Oceanic Intern. Corp. v. Lantana Boatyard, 80-1051

• Decision Date: 12 August 1981
• Docket Number: No. 80-1051,80-1051
• Citation: 402 So.2d 507
• Parties: OCEANIC INTERNATIONAL CORPORATION, a Washington, D. C., Corporation, Appellant, v. LANTANA BOATYARD, a Florida Corporation, Appellee.
• Court: Florida District Court of Appeals

Page 507

402 So.2d 507

OCEANIC INTERNATIONAL CORPORATION, a Washington, D. C., Corporation, Appellant, v. LANTANA BOATYARD, a Florida Corporation, Appellee.

No. 80-1051.

District Court of Appeal of Florida, Fourth District.

Aug. 12, 1981.

Rehearing Denied Sept. 9, 1981.

John L. Avery, Jr., West Palm Beach, for appellant.

David H. Baker, of Alley, Maass, Rogers, Lindsay & Chauncey, Palm Beach, for appellee.

HERSEY, Judge.

This was an action for commissions alleged to be due appellant for procuring a purchaser for boats to be constructed by appellee. The trial court found that appellant had been paid in full and entered the final judgment from which this appeal is taken.

The correctness of the judgment depends upon factual findings made by the trial court. Only if those findings are unsupportable do questions of law arise. Consequently we outline first the uncontroverted facts.

On October 1, 1976, Delex Incorporated entered into a marketing agreement with appellee, Lantana Boatyard, Inc. This written contract was for a term of one year and included the following provisions material to the issues raised in this lawsuit:

1. For marketing services and expenses related to sales both foreign and U. S. Government, DI (Delex Incorporated) will be paid by Lantana Boatyard, Inc. a monthly retainer of $1,000.00.

2. For marketing services and expenses related to sales both foreign and U.S. Government, DI will be paid 5% of the F.O.B. Lantana Boatyard, Inc. price, exclusive of sales tax for sales procured by DI or re-orders of the same except where otherwise specifically agreed....

....

4. DI agrees not to represent directly or indirectly a competitive line, and shall adhere to, cooperate with, and comply with manufacturer's sales policies and programs. All orders submitted to DI shall be subject to final acceptance or rejection by LBY.

The contract was negotiated on behalf of Delex by Michael Infante who was a one-third owner and vice-president (ultimately president) of that corporation. It was Infante who was actually to undertake marketing of vessels for Lantana and he did in fact accomplish sales of a number of bridge erection boats to the government of Argentina.

Infante introduced the Lantana people to an individual named Dell'Orto who acted as a go-between with the Argentinian government. Through him there were authenticated sales of thirty-three bridge erection boats: an original order for ten boats with an option for six more (which eventually was taken up for a total of sixteen) at $98,000 per boat; a second order for ten boats at $116,750 per boat; and a third order for seven at $146,923 per boat. Additional orders of the same type of craft were contemplated by all parties involved, at least to the extent of an additional order for seven boats.

Before concluding the recitation of undisputed facts it is necessary to treat two areas in which the facts and the legal effect of those facts are disputed, in order to understand the significance of subsequent events.

Just prior to submission of the first bid to the Argentinian government for bridge erection boats, there was at least one conference to discuss commissions that would have to be taken into account in computing the bid. Michael Infante was present for Delex, Dell'Orto represented himself and Elliott Donnelly, president of Lantana Boatyard, Inc., represented that corporation. It is undisputed that Dell'Orto, who had a written contract which entitled him to a seventeen percent commission, agreed to reduce this to fifteen percent. It was Donnelly's testimony that Infante agreed to accept three thousand dollars per boat in lieu of the five percent commission called for in the Delex marketing agreement. Infante denies any such modification of the written contract. The reason given by Donnelly for the reductions was to permit his corporation to make a bid that would be competitive. When the initial figures were eventually revised and a firm bid submitted, Dell'Orto actually received more money from his fifteen percent than he would have received under the original pricing with his seventeen percent commission intact. On the second order for ten boats Dell'Orto was paid commissions of twenty-two percent. On the third order of seven boats, thirty-five percent was paid to Dell'Orto. Interestingly, not only did his percentage increase tremendously, but the price of the vessels increased from $98,000 to $116,750 to $146,923 on the respective orders. Thus, Dell'Orto was paid a commission of $14,700 on the first boat sold and $51,423 on the last boat sold.

Delex, on the other hand, would have earned $4,900 and $7,346 respectively but for the purported modification to a set $3,000 per vessel.

We note again that the reason for the alleged modification was to enable Lantana to submit a competitive bid. It is a little difficult to accept at face value that the success or failure of the bid depended on a $1,900 per boat differential in the Delex commission in view of the Dell'Orto commissions. We also note that appellee, Lantana, has billed roughly $4,200,000 for bridge erection boats as a direct result of the initial contact made by and through Infante as the controlling principal of Delex.

The second point of contention involves the demise of Delex and the substitution of appellant, Oceanic, as marketing representative of Lantana. The extent and effect of that attempted substitution is strenuously contested in the record.

Subsequent to finalization of the initial order for sixteen boats, Delex became involved in a potential guilt by association situation unrelated to the boat sales. In order to avoid possible repercussions Infante approached Donnelly with the suggestion that Delex be phased out as marketing representative and another corporation controlled by Infante, appellant, Oceanic, be substituted in its place. Infante insists that what was intended and what was accomplished was an assignment of the entire interest of Delex in the marketing agreement to Oceanic. Donnelly, on the other hand, testified that it was his intention to agree to pay to Infante, through Oceanic, only the commission remaining due and owing on the first order of boats. In Donnelly's view the total commission was $48,000, some of which had been paid. Infante contends that the give percent was due from the initial order, together with commissions for subsequent sales by virtue of assignment of the contract to Oceanic.

A letter of termination was written to Delex in 1977. Infante testified that termination was effected at his suggestion to accomplish the substitution of Oceanic. A new, but substantially identical, marketing agreement was submitted by Oceanic to Lantana for signature. It was never signed.

Lantana, apparently on the advice of counsel, insisted upon a general release from Delex before it would agree to pay Oceanic. Such a release running to Infante and Lantana was obtained from Delex by Infante and submitted to Lantana.

Thereafter Lantana made monthly retainer payments, actually advances against commissions, directly to Oceanic.

The point in dispute is whether Oceanic succeeded to the entire interest of Delex under the original marketing agreement, including entitlement to commissions for future orders from the same customer for the same type of vessel, or whether, upon receipt of an amount which, when added to sums previously received by Delex, totalled $48,000, the liability of Lantana to Oceanic was fully satisfied.

The final major controversy involves that portion of the original marketing agreement which prohibited Delex from representing "... directly or indirectly a competitive line ...." It is appellee's position that appellant violated that covenant so that, even if otherwise entitled to commissions on sales after the first order, that entitlement was forfeited by virtue of the violation.

In order to complete the picture, mention of certain additional undisputed facts is necessary.

There is no serious dispute concerning the payment by Lantana to Delex and Oceanic of the sum of $48,000. The books of Lantana, however, apparently reflect $1,000 still unpaid.

On April 28, 1978, Lantana directed a letter of termination to Oceanic "... to terminate the marketing agreement with your firm." Payment of commissions earned was to be made, but "... our current arrangement for your services will terminate June 1, 1978."

Statements of account were rendered to Oceanic by Lantana on at least two occasions in 1978 showing total commissions due of $48,000. These were not promptly objected to by Oceanic.

On these facts the trial court entered a final judgment containing the following conclusions pertinent to the issues on appeal:

5. At no time did DELEX INCORPORATED ever assign to OCEANIC INTERNATIONAL its rights under the October 1, 1976, agreement with LANTANA BOATYARD, INC.

6. At no time did Defendant, LANTANA BOATYARD, INC., ever enter into a written agreement with OCEANIC INTERNATIONAL CORPORATION for the marketing services and sale of boats.

7. Following the termination of the agreement with DELEX INCORPORATED, LANTANA BOATYARD, INC., received an order from the Argentine government for 16 boats in November, 1977.

8. LANTANA BOATYARD, INC., through a check dated February 23, 1978, in the amount of $4,000.00 paid OCEANIC INTERNATIONAL CORP. monthly retainer payments due it for the months October, 1977, through January, 1978. Contained in that letter was a statement of account showing total commissions due of $48,000.00 for the sale of boats. Another check was sent OCEANIC INTERNATIONAL CORP. by LANTANA BOATYARD, INC., on May 10, 1978, in the amount of $4,000.00 for monthly retainer payments for the months February 1978, through May, 1978. On May 2, 1978, LANTANA BOATYARD, INC., sent OCEANIC INTERNATIONAL a check for $5,500.00 for commissions due and further sent a statement as of that date showing the total amount of commissions due on future shipments...