AIB MORTGAGE COMPANY, APPELLANT,
v.
LARRY SWEENEY, APPELLEE

Fla. 3d DCA | 1997-02-05
No. 96-1058
Before SCHWARTZ, C.J., and NESBITT and LEVY, JJ.
687 So. 2d 68 Florida District Court of Appeal, Third District (1997) Positive Treatment
Cited by 5 cases

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Synopsis

AIB Mortgage Company appealed the trial court's order granting defendant Sweeney's motion for involuntary dismissal in a breach of employment contract case. The appellate court reversed, holding that AIB presented sufficient prima facie evidence of contract, breach, and damages to survive the dismissal motion.


Holding

Yes. The appellate court held that AIB presented prima facie evidence of all three elements required to establish breach of contract: the existence of a contract, a breach thereof, and damages. The court found that AIB's evidence that Sweeney's actions were unauthorized and not in accordance with industry custom demonstrated a breach, and that AIB's evidence of damages (two percent of loan value plus $400 per loan for underwriting) was sufficient at the motion stage.


Headnotes

[1] A motion for involuntary dismissal must be denied if the plaintiff submits a prima facie case.

[2] In ruling on a motion for involuntary dismissal, the trial court must view the evidence in the light most favorable to the plaintiff.

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Key Quotes

“A motion for involuntary dismissal must be denied if a plaintiff submits a prima facie case.”

Establishes the controlling legal standard that governs review of the trial court's grant of the involuntary dismissal motion.

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Facts & Procedural History

AIB Mortgage Company employed Sweeney as a wholesale account executive to originate mortgage loans through approved brokers. Sweeney diverted a loan p…

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Opinion of the Court
NESBITT, Judge.

NESBITT, Judge.

Plaintiff-appellant AIB Mortgage Company appeals a final order granting defendant-appellee Larry Sweeney’s motion for involuntary dismissal and dismissing AIB’s complaint with prejudice. We reverse.

AIB originates and sells residential and commercial mortgage loans. Sweeney was employed by AIB as a wholesale account executive. His job was to originate mortgage loans through AIB approved brokers and to solicit new brokers to become approved by AIB.

AIB sued Sweeney for breach of his employment contract. The gist of AIB’s complaint was that Sweeney had improperly and without authorization diverted a loan package (the “Sehottenstein loan”) from the originating mortgage broker, Homeland Mortgage, to another broker, McCall Financial Services. This diversion ultimately, AIB alleged, caused it to lose the opportunity to service the loan and the fees associated with such service.

At trial, when AIB finished presenting its evidence Sweeney moved for involuntary dismissal under Florida Rule of Civil Procedure 1.420(b). The trial judge, concluding that AIB had not presented a prima facie case, granted Sweeney’s motion and entered the order now being appealed.

It is clear that:

A motion for involuntary dismissal must be denied if a plaintiff submits a prima facie case. Sea Tower Apartments, Inc. v. Century Nat’l Bank, 406 So. 2d 69, 70 (Fla. 4th DCA 1981). Moreover, in ruling on a motion for involuntary dismissal, the trial court must view the evidence in the light most favorable to plaintiff. Saporito v. Madras, 576 So. 2d 1342 (Fla. 5th DCA 1991). To establish a breach of contract, a party much show the existence of a contract, a breach thereof, and damages. Knowles v. C.I.T. Corp., 346 So. 2d 1042 (Fla. 1st DCA 1977).

Miller v. Nifakos, 655 So. 2d 192, 193 (Fla. 4th DCA 1995).

Sweeney agrees that AIB proved the existence of a contract between the parties. Sweeney argues, however, that AIB failed to present evidence of a breach of the contract by Sweeney or of the alleged damages flowing from the breach. We disagree.

In part, AIB alleged that Sweeney breached that portion of the employment agreement that required him to “devote his/ her entire business time and best efforts to his/her duties hereunder, to perform such duties well and faithfully, and in accordance with the customs of the industry....” AIB presented evidence, testimonial and otherwise, that demonstrated that Sweeney’s act of sending the Sehottenstein loan to McCall Financial Services was unilateral, unauthorized and, more importantly, was not “in accordance with the customs of the industry.” Thus, AIB adduced prima facie evidence that Sweeney breached his contract.

Finally, we have the issue of damages. AIB’s executive vice-president testified as to the damages AIB suffered as a result of losing the Sehottenstein loan. He explained that AIB receives two percent of the value of a loan package plus a $400 fee per individual loan for underwriting document preparation. The trial judge was concerned that this amount did not take into account the costs AIB would have to incur in generating this fee, and entered the involuntary dismissal on this basis as well.

We believe that at this stage in the proceeding, AIB provided sufficient evidence of “some standard by which the amount of damages [could] be adequately determined.” Saporito v. Madras, 576 So. 2d 1342, 1345 (Fla. 5th DCA 1991). Whether AIB’s evidence ultimately “proves too vague, speculative, or lacking in credibility is for the trial court, sitting as trier of fact, to assess.” Id. Consequently, the motion for involuntary dismissal should have been denied.

We reverse the order granting Sweeney’s motion for involuntary dismissal and dismiss ing AIB’s complaint with prejudice and remand for a new trial.1

Reversed and remanded.

. As this case was tried to the court, and the judge who heard it has since retired from the bench, remand for completion of the case, instead of the new trial we have ordered, is not possible.


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Citator

Cited By

  • Collections v. The City OF Homestead, 816 So. 2d 1225 (Fla. 3d DCA 2002)
    …crues when the last element constituting the cause of action occurs. § 95.031(1), Fla. Stat. In a claim for [*1227] breach of contract, the elements of which are the existence of a contract, a breach thereof and damages, AIB Mortgage Co. v. Sweeney, 687 So. 2d 68, 69 (Fla. 3d DCA 1997), the action accrues at the time the contract is breached. See State Farm Mut. Auto. Ins. Co. v. Lee, 678 So. 2d 818, 821 (Fla.1996). . Collections argues that provisions of the contract reveal that at the time the contract wa…
  • Bank of Am., N.A. v. Arevalo (Fla. 3d DCA 2020)
    …Kellogg & Kimsey, Inc., 668 So. 2d 205, 207 (Fla. 2d DCA 1995) (“When a trial court erroneously grants a motion for involuntary dismissal, the case is remanded to the trial court for the completion of the trial.”); accord AIB Mortg. Co. v. Sweeney, 687 So. 2d 68, 70 n.1 (Fla. 3d DCA 1997) (reversing the trial court’s grant of an involuntary dismissal, stating “[a]s this case was tried to the court, and the judge who heard it has since retired from the bench, remand for completion of the case, instead of the…
  • Tracfone Wireless, Inc. v. Anadisk LLC, 685 F. Supp. 2d 1304 (S.D. Fla. 2010)
    …f Conti'act Claim (Count Three) To prevail on a cause of action for breach of contract, a party must show: (1) the existence of a valid and enforceable contract, (2) breach of the contract, and (3) damages. See AIB Mortgage Co. v. Sweeney, 687 So.2d 68, 69 (Fla. 3rd Dist.Ct.App.1997). Moreover, Florida law provides that “[a] contract for sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract.” Fla. S…

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