STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DuPONT REALTY INVESTMENT CORP., )

)

Petitioner, )

)

vs. ) CASE NO. 83-1656

)

DuPONT REALTY, INC. and ) SECRETARY OF STASTE, DIVISION ) OF CORPORATIONS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Sharyn L. Smith, hefd a formal hearing in this case on October 7, 1983, in Miami, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Charles M. Fahlbusch, Esquire

WIENER AND WALTON

2121 Ponce de Leon Boulevard, Suite 1040 Coral Gables, Florida 33134

For Respondent: Michael Blacker, Esquire DuPont Realty, 160 Northeast 40th Street Inc. Miami, Florida 33136

For Respondent: No appearance was made. Secretary of State

The issue for determination at the final hearing was whether the name of the Respondent DuPont Realty, Inc., is deceptively similar to the Petitioner DuPont Realty Investment Corporation.

At the final hearing, Anthony LaRosa, President of DuPont Realty Investment Corporation, Charles Yautz, a salesman for LaRosa, and Elizabeth LaRosa, a broker and mother of LaRosa, testified for the Petitioner. Petitioner's Exhibits 1-12 were offered into evidence and exhibits 5-12 were admitted. Maud DuPont, President of DuPont Realty, Inc., testified for the Respondent and Respondent's Exhibit 1 was offered and admitted into evidence.

A Proposed Recommended Order has been filed by the Petitioner and considered in the preparation of this Recommended Order. When Petitioner's findings of fact were consistent with the weight of the credible evidence introduced at final hearing, they were adopted and are reflected in this Recommended Order. To the extent that the findings were not consistent with the weight of the credible evidence, they have been either rejected, or when possible, modified to conform to the evidence. Additionally, proposed findings

which were subordinate, cumulative, immaterial or unnecessary have not been adopted.

FINDINGS OF FACT

1. The Petitioner DuPont Realty Investment Corporation was issued Charter No. 535008 on April 27, 1977. Petitioner is a nonprofit corporation which remained active until December 16, 1981, when it was involuntarily dissolved for failure to file its annual report. Corporate status was reinstated ab initio on June 29, 1983 and has since remained in good standing.

   
   

2. Respondent DuPont Realty, Inc., "was issued Charter No. 680928 on August 4, 1980, and has been permitted the use of that corporate name by the Respondent Secretary of State.

   
   

3. The Petitioner challenged the Respondent's right to the use of the name DuPont Realty, Inc., and an administrative hearing was held on August 20, 1981, a Recommended Order was entered, and a Final Order issued on November 23, 1981, which found the names of the parties to this proceeding not to be deceptively similar. The Final Order of the Secretary of State ,was note appealed by the Petitioner.

   
   

4. Subsequently, the Petitioner filed on May 17, 1983, a letter requesting a hearing on whether the names of the parties were deceptively similar.

   
   

5. At the final hearing, the Respondent DuPont Realty, Inc., filed a Motion to Dismiss based on the November 23, 1981, Final Order finding that the two corporate names were not deceptively similar. The Petitioner opposed the Motion to Dismiss arguing that subsequent events would demonstrate that the names were in fact and law, deceptively similar.

   
   

6. Since the entry of the Final Order on November 23, 1981, the Petitioner has received a real estate salesman's license for Linda Green, an employee of the Respondent, which was sent to the Petitioner by the Department of Professional Regulation by mistake. Additionally, on one occasion a printing company sent the Petitioner a bill with the name DuPont Realty and the Petitioner has received a few telephone calls from customers who were attempting to contact the Respondent.

   
   

7. The Respondent has taken steps since the previous hearing to lessen any possible confusion which might have resulted between the two companies. Her clientele today is exclusively French-Canadian, she has moved out of Dade County and into Broward County, is no longer listed in the Greater Miami telephone directory, and sells almost exclusively residential properties.

   
   

8. The parties are presently operating businesses in which there are greater differences today than there were in 1981. They no longer compete in the same geographical area, do not serve the same type of clients, and market different types of properties.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Florida Statutes.

10. Section 607.024(1)(b), Florida Statutes (1979), which is part of the Florida General Corporation Act, provides in part that:

    
    

    1. The corporate name:

       (b) Shall not be the same as, or de ceptively similar to, the name of any domestic corporation existing under the laws of this state or any foreign corpora tion authorizes to transact business in this state, a name the exclusive right to which is, at the time, reserved in the manner provided in this act, or the name of a corporation which has in effect a registration of its corporate name as pro vided in this act

       
       

11. By Rule 10-1.04, Florida Administrative Code (1980), the Department of State has defined "deceptively similar." The rule states:

    
    

    Corporate names are deceptively similar if on comparison of the names, written as above provided, there is an apparent difference, but the difference or dif- ferences are of such character that the names are likely to be confused by per- sons giving oral or written information to this office, or by persons in the Office of the Secretary of State who are

    attempting to enter into or retrieve from the records of this offic& corporate in- formation, or by persons attempting to receive written or oral information from the Office of the Secretary of State, or by judicial or law enforcement officers or by persons in the general public who are attempting to identify a corporation solely on the basis of written or oral communications concerning its name, or

    by consumers, who could be easily confused by similar names. Confusion can exist even though one or both parties to an oral or written communication has information concerning only one of the names which might, on comparison be found to be de- ceptively similar. Such names shall be rejected by the Division and shall not be filed.

    
    

12. Pursuant to the above statute and rule, the Secretary of State determined that the corporate name DuPont Realty, Inc. was not deceptively similar to Petitioner's name DuPont Realty Investment Corporation. Under the doctrine of res judicata, this determination is conclusive as to the parties and prevents a subsequent action involving the same facts. 2/. However, when subsequent material and substantive changed conditions exist, res judicata is not necessarily a bar to considering the question anew. Hialeah Race Course, Inc. v. Gulfstream Park Racing Association, 245 So.2d 625, 628 (Fla. 1971).

13. In the instant case, subsequent facts and events demonstrate that while both firms are engaged in real estate sales, they focus on entirely different types of properties and customers. Although both companies are located in South Florida, their principal places of business are in different counties. The customer confusion which the Petitioner asserts exists is minimal.

    
    

14. Accordingly, the Petitioner has failed to demonstrate that events subsequent to November 1981, require a finding that the names DuPont Realty Investment Corporation and DuPont Realty, Inc., are deceptively similar.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

That a Final Order be entered by the Respondent Secretary of State finding the names DuPont Realty Investment Corporation and DuPont Realty, Inc., not to be deceptively similar.

DONE and ORDERED this 30th day of November, 1983, in Tallahassee, Florida.

SHARYN L. SMITH

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1983.

ENDNOTES

1/ Ruling was reserved on Petitioner's Exhibits 1-4 which were exhibits introduced during the previous-administrative hearing, Dupont Realty Investment Corporation v. DuPont Realty, Inc. and Secretary of State, Division of Corporations, DOAH Case No. 81-1352, Final Order entered November 23, 1981.

2/ Petitioner's Exhibits 1-4, which were introduced at the previous hearing, are hereby excluded from evidence, under the doctrine of res judicata.

COPIES FURNISHED:

Charles M. Fahlbusch, Esquire WIENER AND WALTON

Suite 1040

2121 Ponce de Leon Boulevard Coral Gables, Florida 33134

Michael Blacker, Esquire

160 Northeast 40th Street Miami, Florida 33136

Carol J. Barice, Esquire General Counsel Department of State

The Capitol, Suite 1801 Tallahassee, Florida 32301

The Honorable George Firestone Secretary of State

The Capitol

Tallahassee, Florida 32301

Docket for Case No: 83-001656

Orders for Case No: 83-001656