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Peebles v. Puig

Florida Court of Appeals, Third District

May 10, 2017

R. Donahue Peebles, Appellant,
v.
Dora Puig, etc., et al., Appellees.

         Not final until disposition of timely filed motion for rehearing.

         An Appeal from the Circuit Court for Miami-Dade County Lower Tribunal No. 06-8787, Sarah I. Zabel, Judge.

          Berger Singerman LLP, and Michael J. Higer and Colleen A. Maranges, for appellant.

          Schlesinger & Associates, P.A., and Michael J. Schlesinger, Joshua B. Bochner and Gal Rosenzweig; Billbrough & Marks, P.A., and Geoffrey B. Marks, for appellees.

          Before EMAS, LOGUE and SCALES, JJ.

          SCALES, J.

         Appellant, 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.

         I. Facts

         The 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 Avenue.

         After 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.

         During 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.

         Initially, 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.[1] 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, [2] 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.[3] 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.

         II. Standard of Review

         Peebles 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 ...


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