09-4394 ARNOLD ZIMMERMAN, AS TRUSTEE OF THE ZIMMERMAN FAMILY TRUST, v. CADE ENTERPRISES, INC., AND MARY S. CADE, INDIVIDUALLY, AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF DR. J. ROBERT CADE, DECEA

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Laws-info.com » Cases » Florida » Florida First District Court » 2010 » 09-4394 ARNOLD ZIMMERMAN, AS TRUSTEE OF THE ZIMMERMAN FAMILY TRUST, v. CADE ENTERPRISES, INC., AND MARY S. CADE, INDIVIDUALLY, AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF DR. J. ROBERT CADE, DECEA

State: Florida

Court: Florida First District Court

Docket No: 09-4394

Case Date: 05/07/2010

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

ARNOLD ZIMMERMAN, AS TRUSTEE OF THE ZIMMERMAN FAMILY TRUST, Appellant, v. CADE ENTERPRISES, INC., AND MARY S. CADE, INDIVIDUALLY, AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF DR. J. ROBERT CADE, DECEASED, Appellee. _____________________________/

CASE NO. 1D09-4394

Opinion filed May 7, 2010. An appeal from the Circuit Court for Alachua County. Toby S. Monaco, Judge. Jack M. Ross, Brent G. Siegel, and W. Charles Hughes, Siegel Hughes & Ross, Gainesville, for Appellant. Sharon H. Proctor, Lake Saint Louis, MO, and Mark Avera, Gainesville, for Mary S. Cade, Appellee; Joseph P. Milton and C. Ryan Eslinger, Jacksonville, for Cade Enterprises, for Appellee.

ROWE, J. Arnold Zimmerman appeals the trial court's order granting interpleader to Cade Enterprises and directing the corporation to place the funds disputed in this action into the registry of the court. Mr. Zimmerman raises two issues on appeal: (1) whether the trial court erred by granting the complaint in interpleader; and (2) whether the trial court erred by not dismissing the complaint in interpleader as barred by the doctrine of res judicata. We affirm as to the second issue without discussion. We also affirm as to the first issue, and for the reasons explained below, we find that the trial court properly ordered interpleader in this matter. I. Facts and Procedural History Mary Cade is the widow of Dr. J. Robert Cade, the inventor of the Gatorade sports drink. Dr. and Mrs. Cade formed Cade Enterprises, Inc. in 1989, as an

estate planning device, and subsequently transferred to the corporation a portion of the ownership interest in the Gatorade Trust. Mr. Zimmerman served as secretary of the corporation and was a close personal advisor to Dr. Cade for many years. Mr. Zimmerman claims to be one of only a few non-family members who were gifted with stock in the corporation and that he first received shares in 1994, with additional shares given annually for a period of time. He claims ownership of a total of 680 shares. In August 2008, Mrs. Cade filed suit against Mr. Zimmerman to recover 591 2

shares of stock that she alleged he obtained through fraud and through attempted transfers that were void. She later amended her complaint to add an express claim for past and future dividends related to those shares. In September 2008, Cade Enterprises' Board of Directors authorized a distribution of dividends to shareholders pursuant to statute and the corporation's bylaws. The corporation did not distribute dividends to Mr. Zimmerman for the 591 shares which were the subject of Mrs. Cade's lawsuit against Mr. Zimmerman. In October 2008, Cade Enterprises filed its first Complaint in Interpleader against the parties to the Cade-Zimmerman lawsuit, requesting the court to require the parties to interplead their claims to dividends from the same 591 shares of stock. On February 9, 2009, following a hearing, the trial court dismissed the Complaint in Interpleader "without leave to amend because Plaintiff stated no facts at the hearing which would support an amended Complaint in Interpleader." The court also stated that the order dismissing was "without prejudice to the parties' ability to raise the issue of which party is entitled to dividends under a different procedure in any other proceeding." In March 2009, Mr. Zimmerman sent a demand letter to Cade Enterprises, demanding damages for failure to distribute to him the dividends associated with the contested 591 shares. In April 2009, Mrs. Cade also sent a demand letter to Cade Enterprises, demanding dividends from the same 591 shares. 3

On May 8, 2009, Mr. Zimmerman filed a complaint against Cade Enterprises, alleging that the corporation committed theft by failing to distribute the dividends to him for the 591 shares. On May 27, 2009, Cade Enterprises filed a Motion to Dismiss, Counterclaim, and Third Party Complaint in Interpleader against Mr. Zimmerman and Mrs. Cade, the two parties claiming interest to dividends from the same 591 shares. On July 27, 2009, the trial court heard argument from counsel for both sides on the counterclaim and complaint in interpleader. After the hearing, the trial court granted interpleader to Cade Enterprises and directed the corporation to place the disputed funds into the registry of the court. That order is being appealed here. II. Analysis We review the trial court's decision to grant interpleader in this action under the de novo standard. See generally Philip J. Padovano, Florida Appellate Practice

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