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BEENER v. LASALA

February 5, 1993

THOMAS J. BEENER and THE CLARION SECURITIES GROUP INCORPORATED, Plaintiffs,
v.
ANTHONY J. LaSALA, ALEXANDRIA ASSOCIATES, LTD., LaSALA MANAGEMENT, INC., MITCHELL EQUITIES, ARMAY EQUITIES, INC., THE MITCHELL COMPANY, and JOHN DOES, 1st Through 10th, Defendants. ANTHONY J. LaSALA, ALEXANDRIA ASSOCIATES, LTD., LaSALA MANAGEMENT, INC., MITCHELL EQUITIES, ARMAY EQUITIES, INC., Third Party Plaintiffs, v. RONALD ORR, d/b/a ORR ASSOCIATES, Third Party Defendants.



The opinion of the court was delivered by: HAROLD A. ACKERMAN

ACKERMAN, District Judge:

 In this action, plaintiffs Thomas J. Beener ("Beener") and The Clarion Securities Group Incorporated ("Clarion") seek compensation for services they rendered in connection with the sale of partnership interests in a limited partnership. Before me now is the motion of defendants The Mitchell Company, Mitchell Equities, and Armay Equities, Inc. (collectively, the "Mitchell Defendants") for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. For the following reasons, defendants' motion is denied.

 I. Factual Background

 The following facts are undisputed except where otherwise indicated.

 In 1986, defendant The Mitchell Company agreed to sell four properties to Anthony J. LaSala ("LaSala"). For the purpose of purchasing these properties, LaSala was to use Alexandria Associates, Ltd. ("Alexandria"), a Florida limited partnership, as the purchasing entity. Alexandria was originally formed by The Mitchell Company in 1985; defendant Mitchell Equities was Alexandria's sole general partner. On December 9, 1986, an amendment to Alexandria's Certificate of Limited Partnership was executed by LaSala, both individually and on behalf of LaSala Management, Inc. ("LaSala Management"), and by Mitchell Equities. The Amendment to the Certificate provided that LaSala and LaSala Management were to become the general partners of Alexandria and that Mitchell Equities was to withdraw as the general partner of Alexandria. Due to circumstances not relevant to this motion, however, Mitchell Equities' withdrawal from Alexandria was delayed. As a result, the amendment to the certificate was not filed with the Secretary of State for the State of Florida until December 24, 1987, over one year later.

 In the meantime, in the fall of 1986, plaintiffs Beener and Clarion were retained to provide various services, including the preparation of a Private Placement Memorandum for the syndication of partnership interests in Alexandria. In December 1986, LaSala signed a Soliciting Dealer Agreement ("Agreement") with Clarion, as a "general partner" of Alexandria, and purportedly on its behalf. Pursuant to this Agreement, Clarion was to sell partnership interests in Alexandria to investors. The parties dispute the extent to which the Mitchell Defendants were involved in the preparation of the private placement memorandum and the extent of their knowledge of the undertakings and obligations of Alexandria during this time.

 In their Complaint, plaintiffs seek, inter alia, brokerage commissions and expense reimbursements allegedly owing under the Soliciting Dealer Agreement. The Complaint alleges that defendant Mitchell Equities is liable as a general partner of Alexandria. The Complaint further alleges that The Mitchell Company and Armay Equities, Inc. are liable under the Agreement in that the Mitchell Company is the parent and/or affiliate of Mitchell Equities and that Armay Equities was the general partner of Mitchell Equities.

 An understanding of the rather complex relationships among certain of the parties in this case is necessary for the determination of this motion. Defendant The Mitchell Company is an Alabama general partnership. The partners of The Mitchell Company are three corporations: Armay Development Corporation, Marbit Incorporated, and Luco Development, Inc. The stock of all three corporations is owned by Altus Real Estate Services, Inc. ("Altus Real Estate").

 Defendant Mitchell Equities is a Florida general partnership. The partners of Mitchell Equities are, inter alia, Marbit Equities, Inc., Luco Equities, and defendant Armay Equities, Inc. The stock of these three corporations is also owned by Altus Real Estate.

 The stock of Altus Real Estate, in turn, was owned by Altus Bank, a federal savings bank. On May 16, 1991, Altus Bank went into receivership and the Resolution Trust Company ("RTC") was appointed as the bank's receiver. The RTC established a new thrift, Altus Federal Savings Bank, with the RTC as its conservator. The Altus Federal Savings Bank acquired certain assets and liabilities of Altus Bank, including Altus Real Estate. It is this state of affairs that gives rise to the legal issue presented on this motion for summary judgment.

 II. Discussion

 The sole issue raised by the Mitchell defendants' summary judgment motion is whether plaintiffs' claims are barred as to them by the D'Oench doctrine enunciated by the United States Supreme Court in D'Oench, Duhme & Co. v. Federal Deposit Ins. Corp., 315 U.S. 447, 86 L. Ed. 956, 62 S. Ct. 676 (1942), as well as its statutory counterpart, 12 U.S.C. ยง 1823(e).

 A. Standard for Summary Judgment

 Summary judgment may be granted only if the pleadings, supporting papers, affidavits, and admissions on file, when viewed with all inferences in favor of the nonmoving party, demonstrate that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); see Todaro v. Bowman, 872 F.2d 43, 46 (3d Cir. 1989); Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir.), cert. dism'd, 483 U.S. 1052 (1987). Put differently, "summary judgment may be granted if the movant shows that there exists no genuine issues of material fact that would permit a reasonable jury to find for the nonmoving party." Miller v. Indiana Hospital, 843 F.2d 139, 143 (3d Cir.), cert. denied, 488 U.S. 870, 102 L. Ed. 2d 147, 109 S. Ct. 178 (1988). An issue is "genuine" if a reasonable jury could possibly hold in the nonmovant's ...


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