Barbouti v. Lysandrou

• Decision Date: 13 March 1990
• Docket Number: 89-2995,Nos. 89-2740,s. 89-2740
• Parties: 15 Fla. L. Weekly D689 Ihsan BARBOUTI, Appellant, v. Loizos LYSANDROU; Filippos Nomikos; and Barnett Bank of South Florida, N.A., Appellees. Loizos LYSANDROU, Appellant, v. Ihsan BARBOUTI, Appellee.
• Court: Florida District Court of Appeals

Page 648

559 So.2d 648

15 Fla. L. Weekly D689

Ihsan BARBOUTI, Appellant, v. Loizos LYSANDROU; Filippos Nomikos; and Barnett Bank of South Florida, N.A., Appellees.

Loizos LYSANDROU, Appellant, v. Ihsan BARBOUTI, Appellee.

Nos. 89-2740, 89-2995.

District Court of Appeal of Florida,

Third District.

March 13, 1990.

Adorno Zeder Allen Yoss Bloomberg Schwartz & Goodkind and Jon S. Hainline, Miami, for Ihsan Barbouti.

William E. Ploss, Daniels and Hicks and Patrice A. Talisman, Miami, for Loizos Lysandrou.

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

SCHWARTZ, Chief Judge.

Barbouti claims that Lysandrou, aided by Nomikos, in direct violation of their contractual obligation not to do so, misappropriated $800,000 in checks drawn by Barbouti and deposited the sum in a Miami bank. Initially proceeding ex parte, Barbouti sued Lysandrou and Nomikos in the Dade County Circuit Court on theories, among others, of conversion, civil theft, breach of contract and to establish a constructive trust, and secured a temporary injunction forbidding the removal of the funds from the bank pending the conclusion of the case. On motion of Lysandrou and Nomikos, the trial judge concluded that injunctive relief did not properly lie and therefore granted the motion to dissolve the injunction--but only after giving Barbouti the opportunity, which was timely accepted, to post a bond of $1,600,000, to secure a "freeze" of the account pursuant to a pre-judgment writ of garnishment served on the bank. See § 77.031, Fla.Stat. (1989). ¹ The trial judge subsequently denied the defendants' motion to dissolve the garnishment. In these appeals, which we treat in a single opinion because of their close interrelationship, Barbouti claims error in the order dissolving the temporary injunction, and Lysandrou challenges the failure to dissolve the garnishment. We affirm both orders.

I

Without the necessity of passing upon any of the other substantial issues raised concerning the availability of injunctive relief in a case such as this, ² we find that the dissolution of the injunction was perfectly appropriate. It is a basic rule that equity jurisdiction, particularly including the employment of injunctive relief, does not lie where there is an adequate remedy at law. See 29 Fla.Jur.2d Injunctions § 17 (1981), and cases cited. In this case, the relief attainable by the plaintiff through the use of the injunction--specifically including the availability of the $800,000 to satisfy an eventual judgment--was as a practical matter fully provided by the use of the writ of garnishment which the trial court simultaneously sustained. See Acquafredda v. Messina, 408 So.2d 828 (Fla. 5th DCA 1982); see also Leight v. Berkman, 483 So.2d 476 (Fla. 3d DCA 1986); Konover Realty Assocs. v. Mladen, 511 So.2d 705, 706 n. 5 (Fla. 3d DCA 1987). See generally ITT Community Dev. Corp. v. Barton, 569 F.2d 1351 (5th Cir.1978).

II

Turning to the attack by the defendants upon the availability of that remedy, we likewise find no error. Of the defendants' several contentions to the contrary, ³ only the claim that pre-judgment garnishment was inappropriate because the action was one "sounding in tort," § 77.02, Fla.Stat. (1989), ⁴ deserves mention. Under a principle of ancient and honorable lineage, an improper taking of goods or money which actually belongs to another and which may in itself constitute a tort, also gives rise to an implied contractual obligation to return that property. As Prosser says:

[T]here has developed the doctrine that where the commission of a tort results in the unjust enrichment of the defendant at the plaintiff's expense the plaintiff may disregard, or "waive" the tort action, and sue instead on a theoretical and fictitious contract of restitution of the benefits which the defendant has so received.

* * * * * *

Thus where the defendant has appropriated the plaintiff's money, or has taken his property and sold it, a quasi-contract count will lie for money had and received to the plaintiff's use, through the fiction of an implied promise to repay.

W. Prosser & W. Keeton, The Law of Torts § 94, at 672-73 (footnotes omitted). This doctrine has found directly pertinent application in holdings that the exclusion of tort actions from the operation of garnishment and attachment statutes does not apply to cases like this. Wallace v. Perry, 74 Idaho 86, 257 P.2d 231 (1953) (attachment lies for misappropriation of funds sued upon in implied contract for money had and received); Cleveland v. San Antonio Building & Loan Ass'n, 148 Tex. 211, 223 S.W.2d 226 (1949) (writs of garnishment and attachment properly issued when claim for liquidated damages arises out of express or implied contract); State ex rel. American Piano Co. v. Superior Court, 105 Wash. 676, 178 P. 827 (1919) (attachment or garnishment lies for conversion of property arising from contract claim). See generally 38 C.J.S. Garnishment §§ 7-8 (1943). See also Papadakos v. Spooner, 186 So.2d 786 (Fla. 3d DCA 1966). Under this rule, and because one count of the plaintiff's seven count complaint specifically alleges a breach of contract, ⁵ we conclude that the pre-judgment garnishment writ in question properly lies as one sounding not in tort, but in express and implied contract. ⁶

Affirmed.

1 77.031 Issuance of writ before judgment.--Before judgment has been obtained by the plaintiff against the defendant:

(1) A writ of garnishment shall be issued by the court or by the clerk on order of the court.

(2) To obtain issuance of the writ, the plaintiff, or his agent or attorney, shall file in the court where the action is pending a verified motion or affidavit alleging by specific facts the nature of the cause of action; the amount of the debt and that the debt for which the plaintiff sues is just, due, and unpaid; that the garnishment is not sued out to injure either the defendant or the garnishee; and that the plaintiff believes that the defendant will not have in his possession, after execution is issued, tangible or intangible property in this state and in the county in which the action is pending on which a levy can be made sufficient to satisfy the plaintiff's claim. The writ of garnishment shall set forth a notice to the defendant of his right to an immediate hearing for dissolution of such writ pursuant to s. 77.07. Upon issuance of the writ of garnishment, the clerk of the court shall provide by mail a copy of the writ to the defendant.

(3) Except when the plaintiff has had an attachment writ issued, no writ of garnishment before judgment shall issue until the plaintiff, or his agent or attorney, gives a bond with surety to be approved by the clerk payable to the defendant in at least double the amount of the debt demanded, conditioned to pay all costs, damages, and attorney's fees that the defendant sustains in consequence...