Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

SPA Creek Services, LLC v. S.W. Cole, Inc.

Florida Court of Appeals, Fifth District

October 27, 2017

SPA CREEK SERVICES, LLC, Appellant,
v.
S.W. COLE, INC., JERRY COLE, SUE C. COLE, ET AL., Appellees.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

         Appeal from the Circuit Court for Hernando County, Curtis J. Neal, Judge.

          Robert Bruce Snow, of Robert Bruce Snow, P.A., Brooksville, for Appellant.

          Frank A. Miller, of Caglianone & Miller, P.A., Brooksville, for Appellees.

          BERGER, J.

         SC Services, LLC, the assignee of a chose in action[1] filed by Spa Creek Services, LLC, appeals the trial court's order granting final summary judgment to S.W. Cole, Inc., and S.W. Cole's officers, Jerry Cole, Sue C. Cole, Wendy Cole Lanning, and David W. Lanning (collectively "Appellees"), on Spa Creek's amended complaint for tortious interference, breach of contract, and civil conspiracy, which arose from alleged violations of confidentiality, non-solicitation, and non-competition agreements entered into by the parties. Because the trial court erred in concluding (a) that consent was required for assignment of the chose in action and (b) that S.C. Services could not maintain the action after it dissolved itself in Delaware, we reverse the trial court's entry of summary judgment for S.W. Cole and Jerry Cole on those grounds.[2]

         A trial court's entry of summary judgment is reviewed de novo. Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000). "Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law." Id. (citing Menendez v. Palms W. Condo. Ass'n, 736 So.2d 58 (Fla. 1st DCA 1999)).

         S.W. Cole is engaged in the pest control business throughout Central Florida. The additional Appellees in this appeal are officers and directors of S.W. Cole with Jerry Cole serving as president. Spa Creek was a limited liability company also engaged in the pest control business in Central Florida. In 2002, Spa Creek and S.W. Cole entered into an asset purchase agreement whereby Spa Creek purchased all the assets of S.W. Cole's branch offices in Lakeland, New Port Richey, Dade City, Ocala, and Leesburg. The agreement contained merger and assignment clauses. The assignment clause stated:

Assignment. Neither this Agreement nor any obligation associated herewith may be assigned to any third party without the prior written consent of all parties to this Agreement, except that Purchaser may assign all obligations under this Agreement to a third party purchaser of the principal assets acquired hereunder, subject to payment of all obligations due to Seller or Cole as a condition of closing.

         As part of the asset purchase agreement, Appellees were required to execute confidentiality, non-solicitation, and non-competition agreements.[3] Under the agreements, Appellees were precluded from engaging in the pest control business in Lake, Pasco, Marion, Polk, and Alachua counties. While S.W. Cole was permitted to conduct business in other counties, it could not do so in a way that tortiously interfered with Spa Creek and its employees. S.W. Cole was also barred from hiring or soliciting its former employees to leave Spa Creek and work for any other entity.

         Each of the confidentiality, non-solicitation, and non-competition agreements contain, the following assignment clause:

Assignment; Successors, and Assigns, etc. Neither Seller nor Purchaser may make any assignment of this Agreement or any interest herein, by operation of law or otherwise, without the prior written consent of the other party; provided that Purchaser may assign this Agreement without the consent of Seller in the event that Purchaser shall effect a reorganization, consolidate with or merge into any other corporation, partnership, organization, or other entity, or transfer all or substantially all of its properties or assets relating to the operation of the business in the Territory to any other corporation, partnership, organization or other entity. This Agreement shall inure to the benefit of and be binding upon Purchaser and Seller, their respective successors, executors, administrators, heirs and permitted assigns.

         Spa Creek later sued S.W. Cole and Appellees for tortiously interfering with Spa Creek's non-compete agreements, tortiously interfering with its business relationship, civil conspiracy, and breach of the non-compete and non-solicitation agreements. After doing so, Spa Creek sold nearly all of its assets to another pest control company while retaining the chose in action at issue in this case. Later, Spa Creek assigned its remaining assets and liabilities, including the lawsuit against S.W. Cole and Appellees, to S.C. Services, a special purpose entity formed as a limited liability company in Delaware for the purpose of prosecuting the lawsuit.[4]

         In December 2012, while the suit was still pending, SC Services was dissolved through the filing of a certificate of cancellation in Delaware. Thereafter, Appellees filed a motion for summary judgment alleging, inter alia, that the assignment of the chose in action against them did not survive S.C. Services' dissolution. Appellees also argued that the assignment from Spa Creek to S.C. Services was void because the assignment clauses in the asset purchase agreement and the confidentiality, non-solicitation, and non-competition agreements required the prior written consent of all parties to the agreement ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.