United of Omaha Life Ins. Co. v. Nob Hill Associates, s. 83-418

• Decision Date: 10 April 1984
• Docket Number: Nos. 83-418,83-468,s. 83-418
• Citation: 450 So.2d 536
• Parties: UNITED OF OMAHA LIFE INSURANCE COMPANY and Tower Mortgage Corp., Appellants, v. NOB HILL ASSOCIATES, Joel F. Bowie, Williams A. Joyner and DCA Land Corporation, Appellees.
• Court: Florida District Court of Appeals

Page 536

450 So.2d 536

UNITED OF OMAHA LIFE INSURANCE COMPANY and Tower Mortgage Corp., Appellants, v. NOB HILL ASSOCIATES, Joel F. Bowie, Williams A. Joyner and DCA Land Corporation, Appellees.

Nos. 83-418, 83-468.

District Court of Appeal of Florida Third District.

April 10, 1984.

Rehearing Denied June 8, 1984.

Daniels & Hicks and Sam Daniels, Fowler, White, Burnett, Hurley, Banick & Strickroot, Rosenberg, Reisman & Glass and James Glass and Michele R. Benvenisty, Miami, for appellants.

Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin and Joel D. Eaton, Miami, for appellees.

Before BARKDULL, HUBBART and NESBITT, JJ.

PER CURIAM.

Nob Hill was a joint venture which decided to develop a shopping center. It sought a permanent loan through Tower, a mortgage brokerage institution. Tower obtained a commitment from United, an institutional lender, whereby United agreed to purchase a proposed loan to be made by Tower to Nob Hill. United charged Tower a commitment fee of $50,000. With this commitment from United, Tower agreed to loan Nob Hill a maximum of $2,500,000. Nob Hill provided a $50,000 letter of credit as a good faith deposit. Nob Hill then procured a construction loan from Southeast Bank and began construction.

As the time approached for closing on the construction loan, it became apparent to Nob Hill that it would require an extension of the permanent loan commitment. An extension was granted by all parties until February 28, 1980.

Thereafter, Nob Hill requested a further extension of six months from Tower. Tower sought the extension from United who agreed, but required as consideration an increase in the interest rate, a construction report indicating that construction problems had been corrected and an extension of the $50,000 letter of credit. Tower made this parallel offer to Nob Hill. Nob Hill expressed concern over the 30-day requirement for the correction of defects and requested that a "P.S." be inserted in the agreement allowing Nob Hill a reasonable time to solve these construction problems. This was allegedly verbally agreed to by United on February 5th and was made part of the agreement between Tower and Nob Hill. However, when Tower executed and returned United's parallel extension offer, it failed to include the "P.S." condition. United took the position that there had been some misunderstanding concerning the February 5th offer and therefore claimed that the commitment expired without extension on February 28, 1980.

Notwithstanding this dispute, United wrote letters to Tower on March 7th and March 27th in which it offered to extend the time for the construction problems to be remedied. The final letter stated that the time could be extended to May 23, 1980. On May 22, 1980, Tower wrote United that it had not received documents certifying that the corrections were made. On May 24, 1980, United wrote Tower stating that its commitment had expired and directed Tower to cash the letter of credit.

In November 1980, Nob Hill instituted suit against Tower for breach of contract and against United for tortious interference with a contract and tortious interference with a business relationship. Tower answered and asserted a cross-claim against United for indemnification. United cross-claimed against Tower for breach of contract to recover the $50,000. United's motions for judgment on the pleadings and summary judgment were denied and the case proceeded to trial. The jury found: (1) United was liable to Nob Hill for tortious interference in the amount of $1,750,000 compensatory and $750,000 punitive damages; (2) Tower was liable to Nob Hill for breach of contract in the amount of $1,800,000; ¹ (3) Tower was entitled to indemnification from United in the amount of $1,750,000 (the difference was the $50,000 held by Tower); and (4) Tower was not liable to United for breach of contract.

United appeals the compensatory and punitive damages award in favor of Nob Hill as well as the indemnity judgment in favor of Tower. Tower appeals the judgment in favor of Nob Hill for breach of contract.

First, United argues that it was a party to the contract between Nob Hill and Tower and therefore could not be found liable for tortious interference. Under Florida law, a cause of action for tortious interference does not exist against one who is himself a party to the contract allegedly interfered with. Ethyl Corp. v. Balter, 386 So.2d 1220 (Fla. 3d DCA 1980), pet. for review denied, 392 So.2d 1371 (Fla.), cert. denied, 452 U.S. 955, 101 S.Ct. 3099, 69 L.Ed.2d 965 (1981). Tower's commitment letter to Nob Hill stated:

Subject to acceptance by United Benefit Life Insurance Company (ultimate investor) of the parallel commitment by them. We will so inform you of their acceptance.

In our view, this negates any argument by Nob Hill that the contracts were separate and distinct. Accordingly, the compensatory and punitive damage award in favor of Nob Hill against United for tortious...