Dinuro Investments, LLC v. Camacho
141 So. 3d 731
| Fla. Dist. Ct. App. | 2014Background
- In 2005 Dinuro, Merici (controlled by Camacho), and Starmac (controlled by Macedo) formed San Remo Homes, LLC (two branches) with equal one‑third membership interests.
- San Remo obtained loans from Ocean Bank secured by notes; the San Remo entities defaulted after Dinuro failed to make additional capital contributions required by lender modifications.
- Macedo and Camacho, through entities (SR Acquisitions and subentities), purchased the Notes from Ocean Bank and ultimately foreclosed and acquired the properties, leaving Dinuro with no assets.
- Dinuro sued Macedo, Camacho, their entities, and Ocean Bank for breach of the operating agreements, tortious interference, and conspiracy (among other counts); defendants moved to dismiss for lack of individual standing.
- The trial court dismissed four counts, finding Dinuro’s claims were derivative; the Third District affirmed, holding Florida law requires either direct harm and special injury or a separate duty (contractual/statutory) to sue individually.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Dinuro has individual standing to sue co‑members for devaluation of San Remo | Dinuro: the co‑members intentionally caused default and purchased the Notes to deprive Dinuro of value, so Dinuro suffered individual harm and may sue directly | Defendants: Dinuro’s injury is derivative — it flows from harm to the company and must be pursued derivatively | Held: No individual standing; injury is indirect and derivative, so dismissal affirmed |
| Whether Florida permits a direct member action absent a separate duty | Dinuro: operating agreement terms (§12) create direct member rights/remedies allowing individual suit | Defendants: operating agreement remedies track statutory defaults and do not impose direct member‑to‑member liability; no provision makes members directly liable | Held: Operating agreement does not create a separate contractual duty to permit direct suit; absent express member‑to‑member liability, claims are derivative |
| Whether an exception exists based on statutory or contractual duties (fiduciary duty) | Dinuro: statutory or contractual duties could allow a direct claim | Defendants: Dinuro abandoned its statutory fiduciary claim and pleaded no separate duty owed to it individually | Held: Florida recognizes an exception when a separate duty is owed, but Dinuro did not plead such a duty (and abandoned fiduciary claim), so no exception applied |
Key Cases Cited
- SR Acquisitions-Florida City, LLC v. San Remo Homes at Florida City, LLC, 78 So. 3d 636 (Fla. 3d DCA 2011) (related mandamus/standing decision in foreclosure litigation)
- Citizens Nat’l Bank of St. Petersburg v. Peters, 175 So. 2d 54 (Fla. 2d DCA 1965) (articulates that a direct action requires an injury sustained directly and separate from other shareholders)
- Tooley v. Donaldson, Lufkin & Jenrette, Inc., 845 A.2d 1031 (Del. 2004) (adopts a ‘‘who suffered the harm’’ direct‑harm test for distinguishing direct vs. derivative claims)
- Harrington v. Batchelor, 781 So. 2d 1133 (Fla. 3d DCA 2001) (recognizes exceptions for special injury or a separate duty owed permitting direct actions)
- Braun v. Buyers Choice Mortg. Corp. ex rel. McAloon, 851 So. 2d 199 (Fla. 4th DCA 2003) (discusses necessity of a special duty or special injury for direct shareholder/member suits)