DAVID ARNOWITZ, APPELLANT,
v.
THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES, APPELLEE
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A corporate director is liable under Section 607.144(1)(c) for assenting to a preferential distribution without adequate provision for corporate obligations, even if current at dissolution.
The plaintiff sued for collection on a corporate debt after the corporation's dissolution. The defendant, the sole director, was found liable for fail…
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
This is an appeal by the defendant David Arnowitz from a final judgment based on an adverse non-jury verdict in an action seeking collection on a corporate debt. The trial court concluded that the defendant, as the sole director of the subject corporation, assented to a preferential distribution of the corporate assets without making ade quate provision for a corporate obligation on a lease held by plaintiff/lessor, the Equitable Life Assurance Society of the United States — and, accordingly, the defendant was liable on the subject debt under Section 607.144(l)(c), Florida Statutes (1987). The defendant urges that this statute was inapplicable to the instant case for a variety of reasons. We disagree and affirm.
First, we cannot agree that because the corporation was apparently current on the lease payments at the time of its dissolution that it had no further responsibility to make provision for future lease payments for which it was liable in the event the successor tenant defaulted. No such provision was made, and, accordingly, upon the successor-tenant’s default, the subject corporation was liable, as was the defendant, as the corporation’s sole director. See § 607.144(l)(c), Fla.Stat. (1987); cf. Floirda Steel Corp. v. Adaptable Dev., Inc., 503 So. 2d 1232, 1234-36 (Fla.1986); Poe & Assoc., Inc. v. Emberton, 438 So. 2d 1082, 1084-85 (Fla. 2d DCA 1983).
Second, the balance of the defendant’s arguments on appeal are based on evidence which was never admitted below and consequently was never considered by the trial court. This being so, the alleged evidence relied on and arguments based thereon may not be considered for the first time on appeal. See Rosenberg v. Rosenberg, 511 So. 2d 593, 595 n. 3 (Fla. 3d DCA 1987), rev. denied, 520 So. 2d 586 (Fla.1988); Barton v. Keyes Co., 305 So. 2d 269, 270 n. 1 (Fla. 3d DCA 1974); Florida Livestock Bd. v. Hygrade Food Prod. Corp., 141 So. 2d 6, 7 (Fla. 1st DCA 1962).
AFFIRMED.
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Jesson, Inc. v. Sutton Hill Assocs., Inc., 789 So. 2d 1064 (Fla. 4th DCA 2001)…ng that an individual who was a director at the time of the [fraudulent] transfers was “responsible and liable as a director” under sections 607.111 and 607.144)(emphasis added). In Arnowitz v. Equitable Life Assurance Society of the United States, 539 So. 2d 605 (Fla. 3d DCA 1989), the third district affirmed a trial court’s decision to hold a director of a dissolved corporation liable to a corporate creditor under section 607.144(l)(c), because the director “assented to a preferential distribution of the c…
Authorities Cited
- Fla. Steel Corp. v. Adaptable Developments, Inc., 503 So. 2d 1232 (Fla. 1986)
- Rosenberg v. Rosenberg, 511 So. 2d 593 (Fla. 3d DCA 1987)
- Barton v. The Keyes Co., 305 So. 2d 269 (Fla. 3d DCA 1974)
- Fla. Livestock Bd. v. Hygrade Food Prods. Corp., 141 So. 2d 6 (Fla. 1st DCA 1962)
- Feagin v. State, 438 So. 2d 1082 (Fla. 1st DCA 1983)