POPULAR BANK v. RC ASESORES FINANCIEROS

• Citation: 797 So.2d 614
• Decision Date: 10 October 2001
• Docket Number: No. 3D00-1443.,3D00-1443.
• Parties: POPULAR BANK OF FLORIDA, Appellant, v. R.C. ASESORES FINANCIEROS, C.A., Appellee.
• Court: Court of Appeal of Florida (US)

797 So.2d 614

POPULAR BANK OF FLORIDA, Appellant, v. R.C. ASESORES FINANCIEROS, C.A., Appellee.

No. 3D00-1443.

District Court of Appeal of Florida, Third District.

October 10, 2001.

Steel, Hector & Davis, LLP, and Lewis F. Murphy, and Wendy S. Leavitt, and Gregory C. Ward, Miami, for appellant.

Stack, Fernandez, Anderson, Harris & Wallace, P.A. and Brian J. Stack, Miami, for appellee.

Before COPE, GERSTEN, and GREEN, JJ.

GREEN, J.

This is an appeal from a final judgment entered in a breach of contract case after a jury trial as well as a cross-appeal from the dismissal of a claim for tortious interference with a business relationship. We affirm the final judgment and reverse the dismissal of the tortious interference claim.

Appellant, Popular Bank of Florida ("Popular Bank"), is chartered under the laws of the state of Florida and is based in Miami, Florida. Popular Bank maintains accounts in Florida for both domestic and foreign depositors, including those living in Venezuela. Prior to 1987, Popular Bank provided a branch office ("Branch 8") in Caracas, Venezuela, to service its Venezuelan depositors. When, however, it decided to close Branch 8 in 1987, Popular Bank began contracting out its banking service functions, thus commencing its relationship with appellee, R.C. Asesores Financieros, C.A. ("RCAF"). Popular Bank entered into a contract with RCAF to service the Branch 8 depositors located in Venezuela. At the time, RCAF was a Venezuelan corporation owned and controlled by Frank Ratmiroff, a former Popular Bank officer and, to a lesser extent, his wife, Ivonne.

According to the terms of the original contract executed by the parties, RCAF was to provide traditional banking services to Popular Bank's Branch 8 depositors and provide various consulting services to Popular Bank concerning the investment climate in Venezuela. In return, Popular Bank agreed to pay RCAF based upon an estimated annual budget to cover operation costs.

In 1998, the parties amended their original contract. In addition to expanding the scope of services to be provided by RCAF, the amended contract altered the way Popular Bank compensated RCAF; provided an exclusivity or non-compete provision; and made provisions for remuneration in the event Popular Bank chose to terminate the agreement.¹ After the execution of this amended agreement, RCAF's founder and president, Frank Ratmiroff, was diagnosed with a severe medical condition which later proved to be fatal. Prior to his death, however, Mr. Ratmiroff decided to familiarize his wife, Ivonne, with RCAF's business operations and invited Ricardo Zuloaga, Jr. ("Zuloaga"), the son of a trusted Popular Bank director, to become a 25% shareholder in RCAF. Mr. Ratmiroff died in 1992, at which time his widow, Ivonne, immediately assumed the position of RCAF's president.

Popular Bank and RCAF operated under the amended contract for approximately six years. Meanwhile, the Branch 8 deposit base continued to grow under Ivonne Ratmiroff's leadership. Popular Bank provided RCAF with monthly contract statements detailing the commissions paid by Popular Bank to RCAF for the preceding month. Popular Bank also provided monthly statements for RCAF's corporate bank account, listing all credits and debits to and from RCAF's accounts. Although the contract statements contained boxes where Popular Bank could have recorded the special transaction fees paid to RCAF, the bank left almost all of these boxes empty. Rather than a monthly itemization and payment of transaction fees, the bank provided RCAF with advices of credit which accompanied the bank statements. These advices served to inform RCAF of when Popular Bank had credited its bank account with the special transaction fees.

After years of performance under the amended contract, a dispute arose between the parties that was wholly unrelated to the bank's payment of fees under the contract. The dispute escalated and, on or about April 1, 1996, while Mrs. Ratmiroff was visiting South Florida, the bank summoned her to its offices in Miami and gave its written notice terminating RCAF as Popular Bank's agent in Venezuela. The termination was to become effective 90 days later (i.e. July 1, 1996), pursuant to Section 9 of the 1989 amended contract. At that time, Mrs. Ratmiroff was also informed of the bank's appointment of Zuloaga as RCAF's replacement.

Thereafter, it is undisputed that the bank failed to pay RCAF the service fees and termination adjustment fees under the contract. As a result, RCAF filed the instant action against the bank. The five count second amended complaint alleged: (1) breach of contract; (2) breach of implied duty of good faith; (3) tortious interference of an advantageous business relationship; (4) declaratory relief; and (5) tortious interference with RCAF's relationship with Zuloaga. Counts two, three and five were dismissed by the trial court prior to trial. Additionally, RCAF filed a motion for partial summary judgment on count IV for declaratory relief for a determination of whether the exclusivity provision was enforceable. Prior to trial, the court granted this motion based upon its conclusion, among other things, that Popular Bank's duty to pay fees under the termination provision and RCAF's duty to adhere to the exclusivity provision were interdependent. Thus, because Popular Bank stipulated that it had ceased payment of the fees, RCAF was released from the exclusivity provision effective July 1, 1996 (the end of the 90 day notice period). The only remaining count on RCAF's complaint was count I for breach of contract. In response to the breach of contract complaint, Popular Bank filed a counter-claim alleging: (1) breach of the exclusivity provision of the 1989 amendment; (2) breach of a separate courier contract; (3) RCAF's tortious interference with Popular Bank's relationship with its Venezuelan depositors; and (4) breach of duty of good faith. Prior to trial, the court dismissed Popular Bank's claims for tortious interference and breach of good faith. Popular Bank voluntarily dismissed its claim for breach of the courier contract. Thus, the only remaining claim for trial on the counter-claim was for breach of the exclusivity provision.

At trial, Popular Bank moved for a directed verdict on various grounds at the close of RCAF's case. That motion was denied. During its case in chief, Popular Bank voluntarily dismissed its counter-claim alleging breach of the exclusivity provision. At the close of all the evidence, Popular Bank renewed its motion for a directed verdict, which was again denied. RCAF moved for a partial directed verdict on the issue of liability, which the trial court denied.

During the trial, RCAF requested the jury to award $270,628, which included unpaid service fees for the remaining three months of the contract (i.e. April to June) plus termination fees, along with $451,303 in additional special transaction fees going back five years. The jury returned its verdict finding that Popular Bank had breached the 1989 amendment, and awarded RCAF $270,000 in unpaid service and termination fees, plus $500,000 in unpaid special transaction fees. After the parties stipulated to the calculation of prejudgment interests, the court entered a final judgment pursuant to the jury's verdict. Thereafter, Popular Bank filed a motion to amend judgment pursuant to Rule 1.530(g), Florida Rules of Civil Procedure, requesting a remittitur of the jury's award of $500,000 for the special transaction fees. The bank argued that the award of these fees was completely speculative and contrary to the $451,303 estimated figure submitted by RCAF's expert witness. The trial court denied the motion and this appeal followed.

On the main appeal, Popular Bank raises three issues. First, it asserts that the trial court erred when it denied the motion for directed verdict on RCAF's claim for special transaction fees on the grounds that RCAF waived its rights to such fees. Alternatively, if there had been no waiver, Popular Bank asserts that the trial court erred when it denied its request for remittitur of the jury's award for special transaction fees by $48,697. Finally, Popular Bank maintains that the trial court erred when it denied its motion for directed verdict on RCAF's claim for unpaid service fees and termination adjustment fees, pursuant to the doctrine of "election of remedies." By way of a cross-appeal, RCAF contends that the trial court erred in dismissing its claim against the bank for tortious interference with its advantageous business relationship for failure to state a cause of action.

As for the main appeal, we conclude first that there was no error in the trial court's refusal to grant either a directed verdict or a judgment notwithstanding the verdict in favor of Popular Bank on the issue of RCAF's waiver of its claimed fees. The basis of this motion essentially was that RCAF waived its rights to certain special transaction fees by failing to object to their non-payment and accepting the monthly contract and bank statements for more than eighty (80) months. Assuming, without deciding, that Popular Bank properly raised this waiver issue as an affirmative defense² and/or this issue was tried by consent of the parties below, we find no reversible error in the trial court's denial of the bank's motion for directed verdict.

As both parties recognize, waiver is the intentional or voluntary relinquishment of a known right and may be inferred from conduct or acts putting one off his guard and leading him to believe that the demanding party has waived the right sought to be enforced. See Gilman v. Butzloff, 155 Fla. 888, 22 So.2d 263 (1945). Generally speaking, the issue of waiver is one for the fact finder. See Dumor Avionics, Inc. v. Hangar One, Inc., 319 So.2d 95, 97 (Fla. 3d DCA 1975)

; Southeast Grove Mgmt., Inc. v. McKiness, 578 So.2d 883, 886 (Fla. 1st DCA 1991); Hill v. Ray Carter Auto Sales, Inc., ...