Levine v. Frank, 74-552

• Decision Date: 08 April 1975
• Docket Number: No. 74-552,74-552
• Citation: 311 So.2d 708
• Parties: Howard J. LEVINE, Appellant, v. Robert R. FRANK et al., Appellees.
• Court: Florida District Court of Appeals

Page 708

311 So.2d 708

Howard J. LEVINE, Appellant, v. Robert R. FRANK et al., Appellees.

No. 74-552.

District Court of Appeal of Florida, Third District.

April 8, 1975.

Rehearing Denied May 13, 1975.

Noriega & Bartel, Miami, for appellant.

Carey, Dwyer, Austin, Cole & Selwood and Steven R. Berger, Miami, for appellees.

Before PEARSON, HAVERFIELD and NATHAN, JJ.

PER CURIAM.

Howard J. Levine, plaintiff in the trial court, appeals a directed verdict in favor of the defendants entered during a jury trial, at the close of the evidence presented by the plaintiff. The complaint alleged several counts for damages, including one count for conversion.

The case arose in the following manner: In 1964, one S. Richard Bauman approached the plaintiff, Howard J. Levine, with an offer of 50 per cent in a business venture in Memphis, Tennessee. The plaintiff agreed to participate, and each man put up $3,000 to purchase the parcel of property on which they intended to build a motel. The plaintiff contacted his cousin, the defendant, Robert Frank, a licensed Florida attorney who agreed to incorporate the venture and help get a motel franchise. Defendant Frank performed the said services and received 10 per cent of the plaintiff's stock in payment. At trial, the plaintiff claimed that he gave Frank 10 per cent of his stock for the corporate work and also for personal legal services. Frank denied any personal attorney-client relationship. Thereafter, without advice from defendant Frank, Levine negotiated a sale of his remaining 40 per cent of the corporate stock to Bauman, his partner in the corporation. Frank was an officer of the corporation and he kept the corporate books. Levine and Bauman asked Frank to draft the sales agreement and a note for the purchase price of $40,000 which was signed by Bauman and his wife.

At trial, the plaintiff, Levine, claimed that the agreement contained an escrow agreement whereby the defendant, Frank, agreed to hold plaintiff's stock as escrow agent and not release it to Bauman until the amount of the note plus interest had been paid. Frank claimed that although an escrow agreement was to have been drafted later, it was never written, he never agreed to be the escrow agent and he was never advised not to release the stock. Subsequently, Bauman requested that Frank issue the stock to him as per the sales agreement. Frank, then, as secretary of the corporation, issued 100 per cent of the stock to Bauman and himself in order to obtain secondary financing. It is undisputed that the stock was issued by defendant Frank to Bauman before the note was due and before the note obligation of $40,000 was paid to Levine. The plaintiff instituted litigation on the note in Tennessee, but settled for $12,000 and signed a release of the entire obligation. Thereafter, Levine filed the instant lawsuit against the named defendants in Dade County, Florida. A jury trial was held and after all of the plaintiff's evidence was presented, the defendant moved for a directed verdict, the court granted the motion and this appeal ensued.

On motion for directed verdict, the moving party admits all facts proved by the evidence adduced and every conclusion favorable to the non-moving party that the jury might fairly and reasonably infer from the evidence. Darr v. Aglin, Fla.App.1973, 279 So.2d 62. The evidence...