ALBERTO DIAZ MASVIDAL, APPELLANT,
v.
ALFONSO ANDRADE OCHOA, APPELLEE
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The Florida District Court of Appeal affirmed a jury verdict against defendant Masvidal in a breach of contract, conversion, and civil theft action. The court rejected the defendant's three appellate arguments and upheld the trial court's rulings on directed verdict motions, a counterclaim directed verdict, and exclusion of parol evidence.
The court held that: (1) the plaintiff's proof was sufficient to support findings of breach of contract, conversion, and civil theft, as embezzlement can occur within a contractual relationship when one party converts funds lawfully obtained; (2) the directed verdict on the counterclaim was proper because no evidence supported the defendant's breach of contract claim; and (3) the parol evidence rule properly barred testimony regarding the oral salary agreement because it was inconsistent with the prior written agreement requiring board approval.
[1] A plaintiff's proof at trial does not materially vary from the pleadings when the evidence adduced supports a jury finding of breach of contract, even if the plaintiff te…
[2] A contractual relationship between parties does not preclude a claim for civil theft or conversion when the evidence shows embezzlement of an escrow fund established unde…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the defendant lawfully obtained possession of the plaintiff's funds to set up the escrow fund and thereafter converted the funds for his own use. This being so, the defendant, by his actions, committed an embezzlement, a civil theft and a conversion as well as a breach of contract.”
Establishes that embezzlement and conversion can occur within a contractual relationship when funds are lawfully obtained but subsequently misappropriated.
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Join FLexlaw to unlock all legal intelligencePlaintiff Ochoa sued defendant Masvidal for breach of a subscription agreement, conversion, and civil theft. The evidence showed that Masvidal lawfull…
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PER CURIAM.
This is an appeal by the defendant from a final judgment entered below on an adverse jury verdict in an action sounding in breach of contract, conversion and civil theft. The defendant Alberto Diaz Masvi-dal raises three points on appeal. We find no merit in these points and affirm, based on the following briefly stated legal analysis.
First, we see no error in the trial court’s denial of defense motions for a directed verdict and new trial because the plaintiff Alfonso Andrade Ochoa’s proof at trial did not, as urged, materially vary from the pleadings. The plaintiff sued, inter alia, for breach of a subscription agreement, and the evidence adduced at trial was sufficient to support a jury finding of such a breach. The fact that the plaintiff testified he considered a prior agreement, which agreement did not conflict with the subscription agreement, to constitute the essential relationship between the parties does not, as urged, amount to a repudiation of the subscription agreement which the evidence showed the defendant breached.
Moreover, we are not persuaded by the argument that no civil theft or conversion occurred in this case because there was a contractual relationship between the parties. The evidence shows a classic embezzlement by the defendant of an escrow fund set up under the subscription agreement between the parties. That is, the defendant lawfully obtained possession of the plaintiff’s funds to set up the escrow fund and thereafter converted the funds for his own use. This being so, the defendant, by his actions, committed an embezzlement, a civil theft and a conversion as well as a breach of contract. See Senfeld v. Bank of Nova Scotia Trust Co. (Cayman), 450 So. 2d 1157, 1161 (Fla. 3d DCA 1984); Aero Int’l Corp. v. Florida Nat’l Bank of Miami, 437 So. 2d 156, 159 (Fla. 3d DCA 1983), pet. for review denied, 449 So. 2d 264 (Fla.1984); see also Berney v. State, 38 So. 2d 55, 56 (Fla.1948) (elements of the crime of émbezzlement; each of which is supported by the evidence herein). We do not read Rosen v. Marlin, 486 So. 2d 623 (Fla. 3d DCA), pet. for review denied, 494 So. 2d 1151 (Fla.1986) to preclude this result because there, unlike this case, the parties had a legitimate contractual dispute over the amount of a debt owed, and no embezzlement whatever occurred in that case.
Second, we see no error in the trial court’s grant of a directed verdict against the defendant on his counterclaim for breach of contract. No evidence was presented to support a claim that the plaintiff breached any agreement between the parties. This being so, there was no obligation to charge the jury on this claim. See Smith v. Whidden, 87 So. 2d 42, 44 (Fla.1956); C.A. Davis, Inc. v. City of Miami, 400 So. 2d 536, 539 (Fla. 3d DCA), pet. for review dismissed, 411 So. 2d 380 (Fla. 1981); City of Miami v. Fletcher, 167 So. 2d 638, 639 (Fla. 3d DCA 1964).
Third, we see no error in excluding evidence of a separate oral agreement between the parties that the defendant was to receive a $75,000 salary as bank president. Proof of this oral agreement, we think, was barred by the parol evidence rule as it was inconsistent with a prior written agreement between the parties which required the bank’s board of directors to approve any management contract with the defendant. See C.H. Robinson Co. v. L & M Brokerage Co., 344 So. 2d 894, 895 (Fla. 1st DCA 1977); C.I.P. Studios, Ltd. v. Spa Health Club, Inc., 337 So. 2d 1009, 1010 (Fla. 3d DCA 1976); Seaway Yacht Sales, Inc. v. Brunswick Corp., 242 So. 2d 192, 193 (Fla. 3d DCA 1970).
The final judgment under review is, therefore, in all respects,
Affirmed.
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Citator
Cited By (20 total)
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Gasparini v. Pordomingo, 972 So. 2d 1053 (Fla. 3d DCA 2008)…e parties did not contemplate that International Trading would keep the $300,000 in a separate account, nor was International Trading obligated to hold the funds that it received from Vítala, S.A. in a trust or escrow account. Cf. Masvidal v. Ochoa, 505 So. 2d 555 (Fla. 3d DCA 1987)(civil theft and conversion can be asserted where a party embezzles funds from an escrow account). At the time that International Trading received the funds, it had every right to do with them as it pleased. Accordingly, as a matte…
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Tinwood N.V. v. SUN Banks, Inc., 570 So. 2d 955 (Fla. 5th DCA 1990)…Inc. v. Viega, 554 So. 2d 626 (Fla. 5th DCA 1989). An embezzlement whereby the defendant lawfully obtains possession of the plaintiffs funds and thereafter converts said funds to his own use will justify an action for civil theft. Masvidal v. Ochoa, 505 So. 2d 555 (Fla. 3d DCA 1987); Puchner v. Drexel Burnham Lambert, Inc., 498 So. 2d 550 (Fla. 3d DCA 1986). Furthermore, as stated in State v. Oates, 330 So. 2d 554, 556 (Fla. 4th DCA 1976): One obtaining personal property by trick, device, or fraud, intending…
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Estuardo Ramon Estrada Escudero v. Hasbun, 689 So. 2d 1144 (Fla. 3d DCA 1997)…rate and distinct from the loss flowing from the breach of contract. Florida law, however, does not bar a civil theft claim simply because a contractual relationship is involved. Colonial Penn Ins. Co., 814 F.Supp. at 1098 (citing Masvidal v. Ochoa, 505 So. 2d 555, 556 (Fla. 3d DCA 1987)); Tinwood, N.V. v. Sun Banks, Inc., 570 So. 2d 955, 960 (Fla. 5th DCA 1990) (“An embezzlement whereby defendant lawfully obtains possession of the plaintiffs funds and thereafter converts said funds to his own use will justif…
Previewing 3 of 20 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Murray Rosen v. Marlin, 486 So. 2d 623 (Fla. 3d DCA 1986)
- Senfeld v. The Bank of Nova Scotia Tr. Co. (cayman) Ltd., 450 So. 2d 1157 (Fla. 3d DCA 1984)
- Skylight Corp. v. State, 450 So. 2d 1157 (Fla. 2d DCA 1984)
- C. A. Davis, Inc. v. City OF Miami, 400 So. 2d 536 (Fla. 3d DCA 1981)
- Roysdon v. State, 437 So. 2d 156 (Fla. 2d DCA 1983)
- Berney v. State, 38 So.2d 55 (Fla. 1948)
- City OF Miami v. Fletcher, 167 So. 2d 638 (Fla. 3d DCA 1964)
- Smith v. Whidden, 87 So. 2d 42 (Fla. 1956)
- Seaway Yacht Sales, Inc. v. Brunswick Corp. & Bertram Yacht Sales of Fort Lauderdale, Inc., 242 So. 2d 192 (Fla. 3d DCA 1970)
- C. H. Robinson Co. v. L & M Brokerage Co., Inc., 344 So. 2d 894 (Fla. 1st DCA 1977)