Palm Beach Pain Management, Inc. v. Carroll

• Decision Date: 18 March 2009
• Docket Number: No. 4D07-4240.,4D07-4240.
• Citation: 7 So.3d 1144
• Parties: PALM BEACH PAIN MANAGEMENT, INC., a Florida corporation, Anthony Rogers, and AR Global Investing Trust, a/k/a AR Global Trust, Appellants, v. Gary D. CARROLL and April Carroll, his wife, Appellees.
• Court: Florida District Court of Appeals

7 So.3d 1144

PALM BEACH PAIN MANAGEMENT, INC., a Florida corporation, Anthony Rogers, and AR Global Investing Trust, a/k/a AR Global Trust, Appellants, v. Gary D. CARROLL and April Carroll, his wife, Appellees.

No. 4D07-4240.

District Court of Appeal of Florida, Fourth District.

March 18, 2009.

Rehearing Denied April 24, 2009.

Bard D. Rockenbach of Burlington & Rockenbach, P.A., and Gary Roberts & Associates, P.A., West Palm Beach, for appellants Palm Beach Pain Management,

Inc., a Florida corporation, and Anthony Rogers.

Robert W. Wilkins of Jones, Foster, Johnston & Stubbs, P.A., West Palm Beach, and Steven L. Robbins of Steven L. Robbins, P.A., Jupiter, for appellees.

HAZOURI, J.

The trial court granted the Appellees' (Gary D. Carroll and April Carroll) motion for summary judgment. On appeal, the Appellants, Palm Beach Pain Management and Anthony Rogers, contend that: (1) summary judgment was improper; and (2) the trial court erred when it denied a motion to disqualify the Carrolls' attorney. We agree that the summary judgment was improper and reverse; however, we affirm point (2), as the trial court did not abuse its discretion in denying the motion to disqualify.

Gary D. Carroll owned all of the stock in, and was the President and CEO of, Palm Beach Pain Management, Inc., a Florida Corporation. Carroll and Rogers entered into an agreement whereby they agreed that Rogers would receive a base contractor's fee from PBPM of $250,000 and a year-end bonus of fifty percent (50%) of net profits. Approximately a year and a half later, Carroll and Rogers entered into a second agreement, where Rogers was to receive 50% of PBPM's shares of stock. The second agreement had a termination provision which stated that Carroll and Rogers agreed to relinquish, waive, and forfeit any and all benefits whatsoever retained by them under the first agreement. The provision also stated that the first agreement was terminated and canceled, effective immediately.

During the time that the first agreement was operative, Carroll and his wife, April, opened two checking accounts. It is alleged that the accounts named only the Carrolls as authorized signatories. The money deposited into these bank accounts by the Carrolls related to services provided by PBPM. However, the money deposited into these two accounts was not accounted for by PBPM. Rogers claims he received no payments for a share of the money deposited into these accounts, and that the funds in both accounts were withdrawn by the Carrolls for personal use. Due to this alleged conduct, Rogers and PBPM filed a claim against the Carrolls for breach of fiduciary duty, civil theft, conversion, and constructive trust.

"The standard of review applicable to orders on summary judgment is de novo." Lander v. Smith, 906 So.2d 1130, 1132 (Fla. 4th DCA 2005). This Court may reverse a trial court's grant of summary judgment if it finds that there was a "`genuine issue of material fact,'" and that the moving party was not "`entitled to judgment as a matter of law.'" Id. (quoting Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 131 (Fla. 2000)). The "burden of proving the absence of a genuine issue of material fact is upon the moving party." Holl v. Talcott, 191 So.2d 40, 43 (Fla.1966). This burden is shifted to the nonmoving party once "the movant has successfully met his burden." Id. at 43-44. However, "`[a]ll doubts and inferences must be resolved against the moving party, and if there is the slightest doubt or conflict in the evidence, then summary judgment is not available.'" Lander, 906 So.2d at 1132 (quo...