ROBIN CRAWLEY-KITZMAN v. IGNACIO HERNANDEZ ( 2021 )


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  •       Third District Court of Appeal
    State of Florida
    Opinion filed June 23, 2021.
    Not final until disposition of timely filed motion for rehearing.
    ________________
    No. 3D20-420
    Lower Tribunal No. 19-5830
    ________________
    Robin Crawley-Kitzman,
    Appellant,
    vs.
    Ignacio Hernandez, et al.,
    Appellees.
    An Appeal from the Circuit Court for Miami-Dade County, Barbara
    Areces, Judge.
    Ainsworth + Clancy, PLLC, and Ryan M. Clancy, for appellant.
    Valdes Law Firm, P.A., and Natalie F. Guerra-Valdes (Fort
    Lauderdale), for appellees.
    Before SCALES, HENDON, and LOBREE, JJ.
    HENDON, J.
    Robin Crawley-Kitzman (“Appellant”), appeals from an order granting
    33rd Avenue Investments, LLC k/n/a 33rd Management, LLC (“33rd
    Management”), Jaime Rodriguez (“Rodriguez”), and Mirna Carolina Rivas
    (“Rivas”) (collectively “Appellees”) motion to dismiss with prejudice counts I,
    II, III, VI, IX, and X of the Appellant’s second amended complaint and striking
    the Appellant’s demand for a constructive trust. We affirm.
    Ignacio Hernandez (“Hernandez”) is the owner of Solid Builders, Inc.
    (“Solid Builders”). The Appellant was an employee of Solid Builders and
    Hernandez agreed to pay her $50,000.00 per year for her employment, plus
    an end-of-year bonus. When it became clear that Solid Builders would not
    be paying her bonus, Appellant and Hernandez orally agreed that she
    should receive a 26% equitable interest in the sale proceeds of a residential
    investment property (the “Property”) owned by 33rd Management in lieu of
    her bonus.    At the time of the Agreement, Hernandez allegedly made
    statements and representations holding himself out to be the 100% owner
    and/or majority stakeholder in 33rd Management. Hernandez promised the
    Appellant that, when and if that property sold, the Appellant would receive
    26% of the sale price. 33rd Management was managed by Hernandez’s
    sister, Yaira Hernandez (“Yaira”).
    2
    On January 14, 2017, Appellant and Hernandez executed a written
    agreement labeled as a promissory note (the “Agreement”) that
    memorialized their understanding of the oral agreement between them
    which provides, in relevant part:
    1. Payments under this Agreement shall be as follows:
    (a) 26% of [Hernandez’s] portion in the property 11430 SW
    51st Street, Miami, FL 33165, which is owned by 33rd
    Avenue Investments, LLC a Miami Corporation.
    (b) The Minimum Sale Amount is $365,000 as agreed by
    [Hernandez] and [Appellant]
    (c) [Hernandez’s] current ownership is 48% which will go down
    to 22%
    (d) The entire balance of this Agreement thereof and all other
    sums payable hereunder shall be due and payable, in full,
    within 24 hours of the closing date of the sale of this
    property, (the “Maturity Date”).
    ....
    4. Payment of this Agreement is secured by a Mortgage and
    Security Agreement . . . from [Hernandez] to [Appellant] dated
    the same date as this Notice. . . . [Hernandez] does hereby
    mortgage, grant and convey to [Appellant], its successors and
    assigns, in fee simple, all that certain tract of land of which the
    Borrower and [Hernandez] is now the legal owner, and in actual
    possession . . . .[1]
    At some point, 33rd Management sold the property for a figure less than
    what Hernandez promised in the Agreement. Hernandez did not convey
    1
    The Appellant did not record the Note or Mortgage Agreement.
    3
    26% of the proceeds to the Appellant. Further, it turns out that Hernandez
    did not have any ownership interest in the property at the time he signed the
    Agreement with the Appellant because he had previously conveyed all of
    his 48% interest in 33rd Management to his sister, Yaira via an “Assignment
    of Limited Liability Company Interest” (“Assignment”). On July 18, 2018,
    33rd Management entered into a contract to sell the subject property to
    Rodriguez and Rivas for $240,000, significantly less than the $365,000
    market price and the agreed price in the Agreement.
    In February 2019, the Appellant filed a complaint against 33rd
    Management,        Rodriguez 2,   Rivas 3,   Ignacio   Hernandez,   and   Yaira
    (collectively, “Defendants”), 4 in which the Appellant alleged that she has a
    26% vested ownership or profit interest in the Property. The Appellant
    alleged in her complaint that Yaira knew that any property owned by 33rd
    Management was really in trust for the benefit of the various investors, and
    the Defendants had no intention of honoring the Agreement between
    2
    Rodriguez is a business associate and friend of Hernandez, to whom the
    Appellant alleges Hernandez steered construction business.
    3
    Rivas is Rodriguez’s wife.
    4
    Yaira is not listed as a defendant in the caption of the operative complaint,
    but the body of the complaint states that the action is filed against her.
    4
    Hernandez and the Appellant, as evidenced by their act of concealing the
    Assignment from her. The Appellant further alleged that all the Defendants
    concealed the sale and the Assignment from her to “fraudulently induce
    Appellant out of her bonus on poorly founded technicalities.” The Appellant
    did not receive any of the sale funds.
    Based on these allegations, the Appellant asserted the following
    counts. In counts I and II of the Amended Complaint, the Appellant sought
    1) a declaration that 33rd Management is actually a façade used to defraud
    the Appellant; 2) a declaratory judgment finding that 33rd Management is
    jointly and severally liable for the Agreement as well as liable for pre- and
    post-judgment costs, interest, and attorney’s fees; 3) a declaration that
    Hernandez, Yaira, and 33rd Management are jointly and severally liable for
    all debts related to Appellant’s dealings with Hernandez, Yaira, and 33rd
    Management, including those under the Agreement. In count III, the
    Appellant sought an equitable lien on the property against all Defendants,
    or, in the alternative, a lien against the funds paid to 33rd Management.
    Count VI asserted relief for unjust enrichment against all Defendants. In
    count IX, the Appellant claimed Rodriguez and Rivas tortiously interfered
    with the Agreement, and knowingly formed a seller-financed arrangement
    in order to sell the property for below market value and to avoid paying any
    5
    of the sale price to the Appellant. In count X, Appellant alleged a claim for
    civil conspiracy against all Defendants, claiming that Hernandez and Yaira,
    on behalf of themselves and through 33rd Management, induced Rodriguez
    and Rivas to buy the house at the reduced value without notifying the
    Appellant. 5 In addition to these counts, the Appellant also demanded
    formation of a constructive trust.
    The Appellees filed a motion to dismiss counts I, II, III, VI, IX and X of
    Appellant’s second amended complaint for failure to state causes of action,
    and moved to strike Appellant’s demand for a constructive trust because the
    Appellant had no ownership rights in the property (“Motion to Dismiss”).
    After considering the record and pleadings, the trial court entered an order
    granting the Appellees’ motion to dismiss with prejudice counts I, II, III, VI,
    IX, and X of the Appellant’s second amended complaint as they pertained
    to the Appellees, and struck the Appellant’s demand for a constructive trust.
    The Appellant filed a motion for reconsideration, which the trial court denied.
    This appeal followed.
    5
    The following counts remain pending as of this appeal: count IV—Breach
    of Contract against Hernandez; count V—Conversion against Hernandez;
    count VII—Fraud in the Inducement against Hernandez and Yaira; and count
    VIII—Unpaid Wages against Hernandez. At the time the order under review
    was entered, Hernandez and Yaira had not been served.
    6
    “In reviewing an appeal from the dismissal of a complaint as failing to
    state a cause of action against any defendant, the allegations of the
    complaint are assumed to be true and all reasonable inferences indulged in
    favor of the plaintiff.” Drew v. Knowles, 
    511 So. 2d 393
    , 395 (Fla. 2d DCA
    1987). “Whether a complaint is sufficient to state a cause of action is an
    issue of law. Consequently, the ruling on a motion to dismiss for failure to
    state a cause of action is subject to de novo standard of review.” Kond v.
    Mudryk, 
    769 So. 2d 1073
    , 1076 (Fla. 4th DCA 2000) (quoting W.R.
    Townsend Contracting, Inc. v. Jensen Civil Constr., Inc., 
    728 So. 2d 297
    ,
    300 (Fla. 1st DCA 1999)); Papunen v. Bay Nat’l Title Co., 
    271 So. 3d 1108
    ,
    1111 (Fla. 3d DCA 2019).
    Declaratory Relief
    We first address whether the trial court correctly dismissed the two
    counts for declaratory relief, and conclude that dismissal was proper.
    “[T]he purpose of a declaratory judgment is to afford parties relief from
    insecurity and uncertainty with respect to rights, status, and other equitable
    or legal relations.” People's Tr. Ins. Co. v. Franco, 
    305 So. 3d 579
    , 582 (Fla.
    3d DCA 2020) (quoting Santa Rosa Cnty. v. Admin. Comm'n, Div. of Admin.
    Hearings, 
    661 So. 2d 1190
    , 1192 (Fla.1995)). “A motion to dismiss a
    complaint for declaratory judgment is not a motion on the merits. Rather, it
    7
    is a motion only to determine whether the plaintiff is entitled to a declaration
    of rights, not to whether it is entitled to a declaration in its favor.” Romo v.
    Amedex Ins. Co., 
    930 So. 2d 643
    , 648 (Fla. 3d DCA 2006).
    To survive a motion to dismiss, a complaint for declaratory relief must
    show:
    [ (1) ] [T]here is a bona fide, actual, present practical need for
    the declaration; [ (2) ] that the declaration should deal with a
    present, ascertained or ascertainable state of facts or present
    controversy as to a state of facts; [ (3) ] that some immunity,
    power, privilege or right of the complaining party is dependent
    upon the facts or the law applicable to the facts; [ (4) ] that there
    is some person or persons who have, or reasonably may have
    an actual, present, adverse and antagonistic interest in the
    subject matter, either in fact or law; [ (5) ] that the antagonistic
    and adverse interest[s] are all before the court by proper process
    or class representation and [ (6) ] that the relief sought is not
    merely giving of legal advice by the courts or the answer to
    questions propounded from curiosity. These elements are
    necessary in order to maintain the status of the proceeding as
    being judicial in nature and therefore within the constitutional
    powers of the courts.
    Franco, 305 So. 3d at 583 (quoting Coal. for Adequacy & Fairness in Sch.
    Funding v. Chiles, 
    680 So. 2d 400
    , 404 (Fla. 1996) (quoting Santa Rosa
    Cnty., 661 So. 2d at 1192-93 (quoting Martinez, 582 So. 2d at 1170));
    Romo, 
    930 So. 2d at 648
     (same); Floyd v. Guardian Life Ins. Co., 
    415 So. 2d 103
    , 104 (Fla. 3d DCA 1982) (“A complaint seeking declaratory relief
    must allege ultimate facts showing a bona fide adverse interest between the
    parties concerning a power, privilege, immunity or right of the plaintiff; the
    8
    plaintiff's doubt about the existence or non-existence of his rights or
    privileges; that he is entitled to have the doubt removed.”); § 86.011, Fla.
    Stat. (2020) 6; see also 19 Fla. Jur. 2d Declaratory Judgments § 2. On de
    novo review of counts I and II, we determine that the allegations are not
    suitable for declaratory judgment because the Appellant seeks to have the
    court adjudge ultimate facts and liability, rather than to provide a declaration
    of rights to proceed. Counts I and II are more appropriately brought as
    counts for breach of contract and Appellant’s remedies are those that are to
    be sought at law. Because the Appellant’s counts I and II do not seek a
    declaration of rights as between the parties but rather a final judgment of
    liability in Appellant’s favor, the trial court correctly dismissed these counts.
    Equitable Lien
    6
    Section 86.011 provides in relevant part as follows:
    Jurisdiction of trial court. -- . . . . The court may render
    declaratory judgments on the existence, or nonexistence:
    (1) Of any immunity, power, privilege, or right; or
    (2) Of any fact upon which the existence or nonexistence of
    such immunity, power, privilege, or right does or may depend,
    whether such immunity, power, privilege, or right now exists
    or will arise in the future. Any person seeking a declaratory
    judgment may also demand additional, alternative, coercive,
    subsequent, or supplemental relief in the same action.
    9
    An equitable lien is an action in equity when no adequate remedy exists
    at law. Jones v. Carpenter, 
    106 So. 127
    , 128–29 (Fla. 1925). Florida law
    is clear that an equitable lien may be imposed on one of two bases: (1) a
    written contract that indicates an intention to charge a particular property
    with a debt or obligation; or (2) a declaration by a court out of general
    considerations of a right or justice as applied to a particular circumstances
    of a case. Wichi Mgmt. LLC v. Masters, 
    193 So. 3d 961
    , 963 (Fla. 3d DCA
    2016). The Appellant has a written agreement with Hernandez, not with the
    Appellees. It is Hernandez who purported to have an ownership interest in
    the Property, and who agreed to pay the Appellant a percentage of the sale
    price of the property when and if it sold. Appellant’s interest is not one vested
    in real property, nor is it an agreement to encumber the real Property with a
    debt; it is merely an agreement that obligates the purported owner,
    Hernandez, to pay the Appellant from sale proceeds once the Property was
    sold. The Appellant has an adequate remedy at law against Hernandez for
    breach of contract or fraud; she has no claim against the Appellees. We
    thus affirm the trial court’s dismissal of count III.
    Unjust Enrichment / Constructive Trust
    In count VI, Appellant claims that the Appellees have been unjustly
    enriched by the sale of the Property by knowingly having withheld from her
    10
    an agreed portion of the sale proceeds. The allegations in the complaint
    are insufficient to sustain a claim for unjust enrichment or constructive trust
    against the Appellees.
    The elements of a cause of action for unjust enrichment are: (1) the
    plaintiff has conferred a benefit on the defendant, who has knowledge
    thereof; (2) the defendant voluntarily accepts and retains the benefit
    conferred; and (3) the circumstances are such that it would be inequitable
    for the defendant to retain the benefit without first paying the value thereof
    to the plaintiff. Duty Free World, Inc. v. Miami Perfume Junction, Inc., 
    253 So. 3d 689
    , 693 (Fla. 3d DCA 2018); Agritrade, LP v. Quercia, 
    253 So. 3d 28
    , 33 (Fla. 3d DCA 2017). The allegations in the complaint do not support
    a claim for unjust enrichment, as the Appellant did not confer any benefit on
    the Appellees related to the sale or ownership of the property. To be sure,
    the Appellant had no interest in the property itself. Rather, pursuant to the
    Agreement, Hernandez was obligated to pay the Appellant 26% of proceeds
    from the sale of the Property, which – as it turns out – he did not own. Once
    again, Appellant’s claim is more aptly brought as one for breach of contract
    or fraud.
    In addition to requesting relief via a claim for unjust enrichment, the
    Appellant requested court-ordered formation of a constructive trust on the
    11
    subject property. Constructive trusts have two objectives: “to restore
    property to the rightful owner and to prevent unjust enrichment.” Provence
    v. Palm Beach Taverns, Inc., 
    676 So. 2d 1022
    , 1025 (Fla. 4th DCA 1996)
    (citing Abreu v. Amaro, 
    534 So. 2d 771
    , 772 (Fla. 3d DCA 1988)). Courts
    impose constructive trusts either upon property acquired by fraud, or when
    it is “against equity” that someone who acquired property without fraud
    should continue to retain possession. See Provence, 
    676 So. 2d at
    1025
    (citing Quinn v. Phipps, 
    113 So. 419
    , 422 (Fla. 1927)).
    In order to sustain a claim for a constructive trust the court must find
    the complaint establishes (1) the existence of a promise express or implied,
    (2) transfer of the property and reliance thereon, (3) the existence of a
    confidential relationship, and (4) unjust enrichment. See Silva v. de la Noval,
    
    307 So. 3d 131
    , 134 (Fla. 3d DCA 2020); Abreu, 
    534 So. 2d at
    772 (citing 5
    G. Thompson, On Real Property § 2345, at 134 (1979 Repl.)). The
    allegations in the complaint do not indicate that the Appellant had any
    confidential relationship with the Appellees, or that they made any promise
    to her via agreement or otherwise. Her dispute is with Hernandez, not with
    the Appellees. Thus, her claim seeking a constructive trust against these
    defendants fails.
    Tortious Interference
    12
    The Appellant claims that Rivas and Rodriguez were aware of the
    Agreement between Hernandez and the Appellant, and that their deal to
    purchase the property from 33rd Management amounts to tortious
    interference with her Agreement with Hernandez. We disagree.
    The elements of tortious interference with a contract or business
    relationship are: (1) the existence of a business relationship between the
    plaintiff and a third person, not necessarily evidenced by an enforceable
    contract, under which the plaintiff has legal rights; (2) the defendant's
    knowledge of the relationship; (3) an intentional and unjustified interference
    with the relationship by the defendant which induces or otherwise causes
    the third person not to perform; and (4) damage to the plaintiff resulting from
    the third person's failure to perform. Seminole Tribe of Fla. v. Times Pub.
    Co., 
    780 So. 2d 310
    , 315 (Fla. 4th DCA 2001).
    The allegations in the complaint do not support a claim of intentional
    or unjustified interference by Rivas or Rodriguez with the Agreement or the
    relationship between the Appellant and Hernandez. Hernandez did not own
    33rd Management at the time he entered into the Agreement with the
    Appellant; 33rd Management was the owner of the Property, and sold it to
    Rivas and Rodriguez unrelated to the Agreement between Appellant and
    Hernandez. We affirm dismissal of this count.
    13
    Civil Conspiracy
    “A civil conspiracy requires: (a) an agreement between two or more
    parties, (b) to do an unlawful act or to do a lawful act by unlawful means, (c)
    the doing of some overt act in pursuance of the conspiracy, and (d) damage
    to plaintiff as a result of the acts done under the conspiracy.” Raimi v.
    Furlong, 
    702 So. 2d 1273
    , 1284 (Fla. 3d DCA 1997); see Witmer v. Dep't of
    Bus. & Prof'l Regul., Div. of Pari–Mutuel Wagering, 
    631 So. 2d 338
    , 342
    (Fla. 4th DCA 1994) (observing that an “[a]greement is a necessary element
    of the crime of conspiracy, which is defined as an express or implied
    agreement of two or more persons to engage in a criminal or unlawful act”);
    Charles v. Fla. Foreclosure Placement Ctr., LLC, 
    988 So. 2d 1157
    , 1159-60
    (Fla. 3d DCA 2008).
    Appellant alleged that Rodriguez’s and Rivas' payment of cash to 33rd
    Management was done to circumvent the Agreement, and provides the
    overt act taken in furtherance of the conspiracy, including conversations
    between Hernandez, Rodriguez and Rivas in order to complete the real
    estate transaction. The allegations in the complaint do not support a claim
    for civil conspiracy. Rivas’ and Rodriguez’s mere knowledge of an
    Agreement between Hernandez (who is not the owner of the Property) and
    the Appellant does not evidence an agreement between the Appellees to
    14
    interfere with the Agreement or to defraud the Appellant of her interest in
    the sale proceeds. The allegations in the complaint do not support a claim
    for civil conspiracy, and we conclude that the count for civil conspiracy was
    properly dismissed.
    “Dismissal of a complaint with prejudice should only be granted when
    the pleader has failed to state a cause of action and it conclusively appears
    there is no possible way to amend the complaint to state a cause of action.”
    Fla. Nat’l Org. for Women, Inc. v. State, 
    832 So. 2d 911
    , 915 (Fla. 1st DCA
    2002) (quoting Undereducated Foster Children of Fla. v. Florida Senate, 
    700 So. 2d 66
    , 67 (Fla. 1st DCA 1997). On de novo review of the record, we
    affirm the trial court’s dismissal of counts I, II, III, VI, IX and X, with prejudice,
    for failure to state causes of action against the Appellees – 33rd
    Management, Rivas, and Rodriguez – as contained in the second amended
    complaint. Based on the discussion above, we also affirm the trial court’s
    striking the Appellant’s demand for constructive trust.
    Affirmed.
    15