EDWARD GRAEF, APPELLANT,
v.
ANDREW STEPHEN HEGEDUS, BYRON ELIOT VERKAUF, FLORIDA LAND DESIGN AND ENGINEERING, INC., A FLORIDA CORPORATION, CITY OF TAMPA, A MUNICIPAL CORPORATION, BYRON E. VERKAUF, D.D.S., P.A., AND DAMES & MOORE, INC., A FOREIGN CORPORATION, APPELLEES; DAMES & MOORE, INC., APPELLANT, V. EDWARD GRAEF, APPELLEE
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Edward Graef sued for injuries from a 1992 automobile accident, adding Dames and Moore as a defendant based on a theory that it assumed predecessor FLDE's liabilities through either a de facto merger or fraudulent transfer. The trial court granted summary judgment for Dames and Moore, but the appellate court reversed, finding genuine issues of material fact regarding whether the asset purchase constituted a fraudulent transfer.
The court reversed summary judgment, concluding that while the undisputed facts did not establish a de facto merger, genuine issues of material fact remained regarding whether the asset purchase constituted a fraudulent transfer under the Uniform Fraudulent Transfer Act, particularly given the alleged disparity between asset values and consideration paid.
[1] A successor corporation is not liable for the obligations of a predecessor corporation unless the successor expressly or impliedly assumes the obligations, the transactio…
[2] Fraud is generally not a proper subject for summary judgment due to its subtle nature and the need for a full explanation of facts and circumstances.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the liabilities of a predecessor corporation are not imposed upon the successor company unless: "(1) the successor expressly or impliedly assumes the obligations of the predecessor, (2) the transaction is a de facto merger, (3) the successor corporation is a mere continuation of the predecessor, or (4) the transaction is a fraudulent effort to avoid the liabilities of the predecessor."”
Establishes the four-part test under Florida law for determining when successor corporations inherit predecessor liabilities.
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Join FLexlaw to unlock all legal intelligenceGraef was injured in a March 1991 automobile accident at an intersection in Tampa, Florida. He initially sued the drivers, the City of Tampa, and FLDE…
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PER CURIAM.
In this consolidated appeal, Edward Graef appeals the summary final judgment entered in favor of Dames and Moore, Inc., and Dames and Moore appeals the trial court’s order denying its motion for attorney’s fees. We reverse the summary final judgment, which renders the attorney’s fees issue moot.
In April of 1992, Graef sued for injuries sustained in an automobile accident that occurred on March 26, 1991, at the intersection of Boy Scout Boulevard and West Columbus Drive in Tampa, Florida. Graef was the passenger in the rear seat of an automobile which crossed the median and ran head-on into oncoming traffic. Graef originally sued the two drivers involved in the accident, the City of Tampa, and Florida Land Design and Engineering, Inc. (“FLDE”). The theories of liability against the City of Tampa and FLDE involved the negligent design and construction of the intersection.
In March of 1995, Graef filed a third amended complaint, adding Dames and Moore as a defendant and alleging that Dames and Moore was responsible for FLDE’s liabilities because it purchased the assets and corporate liabilities of FLDE.
In Florida, the liabilities of a predecessor corporation are not imposed upon the successor company unless: “(1) the successor expressly or impliedly assumes the obligations of the predecessor, (2) the transaction is a de facto merger, (3) the successor corporation is a mere continuation of the predecessor, or (4) the transaction is a fraudulent effort to avoid the liabilities of the predecessor.” See Bernard v. Kee Mfg. Co., Inc., 409 So. 2d 1047, 1049 (Fla.1982). Graef asserts that the transaction between FLDE and Dames and Moore was a de facto merger or, in the alternative, that the transaction was a fraudulent effort to avoid the liabilities of FLDE.
By granting a summary final judgment in favor of Dames and Moore, the trial court determined that Dames and Moore’s purchase of FLDE’s assets was neither a de facto merger nor a fraudulent transaction.
We agree that the undisputed facts do not meet the criteria of a de facto merger. As to the fraudulent transfer claim, “[o]rdinarily, the issue of fraud is not a proper subject of a summary judgment. Fraud is a subtle thing, requiring a full explanation of the facts and circumstances of the alleged wrong to determine if they collectively constitute a fraud.” Rosen v. Zoberg, 680 So. 2d 1050, 1052 (Fla. 3d DCA 1996) (quoting Automobile Sales, Inc. v. Federated Mut. Implement and Hardware Ins. Co., 256 So. 2d 386, 386 (Fla. 3d DCA 1972)).
Given the alleged disparity between the value of the FLDE assets and the consideration paid for the purchase, we conclude that genuine issues of material fact remain unresolved as to whether this transaction constitutes a fraudulent transfer under section 726.105, Florida Statutes (1989), of the Uniform Fraudulent Transfer Act.
Accordingly, we reverse the summary judgment and remand for further proceedings.
FRANK, A.C.J., and PATTERSON and FULMER, JJ., concur.
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Graef v. Dames & Moore Grp., Inc., 857 So. 2d 257 (Fla. 2d DCA 2003)…omobile accident. Dames & Moore first appeared as a defendant in 1995 when Graef amended the complaint. In 1996, Judge Ficarrotta granted summary judgment in Dames & Moore's favor in an order that was reversed in part and remanded. Graef v. Hegedus, 698 So. 2d 655 (Fla. 2d DCA 1997). Later, Judge Bonanno entered the summary judgment of June 9, 1999, the judgment of June 6, 2000, and the nonfinal order on Dames & Moore's entitlement to attorney’s fees pursuant to section 57.105(1). Following Judge Bonanno’s re…
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Sanders Farm OF Ocala, Inc. v. BAY Area Truck Sales, Inc., 235 So. 3d 1010 (Fla. 2d DCA 2017)…ervices are rendered and then stops payment on the check. In Bay Area’s view, the sequence of events conclusively establishes the intent. We cannot agree. The issue of fraud is not ordinarily a proper subject for summary judgment. Graef v. Hegedus, 698 So. 2d 655, 656 (Fla. 2d DCA 1997); Bowman v. Barker, 172 So. 3d 1013, 1017 (Fla. 1st DCA 2015). “Fraud is a subtle thing, requiring a full explanation of the facts and circumstances of the alleged wrong to determine if they collectively constitute a fraud.” G…
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Eclipse Med., Inc. v. Am. Hydro-Surgical Instruments, Inc., 262 F. Supp. 2d 1334 (S.D. Fla. 1999)…and in some cases not even alleged — facts necessary to hold Bard accountable for the wrongdoing alleged in the Complaint. First, Bard is not liable for AHSI’s pre-Merger acts under some theory of successor liability. In Graef v. Hegedus, 698 So.2d 655 (Fla. 2d DCA 1997), relied upon by the Plaintiffs, the court explained that “In Florida, the liabilities of a predecessor corporation are not imposed upon the successor company unless ‘1) the successor expressly or impliedly assumes the obligations…
Authorities Cited
- Bernard v. KEE Mfg. Co., Inc., 409 So. 2d 1047 (Fla. 1982)
- Auto. Sales, Inc. v. Federated Mut. Implement & Hardware Ins. Co., 256 So. 2d 386 (Fla. 3d DCA 1972)
- Rosen v. David H. Zoberg, Law Offs. of David H. Zoberg, P.A., 680 So. 2d 1050 (Fla. 3d DCA 1996)