RAFAEL ESCANDAR, APPELLANT,
v.
SOUTHERN MANAGEMENT AND INVESTMENT CORPORATION, APPELLEE

Fla. 3d DCA | 1988-11-22
No. 87-2024
Before BARKDULL, DANIEL S. PEARSON, and JORGENSON, JJ.
534 So. 2d 1203 Florida District Court of Appeal, Third District (1988) Positive Treatment
Cited by 8 cases

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Holding

The court held that an assignee can pursue causes of action for breaches of a contract that occurred prior to the assignment, even if the assignee was not a party to the contract at the time of the breach.


Headnotes

[1] A party who acquires a joint venture's rights and responsibilities under a management agreement through assignment may pursue causes of action for breach of that agreemen…

[2] A contract for corporate responsibilities, as opposed to personal services, is assignable without the consent of all parties.

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Facts & Procedural History

Appellant, initially a partner in a joint venture, later bought out his partners and was assigned the joint venture's management agreement. He termina…

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Opinion of the Court
BARKDULL, Judge.

BARKDULL, Judge.

The appellant and certain principals of the appellee, Southern, entered into a joint venture agreement to erect and operate a shopping center on property owned by the appellant. The appellee ' entered into a written agreement to market and manage the center.1

After the center opened the appellant elected, pursuant to terms of the joint venture agreement, to buy out his partners. He took an assignment of the joint venture rights and responsibilities under the management agreement with Southern in his individual name.

Shortly after he acquired 100% of the joint venture agreement and the assignment by written notice, he terminated the management agreement, allegedly for cause, to wit: improper management and improper accounting of receipts and disbursement.

The appellee then commenced a breach of contract action against the appellant as the successor in interest to the joint venture and as assignee of the management agreement. This complaint was ultimately met by an answer and a counterclaim, alleging a breach of management agreement, and sought damages for breach of contract, for breach of fiduciary relationship, for conversion, and treble damages pursuant to Section 812.035(7), Florida Statutes (1985).

Subsequently, Southern filed a declaratory petition seeking a determination that certain of its rights under the management contract were to continue, notwithstanding the notice of termination.

At a jury trial the trial court refused to permit the appellant to put in evidence of alleged damages which occurred prior to the date that he acquired 100% of the joint venture and received the assignment of the rights and responsibilities under the management agreement.

The jury returned a verdict for the defendant, Escandar, on the main complaint and rendered a verdict in favor of him as counter-plaintiff on his counterclaim. Thereafter the trial court entered a judgment NOV for the original plaintiff, Southern, on the counterclaim and adverse to Southern on its declaratory action.

Southern appealed the final judgment on its complaint, which was subsequently dismissed. The defendant-counter-claimant filed the instant appeal contending primarily that the trial court erred in denying him the right to present evidence of breach of the management contract that occurred prior to the date he purchased the interest of his co-venturers in the joint venture and the date he received the assignment of the management contract. The appellant at all times was at least a 50% owner of the joint venture and after he bought out his two co-venturers, he owned 100% of the joint venture. At the closing he also received an absolute assignment of the “Management Agreement”, which states in part, that: “The undersigned, HARBOUR VIEW ASSOCIATES, LTD., a Florida limited partnership (the “Assignor”), ... hereby assigns to RAFAEL ESCANDAR (the “Assignee”) all of Assignor’s right, title and interest in and to that certain management agreement (the “Management Agreement”) made by and between Southern Management and Investment Corp., a Florida corporation, and Rafael Escandar and Harbour View Associates, Ltd., a Florida limited partnership, as Joint Venturers d/b/a Harbour View of Miami Joint Venture, dated as of the 30th day of December, 1982, ...”2

By virtue of the assignment he could pursue any cause of action for breach of the management agreement. A.E. Melton and Franklin Investment Company v. Michigan Trust Company, 93 Fla. 64, 111 So. 513 (1927); Fred S. Conrad Construction Company v. Exchange Bank of St. Augustine, 178 So. 2d 217 (Fla. 1st DCA 1965); 4 Fla.Jur.2d, Assignments § 16; Section 68.-06 Florida Statutes (1983). As the surviving member of the joint venture, he would also have a right to pursue any cause of action belonging to the joint venture, subject in both instances to any defenses available to the management company, either against the joint venture or as to him, individually, either as the successor in interest or by assignment. Therefore this cause is remanded to the trial court for trial on all issues as made by the counterclaim, answer3 and affirmative defenses thereto.4

Reversed and remanded with directions.

. This agreement created a multitude of reciprocal duties and responsibilities, some of which were fiduciary in nature and required periodic accounting by Southern.

. We recognize that a contract for personal services is not assignable without consent of all the parties. However, in the instant case, we are dealing with a corporate responsibility which can be performed by anyone within the corporation. Therefore, the contract does not constitute a contract for personal services, and is assignable.

. While the pleadings attempt to raise several issues framing the action as one seeking damages, in actuality the salient facts show that this is a classical case for accounting.

.Accounting suits may be prosecuted at law Campbell v. Knight, 92 Fla. 246, 109 So. 577 (1927); Sodikoff v. Allen Parker Company, 202 So. 2d 4 (Fla. 3d DCA 1967), but they are generally considered as equitable matters. R.O. Holton & Company v. Hull, 140 Fla. 687, 192 So. 229 (1939); Riggs v. Saltmarsh, Cleaveland and Gund, 341 So. 2d 818 (Fla. 1st DCA 1977).


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Amin Dahlawi v. Zahid Ramlawi, 644 So. 2d 523 (Fla. 3d DCA 1994)
    …mplicated accounts and it is not clear that the remedy at law is as full, adequate and expeditious as it is in equity.” F.A. Chastain Constr., Inc. v. Pratt, 146 So. 2d 910, 913 (Fla. 3d DCA 1962). See Escandar v. Southern Management and Inv. Corp., 534 So. 2d 1203, 1205 n. 4 (Fla. 3d DCA 1988); Riggs v. Saltmarsh, Cleaveland and Gund, 341 So. 2d at 819. The right to an equitable accounting of complicated partnership affairs cannot be bartered for expediency- We therefore conclude that the trial court’s rulin…
  • W.S. Badcock Corp. v. Webb, 699 So. 2d 859 (Fla. 5th DCA 1997)
    …in that certain dealer contract entered into between Seller and the W.S. Badcoek Corporation ...”, Webb and Keene have assigned away their right to file a cause of action for breach of contract. See Escandar v. Southern Management and Invest. Corp., 534 So. 2d 1203 (Fla. 3d DCA 1988) (by virtue of defendant’s assignment of “all of Assignor’s right, title and interest” in the management agreement, defendant could pursue any cause of action for breach of that contract, including breach of the contract that occur…
  • …n accounting because the amount sued for is certain and because he has an adequate remedy at law. While accounting suits may be prosecuted at law, they are generally considered equitable in nature. Escandar v. Southern Management & Investment Corp., 534 So. 2d 1203, 1204, n. 4 (Fla. 3d DCA 1988); Cushman v. Schubert, 110 So. 2d 703 (Fla. 2d DCA 1959). Where a fiduciary or trust relationship exists, an action for an accounting is considered equitable in nature without regard to other considerations. Nayee v. Na…

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