Futch v. Head

• Decision Date: 18 May 1987
• Docket Number: BM-442 and BN-326,Nos. BL-287,s. BL-287
• Parties: 12 Fla. L. Weekly 1271 Grace B. FUTCH, Appellant, v. Howard HEAD, Appellee.
• Court: Florida District Court of Appeals

Page 314

511 So.2d 314

12 Fla. L. Weekly 1271

Grace B. FUTCH, Appellant, v. Howard HEAD, Appellee.

Nos. BL-287, BM-442 and BN-326.

District Court of Appeal of Florida,

First District.

May 18, 1987.

Rehearing Denied Aug. 25, 1987.

W.H.F. Wiltshire, of Harrell, Wiltshire, Stone & Swearingen, Pensacola and Julian Clarkson, of Holland & Knight, Tallahassee, for appellant.

DuBose Ausley, William M. Smith, and Emily S. Waugh, of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee and Robert G. Kerrigan, of Kerrigan, Estess & Rankin, Pensacola, for appellee.

SHIVERS, Judge.

Appellant, Grace B. Futch, appeals from a final judgment and raises the following five issues for our consideration: (1) whether the trial court correctly found contract terms giving rise to an enforceable contract between her and appellee, Howard Head; (2) whether the statute of frauds barred Head's breach of contract action; (3) whether the trial court erred in applying the Florida Anti-Fencing Act for the purpose of trebling Head's damages; (4) whether Head was the procuring cause in the sale of a tract of beach property known as the "Melroe" property. Futch also faults the trial court's order denying rehearing insofar as it determined that she had failed to distinguish her personal finances from those of two corporations, Realty Center, Inc. and Pensacola Realty, Inc. We affirm on four of these issues, but reverse on the issue of whether the trial court erred in applying the treble damage provision of the Florida Anti-Fencing Act.

Head and Futch were registered real estate brokers who had worked together in joint real estate ventures for a number of years. Head worked as a sales agent at Realty Center, Inc., a real estate firm which Futch owned. Sometime during 1979, Futch approached Head and asked him to assist her in the sale of a 99-year leasehold interest in 30.58 acres of property located on Santa Rosa Island, Escambia County, Florida. Irving Melroe, a Colorado resident, owned the land, and at some point it became common with those involved in its transfer to refer to it as the "Melroe" property. Pensacola Beach Realty, Inc., another real estate agency owned and controlled solely by Futch, had listed the acreage, and Head and Futch agreed to share the commission derived from its sale. Head contacted Stanley Levin, the brother of Fred Levin, a trial attorney and businessman in Pensacola whom Head and Futch hoped to interest in the Melroe property. Head arranged a meeting which Stanley Levin, Head, and Futch attended. After having been informed about the property, Stanley immediately took Head to Fred Levin's office and introduced him. Head then told Fred Levin about the Melroe property. Fred Levin, along with several other parties, ultimately purchased the Melroe property for $400,000 plus an additional $50,000 to be paid upon rezoning.

Part of the terms of the final sale included Futch acquiring a 20% interest in the Melroe property because of her efforts in consummating its sale. Futch ultimately sold her share of the land for $1,300,000. Prior to the closing date, Futch informed certain people that she and Head were involved in a deal concerning the Melroe property and that Head would be compensated should the property be sold. The instant lawsuit arose when Futch failed to fulfill that promise.

On September 17, 1982, Head filed a complaint alleging breach of contract and fraud as a result of Futch's failure to pay a real estate commission. Head filed a total of seven complaints, the seventh and final of which asserted claims for breach of contract, tortious interference with contractual rights, conversion, fraud, and theft. The complaint also asked that a constructive trust be impressed upon the proceeds and profits from Futch's sale of her share of the Melroe property. A three day non-jury trial ensued culminating in Head receiving a $390,000 award for breach of contract and conversion in addition to costs and attorney's fees. The trial court judge reflected the following findings of fact in his final judgment:

1. There was an oral contract between the parties for the plaintiff to perform certain introductions in connection with the sale of the beach property known as the "Melroe" property.

2. Defendant was to convey one-tenth of her twenty percent interest in the property, whatever that might be, to the plaintiff in return for the introductions if a sale resulted therefrom.

3. A sale was consummated to the benefit of the defendant as contemplated.

4. The defendant failed to convey to the plaintiff what was owed under the contract, thus breaching same.

5. Defendant later took her interest (approximately 5.645 acres) in the property in her own name converting the use and benefits of the property to her own purposes to the exclusion of the plaintiff.

6. Defendant subsequently sold this property for $1,300,000 and refused to pay to the plaintiff his contracted share.

7. Defendant then converted the money to her own use and benefit with the intent to deprive the plaintiff of his right to his proportional share, this being a willful and intentional violation of Chapter 812 of the Florida Statutes.

8. Plaintiff was damaged by the breach of contract and subsequent conversion in the amount of $130,000.

9. In accordance with Chapter 812, plaintiff then shall recover damages threefold, attorney's fees, and costs.

The trial court judge entered a later order, also in favor of Head, setting attorney's fees at $100,000.

Futch first contends that the trial court incorrectly found specific contractual terms existed between her and Head which created an enforceable contract. Futch points out that the trial court concluded that an oral contract had existed between her and Head under which Head was to perform introductions to potential buyers of the Melroe property. Futch further directs our attention to the trial court's finding that as a part of this contract, she was to convey 1/10 of her 20% interest in that property in return for these introductions.

Futch maintains that neither of these conclusions find support in the record. We disagree. There is sufficient evidence in the record for the trial court to have found that a contract existed between Head and Futch such that Head was entitled to 10% of Futch's 20% share of the Melroe property. The record contains a land trust agreement concerning the Melroe property which Futch had entered into with a number of other investors. Under this agreement, Futch was granted a 20% interest in the Melroe property. Although the trial court's final judgment does not specify how Head's 10% share was calculated, it could have been determined as follows: (1) according to plaintiff's exhibit nine (a commission agreement between Futch and Head) Futch owed Head 3% of her ownership interest in the Melroe property; (2) because Head ultimately assigned 1% of his 3% interest in the Melroe property to Stanley Levin, he was left with only a 2% interest after the assignment; (3) Head's 2% interest in Futch's 20% interest equals 10%, hence the conclusion that Head had a 10% interest in the Melroe property; (4) Futch sold her 20% interest in the property for $1,300,000 for which she paid Head nothing; (5) Head's 10% slice of Futch's interest in the property, figured on a basis of $1,300,000, equals $130,000 which was trebled to $390,000 under the Florida Anti-Fencing Act. Consequently, there existed competent substantial evidence for the trial court to have found specific contractual terms entitling Head to a 10% share of Futch's 20% interest in the Melroe property. See Helman v. Seaboard Coastline Railroad Co., 349 So.2d 1187 (Fla.1977) (appellate court must sustain verdict if there is any evidence to support it).

The essence of Head's claim to a 10% share of Futch's 20% interest in the Melroe property lies in the commission agreement he had entered into with Futch. There was conflicting testimony at trial as to whether this document was prospective or retrospective in nature. In other words, did the document reflect some future act Head had yet to perform which would entitle him to a 3% share of Futch's ownership interest in Melroe property acquirable through its development or sale? Conversely, did it refer to some past performance Head had already completed when the document was executed in June of 1980?

Futch testified the document was drafted in anticipation of some future performance by Head; Head testified his performance was already complete when the document was created. It is not the function of an appellate court to reweigh evidence or credibility of witnesses. Froman v. Froman, 458 So.2d 833 (Fla. 3d DCA 1984). The trial judge implicitly rejected Futch's testimony that the commission agreement between her and Head applied to some future task which Head was to perform, and this determination appears to have been amply supported by the record.

First, at the time Head's assignment agreement was completed (January 9, 1981) Head had left, evidently on unfavorable terms, the employ of Futch. The agreement specifically states that Head was entitled to part of Futch's ownership interest in the Melroe property and that he was assigning 1% of that interest to Stanley Levin. Stanley, Futch, and Head had evidently agreed that Stanley was due something in consideration for his efforts in effecting the sale of the Melroe property. Futch testified that she asked Head to draft this document even though Head did not then have any ownership interest in the property. Futch explained that although Head possessed no interest which he could have assigned at the time the document was completed, he could still "earn his way" into an ownership interest. But the question remains: how could Head earn his way into such an interest when he no longer worked for Futch and the two had parted company on bad terms? Moreover, it is passing strange that Futch would require Head to transfer an interest to Stanley Levin i...