R.D.J. Enterprises, Inc. v. Mega Bank

• Decision Date: 09 June 1992
• Docket Number: No. 90-1086,90-1086
• Citation: 600 So.2d 1229
• Parties: 17 Fla. L. Weekly D1447 R.D.J. ENTERPRISES, INC., a Florida corporation, d/b/a Mac's Lawnmower Service d/b/a Mac's Lawn and Turf Equipment, Appellant, v. MEGA BANK and Charles Kantor, Appellees.
• Court: Florida District Court of Appeals

Page 1229

600 So.2d 1229

17 Fla. L. Weekly D1447

R.D.J. ENTERPRISES, INC., a Florida corporation, d/b/a Mac's Lawnmower Service d/b/a Mac's Lawn and Turf Equipment, Appellant, v. MEGA BANK and Charles Kantor, Appellees.

No. 90-1086.

District Court of Appeal of Florida Third District.

June 9, 1992.

Garfield & Associates, and Neil F. Garfield, Fort Lauderdale, for appellant.

Kantor & Sapurstein, and Bertram A. Sapurstein, Miami, for appellee Mega Bank.

Buchbinder & Elegant, and Monica I. Salis, Miami, for appellee Charles Kantor.

Before FERGUSON, GERSTEN and GODERICH, JJ.

PER CURIAM.

Appellant, R.D.J. Enterprises, Inc. (RDJ), appeals a final order dismissing its counterclaim against appellee, Mega Bank (Mega Bank), and its third party complaint against appellee, Charles Kantor (Kantor). We affirm.

Mega Bank filed two actions against RDJ arising from RDJ's nonpayment of a debt. The debt was secured by a security agreement on inventory, personal guarantees by officers of RDJ, a second mortgage on real property, and evidenced by a promissory note. Mega Bank sought replevin of the inventory in one action and foreclosure of the real property in the other.

RDJ filed a counterclaim against Mega Bank, and a third party complaint against Kantor, Mega Bank's president, in the replevin action. Prior to trial, RDJ twice sought to consolidate the actions in order "to avoid the possibility of inconsistent findings of fact, duplicative discovery and to avoid unnecessary attorney's fees."

In a motion for leave to file a counterclaim against Mega Bank, RDJ sought to file the same counterclaim in the foreclosure action previously filed in the replevin case:

Should [the] Judge ... however deny [RDJ]'s motion to transfer the replevin action to this Court's division, it will be necessary for said [RDJ] to have leave from this Court to file the same counterclaim in this action which currently exists in the replevin action. [Emphasis added].

In a motion to consolidate the foreclosure action with the replevin action, RDJ alleged:

In the instant lawsuit, [RDJ] has filed Affirmative Defenses of payment, accord and satisfaction, proration, offset, estoppel, and latches [sic] which are the same issues and defenses to be litigated in the replevin action in the previously filed lawsuit. As such, both cases involve the similar factual background and utilize the same theories of law for [RDJ]'s defenses in both actions. [Emphasis added].

In its motion for leave to file third party complaint, RDJ again alleged the similarity of the facts and issues in both cases:

That the factual background and issues involved in the third-party action are the same as those in the replevin and foreclosure action currently before this Court.

The motion to consolidate was denied, and trial in the foreclosure action began.

Even though RDJ's motions for consolidation, for leave to file a counterclaim, and for leave to file a third party complaint in the foreclosure action were denied, at trial, RDJ nonetheless raised the same defenses and issues raised in the replevin action. RDJ's various defenses raised the "core" argument that the promissory note was not in default because Mega Bank verbally agreed to forbear collection on the defaulted note.

RDJ's action against Kantor alleged that Kantor improperly instructed the bank officers to repudiate the alleged oral agreement to forbear. In the replevin action, RDJ contended that Mega Bank incorrectly disposed of the replevied assets. The parties litigated these issues fully at the foreclosure trial.

After a six day trial, the trial court made findings of fact: (1) that RDJ had failed to pay Mega Bank the balance due under the note; (2) that Mega Bank extended a renewal to RDJ which RDJ failed and refused to execute; (3) that there had been no oral agreement between the bank and RDJ to forbear collection on the note; and, (4) that the replevin of RDJ's assets had been disposed of in a reasonable manner. No appeal was taken by RDJ in the foreclosure action.

Because Kantor was not a party to the foreclosure action, RDJ contends that dismissal of the third party complaint against Kantor was improper (on preclusion principles of collateral estoppel, and res judicata). We find no merit in that contention.

Collateral estoppel prevents identical parties from relitigating issues that have previously been fully litigated and which resulted in a final decision of a court with competent jurisdiction. Mobil Oil Corporation v. Shevin, 354 So.2d 372 (Fla.1977); Gordon v. Gordon, 59 So.2d 40 (Fla.1952), cert. denied, 344 U.S. 878, 73 S.Ct. 165, 97 L.Ed. 680 (1952).

In dealing with the identities of the parties, collateral estoppel requires that the "real parties in interest" be identical. Seaboard Coast Line Railroad Company v. Cox, 338 So.2d 190 (Fla.1976). However, RDJ's reliance on Trucking Employees of North Jersey Welfare Fund, Inc. v. Romano, 450 So.2d 843 (Fla.1984) is unfounded:

However, the well established rule in Florida has been and continues to be that collateral estoppel may be asserted only when the identical issue has been litigated between the same parties or their privies. [Emphasis added.]

Trucking Employees of North Jersey Welfare Fund, Inc. v. Romano, 450 So.2d at 845.

RDJ seeks to evade the privity relationship by asserting that it sued Kantor as attorney for the bank--not as the bank's president. The distinction eludes us.

RDJ sued Kantor for actions which Kantor took in his capacity as president of Mega Bank. RDJ's complaint stated that Kantor did not abide by a previous alleged oral agreement to forbear. Further, RDJ contended Kantor had a conflict of interest since he was the bank's president and a partner in the law firm representing the bank.

RDJ relies on General Storage Corp. v. Federal Deposit Insurance Corp., 576 So.2d 768 (Fla. 3d DCA 1991), a case containing an action for foreclosure and a third party counterclaim. However, in General Storage, the parties entered into an agreed order to try the counterclaim separately from the foreclosure. The effect of that agreed order, was that there was an issue whether the third party, a nonparty to the foreclosure action, would be bound by the findings of the court in that action. Thus, General Storage does not apply here.

Further, there is no third party in this case. Here, Kantor was sued for acts which he performed while president of a party to the litigation. Regardless of which officer of the bank RDJ sought to sue, Mega Bank was the real party in interest. See, e.g., Atlantic Cylinder Corp. v. Hether, 438 So.2d 922 (Fla. 1st DCA 1983), review denied, 447 So.2d 885 (Fla.1984).

In the foreclosure action, the trial court found that there was no agreement to forbear. Accordingly, Kantor cannot be liable for failing to abide by an agreement which the court found to be nonexistent. Assuming arguendo, that such agreement existed, Kantor cannot be personally liable for a decision which he undertook as president of the bank, for the benefit of the bank. Even if Kantor undertook that decision as the attorney for the bank, such a legal decision to assert a legal right of his "client" is not actionable by RDJ, a third party. See Vergahen v. Arroyo, 552 So.2d 1162 (Fla. 3d DCA 1989), review denied, 574 So.2d 144 (Fla.1990).

RDJ also contends that it was deprived of a jury trial on the replevin action because collateral estoppel was applied in the equitable foreclosure action. RDJ relies on ...