R. Donahue Peebles, Appellant,
Dora Puig, etc., et al., Appellees.
final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County Lower
Tribunal No. 06-8787, Sarah I. Zabel, Judge.
Singerman LLP, and Michael J. Higer and Colleen A. Maranges,
Schlesinger & Associates, P.A., and Michael J.
Schlesinger, Joshua B. Bochner and Gal Rosenzweig; Billbrough
& Marks, P.A., and Geoffrey B. Marks, for appellees.
EMAS, LOGUE and SCALES, JJ.
defendant below, R. Donahue Peebles, appeals a final judgment
awarding Appellee, plaintiff below, Dora Puig, the amount of
$423, 100 in damages after a jury found Peebles liable for
fraudulent misrepresentation. We reverse the judgment because
Peebles's conduct giving rise to Puig's fraud claim
was not independent, separate and distinct from the conduct
forming the basis of Puig's breach of contract claim.
facts are not in dispute. In 2000, Puig, a licensed Florida
real estate sales person, entered into an employment
agreement with a real estate developer, Collins Avenue
Associates, LLC ("Collins Avenue"). Collins Avenue
was the developer of a high-end condominium complex located
in Miami Beach, The Residences at the Bath Club ("Bath
Club"). Pursuant to that contract, Puig was to serve as
the Bath Club's sales and marketing director. Puig was
required to develop and implement the marketing plan for the
sales of Bath Club units and, in exchange, she received a
salary of $12, 500 per month, plus a one percent
"override" commission on each unit sold by Collins
entering into this agreement, Collins Avenue restructured
itself. As part of the restructuring, PADC Marketing, LLC, a
licensed real estate brokerage firm, was formed to act as the
exclusive broker to market the sale of Bath Club units.
Collins Avenue and PADC entered into a marketing/brokerage
agreement that required Collins Avenue to pay commissions to
PADC; and, in turn, PADC was required to pay the Bath
Club's sales staff, including Puig. After extensive
negotiations involving Collins Avenue, PADC and Puig, Puig
consented to the assignment of her employment agreement from
Collins Avenue to PADC. Puig was expressly designated as an
intended third-party beneficiary to those provisions of the
agreement between Collins Avenue and PADC related to Collins
Avenue's commission obligations.
construction of the Bath Club, several purchasers sought to
re-sell their units to other buyers. Peebles, as principal of
Collins Avenue and the sole owner of PADC, assured Puig that
Puig and other Bath Club sales agents would be paid
commissions on these resale units pursuant to their
employment contracts. Puig and her sales team re-sold
twenty-three condominium units. After PADC initially paid
Puig commissions on seven of the twenty-three resale units,
Peebles, on behalf of PADC, advised Puig that these payments
were made in error. According to Peebles, while PADC was
entitled to - and collected - commissions on resale units,
Puig's employment agreement provided for payment of
commissions only on units Collins Avenue initially sold to
buyers, and not on units re-sold by buyers. PADC did not pay
Puig a commission for the remaining sixteen resale units. By
deducting commissions due to Puig on Bath Club units sold by
Collins Avenue, PADC recouped the commissions it claimed were
erroneously paid to Puig. It is undisputed that Puig's
employer/broker was PADC at the time of the resales.
Puig sued PADC and Collins Avenue, alleging breach of
contract, unjust enrichment and quantum meruit. Subsequently,
Puig amended her complaint to add Peebles as a defendant and,
significantly, to add a count of fraudulent misrepresentation
as to Peebles individually. Essentially, Puig's fraud
claim against Peebles alleged that Peebles knowingly made
false statements to Puig that PADC would pay Puig a
commission based on the resale of Bath Club units. Puig
alleged that Peebles had no intention of paying such
commissions, and that Puig relied on Peebles's statements
to expend efforts to accomplish the twenty-three resales.
Prior to trial,  both Collins Avenue and Peebles stipulated
that Puig's employment agreement obligated PADC to pay
Puig a commission on resale units, and that the commissions
due to Puig totaled $423, 100. The trial court granted Puig
summary judgment against Collins Avenue based on Puig being a
third-party beneficiary to the brokerage agreement between
Collins Avenue and PADC. In May of 2015, the case proceeded
to trial against Peebles on the fraud claim. The trial court
denied Peebles's motion for directed verdict, and the
jury returned a verdict against Peebles in the amount of
$423, 100, the exact same amount that Puig had obtained in
her summary judgment on her third-party beneficiary claim
against Collins Avenue. The trial court denied Peebles'
post-trial motions and entered judgment for Puig against
Peebles in the amount of $423, 100, plus interest. This
appeal timely ensued.
Standard of Review
seeks review of the trial court's denial of his motion
(i) to dismiss Puig's fraud claim, (ii) for summary
judgment, and (iii) for directed verdict. Because our review
involves questions of law, we employ the de novo standard of
review. Health Options, Inc. v. Palmetto Pathology
Servs., P.A., 983 ...