Abele v. Sawyer, No. 98-1563

• Decision Date: 20 October 1999
• Docket Number: No. 98-1563, No. 98-2420., No. 98-2047
• Citation: 750 So.2d 70
• Parties: Charles R. ABELE, Jr., Holly Jackson Abele, John Ralph and Fran Ralph, Appellants, v. Delores SAWYER, David Sawyer, Quality Concrete & Rental, Inc., Marvin Danto, James Danto, and Broward International Commerce Park, L.P., Appellees.
• Court: Florida District Court of Appeals

750 So.2d 70

Charles R. ABELE, Jr., Holly Jackson Abele, John Ralph and Fran Ralph, Appellants, v. Delores SAWYER, David Sawyer, Quality Concrete & Rental, Inc., Marvin Danto, James Danto, and Broward International Commerce Park, L.P., Appellees.

Nos. 98-1563, 98--2420.

District Court of Appeal of Florida, Fourth District.

October 20, 1999.

Rehearing Denied December 14, 1999.

Humberto H. Ocariz, Joseph A. DeMaria, and John M. Quaranta of Tew Cardenas Rebak Kellogg Lehman DeMaria & Tague, L.L.P., for appellants.

Linda A. Conahan and Ann M. Burke of English, McCaughan & O'Bryan, P.A., Fort Lauderdale, for Appellees Marvin Danto, James Danto and Broward International Commerce Park, L.P.

Mimi L. Sall and Bradford Swing of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., Fort Lauderdale, cocounsel, for Appellee Broward International Commerce Park, L.P.

Joseph S. Geller and Peggy Fisher of Geller, Geller & Garfinkel, Hollywood, for Appellees Delores Sawyer, David Sawyer and Quality Concrete & Rental, Inc.

WARNER, C.J.

This is an appeal from a final order dismissing appellants' ("the Abele Group") complaint for constructive trust and tortious interference against the appellees, Dantos, and for injunctive relief against all of the appellees. The underlying transaction for which relief was sought involved a failed land and construction transaction. We affirm the trial court's dismissal of the constructive trust count against the Dantos because they did not hold the property on which the constructive trust was sought. However, we reverse the dismissal of the count for tortious interference, as the complaint sufficiently alleged all elements of that cause of action. In regards to the injunction, we affirm.

I. Allegations of the Complaint.

The detailed allegations of the complaint and its attachments explain the factual background surrounding this case. Charles Abele originally entered into a contract with Village Development to purchase approximately 25 acres of vacant land for the purpose of constructing and developing a commercial center which he intended to sell. The acreage was divided into several parcels which Abele could purchase individually at certain set intervals. For this purpose, he formed a corporation called Broward International Commerce Center ("BICC"). Needing additional financing, he brought the Sawyers and the Ralphs into the transaction. Several agreements were entered into by the various parties. Holly Abele and Delores Sawyer executed an irrevocable voting trust. Charles Abele and Delores Sawyer signed an organizational statement as BICC directors and all of the parties entered into a Shareholder's Agreement. As a result of all of these documents, Delores Sawyer became BICC's president, secretary, treasurer, and director. Charles Abele was the named vice-president and director of the company. Delores also owned 50% of the shares of the company, with the Abeles owning 40% and the Ralphs 10%. However, through a series of other agreements, Delores was given voting control of 55% of the shares, giving the Sawyers voting control of the company. Voting control was given in return for the Sawyers' personal guarantee of the loans procured on behalf of BICC. The Abeles and the Ralphs constitute the Abele Group.

Pursuant to the Shareholders Agreement, Charles Abele placed $100,000 in BICC's account for working capital and assigned his rights under the original land purchase contract to BICC. The Sawyers agreed to provide equity above the $100,000 and handle the day-to-day operations of the development of the land. The agreement also required an affirmative vote of seventy-five percent of the outstanding shares to terminate or liquidate the development project.

The Shareholders Agreement further provided that Quality Concrete, owned by the Sawyers, would be the general contractor for the project and would be paid the cost of construction plus a 10% profit. BICC then purchased the first two parcels and entered into contracts to construct two commercial buildings on the land. During construction, Quality failed to pay the utilities contractor, who was transferred shares of the corporation in satisfaction of payment. Nevertheless, due to the voting trusts, Delores Sawyer continued to retain voting control of 51% of the shares of stock.

Charles Abele actively marketed the property and eventually found prospective buyers, the Dantos. The Dantos offered to provide $1,250,000 in additional capital to assist in the completion of the project, to be credited against a purchase price of $21 million. After BICC approved the Dantos as purchasers, Charles Abele and David Sawyer, as developers, signed a purchase contract with the Dantos, but the contract provided that the Dantos were contracting "not individually but on behalf of an entity to be formed and without personal liability." The purchase agreement permitted the Dantos to assume development of the property and acquire the remaining land from Village Development if BICC were in default of its obligations. The Dantos subsequently assigned their rights under the purchase agreement to Commerce Park, a limited partnership whose general partner was Danto Investment Company, which was wholly owned by the Dantos. The complaint alleges that Village Development has not declared BICC in default of any of its obligations, as of the date of the amended complaint.

The project continued to experience difficulties, and the Sawyers wanted to allow the Dantos to purchase the remaining parcels immediately. However, the Abele Group disagreed. After a shareholders meeting on May 10, 1997, the parties agreed not to take any action for the next thirty days without the other party's approval. They also agreed to extend the closing date for the sale of the next parcel by one month. Contrary to that agreement, the complaint alleges that the Sawyers and the Dantos had already conducted secret meetings. The day before the May meeting, Delores Sawyer held another shareholders meeting, of which the Abele Group had no notice. During that meeting, Delores Sawyer agreed that the deadline for closing the sale of the fourth parcel could not be extended beyond the May 15th closing date without written approval of the Dantos.

A month later Charles Abele delivered a letter to Delores Sawyer objecting to her agreement not to extend the closing date on the purchase of the parcel without the approval of the Dantos. He also sent a letter to the Dantos objecting to their interference in the relationship between the Abele group and the Sawyers. He advised the Dantos that the Sawyers did not have any authority to convey property or assets of BICC without the express written consent of the shareholders.

Abele sent a second letter on June 17, 1997, to counsel for the Sawyers claiming that Delores Sawyer was breaching her fiduciary duties to BICC. In the letter, the Abele Group specifically stated that it believed that any sale or transfer of BICC property would violate the 75% approval provision of the Shareholders Agreement. Unbeknownst to Abele, Delores Sawyer conducted another shareholders meeting on that very day without notice and removed him as an officer and director of BICC, replacing him with her husband. One day later, Delores Sawyer executed a Special Warranty Deed transferring all of the real estate owned by BICC to defendant Commerce Park.

II. Constructive Trust.

In the count for constructive trust, the Abele Group sued all of the defendants alleging that the contract for purchase between the Dantos and BICC and its shareholders created a confidential and fiduciary relationship which was breached by "the transfer to the Dantos and/or Commerce Park of most, if not all, of the real and personal property of BICC" prior to construction of all the buildings. As to the other defendants, the constructive trust count made other allegations, which need not be detailed here.

A constructive trust is imposed by operation of law as an equitable remedy in a situation where there is a wrongful taking of the property of another. See Finkelstein v. Southeast Bank, N.A., 490 So.2d 976, 984 (Fla. 4th DCA 1986). The necessary elements for imposition of a constructive trust are: (1) a promise, express or implied; (2) a transfer of the property and reliance thereon; (3) a confidential relationship; and (4) unjust enrichment. See Provence v. Palm Beach Taverns, Inc., 676 So.2d 1022, 1024 (Fla. 4th DCA 1996).

While the facts are complicated, the resolution of the constructive trust issue on appeal is fairly simple. The court properly dismissed the claim for constructive trust against the Dantos, because the Dantos were never the legal or equitable title holders of the property which would be the subject of the constructive trust. The Dantos did not sign the purchase agreement in their individual capacities, but rather they expressly stated that they were signing for an entity yet to be formed. When the property was actually transferred, Commerce Park took title. Thus, the Dantos are not, nor were they ever, in possession of the property to which the Abele Group seeks to attach a constructive trust. A court will not impose a constructive trust over a defendant's general assets. See Finkelstein, 490 So.2d at 983. If the Abele Group were to prevail on the factual issues of its complaint, that would be the only relief available against the Dantos, because the property at issue is not, and never was, in the Dantos' individual possession. See Trend Setter Villas of Deer Creek v. Villas on the Green, Inc., 569 So.2d 766, 768 (Fla. 4th...