Thomson McKinnon Securities Inc. v. McKendry

District Court of Appeal of Florida

Thomson McKinnon Securities Inc. v. McKendry

587 So. 2d 1161, 1991 Fla. App. LEXIS 9981, 1991 WL 199940

CourtDistrict Court of Appeal of Florida

DecidedOctober 9, 1991

DocketNo. 90-0517

StatusPublished

This text of 587 So. 2d 1161 (Thomson McKinnon Securities Inc. v. McKendry) 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

Thomson McKinnon Securities Inc. v. McKendry, 587 So. 2d 1161, 1991 Fla. App. LEXIS 9981, 1991 WL 199940 (Fla. Ct. App. 1991).

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Opinions

FARMER, Judge.

Appellant is a broker-dealer in securities. Appellees are investment advisers acting under powers of attorney given them by several investors. Appellees arranged for their investors to enter into individual customer account agreements with appellant. Appellant sued appellees, as well as the individual customers, for money damages. The customer account agreements and the powers of attorney were attached to appellant’s complaint.

The complaint alleged that appellees agreed to take full responsibility for the management, trading, purchasing and selling of securities in each of the accounts and that neither appellees nor their investors would hold appellant responsible for the management of the accounts. It then alleged that during the stock market crash of October 1987, the value of the individual customer accounts plunged and appellant made margin calls on appellees for the accounts, to which appellees responded with assurances. Ultimately no funds were deposited in the accounts, and appellant liquidated them with margin deficiencies.

In its suit, appellant alleged that appellees were personally responsible for the deficiencies. It based its theories of recovery on contract, breach of fiduciary [1162]*1162duties and negligence. Unfortunately for appellant, the powers of attorney and individual customer account agreements, attached to its pleading, as well as the operative facts alleged, negated any theory of liability against appellees. On that basis, the trial court granted appellees’ motion to dismiss for failure to state a cause of action.

At the hearing on the motion, the court specifically discussed with appellant whether leave to amend should be granted. It is clear to us from a review of the transcript of that hearing that appellant persisted with its position that the court should allow appellant to proceed on the three theories pleaded in its complaint against appellees, and that amending the pleading was not necessary.¹

Ordinarily we would view with some suspicion such a first dismissal for failure to state a cause of action without leave to amend. In this case, however, it is inescapable that appellant did not want to amend but instead wanted the right to offer evidence on its defective pleading. We are unwilling to allow an appellant to change a determinedly advocated trial court position on appeal, simply to have another go at pleading something that it disdained pleading below.

We therefore affirm both parts of the trial court’s ruling below: i.e. the complaint failed to state a cause of action as against appellee-investment advisors, and the complaint as against appellees should be dismissed with prejudice.

AFFIRMED.

ANSTEAD, J., concurs. WARNER, J., dissents with opinion.

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FARMER, Judge.

Appellant is a broker-dealer in securities. Appellees are investment advisers acting under powers of attorney given them by several investors. Appellees arranged for their investors to enter into individual customer account agreements with appellant. Appellant sued appellees, as well as the individual customers, for money damages. The customer account agreements and the powers of attorney were attached to appellant’s complaint.

The complaint alleged that appellees agreed to take full responsibility for the management, trading, purchasing and selling of securities in each of the accounts and that neither appellees nor their investors would hold appellant responsible for the management of the accounts. It then alleged that during the stock market crash of October 1987, the value of the individual customer accounts plunged and appellant made margin calls on appellees for the accounts, to which appellees responded with assurances. Ultimately no funds were deposited in the accounts, and appellant liquidated them with margin deficiencies.

In its suit, appellant alleged that appellees were personally responsible for the deficiencies. It based its theories of recovery on contract, breach of fiduciary [1162]*1162duties and negligence. Unfortunately for appellant, the powers of attorney and individual customer account agreements, attached to its pleading, as well as the operative facts alleged, negated any theory of liability against appellees. On that basis, the trial court granted appellees’ motion to dismiss for failure to state a cause of action.

At the hearing on the motion, the court specifically discussed with appellant whether leave to amend should be granted. It is clear to us from a review of the transcript of that hearing that appellant persisted with its position that the court should allow appellant to proceed on the three theories pleaded in its complaint against appellees, and that amending the pleading was not necessary.¹

Ordinarily we would view with some suspicion such a first dismissal for failure to state a cause of action without leave to amend. In this case, however, it is inescapable that appellant did not want to amend but instead wanted the right to offer evidence on its defective pleading. We are unwilling to allow an appellant to change a determinedly advocated trial court position on appeal, simply to have another go at pleading something that it disdained pleading below.

We therefore affirm both parts of the trial court’s ruling below: i.e. the complaint failed to state a cause of action as against appellee-investment advisors, and the complaint as against appellees should be dismissed with prejudice.

AFFIRMED.

ANSTEAD, J., concurs. WARNER, J., dissents with opinion.

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Bluebook (online)

587 So. 2d 1161, 1991 Fla. App. LEXIS 9981, 1991 WL 199940, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomson-mckinnon-securities-inc-v-mckendry-fladistctapp-1991.