Siegel v. Whitaker

• Decision Date: 09 November 2006
• Docket Number: No. 5D05-2652.,5D05-2652.
• Parties: David A. SIEGEL, Appellant, v. Bettie I. WHITAKER, f/k/a Bettie I. Siegel, Appellee.
• Court: Florida District Court of Appeals

946 So.2d 1079

David A. SIEGEL, Appellant, v. Bettie I. WHITAKER, f/k/a Bettie I. Siegel, Appellee.

No. 5D05-2652.

District Court of Appeal of Florida, Fifth District.

November 9, 2006.

Certification Denied December 18, 2006.

Keith Mitnik, of Morgan & Morgan, P.A., Orlando, for Appellant.

Mayanne Downs, of King, Blackwell, Downs & Zehnder, P.A., Orlando, for Appellee.

PLEUS, C.J.

David Siegel appeals from a final judgment entered in favor of his former wife, Bettie Whitaker.

The parties were divorced in 1997 and their financial affairs were resolved pursuant to a Marital Settlement Agreement ("MSA"). The relevant provisions of the MSA provide:

6. SETTLEMENT TERMS. This Marital Settlement Agreement is intended to resolve all business and marital property issues, and all claims between the parties (except for those issues and claims arising under this Marital Settlement Agreement), including but not limited to, any claims for equitable distribution of assets and properties, as well as any claims for alimony. DAS [former husband] shall pay to BIS [former wife] or her estate the sum of $200,000,000.00 in consideration for which BIS shall transfer, convey, and assign to DAS all of her stock and property interests in Central Florida Investments, Inc. ("CFI"), Westgate Resorts, Ltd. ("Resorts"), their related and affiliated entities identified as signatories to that certain Stock Pledge and Escrow Agreement executed by the parties of even date herewith, and all other entities, marital properties and assets that are owned either jointly or individually by DAS and BIS (except those specifically reserved to BIS as provided for elsewhere in this Settlement Agreement), which foregoing entities are hereinafter referred to singly or in the aggregate as the "CFI Entities."

. . . .

7.(b) Transfer of Properties. The balance of the total settlement amount . . . shall be satisfied by the transfer, conveyance and assignment by DAS to BIS . . . of all right, title, or interest that he has or may have in the following marital properties: (1) The Chase Road House . . ., together with all of its contents, motor vehicles and boats usually found on or about said real property.

Prior to their divorce, the parties resided at the Chase Road home, from 1994, when it was completed, to October, 1996. In 1999, the former wife filed a lawsuit in Orange County Circuit Court against Capri Homes, Inc., general contractor on the home, and a consultant, Mario Prieto, alleging construction defects in installation of the windows at the Chase Road residence. Her claim included counts for breach of implied warranty, breach of oral contract, and fraudulent inducement based on the design and construction of the home.

The former husband did not seek to intervene in the Capri/Prieto litigation but instead, in June 2004, filed a three-count complaint against the former wife alleging that the Capri/Prieto claim was a chose in action which belonged to him under the MSA. The former husband alleged breach of the MSA, sought injunctive relief, and asked for a constructive trust in his favor in the amount recovered by the former wife.

The former wife answered denying that her former husband was entitled to relief, and filed a motion to dismiss with prejudice or alternative motion for judgment on the pleadings.

The former husband interposed a motion for summary judgment which took the position that reference in the MSA to the Chase Road home was insufficient as a matter of law to grant the former wife any rights to the Capri/Prieto claim. According to the former husband, because the Capri/Prieto claim was not specifically referenced in the MSA as an asset to be retained by the former wife, he was entitled to the claim.

The Capri/Prieto lawsuit was settled in 2005. The trial court entered an order granting the former wife's motions and denying the former husband's motion. The court noted that the former husband had actually filed an affidavit in the Capri/Prieto litigation asserting that the claim was time-barred. The court concluded that the former wife's construction of the MSA was more persuasive, that the former husband's transfer of all his "right, title or interest" in the Chase Road house included whatever right he may have had in the chose in action related to the house.

This court applies the de novo standard of review where the trial court grants judgment as a matter of law. See, e.g., Martinez v. Florida Power & Light Co., 863 So.2d 1204 (Fla.2003) (granting motion for judgment on the pleadings); Rittman v. Allstate Insurance Co., 727 So.2d 391 (Fla. 1st DCA 1999) (dismissing complaint for failure to state cause of action).

In passing on a motion for judgment on the pleadings made by a defendant, all well-pleaded material allegations of the complaint and all fair inferences to be drawn therefrom are taken as true and the inquiry concerns whether the plaintiff has stated a viable cause of action. Martinez. The applicable test is the same as if the defendant made a motion to dismiss for failure to state a cause of action. Henao v. Professional Shoe Repair, 929 So.2d 723 (Fla. 5th DCA 2006). A motion for judgment on the pleadings is decided only on the pleadings and attachments thereto and may be granted only if the movant is entitled to judgment as a matter of law. Thompson v. Napotnik, 923 So.2d 537 (Fla. 5th DCA 2006).

The former husband initially argues that the former wife impermissibly relied entirely on allegations contained in her answer and affirmative defenses in obtaining judgment on the pleadings. See Jaramillo v. Dubow, 588 So.2d 677 (Fla. 3d DCA 1991) (defendant cannot obtain judgment on the pleadings on basis of allegations contained in his or her answer or affirmative defenses since such allegations are deemed denied and taken as false). This contention, however, ignores the fact that the former husband, in his complaint, quotes from paragraph 7(b) of the MSA. The former husband additionally attached the MSA as an exhibit to his complaint. The trial court's ruling in favor of the former wife is expressly predicated on matters contained in the complaint and attachments thereto.

The thrust of the former husband's complaint is twofold: (1) that the Capri/Prieto claim was a chose in action which constituted marital property, see Hoirup v. Hoirup, 862 So.2d 780 (Fla. 2d DCA 2003) (referring to chose in action as a marital asset), which (2) was retained by the former husband under paragraph 6 of the MSA.

The former wife concedes the claim was marital property but maintains that it was distributed to her under paragraph 7(b) of the MSA.

The former husband relies on Ginsberg v. Lennar Florida Holdings, Inc., 645 So.2d 490 (Fla. 3d DCA 1994) for the contention that his former wife could not bring the Capri/Prieto claim without an assignment from him. In that case, Ginsberg owned and operated MLG Properties, Inc. ("MLG"), a property management firm. Ginsberg was also the general partner of two limited partnerships each of which owned an apartment complex. Both complexes were managed by MLG. In 1988, both limited partnerships gave mortgages to Amerifirst Bank on their properties which mortgages Ginsberg signed as general partner.

Lennar Florida Holdings, Inc. and MS Florida Corporation were general partners of a real estate investment limited partnership, which was the mortgage holder on the apartment complexes. Lennar purchased these mortgages from the Resolution Trust Corp. ("RTC") in July of 1992. The RTC had acquired these mortgages in March of 1991 from Amerifirst Bank after the RTC was appointed receiver of Amerifirst.

Lennar filed a complaint against Ginsberg and MLG alleging conversion, civil theft, RICO violations and Chapter 772.103(4) violations against Ginsberg and MLG and waste against MLG. Lennar attached a copy of the assignment of mortgage from the RTC and original mortgage loan agreement.

The Third District ruled that Lennar had not alleged a breach of duty separate and apart from the contractual duties which bound MLG and the partnerships, and that MLG could only be liable to those with whom it had contracted. The court also found that as a matter of law the counts for conversion and waste against MLG failed to state a cause of action upon which relief could be based. The Third District stated:

"Initially, we note that assignability of a cause of action is the rule rather than the exception." See Selfridge v. Allstate Ins., 219...