Newport Seafood, Inc. v. Neptune Trading Corp.

• Decision Date: 24 October 1989
• Docket Number: No. 89-726,89-726
• Citation: 14 Fla. L. Weekly 2503,555 So.2d 376
• Parties: 14 Fla. L. Weekly 2503, 11 UCC Rep.Serv.2d 584 NEWPORT SEAFOOD, INC., Appellant, v. NEPTUNE TRADING CORPORATION, a Florida corporation, and Alfredo Alvarez, Appellees.
• Court: Florida District Court of Appeals

Page 376

555 So.2d 376

14 Fla. L. Weekly 2503, 11 UCC Rep.Serv.2d 584

NEWPORT SEAFOOD, INC., Appellant, v. NEPTUNE TRADING CORPORATION, a Florida corporation, and Alfredo Alvarez, Appellees.

No. 89-726.

District Court of Appeal of Florida,

Third District.

Oct. 24, 1989.

Rehearing Denied Feb. 2, 1990.

Sobel & Sobel, and Martin A. Feigenbaum, Miami, for appellant.

Zemel and Kaufman, and Marc Birnbaum, Miami, for appellees.

Before NESBITT, LEVY and GERSTEN, JJ.

GERSTEN, Judge.

Appellant, Newport Seafood, Inc. (Newport Seafood), appeals an order of final summary judgment in favor of appellee, Alfredo Alvarez (Alvarez), on Newport Seafood's claims against Alvarez and Neptune Trading Corporation (Neptune Trading) for tendering worthless checks. ¹ We reverse and remand.

Newport Seafood sold and delivered seafood products to Neptune Trading, which were evidenced by invoices and other statements addressed to Neptune Trading. In payment for the seafood products, three checks were tendered to Newport Seafood totalling $10,410.30. The checks were drawn on a Neptune Trading bank account, had "NEPTUNE TRADING CORPORATION" imprinted on the top, and were signed in script by Alvarez, "A. Alvarez." Alvarez was Neptune Trading's President.

After the checks were dishonored, Newport Seafood brought suit against Neptune Trading and Alvarez, individually, raising, inter alia, worthless check claims. Alvarez answered Newport Seafood's complaint and subsequently moved for summary judgment. Alvarez asserted in his motion for summary judgment that the invoices and other exhibits attached to Newport Seafood's complaint established that the seafood products were sold and delivered to Neptune Trading, and not to Alvarez. Alvarez also asserted that the checks were ambiguous as to the capacity in which he had signed them, in a representative capacity only. With his motion, Alvarez submitted an affidavit averring that he had signed the checks only in his capacity as President of Neptune Trading, and that he had never agreed to be personally liable to Newport Seafood on the checks.

Newport Seafood then moved for summary judgment against Neptune Trading and Alvarez, attaching affidavits in support from two of its officers. The trial court denied both Alvarez's and Newport Seafood's motions for summary judgment. Subsequently, Newport Seafood moved for partial summary judgment against Neptune Trading only on its worthless check and other claims. Neptune Trading did not object to the entry of judgment against it. Consequently, the trial court entered final summary judgment in Newport Seafood's favor, against Neptune Trading.

At this juncture, Alvarez renewed his motion for summary judgment. This time Alvarez asserted that the entry of judgment against Neptune Trading precluded, as a matter of law, entry of judgment against him, individually. The trial court entered final summary judgment in Alvarez's favor, from which Newport Seafood brings this appeal.

Newport Seafood raises three key contentions on appeal: (1) that the trial court erred in entering summary judgment in favor of Alvarez because an individual and his corporate principal, may both be held liable under a worthless check theory, where the individual has signed without indicating his representative capacity; (2) that the trial court erred in entering summary judgment in favor of Alvarez on its worthless check claim because under section 673.403(2), Florida Statutes (1987), an individual may be held personally liable on a check when he signs without indicating his representative capacity, and there is no agreement between the parties to exempt him from such liability; and (3) that judgment should be entered in its favor, against Alvarez, as a matter of law.

With respect to whether Alvarez, as well as his corporate principal, Neptune Trading, may both be held responsible to Newport Seafood, this court has recognized that a corporate principal and its representative may both be held liable on a worthless check claim. Provecasa v. Gemini Associated Corporation, 532 So.2d 1106 (Fla. 3d DCA 1988).

We emphasize, however, that in order for a representative to be held liable, his personal obligation under the checks must be established. Section 673.403(2), Florida Statutes (1987), of the Uniform Commercial Code, and cases interpreting this statute, govern a representative's personal liability on worthless checks. Section 673.403(2), Florida Statutes, provides that an authorized representative who signs an instrument without indicating his representative capacity is personally obligated thereon "[e]xcept as otherwise established between the immediate parties."

In this case, Alvarez executed the checks without indicating his representative capacity. Pursuant to this statute, Alvarez is personally obligated on the checks "[e]xcept as otherwise established between the immediate parties." § 673.403(2)(b), Fla.Stat. (1987).

Parol evidence is...