Horowitz v. Raskin

• Decision Date: 31 December 1974
• Docket Number: No. 74--466,74--466
• Citation: 305 So.2d 856
• Parties: Bernard H. HOROWITZ, Appellant, v. James M. RASKIN, Appellee.
• Court: Florida District Court of Appeals

Page 856

305 So.2d 856

Bernard H. HOROWITZ, Appellant, v. James M. RASKIN, Appellee.

No. 74--466.

District Court of Appeal of Florida, Third District.

Dec. 31, 1974.

Rehearing Denied Jan. 28, 1975.

Albert George Siegel, Miami Beach, for appellant.

Mark Silverstein, Miami Beach, for appellee.

Before BARKDULL, C.J., NATHAN, J., and CHARLES CARROLL (Ret.), Associate Judge.

PER CURIAM.

By this appeal, we are called upon to review the correctness of the final judgments ¹ rendered upon a complaint which sought an accounting and damages for alleged breach of agreements. The final judgments under review read as follows:

* * * * * *

'This action was tried, non-jury, before the Court. On the evidence presented, the Court makes the following findings:

'STATEMENT OF THE CASE

'1. Plaintiff, JAMES M. RASKIN, filed a complaint in three counts. Count one is for an accounting of the net sales produced by WELLINGTON ORIENT, INC. from March 1, 1969 to December 31, 1969, based upon a letter agreement dated October 30, 1969. Plaintiff claims one-half of one per cent of said net sales as incentive commissions.

'2. Count two is a claim for damages for breach of contract based upon the same letter agreement, dated October 30, 1969, as in Count one. Both said Counts one and two pertain to the same subject matter.

'3. Count three is separate and distinct from Counts one and two, and is a claim for damages for breach of an oral agreement by defendant to pay plaintiff for one share of stock delivered to defendant by plaintiff at defendant's request.

'4. When the case was filed in the Circuit Court of Dade County, Florida, it was first assigned to Judge J. Gwynn Parker. On November 21, 1972, an evidentiary hearing was held before Judge Parker on plaintiff's motion to determine plaintiff's right to an accounting; and on November 21, 1972, Judge Parker made an order that the plaintiff was entitled to an accounting. Subsequent to the entry of that order, Judge Parker was transferred to the Probate Division of the Circuit Court of Dade County, Florida, and the case was thereupon assigned to the undersigned Judge.

'5. This Court held non-jury trials on March 12, 1973 and continued on June 5, 1973, at which times the parties presented their evidence.

'FINDINGS OF FACT

'AS TO COUNT I AND COUNT II: The Court makes the following findings of fact:

'1. The plaintiff, JAMES M. RASKIN, was employed in an executive capacity by WELLINGTON ORIENT, INC., a Florida corporation, continuously from March 1, 1969 to some time in January 1970. WELLINGTON ORIENT, INC. was engaged in the business of selling land for other land companies as well as selling its own land; it had offices all over the United States; and it employed several hundred salesmen. WELLINGTON ORIENT, INC. was paying to plaintiff, JAMES M. RASKIN, Eight Hundred Dollars ($800.00) per week as salary, plus an incentive commission of one-half of one percent override on all sales produced by WELLINGTON ORIENT, INC.

'2. Defendant, BERNARD H. HOROWITZ, was the President of WELLINGTON ORIENT, INC. and he was a substantial stockholder in that corporation. During the employment of plaintiff, RASKIN, the defendant, BERNARD H. HOROWITZ, was carrying on negotiations, actively, for the sale of all of the WELLINGTON ORIENT, INC. stock to CAVANAUGH LEASING CO., and it was to the financial advantage and benefit of defendant, HOROWITZ, that the sale should go through. During those negotiations by defendant, HOROWITZ, for the sale of the WELLINGTON ORIENT, INC. stock to CAVANAUGH LEASING CO., the defendant, HOROWITZ, had neglected to tell CAVANAUGH LEASING CO. that the plaintiff, JAMES M. RASKIN, had an employment agreement with WELLINGTON ORIENT, INC., whereby plaintiff, RASKIN, was entitled to an override of one-half of one percent of all land sales produced by WELLINGTON ORIENT, INC., as an incentive commission. When plaintiff, RASKIN, learned that defendant, HOROWITZ, had neglected to advise CAVANAUGH LEASING CO. of plaintiff, RASKIN's, right to the incentive commission, plaintiff, RASKIN, demanded of defendant, HOROWITZ, protection for his override commission. Thereupon, it being to defendant, HOROWITZ's financial advantage and benefit that the sale of the stock should go through, defendant, HOROWITZ, and plaintiff, RASKIN, signed a letter agreement, dated October 30, 1969, which was introduced at the non-jury trial before the undersigned Court as plaintiff's exhibit 1 (and which had also been introduced at the previous hearing before Judge Parker on the question of plaintiff's entitle to an accounting), whereby defendant, HOROWITZ, agreed to pay to plaintiff, RASKIN, as an incentive commission a sum equal to one-half of one percent of the net land sales produced by WELLINGTON ORIENT, INC. commencing on the 1st day of March 1969 to December 31, 1969. It was also agreed in that letter agreement that said one-half of one percent incentive commission would be paid by defendant, HOROWITZ, to plaintiff, RASKIN, in stock of CAVANAUGH LEASING CO., owned by defendant HOROWITZ, and that payment would be made 120 days after December 31, 1969, at the the market value of the stock equalling the payment due.

'3. The sale of the WELLINGTON ORIENT, INC. stock to CAVANAUGH LEASING CO. was consummated in or about February 1970, at which time defendant, HOROWITZ, received several thousand shares of CAVANAUGH LEASING CO. stock.

'4. The net sales produced by WELLINGTON ORIENT, INC. from March 1, 1969 to December 31, 1969 totalled Twenty-Two Million Four Hundred Eleven Thousand Seventy-Six Dollars ($22,411.076.00). The Court finds that the plaintiff, JAMES M. RASKIN, was entitled to a sum equal to one-half of one percent of that amount, or One Hundred Twelve Thousand Fifty-Five Dollars and $38/100 ($112,055.38). Defendant, HOROWITZ, did not turn over any of the CAVANAUGH LEASING CO. stock to plaintiff, RASKIN, within 120 days after the 31st day of December 1969, namely, the 1st day of May 1970, nor at any time thereafter; nor did defendant, HOROWITZ, pay to plaintiff, RASKIN, the $112,055.38 to which the Court finds that plaintiff, RASKIN, was entitled under the terms of the aforesaid letter agreement, dated October 30, 1969. Defendant, HOROWITZ, has since disposed of all of his CAVANAUGH LEASING CO. stock.

'AS TO COUNT III: The Court makes the following findings of fact:

'1. In or about the year 1970, plaintiff, JAMES M. RASKIN, owned one share of five of the issued shares of capital stock of WELLINGTON ORIENT, LTD., a Nassau corporation. Defendant, BERNARD H. HOROWITZ, also owned and/or controlled a substantial portion of...