state court proceedings, PMI filed for bankruptcy, and also filed this section 1983 action in the United States District Court for the Middle District of Florida. PMI sued the state court receiver, appellee Spencer, the Florida Comptroller, appellee Lewis, and appellees Michael Gross, Mark Ives, and Michael Wynn, all employees of the Florida Comptroller's Office. It claimed that each of the appellees had violated PMI's federal constitutional rights under color of state law. Specifically, PMI alleged that receiver Spencer had released defamatory news reports to the press and embezzled PMI's assets, and that Comptroller Lewis and the other employees of the Comptroller's Office had used their power to destroy PMI in order to benefit the Florida banking industry and enhance their political fortunes.

Appellees Lewis, Gross, Wynn and Ives filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), contending that appellant was prevented from bringing this suit by virtue of the stipulation signed at the conclusion of the state court proceedings and incorporated into the state court's order. Appellees' motion did not request alternative treatment under Fed.R.Civ.P. 56, which governs motions for summary judgment. They did append a copy, evidently uncertified and incomplete, of the state court order and the stipulation.

In its response to appellees' motion, PMI indicated that appellees had omitted a one-page addendum to the stipulation. PMI submitted a copy of the stipulation and the addendum, which provided that "[i]n the event that [Comptroller Lewis] shall elect to refile a Complaint based upon the transactions alleged in the Complaint filed ... [in the state court]," PMI and Louis Rolontz "shall have all defenses, including [the waived] causes of action ... available to them in defending the subsequent action filed by [Lewis]." Record at 284. PMI claimed that Comptroller Lewis had procured the filing of a criminal indictment against Louis Rolontz and that the charges therein were based on the same transactions alleged in the prior state court civil action. PMI maintained that this amounted to a breach of the stipulation agreement, and that the agreement thus became "absolutely voidable". Id. at 270. PMI also suggested that the stipulation agreement was not enforceable because it was...