CAMACHO ENTERPRISES, INC., A FLORIDA CORPORATION, APPELLANT,
v.
BETTER CONSTRUCTION, INC., A FLORIDA CORPORATION, APPELLEE

Fla. 3d DCA | 1977-03-22
No. 75-2002
Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
343 So. 2d 1296 Florida District Court of Appeal, Third District (1977) Caution
Cited by 9 cases

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Synopsis

Camacho Enterprises appealed a judgment awarding Better Construction a share of joint venture profits from a real estate development deal. The court affirmed, finding substantial competent evidence that delays in construction were beyond Better Construction's control and did not abandon the joint venture.


Holding

The court held that the delay in completing the four remaining houses was "beyond the control" of Better Construction as provided in the contract, thus the joint venture was not abandoned and Better Construction was entitled to share in the profits. The court also found substantial competent evidence supported the auditor's calculations of contributions and profits.


Headnotes

[1] A joint venture agreement may be extended beyond its stated completion date when delays are caused by events beyond the control of a party, such as illness.

[2] A judgment from the trial court is presumed correct on appeal and will not be disturbed if supported by substantial competent evidence.

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Key Quotes

“a judgment from the trial court comes to an appellate court clothed with a presumption of correctness and will not be disturbed unless there is a lack of substantial competent evidence to support such judgment”

Establishes the deferential standard of review applicable to trial court judgments on appeal.

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Facts & Procedural History

On March 28, 1970, Camacho and Better Construction entered into a written joint venture agreement for constructing nine houses on Camacho's property, …

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Opinion of the Court
HENDRY, Chief Judge.

HENDRY, Chief Judge.

Appellant, defendant below, appeals from a final judgment entered in favor of appel-lee, plaintiff below, in an action to obtain distribution of a share of profits from a joint venture agreement.

On March 28, 1970, the parties entered into a written joint venture agreement whereby appellee was to construct nine houses upon the property of appellant. The contract provided that the nine houses were to be completed within six months from the date of the agreement “barring strikes, non-availability of materials or other causes beyond control of second party (Better Construction).”

Shortly thereafter, construction was commenced on five houses, which were timely completed pursuant to the agreement. Construction was later commenced on the other four houses; however, due to a heart attack suffered by the president of appel-lee, work was not completed until January or February of 1971.

Appellant contends that due to the untimely completion of the remaining four homes, the joint venture agreement was abandoned by appellee, thus precluding appellee from sharing in the profits from the sale of those unfinished homes.

In addition, appellant contends that, even assuming the continued existence of the joint venture, the court appointed auditor’s calculations of the respective contributions of the parties to the joint venture and his calculations of profits earned by the joint venture were not supported by competent substantial evidence. As such, appellant argues that any distribution of profits to appellee based upon said calculations was error. Finally, appellant contends that the court erred in awarding the auditor a fee for work done in the case in that appellant was not present to contest the amount awarded by the court.

We find appellant’s contentions to be without merit and affirm.

It is an elementary principle of law that a judgment from the trial court comes to an appellate court clothed with a presumption of correctness and will not be disturbed unless there is a lack of substantial competent evidence to support such judgment. Peacock v. Carver, 315 So. 2d 214 (Fla. 1st DCA 1975).

We find that the record reveals substantial competent evidence to support the judgment of the trial court that the joint venture agreement was not abandoned by appellee after its president suffered a heart attack and that any delay in the completion of the project was “beyond the control” of appellee, thus entitling appellee to share in the profits of the four remaining homes pursuant to the joint venture agreement. In addition, we also find substantial competent evidence to support the calculations of the auditor concerning both the initial contributions of the parties to the joint venture and the profits realized therefrom.

As for the amount of fees awarded the auditor for work done in the case, we note that appellant neither sought an opportunity to be heard on the question, nor objected to the amount awarded in the trial court. This failure to raise the issue below precludes our review of the matter for the first time on appeal. See Barton v. Keyes Co., 305 So. 2d 269 (Fla. 3d DCA 1974). Nevertheless, we are of the opinion that the award was grounded upon competent substantial evidence and should therefore be affirmed.

After having carefully reviewed the record, all points in the briefs and arguments of counsel, in light of the controlling principles of law, we are of the opinion that no error has been demonstrated. Therefore, for the reasons stated and upon the authorities cited, the judgment appealed is affirmed.

Affirmed.


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Citator

Cited By

  • Home Devco/Tivoli Isles LLC v. Silver, 26 So. 3d 718 (Fla. 4th DCA 2010)
    …371 So. 2d 178, 180 (Fla. 1st DCA 1979) (implicitly recognizing that a force majeure clause that excuses delays for "any cause ... not within the reasonable control of the company” was enforceable); Camacho Enterprises, Inc. v. Better Constr., Inc., 343 So. 2d 1296, 1297 (Fla. 3d DCA 1977) (interpreting the contract’s force majeure clause as excusing delay where its president's heart attack was a circumstance "beyond the control” of the development company). . As did the second district in Aikin, we note some…
  • Mossi v. Fuenzalida, 422 So. 2d 971 (Fla. 3d DCA 1982)
    …ndants in a foreclosure action. If the record contains any competent and substantial evidence which will support the trial judge’s conclusion, that conclusion will not be disturbed on appeal. Camacho Enterprises, Inc. v. Better Construction, Inc., 343 So. 2d 1296 (Fla. 3d DCA 1977); Peacock v. Carver, 315 So. 2d 214 (Fla. 1st DCA 1975). If the trial court chose to believe the mortgagors’ testimony that they attempted to make a timely payment of interest on the mortgage but were thwarted by the mortgagee, the…
  • Herbin Paint & Body Work v. Isicoff, 353 So. 2d 939 (Fla. 3d DCA 1978)
    …d have concluded that no reversi [*940] ble error has been demonstrated. Herzog v. Herzog, 346 So. 2d 56 (Fla.1977); American International Land Corporation v. Hanna, 323 So. 2d 567 (Fla.1975); Camacho Enterprises, Inc. v. Better Construction, Inc., 343 So. 2d 1296 (Fla.3d DCA 1977). Affirmed.…

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