FT - Real Estate Corp. v. Dawn Developers, Inc (7/11/1996)

[Riser Adkisson LLP]

Real Estate Corporation of Florida, N.V.
v. Dawn Developers, Inc., et al.,
1996.FL.1370 (Fla.App. 07/10/1996)

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

JANUARY TERM 1996

REAL ESTATE CORPORATION OF FLORIDA, N.V.

Appellant,

v.

DAWN DEVELOPERS, INC, et al.,

Appellee.

Case No. 95-1460

Opinion filed July 5, 1996

Appeal from the Circuit Court for Orange County,

James C. Hauser, Judge.

Tracy A. Borgert of Gray, Harris & Robinson, P.A., Orlando, for Appellant.

Curtis L. Brown of Wright, Fulford, Moorhead & Brown, P.A., Orlando, for Appellee, Donald F.
Wright.

No Appearance for Appellee, Dawn Developers, Inc.

ANTOON, J.

Real Estate Corporation of Florida, N.V. (REC), appeals the trial court's order granting appellee
Donald F. Wright's (Wright) motion for a protective order in proceedings supplemental to
execution. The order effectively dismissed REC's supplemental proceeding to set aside an alleged
fraudulent transfer from T.L. Dyer ("Dyer") to Wright. In so ruling, the trial court found that a
settlement agreement previously filed in the United States Bankruptcy Court barred REC's claim
against Dyer. We reverse.

REC sued Dawn Developers, Inc. (Dawn), Murray M. Golub (Golub), and Dyer, for several causes of
action including breach of contract and fraud. The lawsuit resulted in judgments against Dawn for
$2,504,545, and against Golub and Dyer for $2,7l7,920. When the judgments were not paid, the
trial court granted REC the right to pursue supplemental proceedings to collect the sums owed. As
a part of these supplemental proceedings, REC was permitted to implead Wright in an effort to set
aside the following alleged fraudulent transfers to Wright from Golub and Dyer:

1) Murray M. Golub's twenty-five percent (25%) interest in One Million ($1,000,000) Promissory
Note from Lando Development Company to "Donald F. Wright, Trustee," dated December 10, 1984.

2) Thomas L. Dyer's twenty-five percent (25%) interest in One Million ($1,000,000) Promissory
Note from Lando Development Company to "Donald F. Wright, Trustee," dated December 10, 1984.

At approximately the same time the trial court permitted REC to implead Wright, Golub filed
Chapter 7 bankruptcy proceedings. In response to the bankruptcy petition, REC filed an amended
complaint in the bankruptcy court objecting to Golub's discharge. REC also sought to set aside
certain fraudulent transfers, including Golub's transfer to Wright of his 25% interest in the
Lando note.

A settlement agreement which provided for settlement with all defendants except Golub was
subsequently reached by the defendants and the trustee. The settlement was approved by the
bankruptcy court, and REC stipulated to the dismissal with prejudice of the relevant portion of
its amended complaint.

REC thereafter continued its efforts to collect on the judgments against Golub and Dyer. In so
doing, REC noticed Wright for deposition. Wright moved for a protective order. The trial court
granted the motion, explaining:

[T]he parties have previously settled any and all claims concerning alleged fraudulent transfers
by way of that certain Settlement Agreement dated August 18, 1992, filed in the United States
Bankruptcy Court . . .

REC appeals this ruling, arguing that it was error for the trial court to base its de facto
dismissal of the supplemental proceedings on the settlement agreement and stipulated dismissal in
Golub's bankruptcy case. We agree. The language of the settlement agreement and stipulated
dismissal do not extinguish REC's claim against Wright for the alleged fraudulent transfer from
Dyer. Dyer was not a party to the bankruptcy proceeding, nor was his interest in the note a
subject of the proceeding. Moreover, the bankruptcy court had no authority to release REC's claim
against Dyer concerning the transfer of funds to Wright because the trustee's authority extended
only to Golub's, not to Dyers's, property. Accordingly, the settlement agreement and stipulated
dismissal do not foreclose REC's claim to the 25% interest in the note which Dyer allegedly
fraudulently transferred to Wright.

Furthermore, REC's claim against Wright based on the transfer of Dyer's interest is not barred by
the doctrines of collateral estoppel or res judicata. In this regard, an essential requirement of
the doctrine of collateral estoppel is that there be an identity of issues. Stogniew v. McQueen,
656 So. 2d 917, 920 (Fla. 1995). Here, since the bankruptcy proceeding involved Golub's transfer
of his interest in the note, and the instant proceeding involves Dyer's transfer of his interest
in the note, the element of identity of issues is absent. Similarly, res judicata bars a
subsequent action between the same parties on the same cause of action where the two suits are
based on the same or identical causes of action. Albrecht v. State, 444 So. 2d 8, 12 (Fla. 1984).
Since the bankruptcy suit and the instant lawsuit involve two separate causes of action - namely,
the transfer of Golub's interest and the transfer of Dyer's interest - the doctrine of res
judicata does not apply.

In closing, we reject Wright's suggestion that this court must nevertheless affirm the trial
court's ruling due to REC's failure to provide this court with a transcript because our review of
this matter has not been hampered by the absence of a transcript. The settlement agreement in
this case is unambiguous and its meaning can be determined from the four corners of the document.
Fecteau v. Southeast Bank, N.A., 585 So. 2d 1005, 1007 (Fla. 4th DCA 1991).

REVERSED.

DAUKSCH and COBB, J.J. concur.