Fonseca v. Taverna Imports, Inc., s. 3D15–737

Decision Date04 January 2017
Docket Number3D15–382,3D14–2506,Nos. 3D15–737,s. 3D15–737
Citation212 So.3d 431
Parties Maricela FONSECA and Richard Fonseca, et al., Appellants, v. TAVERNA IMPORTS, INC., and Mario Taverna, Appellees.
CourtFlorida District Court of Appeals

Arnaldo Velez ; Gutiérrez Bergman Boulris and Jennifer A. Kerr ; Hicks, Porter, Ebenfield & Stein and Dinah Stein, for appellants Maricela Fonseca and Richard Fonseca; Jule Laudisio and Hans Eichmann, in proper persons.

Rosenthal Rosenthal Rasco, Eduardo I. Rasco and Steve M. Bimston, for appellees.

Before WELLS, LAGOA, and EMAS, JJ.

EMAS, J.

INTRODUCTION

In this consolidated proceeding, each party appeals from various judgments arising out of two lower court actions:

(1) Taverna Imports, Inc. and Mario Taverna v. Maricela Fonseca, Richard Fonseca, Jule Laudisio and Hans Eichmann (Lower Tribunal No. 07–9620 ) ("Case One")

In Case One, the trial resulted in a jury verdict totaling $1,896,234 in favor of plaintiffs Mario Taverna and Taverna Imports, Inc. The Defendants in Case One—Maricela Fonseca, Richard Fonseca, Jule Laudisio and Hans Eichmann (collectively, "the Defendants")—appeal from several judgments1 arising out of that case, and assert three points on appeal, which are discussed in detail below. For the reasons that follow, we affirm the judgments in Case One with one exception, relating to an aspect of the damages awarded to Mario Taverna and against Maricela Fonseca and Richard Fonseca.

(2) Richard Fonseca v. Taverna Imports (Lower Tribunal No. 07–43714) ("Case Two")

In Case Two, Taverna Imports appeals from a series of post-judgment orders2 in which the trial court awarded Richard Fonseca the right to execute on unissued stock of Taverna Imports. For the reasons that follow, we reverse the trial court's order authorizing Fonseca to execute and levy on the corporate stock, as the trial court, under the unique circumstances of this case, should have applied Richard Fonseca's judgment in Case Two (in the amount of $110,309.36) as an offset against the judgment in favor of Taverna Imports in Case One (in the amount of $1,063,234).

BACKGROUND

Taverna Imports was a closely held wine distribution corporation. Upon its formation in 2002, the Board of Directors was comprised of Mario Taverna, Maricela Fonseca and Hans Eichmann.3 By a vote of the Board of Directors, Mario Taverna was elected president, Jule Laudisio was elected vice-president, and Maricela Fonseca was elected secretary/treasurer. Maricela and Richard Fonseca contributed the capital to Taverna Imports, and Mario Taverna, together with Hans Eichmann, oversaw sales and controlled daily operations.

At the time of Taverna Imports' formation, the corporation authorized 5000 shares, but issued a total of 4500 shares, in equal amounts of 1500 shares each to Mario Taverna, Maricela Fonseca, and Jule Laudisio. In June 2005, Taverna Imports repurchased 1000 of Jule Laudisio's 1500 shares, and entered into a two-year stock-option agreement which would allow Taverna Imports to purchase Laudisio's remaining shares. As of June 2005, Mario Taverna and Maricela Fonseca each owned forty-five percent of the shares, and Laudisio owned the remaining ten percent.

Taverna Imports was unprofitable for the first few years of its existence. In mid–2005, Richard Fonseca decided he would no longer contribute capital. Around the same time, Hans Eichmann quit. Thereafter, however, Taverna Imports began to turn a profit through Mario Taverna's efforts. Nevertheless, after Richard Fonseca declined to make further capital contributions, Mario Taverna attempted to find new revenue streams for the company.

Although most of these attempts proved unsuccessful, in early 2007 Mario Taverna entered into a wine-clearing arrangement with Metro Wine ("Metro"), an out-of-state wine distributor and wholesaler who Mario Taverna believed had the potential to alleviate Taverna Imports' cash flow concerns. Mario Taverna negotiated to permit Metro's use of a portion of Taverna Imports' warehouse in exchange for Metro's payment of essentially all of Taverna Imports' overhead expenses for the duration of its warehouse lease. Mario Taverna executed a Memorandum of Understanding ("MOU") with Metro on behalf of Taverna Imports, which memorialized the wine-clearing arrangement. When Mario Taverna broached the subject of the Metro MOU with Richard Fonseca, Fonseca deferred consideration of the issue pending a formal shareholders' meeting to be held in February 2007. Such an event—a "formal" shareholders' meeting—was alleged to be an unprecedented event in Taverna Imports' history.

Meanwhile, in January 2007, Jule Laudisio agreed to convey her remaining ten percent stock interest back to Taverna Imports in exchange for $5,000, pursuant to a written agreement which she executed on January 26, 2007. Jule Laudisio signed a notarized letter prepared by Mario Taverna which acknowledged Taverna Imports' purchase of her ten percent interest. Mario Taverna issued two checks from Taverna Imports made out and delivered to Jule Laudisio: one for $2,500 dated January 26, 2007, and a second for $2,500, post-dated to September 30, 2007. However, three days after executing the agreement and accepting the checks in exchange for the sale of her stock, Jule Laudisio sent a letter to Mario Taverna, together with the un-negotiated checks, in an attempt to rescind the agreement.

One month later, on February 27, 2007, the "formal" shareholders' meeting took place. Because this was a shareholders' meeting, Mario Taverna expressed his surprise at the presence of Hans Eichmann (who was never a shareholder) and Jule Laudisio (from whom Taverna Imports had purchased her remaining shares a month earlier). Mario Taverna believed that he and Maricela Fonseca were the only remaining shareholders in Taverna Imports (and the only directors at the meeting), with each owning an equal number of shares. Maricela Fonseca announced at this meeting that a shareholder vote would be conducted to elect a new president, despite the corporate bylaws which mandate that only the Board of Directors is empowered to elect or remove officers. Over Mario Taverna's objection, Jule Laudisio and Maricela Fonseca elected Maricela Fonseca to replace Mario Taverna as the new president. The minutes from the February 27 meeting (prepared by Maricela Fonseca) state that Jule Laudisio was a shareholder of Taverna Imports. The minutes also state that Taverna Imports' only directors (and thus the only individuals authorized under the bylaws to elect officers) were Mario Taverna and Maricela Fonseca. Nonetheless, based upon the votes cast by Maricela Fonseca and Jule Laudisio, Maricela Fonseca purportedly was elected to replace Mario Taverna as president of Taverna Imports. Thereafter, Maricela and Richard Fonseca, Jule Laudisio and Hans Eichmann began asserting complete control over Taverna Imports, to the exclusion of Mario Taverna.

On March 23, 2007, Maricela Fonseca issued a "Resolution of Board of Directors of Taverna Imports, Inc.," which she executed as President, Secretary and Treasurer of Taverna Imports. The document purported to ratify the February 27 board meeting as a resolution of the Board of Directors. However, the notice omits reference to any meeting at which the company's Board considered and voted on this resolution. Maricela Fonseca subsequently authored minutes of a shareholder "special meeting," dated April 1, 2007, which reflects a vote for the purpose of electing a new board. The minutes indicate Maricela Fonseca and Jule Laudisio voted for themselves, after which Maricela Fonseca was purportedly elected as president and Jule Laudisio as vice president.

On April 1, 2007, the same day as the "special meeting" described above, Mario Taverna went to Taverna Imports' warehouse, only to discover that the Defendants had changed the locks and had rejected Metro's authority to store inventory there. When Mario Taverna returned to the warehouse the next day, a security guard hired by the Defendants denied Taverna access to the warehouse. Mario Taverna was eventually allowed in, and learned Hans Eichmann was managing the business, and that the Defendants were negotiating to assign the warehouse lease to Metro. The Fonsecas eventually terminated Mario Taverna.

In addition to the above-described events, Mario Taverna and Taverna Imports alleged a series of additional acts of misconduct, all of which culminated in the improper ouster of Mario Taverna and the wrongful takeover and mismanagement of Taverna Imports. Included among them were allegations that Maricela Fonseca, Richard Fonseca, Jule Laudisio and Hans Eichmann, together or individually:

• Forged Mario Taverna's signature on an alcoholic beverage report filed with the Florida Department of Business and Professional Regulation;
• Sold numerous cases of wine at far below cost or for no money at all, and thereafter began making payments to, or on behalf of, rival wine distributors;
• Made a wine delivery to a restaurant, during which a waiter, Pablo Monfort, overheard a conversation between Hans Eichmann and the restaurant owner. In that conversation, Hans Eichmann told the owner that if the owner paid Hans Eichmann in cash, the owner would receive a discount, and Hans Eichmann would bill future wine deliveries to the restaurant and invoice them as mineral water;
• After taking over Taverna Imports, the Fonsecas and Jule Laudisio and Hans Eichmann reused various invoice numbers for multiple transactions, thus impeding the company's ability to accurately manage and account for its inventory;
• Categorized inventory they sold off for low cost or no cost as "spoiled," though it was easy to preserve the wine in a proper storage facility, and Hans Eichmann could not explain why other wine distributors would purchase spoiled wine for resale to retail customers;
• Created false invoices and mismanaged accounts receivable by either not recording collected
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