Nature of the Case
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Facts
D signed a lease with Hastings Capital Corporation for a computerized energy management system for his Gainesville office building. The unit was manufactured by a subsidiary of Hastings and was installed by a Gainesville heating and cooling company. Hastings claimed the system would reduce the building's electricity consumption. Prior to the execution of the lease, P conducted a credit check on D after Hastings approached P about a future assignment of the yet-to-be-executed lease. P also set the financial terms of the lease. Ten days after D signed the lease, Hastings Capital assigned the lease to P. This was effected by the completion of a pre-printed assignment clause that named P as the assignee. D's personal guaranty of the lease was also assigned to P by execution of a pre-printed assignment clause, which again named P as the assignee. The lease contained a waiver of defenses clause as to any assignee of the lease wherein an assignee would be free of all defenses or claims D, as lessee, may have against Hastings Capital, as lessor. The leased equipment failed to perform and repeated attempts to repair it were unsuccessful. The system resulted in greater energy use. One year after signing the lease, D had the equipment removed by the installer and stopped making lease payments. Hastings Capital and its subsidiary went out of business. P then brought this suit against D for the balance of the payments due on the lease. D raised the defenses of misrepresentation and failure of consideration and counterclaimed a breach of warranty. P obtained summary judgment, claiming the waiver of the defenses clause precluded D's defenses. On appeal, this court reversed the summary judgment, finding that there was a question of fact as to whether P was so closely connected to Hastings Capital, the original lessor, or to the transaction as to deny P the benefits of the waiver of defenses clause. The trial court rendered judgment for D. It found that there was a sufficiently close connection to preclude P from taking the lease as a holder in due course and asserting the waiver of the defenses clause against D. The court found the consideration of the lease failed and P could not recover the balance of the lease payments. D was allowed to recover his counterclaim in the amount of the lease payments he had made. P appealed.
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