Paparone v. Bankers Life & Cas. Co., 85-2466

• Decision Date: 08 October 1986
• Docket Number: No. 85-2466,85-2466
• Citation: 11 Fla. L. Weekly 2171,496 So.2d 865
• Court: Florida District Court of Appeals
• Parties: 11 Fla. L. Weekly 2171 Elissa Landi PAPARONE, Appellant, v. BANKERS LIFE & CASUALTY COMPANY, an Illinois corporation, Placid Lakes Corporation, a Florida corporation, and Magna Properties, Inc., a Florida corporation, Appellees.

Page 865

496 So.2d 865

11 Fla. L. Weekly 2171

Elissa Landi PAPARONE, Appellant, v. BANKERS LIFE & CASUALTY COMPANY, an Illinois corporation, Placid Lakes Corporation, a Florida corporation, and Magna Properties, Inc., a Florida corporation, Appellees.

No. 85-2466.

District Court of Appeal of Florida,

Second District.

Oct. 8, 1986.

Gerald F. Richman, Bertha Claire Lee, and J. Wiley Hicks of Floyd Pearson Richman Greer Weil Zack & Brumbaugh, P.A., and William C. Hearon of Law Offices of William C. Hearon, Miami, for appellant.

John W. Frost, II and Hank B. Campbell of Frost & Purcell, P.A., Bartow, for appellees.

PER CURIAM.

This is an appeal from a final summary judgment entered against intervenor Elissa Landi Paparone and in favor of Bankers Life & Casualty Company, Placid Lakes Corporation, and Magna Properties, Inc. (collectively referred to as Bankers). This case has been before this court on two previous appeals, Lake Placid Holding Co. v. Paparone, 414 So.2d 564 (Fla. 2d DCA 1982) (ordering discharge of lis pendens filed by Paparone), and Paparone v. Lake Placid Holding Co., 438 So.2d 155 (Fla. 2d DCA 1983) (reversing summary judgments for Bankers and Lake Placid Holding Company). The facts of the case are set out in the second of those two opinions as follows:

[Lake Placid Holding Company (LPHC) ] entered into an agreement to sell certain land to Gulfstream Citrus, Inc. This agreement was subsequently assigned to Placid Lakes Corporation, who intended to develop the property along with Magna Properties, Inc. Both corporations are related to Bankers. Bankers, in addition to making a large cash payment at closing, assumed several outstanding mortgages on the property and agreed to develop and sell the property. They entered into a profits participation agreement whereby they agreed to pay LPHC twenty-five percent of the pretax profits arising from said development and sale.

Paparone, former spouse of August Tobler who controlled LPHC, was the real estate broker in connection with the sale of the land. LPHC agreed to pay her a real estate commission in the amount of $20,000, plus a sum equal to fifty percent of any monies received by LPHC under the terms of the profits participation agreement.

When it became evident that Bankers was not going to fulfill its obligation of developing and selling the property, LPHC filed an action seeking damages, specific performance, and foreclosure of a vendor's lien. After lengthy negotiations, the parties agreed that the suit would be settled by LPHC reacquiring the property free and clear, by a deed in lieu of foreclosure. Paparone then intervened in the litigation and claimed entitlement to a portion of the damages from Bankers.

The deed in lieu of foreclosure was executed and recorded in accordance with the agreement, and LPHC dismissed its cause of action against Bankers. LPHC then filed a cross-claim against Paparone for declaratory relief. Paparone filed an answer, affirmative defenses, and a cross-claim. In one count of her complaint, she alleged that LPHC and Bankers, with full knowledge of her rights and motion to intervene, wilfully and maliciously conspired to defraud and defeat her rights by settling the litigation amongst themselves and in transferring the subject property in such a manner that would cloud the true nature of the settlement.

The parties filed motions for summary judgment. The court granted appellees' motions finding that there was no genuine issue of material fact because Paparone's claim for a brokerage commission was limited to a particular fund, i.e., profits to be received by LPHC under the profits participation agreement, and said fund never materialized. The court further held that since Paparone had no rights to an additional commission, there was no basis for her allegations that she was defrauded by the parties. Accordingly, Paparone's motion for summary judgment was denied, and her complaint in intervention and her cross-claim were dismissed with prejudice.

438 So.2d 156-7.

In that second, 1983 appeal, this court reversed the summary judgments for Bankers and LPHC on the basis that genuine issues of material fact existed, as follows: (1) whether the fund from which Paparone was entitled to receive her commission ever came into existence by the substitution of the land for the money, and (2) if the fund did not come into existence, was the creation of the fund prevented by the unreasonable refusal to act or some other wrongful action by Bankers and LPHC? As part of the latter issue, this court also found a question of fact "as to whether or not the deed was given because of...