Palmer v. Shearson Lehman Hutton, Inc.

622 So. 2d 1085, 1993 WL 288738
CourtDistrict Court of Appeal of Florida
DecidedAugust 4, 1993
Docket92-2115, 92-2692
StatusPublished
Cited by19 cases

This text of 622 So. 2d 1085 (Palmer v. Shearson Lehman Hutton, Inc.) 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
Palmer v. Shearson Lehman Hutton, Inc., 622 So. 2d 1085, 1993 WL 288738 (Fla. Ct. App. 1993).

Opinion

622 So.2d 1085 (1993)

Joan C. PALMER, Appellant,
v.
SHEARSON LEHMAN HUTTON, INC., Appellee.
Luther E. YOUNG, Marlene W. Young, and Young Packaging Products, Inc., Appellants,
v.
SHEARSON LEHMAN HUTTON, INC., Appellee.

Nos. 92-2115, 92-2692.

District Court of Appeal of Florida, First District.

August 4, 1993.
Rehearing Denied September 2, 1993.

*1086 H. Michael Madsen and O'Bannon M. Cook of Messer, Vickers, Caparello, Madsen, Lewis, Goldman & Metz, P.A., Tallahassee, and John L. Fiveash, Jr., of Fiveash & Associates, P.A., Pensacola, for appellants.

Nicholas V. Pulignano, Jr., and William K. Thames, II, of Marks, Gray, Conroy & Gibbs, P.A., Jacksonville, for appellee.

ZEHMER, Chief Judge.

Joan C. Palmer (Palmer), and Luther E. Young, Marlene W. Young, and Young Packaging Products, Inc. (Young), appeal adverse summary final judgments entered in their separate actions against Shearson Lehman Hutton, Inc. (Hutton), a securities dealer registered in Florida under section 517.12, Florida Statutes. Appellants' respective causes of action were based on Hutton's alleged negligence in failing to report to the Department of Banking and Finance (the Department) that David Kury, a Hutton employee registered in Florida as an associated person pursuant to section 517.12, Florida Statutes, had defrauded several clients while representing Hutton and that these wrongful acts had caused Hutton to terminate Kury's employment. Palmer and Young are investors allegedly defrauded by Kury several years after Hutton had terminated Kury's employment and while Kury was registered as an associated person with subsequent dealers. They assert that the trial court erred in granting summary judgment for Hutton based on the ruling that their complaints did not allege any facts that would impose a legal duty owed by Hutton to Palmer and Young. They argue that their complaints, which were supported by the evidence in the record, allege facts showing that Hutton had both a common law duty and a statutory duty to correctly report the fact *1087 of Kury's termination of employment together with the reasons therefor. Although we agree with the trial court that the complaints are legally insufficient to show that Hutton owed a common law duty to Appellants independent of relevant statutes, we do not agree that the complaints fail to allege facts sufficient to show that Hutton owed a statutory duty to Appellants and can be held accountable in negligence for Appellants' alleged damages on that legal theory. Accordingly, we reverse.

These cases primarily arise out of relationships and responsibilities created and regulated under chapter 517, Florida Statutes (1983), at that time entitled the "Florida Securities Act." This act regulates the sale of securities in Florida and requires that dealers[1] and associated persons[2] be registered with the Department prior to selling or offering to sell securities to any persons in this state. § 517.12, Fla. Stat. (1983). Registrations of associated persons are specific with respect to the securities dealer identified at the time the registration is approved. Thus, each time an associated person is terminated from employment with a dealer, whether voluntarily or involuntarily, the dealer must notify the Department of that person's termination and the reason therefor; and to become associated with another dealer, the terminated associated person must reregister with the Department. § 517.12, Fla. Stat. (1983); Department of Banking & Finance v. Evans, 540 So.2d 884, 885 (Fla. 1st DCA 1989).

For purposes of this appeal, the allegations in the complaints and evidence filed of record establish the following material facts.[3] From 1978 until January 1984, David Kury was registered as an associated person of E.F. Hutton & Co., Inc.,[4] and was the manager of Hutton's Pensacola branch office under the direct supervision of Hutton's Montgomery, Alabama, office manager. In early 1983, Kury's supervisor, Fred Brown, discovered that Kury had taken money from several of his customers in exchange for personal and corporate promissory notes.[5] Brown immediately notified Hutton's regional vice president and legal department. Acting on the advice of the Hutton legal department, Brown requested that Kury furnish him a list of the people to whom Kury or his corporation owed money and the amounts owed. Hutton then sent letters to all of these people, asking them to acknowledge that Hutton was not obligated on Kury's promissory notes.[6] Brown testified in the administrative disciplinary proceeding against Kury that he was aware that Kury's actions violated SEC regulations as well as Hutton's internal rules, and that in January 1984, he asked for and obtained Kury's resignation. *1088 Subsequently, Hutton filed a Uniform Termination Notice For Securities Industry Registration (a "Form U-5") with the Central Registration Depository System stating that Kury had voluntarily resigned. On this form, Hutton falsely reported that it had no reason to believe that Kury had violated any state or federal law or regulation, or that Kury had engaged in any conduct inconsistent with just and equitable principles of trade.

Soon after leaving Hutton, Kury was reregistered by the Department as an associated person of Prudential-Bache Securities Corporation (Bache) and obtained employment with Bache. In March 1985, Kury left Bache and began working for Associated Planners Securities Corporation (Associated) as an associated person and was again reregistered by the Department.

In 1986, Appellants Luther and Marlene Young visited Kury at his Associated office and employed him to provide them with financial planning services. In early 1987, Kury induced Luther and Marlene Young, as representatives of Young Packaging Products, Inc., to purchase a $50,000 corporate promissory note issued by Kury Financial.

Kury left his employment with Associated in April 1987, and in May 1987 obtained employment with and reregistered as an associated person of American Capital Equities Corporation (American). In July 1987, while Kury was working for American, he induced Young to personally purchase a $30,000 promissory note from Kury Financial. Also, in July 1987, Appellant Palmer visited Kury at his American office and hired him to provide her with financial planning services. In December 1987, Kury induced Palmer to pay $20,000 for a promissory note from Kury Financial.

In May 1988, the Department commenced an investigation of Kury's activities and as a consequence filed an administrative complaint against Kury and Kury Financial seeking to revoke his registrations as an "associated person" and an "investment advisor" on the grounds, inter alia, that he had engaged in the sale of unregistered securities, i.e., promissory notes issued by Kury or Kury Financial to investors. In January 1989, a hearing officer with the Division of Administrative Hearings (DOAH) entered a recommended order wherein he found, inter alia,

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Bluebook (online)
622 So. 2d 1085, 1993 WL 288738, Counsel Stack Legal Research, https://law.counselstack.com/opinion/palmer-v-shearson-lehman-hutton-inc-fladistctapp-1993.