Emerson Realty Group, Inc. v. Schanze

Page 942

572 So.2d 942

15 Fla. L. Weekly D2897

EMERSON REALTY GROUP, INC., Appellant, v. Thomas SCHANZE, etc., et al., Appellees.

No. 89-2048.

District Court of Appeal of Florida Fifth District.

Nov. 29, 1990.

Rehearing Denied Jan. 15, 1991.

Richard Lee Barrett, of Barrett & Chapman, P.A., Orlando, for appellant.

James C. Mize, Jr., Orlando, for appellees.

PER CURIAM.

Emerson Realty Group, Inc. appeals from the trial court's order which denied its motion to amend the pleadings to correct the name of the corporate plaintiff, and its motion to strike as sham pleadings a notice of appearance filed by attorney Ludwig on behalf of the corporate plaintiff, and Ludwig's voluntary dismissal of the lawsuit with prejudice and other relief. Fortunately, we are rarely faced with such a disturbing case. We write to serve notice that we will neither tolerate nor condone such tricky attorney practices in this district.

Emerson commenced this lawsuit in 1986. Its employee, Hoskins, and Emerson sought to collect a real estate commission or recover in quantum meruit, for Hoskin's services in locating and putting together for the defendants (Camp Dresser, and McKee, Inc.) a large parcel of land in northwest Orange County for the county to acquire for construction of a sewer treatment facility. Hoskins filed a voluntary dismissal, but the suit was actively pursued through 1989 by Emerson.

The defendants engaged in extensive discovery and filed numerous pleadings. The cause was set for trial twice. It also went to mediation without success. There could have been no doubt about the true identity of the plaintiff corporation in this case, and it was revealed at oral argument in this court there was, in fact, no doubt.

The defendants' main defense was to establish that Schanze, the person with whom Hoskins dealt, was not their agent, and that Hoskins had performed her services as a "volunteer." They filed a summary judgment motion and a motion for judgment on the pleadings. Both were denied.

On the morning of the second trial date, attorney Ludwig filed a notice of appearance as co-counsel for Emerson Realty, Inc., and a notice of voluntary dismissal with prejudice. This arrived as a complete surprise to the trial judge, and to Attorney Barrett, who had represented Emerson throughout the litigation. Attorney Mize, who represented the defendants throughout, explained that the plaintiff corporation's name had been erroneously set out in the pleadings as "Emerson Realty, Inc." (the Gainesville Emerson), rather than "Emerson Realty Group, Ltd." In fact, there exists a Florida corporation located in Gainesville, Florida, with the name Emerson Realty, Inc.

Mize had subpoenaed the president of the Gainesville corporation for trial. He then contacted the surprised president of the Gainesville corporation and told him he need not obey the subpoena if he would execute an assignment of the cause of action to his clients (the defendants below). Since the Gainesville Emerson corporation had no interest in this lawsuit or claim against Mize's clients, the president executed an assignment of any and all claims the corporation then had against the defendants.

Armed with this assignment only, Mize and his clients retained Attorney Ludwig, to represent the Gainesville corporation. Mize's clients paid Ludwig's fees. Ludwig filed a notice of appearance on behalf of the corporate plaintiff in this lawsuit plus a notice of voluntary dismissal with prejudice.

In fact, the Gainesville Emerson never retained Ludwig in any capacity, and it did not authorize him to file any pleadings in its behalf. Apparently, this was not fully disclosed to the trial judge. Mize argued the trial judge should not let Attorney Barrett correct the pleadings to reflect the proper corporate name of the real plaintiff in this lawsuit because he asserted the Gainesville Emerson was the real plaintiff, and Ludwig represented it. "There is no misnomer here," he said.

The ploy worked. The trial judge professed he was "buffaloed." Mize insisted only Ludwig represented the plaintiff, and since he had dismissed the lawsuit, Barrett had nothing left to correct. The cause was dismissed, and for the second time the defendants below avoided going to trial.

After the trial dust settled and the cold record arrived in this court, it is clear to us this was a simple case of misnomer, which should have been quickly and expeditiously handled. The Gainesville Emerson had nothing to do with the claimed real estate commission at issue, or Hoskins or Orange County. The two corporations were entirely different, and were not related in any way. After three years of litigation and discovery, not one defendant can claim surprise or prejudice. Everyone knew who the real plaintiff in this lawsuit was. A simple amendment to add the additional word "Group" to the plaintiff's corporate name in the pleadings would have sufficed.

A technical error which is patently harmless should be ignored or corrected on motion. See Disposall, Inc. v. Wilson, 547 So.2d 1299 (Fla. 5th DCA 1989); Blea v. Colorado Board of Parole, 779 P.2d 1353 (Colo.1989); People v. Rome, 158 Cal.App.3d 307, 204 Cal.Rptr. 601 (Cal.App.3d Dist.1984); Eberbach v. McNabney, 413 N.E.2d 958, 961 (Ind.App.2d Dist.1980); Tisdale v. Wheeler Brothers Grain Co., Inc., 599 P.2d 1104 (Okl.1979); Weltsch v. 0'Brien, 25 Ariz.App. 50, 540 P.2d 1269 (Ariz.App.1975), modified, 25 Ariz.App. 551, 545 P.2d 62 (Ariz.App.1975); Topham v. L.L.B. Corp., 493 S.W.2d 461 (Tenn.1973). Dismissal is patently improper where the purpose of the proposed amendment is merely to correct the name, and not to substitute a new party. Disposall.

Of more concern to us than the judicial error which occurred below, is the conduct of attorneys Ludwig and Mize. The notice of appearance and voluntary dismissal were sham and frivolous pleadings based on the attorneys' own admissions to us at oral argument and their responses filed to our show cause order issued after the oral argument. They knew they did not represent the real party plaintiff in this cause. They knew the problem was simply one of misnomer--leaving out "Group" from the plaintiff's name in the pleadings. The true identity of Emerson, the real plaintiff, was never in doubt.

Further, Ludwig's and Mize's representation to the trial court that Ludwig was authorized to represent the Gainesville corporation bordered on fraud. Ludwig represented he was authorized to file pleadings on behalf of the Gainesville Emerson. But that corporation's later affidavit in the record shows the Gainesville Emerson never retained Ludwig. It merely assigned its nonexistent cause of action to the defendants.

In their responses, the attorneys argue that they had no duty to advise the plaintiff who to sue nor do they have an...