State of Belize v. Howtzer Corporation ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-15367 September 14, 2005
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 02-22059-CV-JEM
STATE OF BELIZE, a foreign state,
DEVELOPMENT FINANCE CORPORATION,
a foreign corporation,
Plaintiffs-Appellees
Cross-Appellants,
versus
HOWTZER CORPORATION,
a Florida corporation,
Defendant-Third-Party-
Plaintiff-Counter-
Defendant-Appellant
Cross-Appellee,
HOWTZER CORPORATION DELAWARE,
a Delaware corporation,
HOWTZER INTERNATIONAL,
a Florida corporation,
HOWTZER INVESTMENTS,
a Florida corporation,
INFORMATION TECHNOLOGY DEVELOPMENT, INC.,
a Delaware corporation,
CARTAYA HERNANDEZ,
individually,
Defendants-Appellants
Cross-Appellees,
versus
EMB GROUP, INC.,
Third-Party-Defendant-
Counter-Claimant.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(September 14, 2005)
Before CARNES, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
This case concerns a contract for prefabricated homes entered into by
Howtzer Corporation, EMB Corporation (“EMB”), the State of Belize, and the
Development Finance Corporation (“DFC”), an agency of the State of Belize.
The State of Belize and DFC, Plaintiffs-Appellees, filed an eight-count
complaint against Defendants-Appellants, various Howtzer corporate entities.1
The complaint alleged breach of contract (Counts I and VII), conversion (Count
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EMB Group, Inc., is the Third-Party Defendant in this case. Claims between
Defendants-Appellants, as Third-Party Plaintiffs, and EMB Group, Inc., were resolved through a
settlement agreement prior to trial.
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II), civil theft in violation of Fla. Stat. § 772.11 (Count III), fraud (Count IV),
money had and received (Count V), and fraudulent conveyance or transfer (Count
VIII). In addition, the complaint sought a constructive trust and an accounting
(Count VI).
In a non-jury trial, the district court found for Plaintiffs-Appellees as to
Counts I through V and Count VII, entering judgment according to the parties’
stipulation that Plaintiffs-Appellees’ damages were $526,500.00. Furthermore,
finding that Plaintiffs-Appellees were entitled to this amount of damages on any of
their claims, the court awarded treble damages pursuant to Florida’s civil theft
remedy, bringing the total damages to $1,579,500.00.
We review the trial court’s findings of fact for clear error, and its
conclusions of law de novo. Miles v. Naval Aviation Museum Found., Inc., 289
F.3d 715, 720 (11th Cir. 2002).
Howtzer and Cartaya contest the court’s finding that the parties entered into
an escrow agreement, which was the basis for the court’s entry of judgment against
them. After a careful review of the parties’ briefs and the record, we find that the
district court’s findings of fact, conclusions of law, and final judgment accurately
resolved the issues in this case. The district court did not clearly err in finding that
an escrow agreement existed because ample evidence in the record supported this
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finding. See The Florida Bar v. Joy, 679 So. 2d 1165, 1167 (Fla. 1996) (citation
omitted) (“In the absence of an express agreement, written or oral, the law will
imply from the circumstances of the escrow that the agent has undertaken a legal
obligation . . . .”). Furthermore, for the reasons stated in the district court’s
September 17, 2004 order, and having determined that the court’s finding of an
escrow agreement was not clearly erroneous, we find that Plaintiffs-Appellees have
established the requisite elements for the breach of contract, conversion, civil theft,
fraud, and money had and received claims. As for Plaintiffs-Appellees cross-claim
for attorney’s fees, we hold that the district court did not err in determining that
Plaintiffs-Appellees did not make the required showing of clear and convincing
evidence that would entitle them to attorney’s fees. See F LA. S TAT. ch. 772.104.
Accordingly, the court’s entry of judgment against Defendants-Appellants is
AFFIRMED.
AFFIRMED.
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