Brady v. P3 Group (LLC)

98 So. 3d 1206, 2012 WL 4094281, 2012 Fla. App. LEXIS 15536
CourtDistrict Court of Appeal of Florida
DecidedSeptember 19, 2012
DocketNo. 3D09-3345
StatusPublished

This text of 98 So. 3d 1206 (Brady v. P3 Group (LLC)) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brady v. P3 Group (LLC), 98 So. 3d 1206, 2012 WL 4094281, 2012 Fla. App. LEXIS 15536 (Fla. Ct. App. 2012).

Opinion

SHEPHERD, J.

This is an appeal from an order denying a motion to vacate a final default judgment entered against Charles Brady, a defendant in a third-party claim arising from an abortive real estate transaction. Brady contends the order was facilitated and entered on motion of the plaintiff in the main case, who had not sued Brady, and over the objection of all parties to the third-party action.1 In the alternative, Brady, joined again by all parties to the third-[1207]*1207party action, seeks to vacate the final default judgment because it was prepared and secured by counsel without providing a courtesy copy of the proposed final judgment to each party and then, puzzlingly, not received by any party except the plaintiff, after it was entered by the trial judge. Finding the first assertion of error sufficient, we reverse and remand this case for further proceedings on this ground alone.

The real estate transaction, which resulted in both this civil action and a related criminal action, was concocted by Brady, a non-lawyer who was working out of the Law Office of James Eddy and Associates, P.A. Eddy is Brady’s stepfather. Among Eddy’s real estate clients were P3 Group, LLC and Hypower, Inc. At the time of the perfidies in this case,' Bernard Paul-Hus was the managing member of P3 Group and president of Hypower.

In October 2006, Brady approached Paul-Hus with an urgent opportunity to purchase a five-acre tract of vacant commercial land in Pompano Beach, Florida, from Lord Corporation for $16.50 per square foot and re-sell it immediately to Morrow Equipment Company, LLC for $19.00 per square foot. Paul-Hus hastily signed a proposed contract, prepared by Brady on forms used by the Eddy law firm, to purchase the property from Lord Corporation in the name of P3 Group. Within a day, Brady reported back to Paul-Hus that Lord Corporation had signed the contract. Despite multiple requests, however, Paul-Hus never was able to obtain a fully executed copy of the agreement from Brady.

Unbeknownst to Paul-Hus, Brady’s representations were false. Lord Corporation never signed the contract. In fact, Lord Corporation already had a contract for purchase of the property from CFMT of FL, LLC, a company affiliated with or represented by Michael W. Skop, who was Brady’s acquaintance and attorney. Nor was there any purchase commitment from Morrow Equipment at any price.

Apparently believing he ultimately could sustain his ruse to a successful conclusion,2 Brady arranged for an Agreement and Assignment of CMFT’s interest as purchaser in the Lord Corporation/CFMT contract to P3 Group for $800,990. Having hung himself on his own petard by inducing Paul-Hus to believe he had a direct contract with Lord Corporation, Brady then persuaded Eddy, whether guilelessly or not, to execute the assignment on behalf of P3 Group, as assignee, and Hypower, as guarantor, in the capacity of “general counsel” to the two corporations.3 In the meanwhile, Brady was able to use his obviously considerable persuasive powers to con Paul-Hus into depositing $560,112.50 toward the purchase into Skop’s trust account. Needless to say, the fraud eventually was outed, and Paul-Hus refused to close. Brady earned thirty months in state prison for his trouble.4

While Brady was imprisoned, Skop filed a complaint against P3 Group and Hypower contending he was the intended beneficiary, under a joint venture agreement with CFMT, of the remaining monies al[1208]*1208legedly owed on the Agreement and Assignment. P3 Group and Hypower responded by counterclaim against Skop, and a third-party complaint against CFMT and Lord Corporation, alleging the Agreement and Assignment was void as executed without authority or, in the alternative, for rescission of the purported agreement, return of the monies paid into the Skop trust account, and damages. P3 Group and Hy-power subsequently added Brady, Eddy, and Eddy’s law firm as additional third-party defendants, seeking damages for breach of fiduciary duty, legal malpractice, and unjust enrichment.

Although Brady was served with the third-party complaint, he did not file an answer, and was defaulted by the court. More than one year after entry of the default, Skop, probably in the misguided belief a judgment in favor of P3Group and Hypower against Brady would provide him some tactical advantage in his defense of the counterclaim, moved for entry of a final default judgment against Brady for the $560,112.50 deposit, together with prejudgment interest and costs. Skop moved for this judgment despite the facts he had not sued Brady, the claims against Brady were unliquidated, and all third parties, including P3 Group and Hypower, opposed its entry. After a non-evidentiary hearing, the trial court entered the final default judgment in the sum of $696,945.78, inclusive of pre-judgment interest and costs. Finding merit in Brady’s assertions on this appeal, we vacate this judgment and remand the case for further proceedings consistent with this opinion.5

DISCUSSION

The substantial question in this case is whether in a multiple-claim lawsuit a party to one of the claims, who is not a party to the other, may prosecute the latter claim to final judgment. We find no indication in the Florida Rules of Civil Procedure that either the drafters of the rules or the Florida Supreme Court ever contemplated that in a multiple-claim lawsuit a party to a claim would seek to prosecute a claim to which he was not a party. Nor have we found any reported instance of such a maneuver in the case law of this state. The briefs of the parties similarly provide no assistance.

Nevertheless, it appears the Rules contemplate that each claim in a multi-claim lawsuit is and should be considered a separately commenced action, albeit prosecuted for convenience in a single action. This conclusion is inferable from the language of Florida Rule of Civil Procedure 1.100 which reads:

Rule 1.100. Pleadings and Motions
(a) Pleadings. There shall be a complaint or, when so designated by a statute or rule, a petition, and an answer to it; an answer to a counterclaim denominated as such; an answer to a crossclaim if the answer contains a crossclaim; a third-party complaint if a person who was not an original party is summoned as a third-party defendant; and a third-party answer if a third-party complaint is served. If an answer or third-party answer contains an affirmative defense and the opposing party seeks to avoid it, the opposing party shall file a reply containing the avoidance. No other pleadings shall be allowed.

(emphasis added). The rule first appeared in this form in the Florida Rules of Civil [1209]*1209Procedure as Rule 1.7(a), effective January 1, 1966. See In re Fla. Rules of Civil Procedure 1965 Revision, 178 So.2d 15, 18-19 (Fla.1965).6 Before that date, counterclaims and crossclaims were well recognized in Florida practice under then Florida Rule of Civil Procedure 1.13(8),7 but separate causes of action against third-party defendants were not.8 See Fla. Fuel Oil, Inc. v. Springs Villas, Inc., 95 So.2d 581, 588 (Fla.1957); Schmid v. Saphier, 184 So.2d 908 (Fla. 4th DCA 1966); Pan Am. Surety Co. v. Jefferson Constr. Co., 99 So.2d 726 (Fla. 3d DCA 1958); City of Boca Raton v. Sharp, 107 So.2d 271 (Fla. 2d DCA 1958);

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Singleton v. Wulff
428 U.S. 106 (Supreme Court, 1976)
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Weiss v. Johansen
898 So. 2d 1009 (District Court of Appeal of Florida, 2005)
Pan American Surety Company v. Jefferson Construction Company
99 So. 2d 726 (District Court of Appeal of Florida, 1958)
Skop v. P3 Group, L.L.C.
67 So. 3d 1194 (District Court of Appeal of Florida, 2011)
City of Boca Raton v. Sharp
107 So. 2d 271 (District Court of Appeal of Florida, 1958)
In re Florida Rules of Civil Procedure 1965 Revision
178 So. 2d 15 (Supreme Court of Florida, 1965)
Schmid v. Saphier
184 So. 2d 908 (District Court of Appeal of Florida, 1966)

Cite This Page — Counsel Stack

Bluebook (online)
98 So. 3d 1206, 2012 WL 4094281, 2012 Fla. App. LEXIS 15536, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brady-v-p3-group-llc-fladistctapp-2012.