author: THOMPSON, J.

text:
    AMERICAN SAFETY INSURANCE SERVICE, INC., et al., Appellant, v. Donald GRIGGS, John Amodia, Lou Amodia, et al., Appellee.
    No. 5D05-2883.
    District Court of Appeal of Florida, Fifth District.
    May 18, 2007.
    Rehearing Denied July 6, 2007.

      John A. Christy and Debra A. Wilson, of Schreeder, Wheeler & Flint, LLP, Atlanta, GA, and J. Lester Kaney of Cobb & Cole, P.A., Daytona Beach, for Appellant.
    David A. Vukelja of David A. Vukelja, P.A., Ormond Beach, for Appellee.
   THOMPSON, J.

American Safety Insurance Services, Inc. (“ASIS”), American Safety Insurance Group, Ltd. (“ASIG”), American Safety Reinsurance, Ltd. (“ASRE”), and Ponce Lighthouse Properties, Inc. (“Lighthouse”) (collectively, “American Safety”) appeal the trial court’s order that ruled American Safety had been unjustly enriched by the plaintiffs. The plaintiffs are seven Connecticut residents — [Donald Griggs, John Amodia, Lou Amodia, Michael D’Addabbo (“D’Addabbo”), Terry B. Fletcher, Louis T. Burnett, and Edward R. Mauro] — (collectively, “Connecticut Seven”) who invested money in a project to develop property in Ponce Inlet. American Safety raises several points on appeal, but two are dis-positive. Because the Connecticut Seven’s claim for unjust enrichment failed as a matter of law and the damages award was unsupported by substantial, competent evidence, we reverse.

FACTS

A. Background.

In the late 1980s, each of the Connecticut Seven invested $300,000 into a company owned and run by H. Mac McMurry. McMurry was a banker for decades, served as a bank president, and was intimately familiar with commercial development loans. In 1986, the Connecticut Seven provided $300,000 letters of credit as collateral to a limited partnership formed to acquire and develop approximately 115 acres of land in Ponce Inlet. McMurry, another individual, and Ponce Marina, Inc. (“PMI”) were general partners. The letters were supposed to serve as collateral, not funding.

McMurry testified that the first mortgage from Carrie Bank was for approximately $4.5 million. The sale closed in early 1985, and McMurry estimated that zoning and permitting would require $250,000 and one year. His projection was off by about nine years and $1.8 million. Because McMurry could not get the loan extended, he convinced the Connecticut Seven to allow him to draw upon the $300,000 letters of credit to fund the project. Their funds were exhausted by 1989, though no construction occurred. PMI delivered to each plaintiff a $300,000 promissory note in September 1990, secured by half of PMI’s outstanding shares.

The record shows McMurry and the Connecticut Seven expected the first mortgage to be paid before the promissory notes. A November 1994 letter from McMurry to J. Dana Fogle, the Connecticut Seven’s counsel, stated the promissory notes would be paid “following the payment of the first mortgage.” The Connecticut Seven released their February 1994 lis pendens on the property, but recorded the November 1994 agreement. In January 1995, the Connecticut Seven signed a subordination agreement, agreeing the Connecticut Agreement was subordinate to the first mortgage.

PMI was financially troubled. It faced foreclosure from 1989 through 1999, when American Safety foreclosed. In this time, McMurry sent various last-minute requests for more money to the Connecticut Seven. For example, in November 1993, McMurry requested funds due within one week to extend PMI’s permits. In March 1997, McMurry contacted the Connecticut Seven because he needed within four days approximately $500,000 for improvements and the 1994 tax bill.

The Connecticut Seven did not contribute additional funds in 1997, and Citibank, which had acquired the mortgage, filed an action for foreclosure in May 1997. The principal owed was approximately $8.85 million. In November 1997, MD Marina Ltd. (“MD Marina”) acquired the debt and documents from Citibank, was substituted as a plaintiff, and proceeded with the foreclosure. After more than ten years of McMurry’s stewardship, no construction had occurred on the property.

B. American Safety gets involved.

American Safety and Lloyd Fox, the president of the three American Safety defendants, were not yet involved. In November 1997, Steve Sirang of the Cobb Capital Corporation wrote to his friend, Fox, about the project and recommended that American Safety provide financing. We highlight two critical documents preceding the May 1998 agreements between American Safety, PMI, and the Connecticut Seven.

First, Synergy (ASIS) provided a loan commitment letter to PMI on 16 April 1998, which provided that, as an express condition precedent to the loan commitment, Synergy must “purchase all existing promissory notes made by [PMI], which are secured by the Property....” As collateral for the loan, PMI was required to provide a deed and security agreement creating a first priority lien and security interest on the property and improvements.

Second, we note with interest Fogle’s letter to McMurry dated 21 May 1998— one week before the Connecticut Seven and PMI executed their profit participation agreement. Fogle’s summary of the terms show that he knew all of them, contrary to McMurry’s “ambush” testimony at trial:

1. As consideration ..., the Connecticut 7 will execute a full assignment to Peggy McMurry of each of their 71 shares of stock, and of the promissory note secured by the pledge of said stock.
2. ... [PMI] ... would acknowledge that [PMI] owes the Connecticut 7 the total sum of ... [$3,58⅛,000], as to this transaction only....
Mac, ... the final agreement would need to be signed by all of the affected parties.... I’ve taken the liberty of faxing it to you and [the Connecticut Seven] simultaneously....
We are all rooting for you, and realize that we sink or swim, together.

(Emphasis added).

The 29 May 1998 agreement between the Connecticut Seven and PMI.

The Connecticut Seven and PMI entered into a profit sharing agreement on 29 May 1998. The Connecticut Seven claims on appeal that it contained provisions that conferred benefits directly to American Safety. This agreement provided:

WHEREAS, [PMI] borrowed money secured by the Project pursuant to certain loan documents ...; and
WHEREAS, a successor in interest to the original lender ... sued to foreclose on the Project ... [;]
WHEREAS, [PMI] desires that [ASRE] (“Lender”) acquire the First Mortgage Loan and ... Documents, and to provide further development and pre-con-struction financing to [PMI], and to settle the Litigation.
WHEREAS, Lender is willing to acquire the First Mortgage Loan and ... Documents, and to make the further advances to [PMI], and to cause the Litigation to be resolved only if Parties agree to enter into this Agreement.
WHEREAS, [PMI] has previously entered into agreements for repayment of investments by CONNECTICUT-7 ..., which agreements are evidenced by certain Promissory Notes secured by 500 shares of stock owner.
WHEREAS, the parties hereto recognize that [PMI] has entered into a Loan Agreement with Lender necessitating a novation of all prior agreements between the parties, and the release of 500 shares of stock of [PMI] so that such shares may become available to be pledged to Lender.
WHEREAS, the CONNECTICUT-7 have agreed to a term of payment payable on distribution of profits to [PMI] and calculated based on unit sales.
WHEREAS, [PMI] has entered into a certain Profit Participation Agreement with Lender, pursuant to which [PMI] is permitted to receive profit distributions from Project in an amount equal to one hundred percent (100%) of the profits up to the first $6,477,250.00 and thirty three and one third percent (33%) of the profits distributions for every dollar of profit thereafter.
NOW THEREFORE, ... the parties hereto agree as follows:
1. PARTICIPATION.
1.1 ... CONNECTICUT-7 will execute a full assignment to PEGGY A MCMURRAY [sic] of each of their five hundred (500) shares of [PMI] stock ... and of the Promissory Notes ..., and ... remove any liens from the record against the Project....
1.2 [PMI] acknowledges that the amount due by [PMI] to CONNECTICUT-7 under the Promissory Notes is $3,584,000.00 including principal and accrued interest to date (and not further interest thereunder) (the “Debt”)[.]
1.3 [PMI] shall repay the Debt to the CONNECTICUT-7 ....
1.4 ... CONNECTICUT-7 shall be entitled to receive from [PMI] in satisfaction of the Debt ... $4,200.00 for each ... condominium unit and each boat slip when sold and closed ... payable as follows:
a) CONNECTICUT-7 shall receive ... ($1,400.00) at the time of the sale and closing of each residential unit and each boat slip.
b) At the completion of each Project phase ... and after the full payment of principal and interest for all lenders holding any mortgage interest in the Project from the profit distributions to [PMI] as described above, [PMI] shall pay to CONNECTICUT-7 ... $2,800.00 for each ... condominium unit and boat slip previously sold ....
1.5 CONNECTICUT-7 expressly acknowledges and agrees that any and all payments due under this Agreement shall not be secured by the Project in any manner whatsoever and that this Agreement shall not be recorded in the Public Records of Volusia County, Florida.

(Emphasis added).

The plaintiffs delivered the promissory notes and stock to PMI, released the November 1994 agreement concerning the notes, and did not record the profit participation agreement.

The 29 May 1998 loan agreement between PMI and American Safety.

On 29 May 1998, ASRE purchased the loan documents and indebtedness held by MD Marina and agreed to advance additional sums to PMI. Among the loan agreement’s terms, PMI covenanted to “[c]onvert at least 70 of the 117 potential ... purchasers on the reservation list to hard contracts ... [by 1 November 1998].”

The 29 May 1998 stipulation for settlement.

In connection with the loan agreement, on 29 May 1998, American Safety, PMI, and McMurry entered into and filed with the court a stipulation for settlement, which a Volusia County Circuit Court judge found to be “entered into knowingly and voluntarily, [and] valid and binding in all respects.” As a result, the action was abated until either 31 March 1999 or a default. The stipulation traced the first mortgage, noted ASRE was substituted as plaintiff with all parties’ consent, and acknowledged ASRE would not have purchased the loan or advanced additional funds but for the stipulation permitting immediate foreclosure upon default. ASRE became the holder of the Citibank mortgage and mortgage modification agreements. All counterclaims and defenses of PMI, McMurry, and MDI were withdrawn and dismissed with prejudice.

In the stipulation, McMurry agreed the First Mortgage constituted a valid first lien on the property and was in default. With the additional advance by ASRE, PMI owed $11,137,855.89. PMI was required to pay at least $6.4 million by 31 March 1999. If the defendants defaulted, they consented to an ex parte judgment that was attached to the stipulation. The following was underlined, capitalized, and bolded:

[PMI], MD Marina, Inc. and [McMurry] do hereby knowingly, voluntarily and with the advice of counsel: waive notice and service of the filing of the affidavit for entry of judgment and presentation and entry of the foreclosure judgment and consent to the ex parte presentation, filing and request for entry of the foreclosure judgment; and agree to take no action to prevent the entry of the foreclosure judgment.

McMurry’s trial testimony regarding the first agreement.

McMurry claimed that American Safety’s demand for the Connecticut Seven collateral arose one day before the closing. He claimed he saw none of the documents until minutes before he signed them, understood none of the documents, and was forced to sign them. This testimony was delivered over American Safety’s ongoing relevance objection — McMurry’s story had much to do with McMurry’s feeling that American Safety was unfair, but nothing to do with whether American Safety was unjustly enriched. American Safety also noted that McMurry’s challenges of the agreements and foreclosure had already failed in previous trials and appeals. McMurry acknowledged that the agreements explicitly provided that PMI remained responsible for its debts to the Connecticut Seven, but he felt PMI should not have to pay. McMurry conceded that he and his wife had drawn $120,000 salaries, but that he did not pay the Connecticut Seven.

The 2 October 1998 amended profit participation agreement.

McMurry borrowed additional money from ASRE. The parties amended the agreement so that McMurry would secure a guaranteed sum of money in exchange for the remaining third of the interest in PMI’s profits above a certain amount. McMurry signed these documents as well. The “First Amended and Restated Profit Participation Agreement” was executed on 2 October 1998 between PMI and ASRE and provided:

WHEREAS, pursuant to the request of [PMI], Lender acquired the First Mortgage ..., Lender substituted itself as the opposing party in the Litigation, and [PMI], ... McMurry and Peggy A. McMurry, (“Guarantors”) and Lender executed and entered into (i) the [29 May 1998] Stipulation for Settlement (“Stipulation”) ...; and
⅜ ⅝ *
WHEREAS, [PMI] desires to borrow an additional $625,000.00 from Lender (the “New PMI Loan”); and
WHEREAS, pursuant to the Loan Agreement ... (the “New Loan Agreement”) among [PMI], Lender and Guarantors, Lender agreed to advance an additional $500,000.00 to [PMI] upon satisfaction of certain conditions set forth in the New Loan Agreement (the “Phase I Loan”); and

The agreement also stated:

Nothing contained ... in any of the [loan] documents ..., including the provisions for the payment of Net Proceeds, shall be deemed or construed to create a liability company, tenancy-in-common, joint tenancy, joint venture or co-ownership by or between Lender and Owner. Lender shall not in any way be responsible for the debts, losses or obligations of Owner ....

(Emphasis added).

Furthermore, PMI indemnified and held American Safety harmless for:

any and all liabilities, losses, ... cost, expenses and damages, ... which Lender may ... incur as a result hereof and from any and all claims ... which may be instituted against Lender by reason of any alleged obligation or undertaking on Lender’s part to perform or discharge any of the terms, covenants or agreements contained in any lease, agreement or contract relating to the Premises to which Lender is not a direct and express party.

Foreclosure

In January 1999, American Safety noted that PMI and McMurry were in default for failure to convert into hard contracts at least 70 of the 117 purchasers on the reservations list. An amended judgment of foreclosure was entered on 19 February 1999. As part of the settlement, ASRE stated it would accept $9,950,000 from the proceeds of a Bank Atlantic loan committed to PMI if it was received before 31 March 1999. However, McMurry was unable to procure the necessary financing. Ultimately, American Safety entered an ex parte foreclosure and bought the property.

C. The Connecticut Seven’s quasi-contract claim.

The August 2003 complaint highlighted the letters of credit provided to PMI that were exhausted by 1989 and the subsequent 1994 agreement by which PMI promised to pay the Connecticut Seven. The plaintiffs argued four grounds for relief and prevailed on their third count, which alleged “breach of quasi-contract.” After cursorily realleging the complaints’ first 44 paragraphs, the Connecticut Seven alleged:

53. Defendants, as the current owners and developers of the Harbor Village Golf and Yacht Club, benefited from the original investment in the development by the Plaintiffs. The funds loaned by the Plaintiffs were used, in part, to make the essential initial improvements on the property, as well as to pay for permits .... The financial rewards Defendants now realize ... would not have been possible but for the money loaned by the Plaintiffs.
54. ... Their continued acceptance of these benefits without paying Plaintiffs for the value of the benefits is both inequitable and unfair.
55. On October 2, 1998, Defendants agreed that sales proceeds from the Marina Dunes development would be used to pay Plaintiffs as set forth in the Profit Participation Agreement of May 29, 1998 between PMI and the Plaintiffs.
56. Defendants breached this quasi contract by unconscionably retaining all sales proceeds from the development and by refusing to use any of the sales proceeds received from the sale of condominium units or boat slips toward the satisfaction of the debt due and owing Plaintiffs. Instead, Defendants are being unjustly enriched at the expense of the Plaintiffs by retaining excess profits received from the development for their own benefit and pleasure.
57. As a direct and proximate result od [sic] Defendants breach of quasi contract, Plaintiffs have suffered damages in the amount due and owing to them from Defendants. WHEREFORE, the Plaintiffs ... demand judgment against Defendants ... for compensatory damages ... of $3,534,000, plus prejudgment interest, costs, and such other relief as this Court deems just and proper....

(Emphasis added).

While opposing summary judgment, the Connecticut Seven maintained that the “benefit conferred” was their investment: “[T]he Connecticut 7 invested substantial amounts of money in the development and ... American Safety continually benefits from this investment.” Counsel’s opening argument crystallized its claim: “Now the nature of the claim is real simple. My clients want their money back.” The quasi-contract claim turned on “the evidence ... that ... but for [the plaintiffs’] financing this project from March of '88 through December of '89 there would be no project!,] ... no permits[, and] ... no zoning.” American Safety knowingly received these benefits because they received the permits and zoning after the foreclosure. Counsel never stated the value of these benefits; rather, the plaintiffs wanted the $3,584,000 from their agreement with PMI. It was only during their argument against directed verdict and in closing that, they responded to the court’s question that the benefit conferred might be the plaintiffs’ security that was relinquished at American Safety’s request.

D. The trial court’s final judgment.

The court directed a verdict for the defendants on all claims except quasi-contract. The court accepted McMurry’s version of the May 1998 agreement, underlining the factual finding it considered most important to the quasi-contract claim:

On May 28, 1998, one day before the loan closing, defendants’ general counsel delivered to [McMurry] new conditions to closing not included in the loan commitment letter. Important to the instant action is that the 199k agreement in favor of plaintiffs had to be removed from the public record, all shares of PMI (including shares held by plaintiffs as security for their loans) and promissory notes held by plaintiffs had to be delivered to defendants.

(Emphasis in original).

According to the court, McMurry had no financing alternatives because, if he refused American Safety’s demands, everything he and the Connecticut Seven had invested in the project would be lost. The court found that the Connecticut Seven directly conferred benefits on American Safety because they: executed the profit participation agreement with PMI and agreed not to record it; executed a release of the 1994 agreement with PMI; “surrendered their promissory notes to defendants”; returned the PMI stock certificates; and agreed to subordinate their claims against the project to the first mortgage. According to the court, “[tjhis conferred a benefit upon defendants in that defendants achieved a first mortgage position free of any priority claims for repayment of the plaintiffs’ loans and could take possession of the stock in PMI as additional security for the mortgage.”

The court also emphasized that, instead of dismissing the foreclosure action, ASRE substituted itself as plaintiff and abated the action. Furthermore, American Safety required an amended profit participation agreement before lending McMurry an additional $625,000. The court discussed at length the foreclosure proceedings against PMI and repeated its finding that American Safety “demanded the concessions from plaintiffs (indirectly through [McMurry]) on the very eve of closing of the refinancing loan....” It concluded that the defendants must pay fair value for the benefit conferred.

The court rejected American Safety’s point that the Connecticut Seven had never described the benefit conferred for the quasi-contract claim; the Connecticut Seven’s realleging of underlying facts sufficed, notwithstanding their explicit allegation in the complaint and at trial that the benefit conferred was their investment in the '80s. The court found the value of the benefit conferred was the amount of the loans in May 1998. Therefore, it required American Safety to pay the value of the original loans and prejudgment interest from May 1998, totaling $3,426,703.50.

DISCUSSION

American Safety argues that the Connecticut Seven did not establish the elements of quasi-contract. The Connecticut Seven respond that American Safety was unjustly enriched by refusing to pay them for the notes and stock they relinquished to PMI because American Safety wished it. American Safety is correct.

First, we note that the Connecticut Seven’s argument on appeal was not presented below. From their complaint through their case in chief, plaintiffs explicitly argued that the benefit conferred was their initial investment, which occurred almost ten years, before American Safety entered the picture. Their argument on appeal was articulated once and only in response to the court’s question during closing argument. Accordingly, the trial court erred by holding that this theory had been presented merely because one sentence in the count alleging “breach of quasi-contract” reasserted previous allegations. Moreover, the unpled theory could not be considered to have been tried by implied consent because the evidence presented at trial concerning the 1998 agreements was relevant to the other counts that were properly being tried. Nichols v. Michael D. Eicholtz, Ent., 750 So.2d 719, 720 (Fla. 5th DCA 2000).

Turning to the merits, we conclude that the Connecticut Seven cannot establish a claim for quasi-contract.

A contract implied in law is a legal fiction, an obligation created by the law without regard to the parties’ expression of assent by their words or conduct. The fiction was adopted to provide á remedy where one party was unjustly enriched, where that party received a benefit under circumstances that made it unjust to retain it without giving compensation.
The elements of a cause of action for a quasi contract are that: (1) the plaintiff has conferred a benefit on the defendant; (2) the defendant has knowledge of the benefit; (3) the defendant has accepted or retained the benefit con-ferredf;] and (4) the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying fair value for it.

Commerce P’ship 8098 Ltd. P’ship v. Equity Contr. Co., 695 So.2d 383, 386 (Fla. 4th DCA 1997) (citations omitted); see also Della Ratta v. Della Ratta, 927 So.2d 1055, 1059 (Fla. 4th DCA 2006).

A plaintiff may recover under quasi-contract where there is no express or implied-in-fact contract, but the defendant received something of value or benefited from the service supplied. Commerce P’ship, 695 So.2d at 387. However, damages under quasi-contract “cannot be awarded upon the singular determination that the requesting party is deserving.” May v. Sessums & Mason, P.A, 700 So.2d 22, 28 (Fla. 2d DCA 1997) (quoting Corn v. Greco, 694 So.2d 833, 834 (Fla. 2d DCA 1997)). Parties may not dodge these constraints by appealing to the court’s powers in equity; an action for unjust enrichment is an action at law, not in equity. See Della Ratta, 927 So.2d at 1060 & n. 2; Commerce P’ship, 695 So.2d at 390 (noting that, “[a]lthough some Florida courts have described quasi contracts as being ‘equitable in nature,’ ... the term has been used in the sense of ‘fairness,’ ... not as a reference to the equity side of the court.”).

The plaintiffs must show they directly conferred a benefit on the defendants. See Peoples Nat’l Bank of Commerce v. First Union Nat’l Bank of Fla., 667 So.2d 876, 879 (Fla. 3d DCA 1996). The plaintiffs could make no such showing for their initial investments, which occurred long before American Safety entered into an agreement with PMI. Their remaining argument rests on whether their agreement with PMI establishes the requisite direct benefit to American Safety.

Here, the plaintiffs bargained with PMI for the terms under which they would relinquish the promissory notes and stock. In exchange for relinquishing the notes, which PMI had been unable to pay since their issuance in 1990, the Connecticut Seven entered into a profit participation agreement providing for repayment plus interest. More important, the Connecticut Seven helped PMI obtain alternative financing, which kept alive their hope for a return-on their investment.

Nor did the Connecticut Seven prove that American Safety had not paid for the benefits allegedly conferred by the Connecticut Seven, which is an essential element of a quasi-contract claim. See Commerce P’ship, 695 So.2d at 390. When a defendant has given adequate consideration to someone for the benefit conferred, a claim of unjust enrichment fails. See Behm v. Cape Lumber Co., 834 So.2d 285, 287 (Fla. 2d DCA 2002); Commerce P’ship, 695 So.2d at 390; cf. Zaleznik v. Gulf Coast Roofing Co., 576 So.2d 776, 778-79 (Fla. 2d DCA 1991). American Safety entered into agreements with PMI in which the parties received exactly what they bargained for. N.G.L. Travel Assocs. v. Celebrity Cruises, Inc., 764 So.2d 672, 674-75 (Fla. 3d DCA 2000). The issue is not whether American Safety paid specifically for the security that the Connecticut Seven relinquished to PMI. American Safety agreed to purchase the loan and advance additional funds in exchange for a first in priority mortgage, secured by all outstanding shares of PMI. See Blum v. Dawkins, Inc., 683 So.2d 163, 164 (Fla. 5th DCA 1996). American Safety was permitted to bargain for the terms under which it would provide the loan and additional funds. Both American Safety and the Connecticut Seven entered into agreements with PMI that clearly delineated their responsibilities and the benefits bargained for in each agreement. The Connecticut Seven cannot show they conferred a direct benefit that American Safety had not already “paid for” by contracting with PMI to assume the mortgage and advance additional funds while stepping into the previous mortgagee’s shoes.

American Safety next argues that the damages award was unsupported by substantial, competent evidence. The Connecticut Seven responds that, under Cohen v. Kravit Estate Buyers, Inc., 843 So.2d 989, 992 (Fla. 4th DCA 2003), the benefit conferred need not be a concrete property interest. However, Cohen does not stand for the proposition that the plaintiff need not establish the value of the benefit allegedly conferred. There, the interest was “the lost expectation payment for agreed-upon services,” which presented a question of fact precluding summary judgment. Id. at 992.

Here, even if plaintiffs’ contractual agreement with PMI could be construed to confer a direct benefit on American Safety, plaintiffs only presented evidence of the money they hoped to receive under their profit participation agreement with PMI. They presented no evidence of the value of the benefit conferred upon American Safety in the form of the PMI stock or the promissory notes that plaintiffs relinquished. Cf. Levine v. Fieni McFarlane, Inc., 690 So.2d 712, 714 (Fla. 4th DCA 1997) (noting plaintiff presented testimony supporting damages based on enhancement to property). “[T]he damages in this case are highly speculative. Damages cannot be based on speculation, conjecture or guesswork.” Swindell v. Crowson, 712 So.2d 1162, 1164 (Fla. 2d DCA 1998) (citation omitted). Trial courts may not allow greater awards for damages than those that are reasonably supported by the evidence. Montage Group, Ltd., and Digital Editing Servs., Inc. v. Athle-Tech Computer Systems, Inc., 889 So.2d 180, 197 (Fla. 2d DCA 2004) (holding court erred by failing to order appropriate remittitur for unjust enrichment award). Unjust enrichment awards are not punitive, and allowing plaintiffs a recovery worth more than the benefit conferred would result in an unwarranted windfall. Id.

Here, despite the plaintiffs’ investment, PMI’s project had resulted in litigation in Florida and Connecticut, defaults on loans secured by the project from 1989, periodic foreclosure proceedings from 1992 to 1999, and no vertical construction from 1986 until PMI’s interest in the property was foreclosed. The Connecticut Seven presented no evidence of PMI’s stock (a private corporation whose asset teetered on the brink of foreclosure) or the value of the promissory notes that PMI could not pay and that were already subordinate to the first mortgage interest. The record reflects no competent, substantial evidence to conclude that these “benefits” equaled the precise amount that PMI agreed to pay the Connecticut Seven. Rather, the damages award specifically disregards the allocation of risk in the profit sharing agreements, which repeatedly provided that PMI was responsible for its debt. As a result, the trial court’s order made American Safety the insurer of the Connecticut Seven’s ill-fated investment.

The Connecticut Seven did not establish that they provided a benefit directly to American Safety for which American Safety had not paid. Even if they had, the Connecticut Seven did not establish the value of the benefit allegedly conferred.

Accordingly, we REVERSE and REMAND for further proceedings in accordance with this opinion.

SAWAYA and PALMER, JJ., concur.

      . The property came to be owned by PMI rather than the limited partnership.

      . Both documents refute McMurry’s testimony, which the trial court believed, that Connecticut Seven’s ultimate conditions • were sprung on PMI on the day before closing.

      . It is undisputed that PMI and McMurry failed to meet this obligation.

      . We affirmed per curiam cases numbered 5D99-3325, 5D00-3409, and 5D03-1280. Ponce Marina, Inc. v. Am. Safety Reinsurance, Ltd., 795 So.2d 77 (Fla. 5th DCA 2001); Ponce Marina, Inc. v. Am. Safety Insurance, Services, Inc., 871 So.2d 897 (Fla. 5th DCA 2004).

      . Curiously, the Connecticut Seven apparently did not sue PMI or McMurry after foreclosure and do not now contend that those parties owed them money, and their counsel previously represented PMI and McMurry in the foreclosure appeals.

      . The finding that American Safety ambushed the plaintiffs and McMurry on the day before closing is clearly erroneous and refuted by documents in the record.


source: Caselaw Access Project

author: CORTINAS, Judge.

license: Public Domain

text:
    Osvaldo ROMERO, Appellant, v. Aurora ROMERO, Appellee.
    No. 3D05-2408.
    District Court of Appeal of Florida, Third District.
    May 23, 2007.
    Rehearing Denied July 10, 2007.

      Schreiber, Rondon-Alvarez and Mary Lou Rondon-Alvarez; Greene Smith McMillan and Cynthia L. Greene, Miami, for appellant.
    Guillermo Mascaro, Coral Gables; Sinclair, Louis, Heath, Nussbaum & Zavert-nik and John L. Zavertnik, Miami, for appellee.
    Before RAMIREZ, SUAREZ, and CORTIÑAS, JJ.
   ON MOTION FOB REHEARING

CORTINAS, Judge.

We grant Appellee’s Motion for Rehearing, withdraw our previous opinion dated April 18, 2007, and issue this opinion in its place.

The Appellant, Osvaldo Romero (“Former Husband”), appeals from a trial court order granting his former wife, Aurora Romero (“Former Wife”), an interest in stock he purchased by exercising options he received from his employer and imposing a constructive trust on one-half of the options deemed to be marital assets, as well as an equitable lien on the Former Husband’s homestead property to satisfy the Former Wife’s interest.

The parties were married in 1990, and separated in 1998. A petition for dissolution of marriage was filed on July 20,1999. Months prior, the parties began negotiating how to divide their property and drafted a Marital Settlement Agreement (“MSA”) in January 1999. In fact, the MSA ultimately signed by the parties contained substantially the same property division as the January draft. On July 6, 1999, the Former Wife signed the MSA. On July 20, 1999, the Former Husband signed the MSA and completed a financial affidavit. The Former Wife completed her financial affidavit on September 23, 1999, and the judgment of dissolution of marriage, which incorporated the MSA, was entered on September 27,1999.

Almost three years after the entry of the final judgment of dissolution, the Former Husband petitioned to modify his child support obligations. As a result of his petition, the Former Wife became aware that the Former Husband had exercised certain stock options, which caused substantial increases in the income he declared on his 2000 federal income tax returns. The Former Wife then filed a counter-petition seeking to increase child support. Subsequently, the Former Wife amended her counter-petition to include a count seeking the imposition of a constructive trust, contending that the stock options and resulting stock were marital assets that the Former Husband failed to disclose on his financial affidavit and that she was entitled to a constructive trust on one-half of the options. Subsequently, both parties dismissed their actions seeking modification of child support and a hearing was held solely on the Former Wife’s petition to impose a constructive trust.

The stock options and resulting stock at issue were offered to the Former Husband when he obtained employment with Qtera corporation in March 1999. Specifically, the Former Husband received stock options to purchase 22,000 common shares of Qtera stock at ten (10) cents per share. These options were non-transferable and were contingent upon the Former Husband working at Qtera for one year. After one year of employment, twenty-five percent (25%) of the stock options would vest. The remaining stock options would vest l/48th per month for the following forty-eight (48) months. Thus, at the time the final judgment of dissolution was entered, the Former Husband’s stock options were non-vested and he owned no stock.

Further complicating matters, in December 1999, months before the Former Husband’s stock options vested, Qtera was acquired by Nortel, and Qtera stock was exchanged for Nortel stock at a rate of one share of Qtera stock for 1.335 shares of Nortel stock. Thus, in March 2000, when the Former Husband’s option to purchase the first twenty-five percent (25%) of the stock vested and was exercised, he received Nortel stock valued at $126 per share. The Former Husband continued to exercise his options to purchase stock, which vested monthly, through December 2000. Based on advice from stock market experts, the Former Husband did not sell any of the stock he received. Ultimately, the price of Nortel stock drastically decreased and the Former Husband was left with worthless stock and tax liabilities.

At the hearing on her petition to impose a constructive trust, the Former Wife testified that she did not know the Former Husband had stock options in Qtera when she signed the MSA. She also testified that if she knew about the stock options, she “would have wanted half.” She further testified that if awarded half the stock options, she would have exercised all the options and then immediately sold the stock, using the proceeds of the sale to reduce the mortgage on her home. In addition, the Former Wife offered expert testimony as to the value of the stock resulting from the options, although her own expert opined that in July of 1999, the non-vested stock options could not be valued.

The trial court ultimately concluded that the options were marital assets because they were awarded to the Former Husband because of his past qualifications and experience. As such, the trial court declared that the marital assets were subject to equitable distribution and adopted the valuations of the Former Wife’s expert witness. Specifically, the trial court concluded that “the most equitable division in this case would be based on a pro-rata basis, based on the percentage of the amount of time the Former Husband worked during the marriage at QTERA over the total time at QTERA needed to exercise each stock option.”

The trial court then found that the options vested for 126 days during the marriage and that accordingly “the marital value of the option to purchase 25% of the stock was 126/860 of the fair market value of the stock as of March 8, 2000, the day that option vested.” The trial court also considered the remaining stock options to have a marital component, as they too vested for 126 days during the marriage. The trial court then calculated that “the total marital value of such options was $577,528.38 and that the Former Wife would be entitled, under the facts of this case, to one half (1/2) of that amount, or $288,764.19.” The trial court reduced that sum by half the total cost of exercising the options and by the federal income taxes that the Former Wife would have paid at her tax rate on her share of the stock. Ultimately, the trial court concluded that the Former Husband was holding $197,856.92 in a constructive trust for the benefit of the Former Wife, and that an equitable lien should be imposed on the Former Husband’s homestead property because he used the Former Wife’s funds to reduce the mortgage on that property. The Former Husband appeals from that order.

Even assuming that the Former Wife’s petition was procedurally proper, we must reverse the trial court’s order because the Former Wife failed to establish a basis for relief from the final judgment. The trial court correctly recognized that the stock options contained a marital component. Non-vested rights, such as non-vested stock options, that accrue during the marriage are marital assets pursuant to section 61.075(5)(a)4, Florida Statutes (2005). As such, they are subject to equitable distribution. § 61.075(1), Fla. Stat. Therefore, had the Former Wife claimed a right to the stock at the time of dissolution, the non-vested stock options could have been assigned a future value at that time and Former Wife could have received that value either outright or in kind. § 61.075(9), Fla. Stat.

The trial court accepted the Former Wife’s testimony that she had no knowledge of the stock options at that time. We cannot second-guess that credibility determination. However, the trial court then found that the Former Wife was entitled to relief based on the Former Husband’s failure to disclose the existence of his stock options in Qtera stock on his financial affidavit. This finding is insufficient, as a matter of law, to support granting relief from a final judgment.

Florida has a well-recognized policy favoring the finality of judgments, especially in family law contexts. See, e.g., D.F. v. Dep’t of Revenue ex rel. L.F., 823 So.2d 97, 100 (Fla.2002)(recognizing the need for finality of judgments and recognizing Rule 1.540 as the avenue by which to challenge final judgments of paternity); Parker v. Parker, 916 So.2d 926, 933-34 (Fla. 4th DCA 2005) (recognizing in a paternity dispute that “[mjany courts state there is an overriding need for finality of judgments in this area”) (citations omitted). “Once the litigation is terminated and the time for appeal has run, that action is concluded for all time.” Baker v. Baker, 920 So.2d 689, 692 (Fla. 2d DCA 2006). The only-exception to this “absolute finality” of final judgments is Florida Rule of Civil Procedure 1.540, which provides limited avenues by which a party can petition for relief from a final judgment. Id. (citation omitted). Specifically, Rule 1.540(b) provides that:

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, decree, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) that the judgment or decree is void; or (5) that the judgment or decree has been satisfied, released, or discharged, or a prior judgment or decree upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or decree should have been prospective application.

The Rule further states that: “[t]he motion [seeking relief from final judgment] shall be filed within a reasonable time, and for reasons (1), (2), and (3) not more than 1 year after the judgment, decree, order, or proceeding was entered or taken.”

In 1992, the Florida Supreme Court amended Rule 1.540(b) to remove the one year time limit for motions alleging fraudulent financial affidavits. In re Amendments to Florida Rules of Civil Procedure, 604 So.2d 1110, 1111 (Fla.l992)(“In rule 1.540(b), Relief from Judgment, Decrees, or Orders, subdivision (b) is amended to remove the one year limitation for a motion based on fraud in financial affidavits used in marital cases.”). Were it not for this amendment to Rule 1.540, motions for relief from judgment based on fraudulent financial affidavits would be governed by the one year limitation. DeClaire v. Yohanan, 453 So.2d 375 (Fla.1984). Though originally contained within Rule 1.540(b), this language regarding fraudulent financial affidavits was then removed from Rule 1.540(b) and placed in Florida Family Law Rule of Procedure 12.540. See Cerniglia v. Cerniglia, 679 So.2d 1160, 1162 n. 2 (Fla.l996)(explaining that Rule 1.540(b) “was amended effective January 1,1993, to provide that ‘there shall be no time limit for motions based on fraudulent financial affidavits in marital cases.’ Upon the adoption of the Family Law Rules of Procedure in 1995, the amendment language was included in Family Law Rule of Procedure 12.540 ... ”). Florida Family Law Rule of Procedure 12.540 provides:

Florida Rules of Civil Procedure 1.540 shall govern general provisions concerning relief from judgment, decrees, or orders, except that there shall be no time limit for motions based on fraudulent financial affidavits in marital or paternity cases.

Given its history, it is clear that the purpose of Florida Family Law Rule 12.540 was not to establish an additional ground upon which to challenge a final judgment, but instead to remove the time limitation on an already existing ground. Thus, a motion made under Rule 12.540 must still establish a valid ground for setting aside the final judgment under Florida Rule of Civil Procedure 1.540. Clearly, the most applicable basis for seeking to set aside a final judgment under Rule 1.540 when dealing with allegations of a fraudulent financial affidavit is 1.540(b)(3). Macar v. Macar, 779 So.2d 479, 482 (Fla. 2d DCA 2000)(explaining that “the only bases for relief under rule 1.540 that might arguably apply” in a situation where the former husband’s financial affidavit contained mistakes and omissions are fraud or newly-discovered evidence). In fact, the Former Wife argued that her petition was intended as and understood by the parties and the trial court to be a Family Law Rule 12.540 motion and therefore was not an independent action alleging fraud on the court. Parker v. Parker, 950 So.2d 388, 392 (Fla.2007)(explaining that allegations of extrinsic fraud must be brought as an independent action).

We find that the trial court failed to make adequate findings to support his order granting relief on the basis of fraud. In fact, the trial court did not even find that a fraud had been committed. Here, the trial court’s finding that the Former Husband failed to disclose his Qtera stock options, which had not vested at the time of dissolution, is not analogous to a finding that the Former Husband submitted a fraudulent financial affidavit. See Macar v. Macar, 803 So.2d 707, 714-15 (Fla.2001)(agreeing with the Second District that, under the factual circumstances, mistakes and omissions from the husband’s financial affidavit did not constitute fraud so as to establish a basis for relief under Rule 1.540(b)). Without making a finding that the Former Wife satisfied one of the grounds of Rule 1.540(b), the trial court had no authority to award relief. Baker, 920 So.2d at 692 (concluding that a trial court has no jurisdiction to adjudicate a motion seeking relief from judgment if a party is not entitled to relief under Rule 1.540).

Because the Former Wife failed to establish that she was entitled to relief, we reverse the trial court order in her favor and direct the trial court to reinstate the original property distribution.

Reversed and remanded with instructions.

      . The Former Husband could have continued to exercise options beyond this date but did not.

      . Because the trial court then divided the assets based on the amount of time the options vested during the marriage, this determination was not dispositive. In fact, the trial court further stated in its order:
      Thus, even if the stock options were given for future performance, the Former Husband worked at QTERA for over four months during the marriage, which time was directly attributable to each stock option that vested during his employment (and is the prorata [sic] basis for the Court’s equitable distribution in this judgment).

      .Section 61.075(6), Florida Statutes, requires a trial court to determine which assets are marital assets as of the earliest date that the parties either enter into a valid separation agreement or file a petition for dissolution of marriage. Although the trial court was correct to determine the number of days from when the options were granted until the petition for dissolution was filed, the trial court order incorrectly states that the petition for dissolution was filed on July 13, 1999. A review of the record indicates the petition was signed by the Former Wife on July 13, 1999, but was actually filed with the clerk of court on July 20, 1999. The MSA was signed by the Former Wife on July 6, 1999 and the Former Husband on July 20, 1999. Thus, the relevant period of time, from March 8, 1999 until July 20, 1999, actually spanned 134 days, not 126 days. Given our disposition of this appeal, however, this calculation error is moot.

      . In this situation, the trial court was not compelled to value the stock options as of July 20, 1999. See § 61.075(6), Fla. Stat.; Heslop v. Moore, 716 So.2d 276 (Fla. 3d DCA 1998). However, we will defer to the trial court's decision to do so as it is a fact-specific determination within the trial court's discretion. § 61.075(6), Fla. Stat.

      . Neither party has addressed whether relief could be granted on the basis of newly discovered evidence.

      . If the trial court did find fraud, the proper course of action would have been to set aside the final judgment and redistribute the marital assets. See Bane v. Bane. 775 So.2d 938. 941 (Fla.2000). A trial court cannot modify the property division in a final judgment, as the trial court attempted to do here. See Braswell v. Braswell, 881 So.2d 1193, 1199 (Fla. 3d DCA 2004); Langer v. Langer, 463 So.2d 429, 429 (Fla. 3d DCA 1985).


author: PER CURIAM.

text:
    Maria T. THORNHILL, Appellant, v. ADMIRAL FARRAGUT CONDOMINIUM APARTMENTS ASSOC., INC., et al., Appellees.
    No. 3D06-1873.
    District Court of Appeal of Florida, Third District.
    May 23, 2007.
    Rehearing Denied July 18, 2007.

      David C. Arnold, for appellant.
    John R. Sutton, Miami; Elizabeth Russo, Miami and Craig Lee Montz, for appel-lees.
    Before COPE, C.J., and FLETCHER and LAGOA, JJ.
   PER CURIAM.

This is an appeal of a partial final judgment in an action for declaratory and other relief brought by the appellant owner of a condominium unit against the appellee condominium association and other defendants. Assuming for purposes of diseussion that there is no bar of res judicata or collateral estoppel against the appellant’s claim, we conclude that the condominium declaration expressly authorizes the rental of the docking facilities. As we view the matter, the condominium declaration conferred the right on Robert Madison Company, Inc. to be the initial manager of dock rentals, but upon expiration of that company’s management rights, the association was free to take over responsibility for management of those rentals itself. See Rosso v. Golden Surf Towers Condo. Assoc., 651 So.2d 787 (Fla. 4th DCA 1995). We reject appellant’s claim that there was any infirmity in the condominium declaration or any requirement- that upon the expiration of the rights of Robert Madison Company, Inc., that there be a further vote of the unit owners.

Affirmed.

       The parties agree that the docking facilities are a common element. The condominium declaration states, in part:
      b. It shall be the sole right and responsibility of Robert Madison Company, Inc., its successors or assigns to assign docking facilities in the common elements and common areas to such apartment owners as said corporation may in its discretion provide. Said docking facilities shall be rented to such apartment owners at a rental price not to exceed $1.50 per foot per month and all of the proceeds of such rentals shall be payable to the condominium association for its own use and benefit.
      c. The Association shall employ Robert Madison Company, Inc. for the term of ten (10) years with option to renew said employment for the purpose of managing and maintaining the common elements and areas as heretofore provided in this paragraph 5.3.


author: BENTON, J.

text:
    Garrison KEY, Appellant, v. Dieter TRATTMANN, Appellee.
    No. 1D04-5130.
    District Court of Appeal of Florida, First District.
    May 25, 2007.

      Garvin B. Bowden of Gardner, Wads-worth, Duggar, Bist & Wiener, P.A., Tallahassee, for Appellant.
    J. Marshall Conrad of Ausley & McMul-len, Tallahassee, for Appellee.
   BENTON, J.

Garrison Key sued for real property titled in Dieter Trattmann’s name, property that Mr. Key alleged he paid for, and now appeals final summary judgment entered in favor of Mr. Trattmann. We reverse and remand for further proceedings.

The complaint alleges that Mr. Key supplied all funds used to acquire certain real property in Tallahassee (the property) from a third party, and seeks specific performance of an alleged, oral agreement under which Mr. Trattmann, who took title, was obligated to convey the property to Mr. Key on demand; or, in the alternative, a decree declaring the property subject to a resulting trust. Mr. Trattmann’s answer denies that Mr. Key paid for the property, and sets up both the statute of limitations and the statute of frauds as affirmative defenses.

I.

“A summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law.” Moore v. Morris, 475 So.2d 666, 668 (Fla.1985). The parties do not dispute that, on July 22, 1994, a third party executed a warranty deed conveying title to the property to Mr. Trattmann; that Mr. Trattmann and Mr. Key both lived in California at the time; that Mr. Key was a real estate broker whose company, Key Properties, operated in Tallahassee; that an employee of Key Properties was responsible for managing the property; and that Key Properties applied rents from the property to management fees and maintenance expenses.

The movant for summary judgment bears the burden of showing, by competent evidence, the nonexistence of any question of material fact. The movant’s proof must be conclusive, such that all reasonable inferences which may be drawn in favor of the opposing party are overcome. “[I]f the record raises even the slightest doubt that an issue might exist, summary judgment is improper.”

Jackson v. H.L. Bouton Co., 630 So.2d 1173, 1175 (Fla. 1st DCA 1994) (quoting Holland v. Verheul, 583 So.2d 788, 789 (Fla. 2d DCA 1991)) (citations omitted). See also Martin County v. Edenfield, 609 So.2d 27, 29 (Fla.1992) (“A defense is not a sufficient basis for granting a motion for summary judgment unless the evidence supporting that defense is so compelling as to establish that no issue of material fact actually exists.”). Summary judgment is appropriate only when no genuine issue of material fact remains. See Clark v. Gochenaur, 623 So.2d 561, 562 (Fla. 1st DCA 1993). We review summary judgments de novo. See, e.g., The Fla. Bar v. Rapoport, 845 So.2d 874, 877 (Fla.2003).

“In determining whether issues of fact precluding summary judgment remain, the facts must be taken ‘in the light most favorable to the non-moving party.’ ” Carnes v. Fender, 936 So.2d 11, 14 (Fla. 4th DCA 2006) (quoting Turner v. PCR, Inc., 754 So.2d 683, 684 (Fla.2000)). On this basis, we take as true that, in order to help Mr. Trattmann obtain United States’ citizenship, Mr. Key negotiated and secured the purchase of the property from a third party, who executed a deed in favor of Mr. Trattmann — who had never set foot in Tallahassee at that point; that Mr. Key provided all of the funds Mr. Trattmann used to purchase the property, including but not limited to a $1000 deposit and cash at closing in the amount of $9,887.30; that Mr. Trattmann and Mr. Key agreed Mr. Key would pay taxes, mortgage expenses, and expenses for maintenance of the property; and that Mr. Key, in fact, made all of the agreed payments, continuously managed and maintained the property, and made substantial improvements to the property, including the installation of new flooring and appliances, all in reliance on Mr. Trattmann’s promise to convey the property on demand, that Mr. Trattmann made no payments toward the purchase, maintenance or repair of the property; and that, when Mr. Key demanded that Mr. Trattmann convey the property to him, Mr. Trattmann refused to do so. (While we assume the truth of the foregoing for purposes of decision, these facts were all disputed below.)

II.

The trial court granted the motion for summary judgment and entered the Summary Final Judgment for Defendant, ruling that the defenses of the statute of frauds and the statute of limitations were established and that no issue of material fact existed as to either of them. On the limitations question, the court ruled:

While it is not clear from the complaint precisely when the cause of action accrued, it was surely more than four years ago. If the defendant has made “no payments toward the purchase, maintenance or repair of the [property,” then the cause of action accrued no later than 1998. This action was filed in 2003, more than four years after the cause of action accrued. Thus it is barred.

The trial court rejected, albeit without analysis, Mr. Key’s argument that a resulting trust arose, and went on to rule that any action was barred by the statute of frauds because no writing documented the trust, as well as by the statute of limitations, seemingly on account of the passage of time since the third party originally conveyed the property.

III.

A resulting trust arises where an express trust fails, in whole or in part; where the purposes of an express trust are fully accomplished, without exhausting the trust estate; or, of particular pertinence here, “ Where a person furnishes money to purchase property in the name of another, with both parties intending at the time that the legal title be held by the named grantee for the benefit of the unnamed purchaser of the property.’ ” Steigman v. Danese, 502 So.2d 463, 467 (Fla. 1st DCA 1987) (quoting Steinhardt v. Steinhardt, 445 So.2d 352, 357-58 (Fla. 3d DCA 1984)), disapproved of on other grounds by Spohr v. Berryman, 589 So.2d 225, 228-29 (Fla.1991), and order vacated by In re Estate of Danese, 601 So.2d 570, 571 (Fla. 1st DCA 1992). See also F.J. Holmes Equip., Inc. v. Babcock Bldg. Supply, Inc., 553 So.2d 748, 749 (Fla. 5th DCA 1989) (“A resulting trust may arise in favor of one who furnishes money used to purchase property the legal title to which is taken in the name of another.”). A resulting trust can, indeed, be “founded on the presumed intention of the parties that the one furnishing the money should have the beneficial interest, while the other held the title for convenience or for a collateral purpose.” Frank v. Eeles, 152 Fla. 869, 13 So.2d 216, 218 (1943) (internal quotation marks and citation omitted). See also Restatement (Third) of Trusts § 7 cmt. c (2003).

While disputed, the facts alleged are sufficient, if proven, to give rise to a resulting trust: Mr. Key alleged and the record does not disprove that he and Mr. Trattmann agreed and intended that Mr. Trattmann would hold title temporarily for Mr. Key’s benefit; that Mr. Key supplied all moneys for the purchase, mortgage loan repayment, and maintenance (including repairs) of the property, and was enti-tied to and did receive the rental income. Mr. Key alleged and the record does not disprove that Mr. Trattmann was holding title to the property for the economic benefit of Mr. Key, and that the only reason the property was put in Mr. Trattmann’s name was to help him gain citizenship. See, e.g., Willard Homes, Inc. v. Sanders, 127 So.2d 696, 697 (Fla. 2d DCA 1961) (“It is a settled principle of law ... that where the purchase money of land is paid by one person and title is taken in the name of another a resulting trust arises and the party taking the title is presumed to hold it in trust for him who pays the purchase price.”). Facts that would give rise to a resulting trust have not been disproven here. In these circumstances, entry of summary judgment was error.

The decision in Harnish v. Peele, 386 So.2d 8, 10 (Fla. 5th DCA 1980), is distinguishable. There Peele signed a contract to purchase a building for use as a chiropractor’s office, and made a $300 deposit. He had difficulty getting financing, so his sister and her husband, the Harnishes, agreed to acquire the building. They assumed his position under the contract, executed a mortgage, and purchased the building, by paying $8,100 in cash at closing. They took title in their own names, partly to protect themselves from any claims by Peele’s ex-wife. Before closing, Peele and the Harnishes agreed that anytime Peele repaid them the money they were out, the Harnishes would deed the property to him. See id. at 9. Thereafter Peele made monthly payments to his sister and brother-in-law in amounts equal to the monthly mortgage payments plus payments due on another loan the Harnishes took out so that Peele could remodel the budding.

Subsequently, Peele demanded a deed to the building from the sister and brother-in-law. The trial court found a resulting trust and ordered the Harnishes to convey title to Peele upon his payment of $9,047 plus interest from the time of closing. See id. at 9-10. But the Fifth District reversed, because the Harnishes had only agreed that, if Peele paid them, they would convey the property to him. There was no understanding that the property actually belonged to him. His sister and brother-in-law had paid for the building and obtained legal title. See id. at 10.

There were no terms of repayment. Peele had no binding obligation to pay the Harnishes. He could either pay or not pay the money paid by the Harnish-es at his option. Consequently, ... the agreement between Peele and the Har-nishes is too indefinite upon which to bottom a trust.

Id. Peele had the option — under an oral lease-purchase agreement — of determining if, and when, he would purchase the budding by paying his sister and brother-in-law the money they had expended to acquire it. Only if he exercised the option would they be obligated to convey the property to him. The Fifth District explained:

There is an additional element required to create a resulting trust which has received little attention in Florida case law.... “A resulting trust must arise, if at all, at the instant the deed is taken and legal title vests in grantee. The complaining party must have paid his share of the purchase price, or bound himself to the grantor by an absolute obligation to pay it.”

Id. (quoting Womack v. Madison Drug Co., 155 Fla. 335, 20 So.2d 256, 257 (1944)) (emphasis omitted). “There must be more than a privilege reserved in the person claiming the trust relationship to pay or not to pay at his election. There must be a debt which the grantee can enforce.” Id. In the present case, Mr. Key has adequately alleged the requisite “additional element” of an absolute obligation dating to the time of purchase in alleging that he supplied all funds for purchase of the property, and that Mr. Trattmann’s connection to the property was nothing more than bare legal title.

IV.

The trial court also erred in determining that Mr. Key’s purchase-money resulting trust claim — in contradistinction to his claim based on an oral contract for the purchase of land — was barred by the statute of frauds. Section 725.01, Florida Statutes (2003), provides:

No action shall be brought ... upon any contract for the sale of lands ... or of any uncertain interest in or concerning them, ... or upon any agreement that is not to be performed within the space of 1 year from the making thereof, ... unless the agreement or promise upon which such action shall be brought, or some note or memorandum thereof shall be in writing and signed by the party to be charged therewith or by some other person by her or him thereunto lawfully authorized.

See also § 689.01, Fla. Stat. (2003). The purpose of the statute of frauds is “to intercept the frequency and success of actions based on nothing more than loose verbal statements or mere innuendos,” Tanenbaum v. Biscayne Osteopathic Hosp., Inc., 190 So.2d 777, 779 (Fla.1966) (quoting Yates v. Ball, 132 Fla. 132, 181 So. 341, 344 (1937)), and applies here to preclude Mr. Key’s oral contract for the sale of land claim.

The statute of frauds does not apply to resulting trusts, however. Because a resulting trust arises not ex contractu but by operation of law, the statute of frauds does not pertain. See, e.g., Williams v. Grogan, 100 So.2d 407, 410 (Fla.1958) (“A trust which is created by operation of law is not within the statute of frauds and may be proved by parol evidence.”); Stonely v. Moore, 851 So.2d 905, 906 (Fla. 3d DCA 2003) (reversing summary judgment entered on a claim seeking to establish a resulting or constructive trust where the trial court relied on the statute of frauds, because “ ‘resulting trusts involving real estate can be based on parol evidence’ ”) (quoting Zanakis v. Zanakis, 629 So.2d 181, 183 (Fla. 4th DCA 1993)).

Although a statute provides that all declarations or creations of trusts of land shall be manifested and proved by some writing signed by the party who is by law enabled to create such a trust, no writing is required for the creation of a resulting trust. These statutory provisions (and their occasional counterparts applicable to personal property) apply to express trusts but not to either resulting or constructive trusts. These exceptions were expressly stated in § 8 of the original English Statute of Frauds, 29 Car. II, ch. 3 (1677).

Restatement (Third) of Trusts § 7 cmt. g (2003). A resulting trust “does not spring from a contract but arises by implication of law.” Frank, 13 So.2d at 217-18 (internal quotation marks and citation omitted). See Varnes v. Dawkins, 624 So.2d 349, 351 (Fla. 1st DCA 1993) (“[A]n oral agreement to reconvey property is enforceable because the statute of frauds does not apply to trusts arising by operation of law.”). The trial court erred in finding that the statute of frauds barred Mr. Key’s efforts to enforce a purchase-money resulting trust, because the statute of frauds does not apply to resulting trusts.

V.

Mr. Trattmann had the burden of proof on each affirmative defense. As regards the limitations defense, it was incumbent on him to establish when the statute began running and, since he sought summary judgment, to demonstrate the absence of any dispute about the timing of the breach of the fiduciary duty alleged. But, even though the record does not reveal when Mr. Trattmann initially refused to convey the property (or otherwise acted inconsistently with his putative fiduciary obligations), the trial court ruled that the action was barred by the statute of limitations, finding four years to be the limitations period applicable to an action to enforce a resulting trust.

Applying a statute of limitations to a resulting trust, the Fifth District held that the “beneficiary of a resulting trust is not bound to act until the trustee repudiates the trust or begins to hold the property adversely with knowledge on the part of the beneficiary.” Bradbury v. Fuller, 385 So.2d 7, 8 (Fla. 5th DCA 1980). See also Grable v. Nunez, 64 So.2d 154, 160 (Fla.1953) (“The statutes of limitations do not operate against a resulting trust until the trustee has disclaimed the trust and begins to hold adversely to the beneficial interest.”). Thus, assuming the statute of limitations applies, it would not have begun running until Mr. Trattmann refused to convey the property to Mr. Key.

When the action accrued is not apparent on this record. The facts surrounding the issue have yet to be developed. The trial court acknowledged that the date the action accrued was not clear, but peremptorily announced that “it was surely more than four years ago.” No evidence in the record explains this pronouncement, which seems to rest on the unsupported notion that the cause of action arose at or about the time of the original purchase. The trial court ignored cash flows from the property and evinced misapprehension of the nature of the cause of action in ruling that, if “the defendant [Trattmann, the putative trustee] has made ‘no payments toward the purchase [or] maintenance of the [ ] property,’ then the cause of action accrued no later than 1998.” A trustee is ordinarily under no obligation to augment the trust corpus.

VT.

In sum, the trial court erred in granting summary judgment in favor of Mr. Tratt-mann because of disputed issues of material fact both on the purchase-money resulting trust claim and on the only possibly viable affirmative defense raised.

The judgment is reversed, and the case is remanded for further proceedings.

BROWNING, C.J., and LEWIS, J., concur.

      . Although Mr. Trattmann raised the affirmative defense of laches in his answer to the complaint, this defense was not ruled on separately by the trial court. Some courts have held that the statute of limitations does not apply to resulting trusts, since "the enforcement of a resulting trust in equity is governed by the doctrine of laches and not by the statute of limitations.” Fisher v. Creamer, 332 So.2d 50, 52 (Fla. 3d DCA 1976), superceded by statute on other grounds as explained by Velzy v. Estate of Miller, 502 So.2d 1297, 1299-1301 (Fla. 2d DCA 1987). See also Trustman v. Gelfman, 724 So.2d 1266, 1266 (Fla. 3d DCA 1999) (holding summary judgment proper in a probate action seeking to impose a resulting trust where the action was barred by laches). Some courts have, however, applied the statute of limitations to resulting trusts. See, e.g., Steigman v. Danese, 502 So.2d 463, 470 (Fla. 1st DCA 1987), disapproved of on other grounds by Spohr v. Berryman, 589 So.2d 225, 228-29 (Fla.1991), and order vacated by In re Estate of Danese, 601 So.2d 570, 571 (Fla. 1st DCA 1992) (holding that, if the action seeking a resulting or constructive trust was based on alleged fraud of the other party, the four-year statute of limitations applied). There has been no allegation of fraud here, and we need not decide how the statute of limitations interacts with the doctrine of laches at this point in the proceedings.

      . Mr. Trattmann did not set up illegality as a defense. The Restatement of Trusts (Third) provides, with an exception not pertinent here that
      where a transfer of property is made to one person and the purchase price is paid by another, a resulting trust arises in favor of the person by whom the purchase price is paid unless

      (b) the transfer is made to accomplish an unlawful purpose, in which case a resulting trust does not arise if the policy against unjust enrichment of the transferee is outweighed by the policy against giving relief to a person who has entered into an illegal transaction.
      Restatement (Third) of Trusts § 9(1 )(b) (2003). Even if illegality had been pleaded, this record would not justify summary judgment on that basis.

      . Section 689.01, Florida Statutes (2003), provides:
      No estate or interest of freehold, or for a term of more than 1 year, or any uncertain interest of, in or out of any messuages, lands, tenements or hereditaments shall be created, made, granted, transferred or released in any other manner than by instrument in writing, signed in the presence of two subscribing witnesses by the party creating, making, granting, conveying, transferring or releasing such estate, interest, or term of more than 1 year, ...; and no estate or interest, either of freehold, or of term of more than 1 year, or any uncertain interest of, in, to or out of any messuages, lands, tenements or hereditaments, shall be assigned or surrendered unless it be by instrument signed in the presence of two subscribing witnesses by the party so assigning or surrendering....

      . Section 95.11, Florida Statutes (2003), provides:
      Actions other than for recovery of real property shall be commenced as follows:

      (3) Within four years.—

      (k) A legal or equitable action on a contract, obligation, or liability not founded on a written instrument, including an action for the sale and delivery of goods, wares, and merchandise, and on store accounts.

      (6) Laches. — Laches shall bar any action unless it is commenced within the time provided for legal actions concerning the same subject matter regardless of lack of knowledge by the person sought to be held liable that the person alleging liability would assert his or her rights and whether the person sought to be held liable is injured or prejudiced by the delay. This subsection shall not affect application of laches at an earlier time in accordance with law.
      (Typeface altered.)

      . The rights of beneficiaries of resulting trusts to enforce their rights against the trustee or third persons are subject to the same rules regarding the doctrine of laches and statutes of limitations as apply in the case of express trusts. See § 98, and also compare §§ 96 and 97. The so-called doctrine of merger, which applies to express trusts (see § 69), also applies to resulting trusts.
      Restatement (Third) of Trusts § 7 cmt. h (2003). See also supra note 1.


author: KELLY, Judge.

text:
    SOFTWARE TECHNIQUES, INC., Appellant, v. L. Christopher KENT, Appellee.
    No. 2D06-4630.
    District Court of Appeal of Florida, Second District.
    May 25, 2007.
    Rehearing Denied June 12, 2007.
    Donald E. Christopher, Richard C. Swank, and Hutch K. Hicken of Litchford & Christopher, P.A., Orlando, for Appellant.
    J. Robert McCormack of Persante & McCormack, P.A., Clearwater, for Appel-lee.
   KELLY, Judge.

Software Techniques, Inc., (STI), a foreign corporation with its principal place of business in Orange County, Florida, appeals from the trial court’s order denying its motion to dismiss or, in the alternative, to transfer venue from Pinellas County to Orange County. We agree with STI that venue is proper in Orange County where the failure of performance of the employment contract occurred, and therefore, we reverse.

Appellee Christoper Kent is a former employee of STI who resides in Pinellas County. Kent sued STI seeking unpaid commissions he alleges were owed to him pursuant to a written employment agreement. STI has no representative in Pinel-las County, and the litigation does not involve property located there; thus, it is a proper venue only if that is where Kent’s cause of action accrued. See § 47.051, Fla. Stat. (2006) (providing that in an action against a foreign corporation venue is proper where the corporation has a representative, where the cause of action accrued, or where the property in litigation is located). Kent claims that the cause of action accrued in Pinellas County because that is where he received his paychecks via direct deposit into his bank account. STI, citing Precision Software, Inc. v. Gauthier, 605 So.2d 592 (Fla. 2d DCA 1992), argues that the cause of action accrued in Orange County where it has refused to issue further payment to Kent. We agree with STI that Precision is controlling and requires reversal.

In Precision, we held that for venue purposes, an action seeking severance payments due pursuant to an employment agreement should be treated as an action for breach of contract. Id. at 594. Thus, venue was proper where the breach occurred. Because the contract involved performance, the breach occurred where the failure of performance occurred. Id. In determining where the failure of performance occurred, we stated that “if Precision has indeed failed to perform in this instance, it has done so by refusing to issue further payment to Gauthier from its place of business in Pinellas County.” Id.

Similarly, in this case, if STI has failed to perform, it has done so by failing to issue commission payments to Kent from its office in Orange County. Accordingly, we reverse and remand with instructions for the trial court to transfer the action to Orange County. See Fla. R. Civ. P. 1.060(b).

Reversed and remanded with instructions.

CANADY and LaROSE, JJ., Concur.


author: LAGOA, Judge.

text:
    August J. CERADINI, Appellant, v. IGT SERVICES, INC., etc., Appellee.
    No. 3D06-2626.
    District Court of Appeal of Florida, Third District.
    May 30, 2007.

      Genovese, Joblove & Battista and Richard Sarafan, Miami, for appellant.
    Bilzin Sumberg Baena Price & Axelrod and Glen H. Waldman, Miami, and Joseph A. Mesa, III and Alan Smith, for appellee.
    Before COPE, C.J., and FLETCHER and LAGOA, JJ.
   LAGOA, Judge.

August J. Ceradini (“Ceradini”) appeals from an order denying his motion to compel arbitration. For the following reasons, we reverse.

I. FACTUAL HISTORY

On July 14, 2003, Florida Entertainment, LLC (“Florida Entertainment”) and Appellee IGT Services, Inc. (“IGT”) entered into a Marketing Sales Agreement (the “Agreement”) in which IGT agreed to provide advertising and financial services to Florida Entertainment. For purposes of this appeal, only two provisions of the Agreement are relevant. Section 14 requires that any dispute arising under the Agreement be resolved exclusively by arbitration in the City of Miami:

14. Arbitration. Any dispute or controversy arising out of or relating to this Agreement, any document or instrument delivered pursuant to, in connection with, or simultaneously with this Agreement, or any breach of this Agreement or any such document or instrument shall be settled exclusively by arbitration to be held in the City of Miami, Florida in accordance with the Arbitration Rules and the Supplementary Procedures for Large, Complex Disputes then in effect of the American Arbitration Association or any successor thereto.... Judgment may be entered on the arbitrator’s decision in any court having jurisdiction, and the parties irrevocably consent to the jurisdiction of the courts of the State of Florida and of any federal court located in such State for this purpose....

Section 15 further provides that both parties will consent to jurisdiction in Florida courts:

15. Jurisdiction. Subject to Section 14, each party hereby irrevocably consents to the jurisdiction of the courts of the State of Florida and of any federal court located in such State in connection with any action or proceeding arising out of or relating to this Agreement, any document or instrument delivered pursuant to, in connection with, or simultaneously with this Agreement, or a breach of this Agreement or any such document or instrument....

On August 4, 2003, Florida Entertainment and IGT executed an Amendment reaffirming the Agreement’s provisions:

6. All of the terms, provisions, covenants and conditions of the Agreement shall hereafter continue in full force and effect in accordance with the terms thereof, except to the extent expressly modified, amended or revised herein.

On the same date that the Amendment was executed, Ceradini entered into a Guarantee Agreement with IGT where he personally guaranteed Florida Entertainment’s obligations under the Agreement. A whereas clause indicates that the Guarantee Agreement is tied to the initial Agreement:

WHEREAS, IGT has agreed to provide certain monies to finance certain working capital needs of Florida Entertainment for the operation of the vessel St. Tropez in Ft. Lauderdale, Florida (the “Vessel”) by Florida Entertainment pursuant to the terms and conditions of that certain Marketing Services Agreement dated July 14, 2003 and as amended by the Amendment dated August 4, 2003, between IGT and Florida Entertainment (the “Amendment”)

The Guarantee Agreement does not contain an arbitration provision, but does contain a provision whereby Ceradini consents to jurisdiction and venue in Miami-Dade County and argues that IGT may bring suit there at its option:

i. GUARANTOR HERBY IRREVOCABLY CONSENTS TO THE JURISDICTION AND VENUE OF COURTS HAVING SITUS IN THE COUNTY OF DADE, FLORIDA, AND AGREE THAT ANY LITIGATION INVOLVING THIS GUARANTEE MAY, AT THE SOLE OPTION OF IGT, BE CONDUCTED IN SUCH COURTS. GUARANTOR HEREBY WAIVES ANY RIGHT THEY MAY HAVE TO TRANSFER OR CHANGE THE VENUE OF ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT AGAINST GUARANTOR BY IGT IN ACCORDANCE WITH THIS SECTION, OR TO CLAIM THAT ANY SUCH PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

Thereafter, IGT filed a complaint in the circuit court in and for Miami-Dade County against both Ceradini and another guarantor. The complaint alleged that Florida Entertainment failed to sustain its financial obligations under the Agreement, and that Ceradini as a guarantor was personally liable for all amounts owed.

Ceradini moved to dismiss the complaint and compel arbitration based upon the contention that the Guarantee Agreement and the Agreement should be read together and that the Guarantee Agreement’s permissive venue and jurisdiction clause could not trump the Agreement’s mandatory arbitration provision. The trial court denied the motion and this appeal ensued.

II. ANALYSIS

Although the Guarantee Agreement does not contain an arbitration provision, the law is clear that an arbitration provision in the main agreement is to be read into any corresponding guarantee agreement. See Berti v. Cedars Healthcare Group, Ltd., 812 So.2d 580, 581 (Fla. 3d DCA 2002). When the terms of one contract are intertwined with another, the public policy in favor of arbitration compels that the parties abide by an arbitration provision that is only located in one of the contracts. See Cuningham Hamilton Quiter, P.A. v. B.L. of Miami, Inc., 776 So.2d 940, 942 (Fla. 3d DCA 2000).

IGT agreed to exclusively arbitrate “any dispute or controversy arising out of or relating to” the Agreement. It is clear from IGT’s complaint that the cause of action alleged against Ceradini “arises out of or relate[s] to” the Agreement. Vic Potamkin Chevrolet, Inc. v. Bloom, 386 So.2d 286, 288 (Fla. 3d DCA 1980). “Because it affirmatively appears that the appellant was personally liable on a guarantee of the provisions of an agreement, which included an arbitration clause, between the appellee and another [entity], [the parties were] bound as a matter of law to arbitrate the instant dispute.” Berti 812 So.2d at 581 (internal citations omitted).

The fact that the Guarantee Agreement contains a jurisdiction clause requiring the parties to consent to jurisdiction in the courts of Miami-Dade County does not change this result. Indeed, it is a cardinal principal of contract construction that agreements are to be interpreted so as to give meaning to all their provisions. World Vacation Travel, SA de C.V. v. Brooker, 799 So.2d 410, 412 (Fla. 3d DCA 2001). Because the Guarantee Agreement and the Agreement are to be read together, the only question remaining is whether the Guarantee’s jurisdiction provision trumps or waives the Agreement’s arbitration provision. We find that as a matter of law it does not. The jurisdiction and venue provision of the Guarantee Agreement states only that litigation “may, at the sole option of IGT, be conducted” in Miami-Dade County. As such, this provision is not mandatory. See Granados Quinones v. Swiss Bank Corp., S.A., 509 So.2d 273, 274 (Fla.1987)(mandatory clauses in contracts require that a particular forum be the exclusive jurisdiction for litigation concerning the contract). Under the Guarantee, IGT had the option of suing Ceradini in Miami-Dade County, but that does not require an action to be brought there. The Agreement’s arbitration provision, however, is mandatory and requires “any dispute or controversy arising out of or relating to” the Agreement be resolved “exclusively” by arbitration. Indeed, “[ajgreeing to personal jurisdiction and venue is a far cry from waiving a right to arbitrate.” Qadri v. PointDirex, L.L.C., 823 So.2d 861, 864 (Fla. 5th DCA 2002).

Accordingly, we reverse the trial court’s order denying Ceradini’s motion to compel arbitration and remand with directions to compel arbitration.

Reversed and remanded.

      . Specifically, the complaint alleged:
      8. On or about July 14, 2003, IGT and Florida Entertainment LLC ("Florida Entertainment”) entered into a marketing services agreement (the "Agreement”).
      9. The Agreement was modified by an amendment dated August 4, 2003 between IGT and Florida Entertainment (the “Amendment”).
      10. On the same date that the Amendment was executed, both Mr. Andren and Mr. Ceradini executed identical personal guarantees (collectively the "Personal Guarantees”), which provided that each of them would act as Guarantors for the performance of all of Florida Entertainment’s financial obligations under the Agreement and Amendment.... The Personal Guarantees provide in pertinent part:
      Guarantor hereby absolutely, jointly and severally, irrevocably and unconditionally guarantees to IGT, as primary obligor and not merely as surety, all of the Obligations (as defined below) of Florida Entertainment under the Agreement. "Obligations” shall mean the prompt payment when due of all payments and other financial obligations of any kind or nature, whatsoever of Florida Entertainment under the Agreement, including without limitation any supplements, addenda and riders from time to time executed or- delivered in connection therewith.

      21. Mr. Ceradini breached his personal guarantee with IGT by failing to pay IGT the Obligation owed by Florida Entertainment and which was personally guaranteed by him.


text:
    Fernando A. De CESPEDES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2942.
    District Court of Appeal of Florida, Third District.
    May 30, 2007.
    Rehearing Denied July 10, 2007.

      Fernando A. De Cespedes, in proper person.
    Bill McCollum, Attorney General, and Angel L. Fleming, Assistant Attorney General, for appellee.
    Before GERSTEN, FLETCHER, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See Glover v. State, 874 So.2d 654 (Fla. 3d DCA 2004).


text:
    Alonzo Mathew McQUEEN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-2504.
    District Court of Appeal of Florida, First District.
    May 30, 2007.
    Rehearing Denied July 6, 2007.
    Alonzo Mathew McQueen, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(4)(A).

ALLEN, WEBSTER, and BENTON, JJ., concur.


text:
    Edwin F. WASHINGTON, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D07-1422.
    District Court of Appeal of Florida, First District.
    June 5, 2007.
    Rehearing Denied July 11, 2007.
    Edwin F. Washington, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DENIED. See Banks v. State, 916 So.2d 35 (Fla. 1st DCA 2005) (dismissing appeal of interlocutory order imposing lien on prisoner’s inmate account); Brown v. Campion, 757 So.2d 535 (Fla. 1st DCA 2000) (holding order denying indigency status is not immediately reviewable). See also Cason v. Crosby, 892 So.2d 536 (Fla. 1st DCA 2005) (providing relief from indi-gency order where review was properly initiated following final order dismissing mandamus petition).

WOLF, DAVIS, and THOMAS, JJ., concur.


author: WELLS, J.

text:
    Reinaldo HIDALGO, Appellant, v. The STATE of Florida, Appellee.
    Nos. 3D06-1338, 3D06-2082.
    District Court of Appeal of Florida, Third District.
    June 6, 2007.
    Bennett H. Brummer, Public Defender, and Gwendolyn Powell Braswell, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and William J. Selinger, Assistant Attorney General, for appellee.
    Before FLETCHER, WELLS, and SUAREZ, JJ.
   WELLS, J.

In this consolidated appeal, Reinaldo Hi-dalgo challenges his convictions and sentences for burglary, theft, and Florida Pawnbrokering Act offenses charged in four separate cases, to which Hidalgo pled guilty while reserving the right to appeal denial of a motion to suppress. Hidalgo’s motion sought to suppress:

Defendant’s statements to police admitting to various locations and taking items from within, including without limitation a Seiko watch, a Tag Heuer watch, pawn slips, two computers, and all other evidence obtained by virtue of Defendant’s admission.

Because we agree that this motion should have been granted, we reverse and remand for vacation of the convictions and sentences.

Hidalgo was initially stopped by two plain clothes detectives while he was walking down a busy residential street with an individual identified as Gabriel. One of the detectives (who was patrolling the area because of a recent rash of burglaries) recognized Gabriel, a known burglar who had been arrested a number of times. Although this detective knew that Gabriel did not live in the area, neither detective knew anything about Hidalgo.

Gabriel and Hidalgo were called over and voluntarily went to talk to the detectives. Gabriel and Hidalgo were asked for identification and, over safety concerns, “patted-down.” After the pat-down was completed, Hidalgo pulled a yellow sheet of paper from one of his pockets as he searched for his identification. One of the detectives recognized it as a pawn shop receipt. The officer examined the receipt, questioned Hidalgo about the two watches listed on the receipt (which Hidalgo claimed were his), and returned the slip to Hidalgo. Gabriel and Hidalgo were permitted to leave.

In the following week to ten days, one of the detectives searched a pawn shop activity database. The detectives also reviewed stolen property reports and found reports of stolen watches matching the descriptions of those listed on Hidalgo’s pawn shop receipt. The watch owners were taken to the pawn shop named on the receipt that Hidalgo had in his pocket and identified the watches pawned by Hidalgo as belonging to them. Hidalgo was arrested and confronted with the evidence that the detectives had gathered.

Hidalgo waived his Miranda rights and admitted to: (1) stealing a Tag Heuer watch and a laptop computer from a Collins Avenue address; (2) taking a Seiko watch from a Bay Drive address; (3) entering a different Collins Avenue address and stealing two laptop computers; and, (4) re-entering the same Bay Drive address from which he had taken the Seiko watch to steal a camera and other items. Hidalgo was charged in four different cases with each of these entries, moved to suppress his statements and the evidence of these crimes, and pled guilty, reserving the right to appeal denial of his suppression motion.

The State acknowledges that Hidal-go’s consensual encounter with the detectives became a detention when the detectives conducted the pat-down search and that because no reasonable suspicion existed at that time, his detention was unlawful. See Popple v. State, 626 So.2d 185, 186 (Fla.1993) (during an investigatory stop “a police officer may reasonably detain a citizen temporarily if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime”); Enich v. State, 838 So.2d 1216, 1217 n. 1 (Fla. 3d DCA 2003) (confirming that a consensual search was transformed into a stop when a pat down search was conducted); Hines v. State, 737 So.2d 1182, 1186 (Fla. 1st DCA 1999) (stating that a “pat-down or frisk transforms a consensual police-citizen encounter into a ‘stop’ ”); Sholtz v. State, 649 So.2d 283, 284 (Fla. 2d DCA 1995) (confirming that an encounter was transformed into a stop when an officer conducted a pat-down search). However, the State maintains that Hidalgo’s confession and the evidence of his crimes should not be suppressed because discovery of this evidence was attenuated from the original stop. We cannot agree.

In Moody v. State, 842 So.2d 754, 759-60 (Fla.2003), the Florida Supreme Court confirmed that although a stop may be illegal, all evidence obtained following the stop is not per se inadmissible. Where an independent source for discovery of the evidence exists, where the evidence inevitably would have been discovered, or where there is attenuation between the challenged evidence and the illegal conduct, evidence seized following an illegal stop may still be admitted:

Although the stop was illegal, the fruit of the poisonous tree doctrine does not automatically render any and all evidence inadmissible. A court may admit such evidence if the State can show that (1) an independent source existed for the discovery of the evidence, Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920); or (2) the evidence would have inevitably been discovered in the course of a legitimate investigation, Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984); or (3) sufficient attenuation existed between the challenged evidence and the illegal conduct, Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

Moody, 842 So.2d at 759.

The State in this case does not claim that an independent source existed for discovery of the evidence that Hidalgo seeks to suppress. Nor does it claim that this evidence inevitably would have been discovered in the course of a legitimate investigation. It claims only that the evidence Hidalgo seeks to suppress was sufficiently attenuated from the illegal stop to permit its admission. The record does not support this argument.

“In order to determine if evidence is sufficiently attenuated, the court must consider three factors: (1) the temporal proximity of the arrest and the discovery of the evidence sought to be suppressed; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the police misconduct.” Id. at 760. Although the detective who patted-down Hi-dalgo did not seize the pawn shop receipt from Hidalgo, the information he gleaned from it was used to track down the stolen watches, to locate them at the pawn shop, to have their owners identify them, to arrest Hidalgo for their theft and to secure a confession regarding not just this property but other stolen property as well. While these activities took a number of days to accomplish, they were proximate to both the stop and the arrest and certainly not interrupted by any intervening events. As for the purpose and flagrancy of the police misconduct, they are admitted by the State. Under the circumstances, Hidal-go’s confession and all evidence discovered following the stop and frisk should have been suppressed.

Accordingly, we reverse Hidalgo’s convictions and sentences and remand with instructions that an order be entered granting his motion to suppress and for further proceedings consistent with this opinion.


author: SCHWARTZ, Senior Judge.

text:
    Jose Enrique HERNANDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-2519.
    District Court of Appeal of Florida, Third District.
    June 6, 2007.

      Roy Wasson, Private Court-Appointed Counsel, for appellant.
    Bill McCollum, Attorney General, and Angel L. Fleming, Assistant Attorney General, for appellee.
    Before COPE, C.J., and GREEN, J„ and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

Jose Enrique Hernandez appeals from his convictions on two counts of manslaughter by culpable negligence. We affirm.

The tragic scenario involved in this case began at a bar in south Miami-Dade County on the night of December 8, 2001. Of the three half-brothers who were among others present, Jose Luis Hernandez-Ben-itez, the only one who was sober but who had no license, asked that Jose Enrique, who was highly intoxicated, let Saul Garcia, a sober friend, drive Jose Enrique’s truck from the bar. Jose Enrique adamantly refused, stating, according to Jose Luis, that “he wouldn’t give [the keys] to me, that that was his truck, the keys to his truck, he wouldn’t give them to anyone, that that was his truck.” True to his threat, Jose Enrique drove from the bar with the passenger with whom he had driven to it: the third half-brother Ruben Soto, who was also plainly extremely impaired. This statement makes the acts that subsequently occurred seem both prophetic and anticlimactic. Within less than a half hour after they left the bar, and with Ruben now driving, the truck ran a stop sign at a high rate of speed and struck a car at an intersection, killing two innocent persons. The subsequent investigation showed that, with 0.08 percent the legal limit, Jose Enrique’s blood-alcohol level was 0.232 percent and Ruben’s was 0.182 percent.

Both Jose Enrique and Ruben were tried before separate juries in a single trial. Although both defendants insisted that Jose Enrique was driving at the time of the accident, there was ample expert and lay testimony that, as the state contends, Ruben was the driver, with Jose Enrique in the back seat. The juries plainly accepted this claim, finding, as they did, Ruben guilty of DUI manslaughter and of manslaughter by culpable negligence, demonstrating that he had been the driver, and Jose Enrique guilty of manslaughter by culpable negligence, demonstrating that he was not. On this, Jose Enrique’s appeal, his primary contention is the alleged insufficiency of the evidence to support those convictions. We find otherwise.

Our conclusion is based upon the determination that Jose Enrique’s conduct of refusing to permit a sober operator to drive the vehicle, and instead insisting upon operating the vehicle himself with only another highly impaired person available to operate the truck indeed amounted to “consciously doing an act or following a course of conduct that the defendant must have known, or reasonably should have known, was likely to cause death or great bodily injury,” Fla. Std. Jury Inste. (Crim.) 7.7, thus satisfying the elements of manslaughter by culpable negligence. See Taylor v. State, 83 So.2d 879 (Fla.1955); Michelson v. State, 927 So.2d 890 (Fla. 4th DCA 2005); Davison v. State, 688 So.2d 338 (Fla. 1st DCA 1996), review denied, 697 So.2d 510 (Fla.1997); Werhan v. State, 673 So.2d 550 (Fla. 1st DCA 1996); Kornegay v. State, 520 So.2d 681 (Fla. 1st DCA 1988); see also Michel v. State, 752 So.2d 6, 10-11 (Fla. 5th DCA 2000), review denied, 766 So.2d 222 (Fla.2000), and cited cases. See generally 1 Wayne R. LaFave, Substantive Criminal Law, § 5.4 (2d ed. Westlaw database updated 2007).

We also reject the only claim pressed by the appellant at oral argument: that the state’s case was fatally flawed by the fact that no evidence shows the precise circumstances in which Ruben was given or otherwise took over the wheel. Because we think it obvious that the possibility that the only other also-intoxicated driver would indeed actually drive the vehicle upon Jose Enrique’s inability or unwillingness to do so was directly within the zone of danger created by Jose Enrique’s conduct in the first place, see Eversley v. State, 748 So.2d 963 (Fla.1999); State v. Gensler, 929 So.2d 27 (Fla. 3d DCA 2006), review denied, 945 So.2d 1289 (Fla.2006), it does not matter under the law that Jose Enrique was unable to foresee “the exact concatenation of events,” K-Mart Enters. of Fla., Inc. v. Keller, 439 So.2d 283, 286 (Fla. 3d DCA 1983), review denied, 450 So.2d 487 (Fla.1984), which actually culminated in the accident. See D.E. v. State, 904 So.2d 558 (Fla. 5th DCA 2005); Michel, 752 So.2d at 12; State v. Morris, 740 So.2d 554 (Fla. 1st DCA 1998); see also Kitchen v. K-Mart Corp., 697 So.2d 1200 (Fla.1997); Gibson v. Avis Rent-A-Car Sys., Inc., 386 So.2d 520 (Fla.1980); Boggs v. Butler, 129 Fla. 324, 176 So. 174 (1937); Pacheco v. Fla. Power & Light Co., 784 So.2d 1159 (Fla. 3d DCA 2001), review denied, 805 So.2d 806 (Fla.2001). See generally 2 LaFave, supra, § 13.2 (2d ed. Westlaw database updated 2007)(“[I]f A’s own conduct in turning over the car to one known to be intoxicated is itself criminally negligent and if that conduct is found to be the legal cause of the death, then A is guilty of manslaughter on that basis.”). We have examined the other points and find them to be without merit.

Affirmed, as modified.

      . We agree with the state’s concession that the judgment improperly reflects a violation of the vehicular homicide statute. We therefore order that the convictions be modified to delete any reference to that statute.


text:
    Alexander PEÑA, Appellant, v. The STATE of Florida, Appellee.
    Nos. 3D06-1751, 3D06-1340.
    District Court of Appeal of Florida, Third District.
    June 6, 2007.
    Rehearing Denied July 10, 2007.

      Alexander Peña, in proper person.
    Bill McCollum, Attorney General, and Juliet S. Fattel, Assistant Attorney General, for appellee.
    Before GERSTEN, FLETCHER, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See Corria v. State, 932 So.2d 530 (Fla. 3d DCA2006).