BARNEY CORTELL AND HARRIET CORTELL, APPELLANTS,
v.
VICKY BARROW, ET AL., APPELLEES

Fla. 5th DCA | 1987-07-30
No. 86-1518
COBB, J., concurs., UPCHURCH, C.J., dissents with opinion.
510 So. 2d 1077 Florida District Court of Appeal, Fifth District (1987) Negative Treatment
Cited by 6 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

An employer sued an employee and her parents for embezzled funds under a reimbursement agreement. The trial court found the employer entitled to no additional sums beyond the $8,864.41 the employee had placed in escrow, but the appellate court reversed, holding the parties were bound by the accountant's determination of $16,713.85 in total embezzled funds and the employee breached the agreement by failing to deposit the full $10,000 in escrow.


Holding

The court held that the parties expressly agreed to be bound by the named accountant's determination, which cannot be altered by the employee's retained accountant's testimony. The employer is entitled to $7,849.44 ($16,713.85 less $8,864.41). The employee's failure to deposit the full $10,000 in escrow as agreed constituted a breach of the reimbursement agreement, and the employer was not bound by any $10,000 ceiling on repayment.


Headnotes

[1] An agreement to reimburse an employer for embezzled funds is enforceable against the employee and guarantors when the employee admits to misappropriation and mismanagemen…

[2] Parties to a reimbursement agreement may expressly agree to be bound by a specific accountant's determination of the amount owed.

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Key Quotes

“The testimony of the employee's C.P.A. cannot alter the fact that the employee (and her parents) expressly agreed to be bound by the named accountant's determination of the amount she embezzled.”

Establishes that the parties' express agreement to be bound by the named accountant's determination is dispositive and cannot be overridden by contradictory expert testimony.

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Facts & Procedural History

Barney Cortell employed Vicky Barrow to manage rental properties. Barrow embezzled money on numerous occasions and altered business records to conceal…

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Opinion of the Court
COWART, Judge.

COWART, Judge.

An employer, appellant Barney Cortell, hired appellee Vicky Barrow to assist in managing his rental properties. On numerous occasions Barrow embezzled money from the employer, altering business records to conceal her thefts. The employee entered into an agreement, separately guaranteed by her parents, appellees Henry and Gertrude Naumaiskis, to reimburse the employer for the stolen funds.

In the reimbursement agreement, the employee admitted that she misappropriated and mismanaged the revenue, accounts, and property of the employer for her personal gain to the financial detriment of the employer. The employee acknowledged that the employer is entitled to reimbursement for all sums of money taken by her during her employment. This agreement also provided that an audit would be necessary to determine how much money was embezzled and a mutually satisfactory certified public accountant was named to perform the audit, the cost of which was to be borne by the employee. In the agreement the employee agreed to place $10,000 in a separate trust account to be held in escrow pending completion of the audit. Credit against the amounts dispersed to the employer from the trust account was to be given the employee for any sums she paid directly to the employer. The employee placed $8,864.41 in escrow but failed to place the full $10,000 as agreed.

The named accountant determined that the embezzled funds totaled $16,713.85. When the employee failed to pay that sum, the employer brought an action, on several theories, for that sum less credit for $8,864.41 which the employee had put into the trust account pursuant to the agreement. After a non-jury trial, the trial court found the employer entitled to no additional sums.

The employee contended at trial1 that the $8,864.41 she paid into the trust account fully discharged her obligations to the employer, supporting her position with testimony of a C.P.A. she retained. The testimony of the employee’s C.P.A. cannot alter the fact that the employee (and her parents) expressly agreed to be bound by the named accountant’s determination of the amount she embezzled. This is an essential covenant in both the reimbursement and guarantee agreements, and there is nothing in the record showing the named accountant erred in determining that the embezzled funds totaled $16,713.85. The employee’s retained C.P.A. based his testimony solely on the employee’s calculations, without examining the employer’s records. Finally, nothing in either the reimbursement or guarantee agreements placed a $10,000 ceiling on the amount the employee would repay the employer. Even if so, we find that the employer would not be bound thereby because the employee, in failing to place the full $10,000 into the trust account as agreed, breached the reimbursement agreement. Therefore, we reverse the judgment in favor of the employee and her parents, and remand this case to the trial court to enter a judgment for $7,849.44 ($16,713.85 less $8,864.41) in favor of the employer and against the employee and her parents on the employer’s breach of contract action.2

REVERSED and REMANDED.

COBB, J., concurs.

UPCHURCH, C.J., dissents with opinion.

. The employee has made no appearance in this appeal.

. By electing to affirm the contract, the employer waived his action for civil theft and treble damages against the employee.

Dissent
UPCHURCH, Chief Judge,

UPCHURCH, Chief Judge,

dissents.

I respectfully dissent. The trial court’s final judgment does not make any findings but only recites that “Plaintiffs have failed, to carry their burden of proof.” This court should not search for reasons to invalidate the ruling below since to do so violates the well established rule that trial court decisions are presumed valid and should be affirmed, if correct, regardless of whether the reasons advanced are erroneous. Van-dergriffv. Vandergriff, 456 So. 2d 464 (Fla. 1984).

The record below provides several reasons to support the judgment. There was testimony that the “agreement” was only entered after Cortell’s intimidation and threat to institute criminal proceedings. (It is interesting to note that no criminal charges were filed until after disagreement as to the amount due arose.) The court may have concluded there was not a valid agreement. See § 843.14, Fla.Stat. (1985); (compounding a felony). If there were no valid agreement, then Barrow was not bound to accept the calculations of the accountant. When the dispute arose as to the accounting, Barrow submitted a check for $6,000 which was marked “final payment.” This check was accepted and cashed. Since either of these reasons supports the decision below, I would affirm.


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  • Peters v. State, 531 So. 2d 121 (Fla. 1988)
    …lier offense for which probation had been revoked.1 Cummins v. State, 519 So. 2d 718 (Fla. 5th DCA 1988); Green v. State, 513 So. 2d 794 (Fla. 4th DCA 1987); Meadows v. State, 498 So. 2d 1018 (Fla. 2d DCA 1986), receded from en banc, Frick v. State, 510 So. 2d 1077 (Fla. 2d DCA 1987). Contra Peterson v. State, 524 So. 2d 473 (Fla. 2d DCA 1988). While we agree the language in rule 3.701(d)(14) may be ambiguous, we do not believe it mandates the result urged by Peters. As there are no committee notes accompanyi…
  • Pearson v. State, 514 So. 2d 374 (Fla. 2d DCA 1987)
    …addition to the points on the scoresheet for legal restraint (probation) is permissible under the guidelines in this situation. We have receded from Meadows v. State, 498 So. 2d 1018 (Fla. 2d DCA 1986), on which the appellant relies. Frick v. State, 510 So. 2d 1077 (Fla. 2d DCA 1987). Therefore, we find no error in the appellant’s sentences. Cause remanded for further proceedings in accordance with this opinion. RYDER and LEHAN, JJ., concur. . The Court had earlier held that Batson was not applicable retroa…
  • Peters v. State, 516 So. 2d 60 (Fla. 2d DCA 1987)
    …for violation of community control in a case where appellant was being sentenced for a new substantive offense. Appellant relies on Meadows v. State, 498 So. 2d 1018 (Fla. 2d DCA 1986). However, Meadows was receded from, en banc, in Frick v. State, 510 So. 2d 1077 (Fla. 2d DCA 1987), and the “bump up” was proper. The appellant next contends that the “bump up” for violation of community control was not authorized until an amendment to the sentencing guidelines which occurred after the dates when the appellan…

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