Scheiner v. Adamco, Inc. (81 So. 2d 205, 1955)

TAYLOR, Associate Justice.

The record before us presents the history of involved financial transactions followed by protracted • litigation, much of which is not material to a consideration of the correctness of the decree attacked in this proceeding. It is, however, necessary to outline the facts briefly and develop the chronology of the events in order to determine the rights of the parties.

On March 25, 1952, petitioner, Benjamin Scheiner, as plaintiff, filed his original complaint against Anthony Damiano, Adamco,.Inc., a corporation hereinafter referred to as Adamco, and Darling Ice Cream Co., Inc., a corporation hereinafter referred to as Darling. The purpose of the suit was to recover certain moneys advanced to Damiano in connection with certairj. contracts for the purchase by Scheiner from Damiano of half of the stock of Adamco and Darling, which money, it is alleged, was used for the benefit of the corporations. The prayer of the complaint was for the establishment and enforcement of an equitable lien upon the assets of the two corporations.

On April 1, 1952, at plaintiff’s request, a receiver of the two corporations was appointed and authorized to operate their businesses.

After voluminous pleadings, and testimony (which is not before us) taken before the Court, the Circuit Court, on December 21, 1953, entered a final decree in favor of plaintiff. We must assume that this decree was based upon proof of the allegations of plaintiff’s pleadings, among which are; that Damiano owned all the stock of Adamco and ninety per cent of the stock of Darling; that ■each of these corporations was an alter ego of Damiano, and that Scheiner and Damiano had agreed that the assets of these corporations were worth $145,000 subject to some possible adjustments. •

The decree found plaintiff was entitled to a lien upon the assets of the two corporations to secure payment of $35,782, and directed the receiver to sell the assets of the corporation to liquidate this -indebtedness, sale to be made December 28, 1953.

The sale was conducted as ordered, and plaintiff .became the highest bidder for the sum of $75,000. But plaintiff failed to complete the purchase.

On January 28, 1954, the receiver reported to the Court that an examination of abstracts disclosed a series of mortgages on the assets of the corporations, a first mortgage' which had been purchased by plaintiff, a second mortgage which had been purchased by plaintiff, a third mortgage which had been assigned to plaintiff as trustee for named parties, and a fourth mortgage to Damiano. Some controversy had. arisen as to priorities as between these mortgages. The receiver asked for instructions.

On January 28, 1954, the Court entered an order settling the priorities of these mortgages and providing that the mortgage to Damiano be satisfied by crediting the amount thereof on the lien previously decreed in favor of plaintiff. In this order the Court directed the' receiver to give plaintiff a deed and bill of sale to all the assets of Adamco and Darling upon the payment of costs in foreclosure proceedings involving the mortgages in question, an amount necessary to pay certain receiver’s certificates then outstanding, and the costs of the proceeding, including receiver’s fees.

Instead of' complying with this decree, plaintiff filed what he designated a “petition for Audit, Inventory, and Accounting of Receivership” in which he attacked the policies and practices of the receiver in the operation of the business of the corporate defendants. This petition contains an averment that “your petitioner is now the owner and holder of all of the stock of Adamco, Inc., and ninety per cent of the stock of defendant Darling Ice Cream Co., Inc., and is the holder of all mortgages against said property, and in addition thereto an equitable lien' encumbering said property as adjudicated by this Court on December 21, A.D., 1953.” Of necessity, this stock was acquired from Damiano.

On March 16, 1954, the Court denied the petition last mentioned, and ordered the receiver to resell the property on March 29, 1954. This decree provided that if plaintiff became the purchaser at the second sale he should be required to pay only costs in this case, and the foreclosure proceedings involving the mortgages and the receiver’s certificates and fees and the receiver’s attorney’s fees.

On March 22, 1954 plaintiff filed petition for leave to complete his bid made at the first sale and pay only the items above mentioned.

On March 22, 1954 the Court entered an order granting this petition and directing the receiver to execute conveyances of the property to plaintiff upon these payments being made. This was done.

On July 28, 1954 the receiver filed his final report, in which, for apparently the first time, attention is given to the interests of the unsecured creditors of Adamco and Darling. The report discloses that there are obligations that were owed by the corporations and obligations incurred during receivership which have not been paid or'.provided for. ,