Rolls v. Bliss & Nyitray, Inc.

• Decision Date: 03 November 1981
• Docket Number: 80-260,Nos. 80-82,s. 80-82
• Citation: 408 So.2d 229
• Court: Florida District Court of Appeals
• Parties: Ernest L. ROLLS, Samuel A. Sardinia, and Slip-Form International, Ltd., Appellants, v. BLISS & NYITRAY, INC., and Cory DeVries, Appellees.

Page 229

408 So.2d 229

Ernest L. ROLLS, Samuel A. Sardinia, and Slip-Form International, Ltd., Appellants, v. BLISS & NYITRAY, INC., and Cory DeVries, Appellees.

Nos. 80-82, 80-260.

District Court of Appeal of Florida, Third District.

Nov. 3, 1981.

On Rehearings Feb. 5, 1982.

William A. Ingraham, Jr. and Bertram A. Sapurstein, Buchbinder & Elegant and Harris Buchbinder, Miami, for appellants.

Floyd, Pearson, Stewart, Richman, Greer & Weil and Bertha Claire Lee and Gerald F. Richman, Miami, for appellees.

Before HENDRY, SCHWARTZ and FERGUSON, JJ.

HENDRY, Judge.

This is a consolidated appeal from a final judgment and an order taxing costs entered against appellants, defendants in the Circuit Court. Plaintiffs, appellees herein, brought suit seeking relief for breach of contract and fraud stemming from what may be characterized simply as a dispute between architects and builders engaged in an overseas construction project. The trial court, sitting without a jury, found for plaintiffs on the fraud count and assessed compensatory and punitive damages against defendants. Contractual relief was denied plaintiffs, however, the court holding that the Florida architect-licensing statute operated to bar this cause of action due to the fact that plaintiff Cory DeVries was not licensed as an architect in this state. We find error in the denial of plaintiffs' contractual remedy and further find that error was committed in awarding damages based on plaintiffs' cause of action for fraud. We therefore reverse the final judgment and remand for entry of judgment on the contract in accordance with the views expressed herein.

Plaintiff Bliss & Nyitray, Inc., a local engineering firm, was searching for work outside of the United States during the "building crunch" of 1974-75. Robert Monroe, a previous acquaintance of Nyitray, contacted Nyitray concerning some construction projects in Algeria. (Monroe is not a party to this action; he was an expert in the slip-form method of construction, and later became President of defendant Slip-Form International, Ltd.) They discussed modifying certain designs to the slip-form method. Nyitray agreed to assist in finding an architect who spoke French and understood the metric system and European techniques useful in Algeria. He introduced Cory DeVries, an architect with these qualifications, and who was licensed in the Bahamas and several other foreign countries, to Monroe. DeVries worked with Monroe and prepared some preliminary plans. Bliss & Nyitray reviewed these plans for structural applications before Monroe returned to Algeria to conduct negotiations.

Monroe began to arrange with So. Tra. Wa., an agency of the Algerian government for a contract to build a low cost government housing project-the "Bainem project"-of some 400 residential units for approximately six million dollars. Monroe sought financial backing from defendants Ernest Rolls and Samuel Sardinia, and introduced them to Nyitray in late 1975. Sardinia arranged for a company in which he was part-owner to invest in the corporation to be formed and Rolls contributed his own capital. Sardinia and Rolls incorporated Slip-form International, Ltd. in Washington, D.C. on February 5, 1976.

On July 7, 1976, plaintiffs Bliss & Nyitray, Inc. and Cory DeVries as a joint venture contracted with Slip-form to perform the design phase of the Bainem project for $150,000. This contract was executed by DeVries, "Architect", and Bliss & Nyitray, Inc., "Engineers", jointly termed "Architect". It provided for DeVries to immediately begin preparation of the architectural portion of the contract documents, which involved adaptation of plans prepared by an Italian architectural firm to the slip-form technique. This work was to continue for four weeks, at which time, if no agreement had been executed between So. Tra. Wa. and Slip-form, DeVries could terminate work. An initial payment of $30,000 provided in the contract was to be made at the time of execution of an agreement between Slip-form and So. Tra. Wa., at which time the subject contract would automatically go into effect. Further payments were to be made, and portions of the plans were to be completed, within specified periods from the time at which the contract became effective. The contract additionally provided for arbitration of disputes arising therefrom, and that the governing law would be that of the principal place of business of the "Architect". (The office of the "Architect" is described in the contract as being in Miami Beach, Florida, the location of the Bliss & Nyitray firm.) Provisions were also included for interest and attorneys' fees in connection with non-payment of any sums due the "Architect" under the contract.

Since Slip-form did not execute a contract with So. Tra. Wa. within the four week period, DeVries stopped work. (An agreement between Slip-form and So. Tra. Wa. was later executed in March, 1977, and went into effect in December, 1977.) However, plaintiffs were persuaded by Monroe to continue preparation of the plans so that he could submit the 25 percent completed portion of the design phase to So. Tra. Wa., and two payments totalling $11,000 were made to plaintiffs in September and December, 1976. The 25 percent portion of the plans was submitted to Monroe in December, 1976.

By an addendum dated February 24, 1977 to their contract, plaintiffs and Slip-form, by Monroe as President, agreed to changes in the payment schedule tied to revised dates for submission and acceptance of each phase-25%, 50%, 75%, 100%-of the plans. Testimony of plaintiffs indicated that they entered into the Addendum pursuant to Monroe's oral representations that they would be paid from monies Slip-form received from So. Tra. Wa., which payments were to be made on receipt and acceptance of 25%, 50%, 75% and 100% of the design plans.

In late March, 1977, Nyitray and DeVries personally delivered the 50% completed plans to Slip-form in Algeria. However, plaintiffs did not receive the $40,000 payment provided in the Addendum for this portion of the plans, and made continual demands for payment. Although testimony appears conflicting, Nyitray testified he was told by defendant Rolls that plaintiffs would receive the $40,000 as soon as Slip-form received a second payment from So. Tra. Wa. Plaintiffs continued to prepare the 75% portion of the plans while demanding payments due. Rolls authorized payment of an additional $5,000 on account. DeVries went to Algeria near the end of April, 1977, to deliver the 75% portion pursuant to the Addendum. He delivered the plans based on Monroe's representations to Nyitray that the second payment from So. Tra. Wa. was being expedited and plaintiffs would receive the $40,000 as soon as the monies arrived from Algeria.

At a meeting held June 15, 1977, between plaintiffs, Monroe and Rolls (testimony was conflicting as to whether Sardinia was also present), plaintiffs advised that the plans were nearing completion but would not be submitted until payment was received. According to Nyitray's testimony, Monroe and Rolls denied having received any monies from So. Tra. Wa. in May and said that same had been "lost" at the Chase Manhattan Bank. Plaintiffs received two $5,000 payments as a result of this meeting.

On July 2, 1977, DeVries delivered the 100% completed plans to Slip-form in Algeria. Plaintiffs learned at the end of July from So. Tra. Wa.'s former agency-head that all payments due Slip-form had been made, but were unable to reconfirm this information.

In late August or early September plaintiffs received a copy of a letter from C.T.C., an Algerian government agency with final approval authority for the project, requesting revisions to the 100% plans, which they then undertook to make. Plaintiffs met with defendants in September and discussed the revisions, as well as Slip-form's failure to make payments required by the contract and Addendum. Although contradicted by Sardinia's testimony, Nyitray testified that Sardinia denied Slip-form had received certain payments from So. Tra. Wa. Plaintiffs requested that Sardinia and Rolls personally guarantee payment before they would release the final revised plans. This guarantee was refused.

Plaintiffs did succeed, however, in obtaining another addendum agreement, dated September 30, 1977, and signed by Sardinia as Vice-President of Slip-form, which provided that Slip-form would pay $5,000 on receipt of "their next payment on account Bainem project, but no later than November 1, 1977," and payment in full according to the terms of the contract immediately on receipt of the final payment from So. Tra. Wa. for the design phase. (This final payment was due Slip-form 30 days from obtaining C.T.C. approval for the structural plans.) Nyitray testified that had he known that Slip-form had already received and spent the second and third payments from So. Tra. Wa., totalling some $300,000, they would not have delivered the completed, revised plans. (Plaintiffs received only the $5,000 payment.)

In mid-December, 1977, Slip-form transmitted to plaintiffs a letter from C.T.C. requesting more information as to a product specified in the plans, to which plaintiffs responded directly. In late January, 1978, the Algerian government agency wrote Slip-form, approving plaintiffs' suggestions subject to testing which was the responsibility of Slip-form. Plaintiffs had at this time fully performed their part of the subject contracts.

In mid-February, 1978, Rolls and Sardinia met with Nyitray and informed him of final approval subject to testing and sought his advice regarding conducting the tests, which he gave them. They then stated for the first time that the second and third payments from So. Tra. Wa. had been received in May and July, 1977, but stated by way of explanation that Monroe had taken the monies to Switzerland. (Monroe resigned from Slip-form in February, 1978.)

On March 30, 1978, plaintiffs billed ...