Alvarez v. Alvarez

• Decision Date: 17 October 2001
• Docket Number: No. 3D00-1065, No. 3D00-1471., No. 3D00-1502
• Citation: 800 So.2d 280
• Parties: Felipe ALVAREZ, Jorge Alvarez, and Mirta Ramiro, Appellants/Cross-Appellees, v. Elsa ALVAREZ, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

800 So.2d 280

Felipe ALVAREZ, Jorge Alvarez, and Mirta Ramiro, Appellants/Cross-Appellees, v. Elsa ALVAREZ, Appellee/Cross-Appellant.

Nos. 3D00-1502, 3D00-1065, 3D00-1471.

District Court of Appeal of Florida, Third District.

October 17, 2001.

Rehearing and Certification Denied November 30, 2001.

H. Hugh McConnell, Coral Gables, for appellants/cross-appellees.

Gabriel M. Sanchez, for appellee/cross-appellant.

Before SCHWARTZ, C.J., and GERSTEN and GODERICH, JJ.

GODERICH, Judge.

Felipe Alvarez, Jorge Alvarez, and Mirta Ramiro appeal from a final judgment, and Elsa Alvarez cross-appeals from the same final judgment.¹ We affirm in part, reverse in part, and remand for further proceedings.

The actions filed below by the parties sought, in part, to enforce an alleged oral agreement and two written agreements, and to recover the amount of a worthless check plus treble damages, prejudgment interest, and attorney's fees pursuant to section 68.065, Florida Statutes (1995). This matter proceeded to a bench trial, and as the evidence was presented, it became clear that the parties had very different views as to what transpired between them. As such, the trial court had the difficult task of piecing together the evidence and making specific findings of fact.

As to the oral agreement, Jorge and Felipe's position at trial was that in 1992, they entered into an oral agreement with Elsa whereby they would subdivide a tract of land owned by Elsa into four lots and construct the necessary site improvements to convert the land into buildable lots.² Pursuant to this alleged oral agreement, Jorge and Felipe would receive 40% of the net increase in value of the improved lots. Jorge and Felipe testified that they completed the necessary work in 1994, and as a result, the value of the lots increased. Elsa, on the other hand, denied that an oral agreement existed.

At trial, a written agreement dated March 8, 1994, was introduced. The agreement provided that Jorge was to construct a house on Lot 4 and that he would receive 40% of the profits when the house was sold. The contract further provided that the value of the land was $41,250, that the construction cost could not exceed $120,000, and that Elsa would pay the cost of construction. The house was completed within eight to nine months and eventually sold on April 24, 1996, for $260,000. At trial, the parties disagreed as to the actual construction cost.

A second written agreement dated September 29, 1995, was also introduced into evidence. This agreement provided that Elsa would sell Lot 1 for $35,000 to Jorge [Lot 1 Sales Agreement].³ The Lot 1 Sales Agreement called for a deposit of $1,000 with the balance due at the scheduled closing on November 1, 1995. The parties agreed that Felipe gave Elsa a check for $1,000 and a $34,000 check postdated to January 10, 1996. Felipe testified that he advised Elsa that there were insufficient funds in his bank account for the $34,000 check and that he planned on funding the check with his share of the profits when the house on Lot 4 was sold. Specifically, Felipe testified that he told Elsa, "I don't have the money in the bank. I'm giving you a check for you to have this like an asset." Felipe also testified that when he gave Elsa the check he told her, "I don't have all the money in cash. I said I am going to give you a check for it, and as soon as you get 40 percent of the house, I put that in the bank, and you could cash the checks." On November 15, 1995, Elsa transferred Lot 1 to Felipe.⁴ The settlement agreement showed that the purchase price was $35,000, but Elsa did not receive any additional funds at closing. Jorge and Felipe, however, signed a document at closing stating, in part, that they "hereby release any commission due from the sale of property located [on Lot 4]." Elsa's position was that the total purchase price for Lot 1 was discounted to $35,000 in exchange for a full and final release of all commissions, labor costs, and liens incurred in building the house on Lot 4. Felipe's position was that the total purchase price was $35,000, that he was due more than $35,000 for his previous work in connection with the site-development and construction of the house on Lot 4, and that his release of those funds was to substitute for the $34,000 post-dated check.

After the closing on Lot 1, Elsa still had possession of the $34,000 check. Months later, Elsa attempted to negotiate the $34,000 check, but it was returned uncollected for insufficient funds.

Following the bench trial, the trial court entered a final order finding that the construction cost as to Lot 4 climbed to $181,000, and that "neither party owes each other any amounts on the house built on lot four." The trial court further found that "the parties intended to transfer title to lot number one for $35,000." The trial court, therefore, awarded Elsa $34,000 plus prejudgment interest from the date of closing on Lot 1. The trial court, however, denied treble damages and attorney's fees as to the worthless check claim. As to Jorge and Felipe's claims under the oral agreement, the trial court found against them on Lot 2 finding: "Finally, defendants claim a profit on the sale of lot number two. The court finds that by the time of the sale of that lot, whatever contractual relationships existed between the parties had long ceased. Not to mention that the statute of frauds requires such contracts to be in writing." The final judgment did not address Jorge and Felipe's claim as to Lot 3. This appeal and cross-appeal follow.

Jorge and Felipe contend that the trial court erred by finding in Elsa's favor as to their claims for Lots 2 and 3.⁵ We agree.

The trial court advanced two reasons when ruling against Jorge and Felipe as to their claim for breach of the alleged oral agreement regarding Lots 2 and 3. First, we address the trial court's finding that the "statute of frauds requires such contracts to be in writing." Elsa relies on section 725.01, Florida Statutes (1991),⁶ to support the trial court's finding that the oral agreement was unenforceable under the statute of frauds. Pursuant to section 725.01, an oral agreement to transfer an interest in land is unenforceable. McCloud v. Davison, 719 So.2d 995, 997 (Fla. 5th DCA 1998); Avery v. Marine Bank & Trust Co., 216 So.2d 251 (Fla. 2d DCA 1968); Blynn v. Hirsch, 124 So.2d 314, 315 (Fla. 3d DCA 1960). Contrary to Elsa's interpretation of the alleged oral agreement, the agreement does not involve an agreement to convey an interest in real property; rather, the alleged oral agreement is an agreement to perform labor and services to improve real property. See Phillips v. Atwell, 76 Fla. 480, 80 So. 180 (1918); Tunno v. Robert, 16 Fla. 738 (Fla.1878). As such, section 725.01 is not applicable.

Next, we address the trial court's finding that "by the time of the sale of that lot, whatever contractual relationships existed between the parties had long ceased." Although we are not certain what the trial court meant by that statement, if the alleged oral agreement was performed, as testified to by Jorge and Felipe, the fact that the "contractual relationships [that] existed between the parties had long ceased" does not render the alleged oral agreement unenforceable.

Therefore, we reverse the portion of the final judgment denying Felipe and Jorge's claims as to Lots 2 and 3 and remand for further proceedings. A review of the final judgment does not clearly indicate whether the trial court actually found that an oral agreement existed between the parties. Therefore, on remand, the trial court is to first determine whether an oral agreement existed between the parties, and if so, the terms of the oral agreement and whether the parties performed the oral agreement.

Elsa cross-appeals contending that the trial court erred by failing to award treble damages and attorney's fees pursuant to section 68.065, Florida Statutes (1995).⁷ We agree.

Pursuant to section 68.065, if a check is returned for insufficient funds, the payee may bring a civil action against the maker of the check if the maker does not pay the amount of the check in cash to the payee within 30 days following written demand. If the payee prevails, in addition to the amount of the check, the payee is also entitled to three times the value of the worthless check, attorney's fees, and costs.⁸

In the instant case, Felipe issued a $34,000 check to Elsa that was returned due to insufficient funds. Thereafter, Elsa sent Felipe a written demand for the $34,000 as required by section...