Valerie Fulton, Fulton Insurance Agency, Inc., and Dean C. Fulton v. Judith Brancato

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
VALERIE FULTON, FULTON INSURANCE AGENCY, INC., and DEAN C.
FULTON,
Appellants,
v.
JUDITH BRANCATO,
Appellee.
No. 4D14-4381
[March 30, 2016]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Peter D. Blanc, Judge; L.T. Case No.
2007CA018811XXXXMB.
Kevin F. Richardson of Clyatt & Richardson, P.A., West Palm Beach, for
appellants.
Michael J. Ferrin, Boca Raton, for appellee.
MAY, J.
Two business transactions lie at the heart of this appeal. The first
involved the sale of the assets of an insurance agency, and the second
involved an investment in and loans to a failed entertainment business.
The trial resulted in a verdict and judgment in favor of the widow of the
seller of the insurance agency, and the investor in the entertainment
business (collectively identified as “seller”). From this judgment, the
buyers of the assets of the insurance agency and owners of the
entertainment business (“buyers”), and the buyers’ insurance agency
(“buyers’ agency”) appeal.
Multiple issues and sub-issues have been raised by the buyers and the
buyers’ agency. They include evidentiary, burden of proof, and remedy
issues. The seller cross-appeals the amount of damages awarded for an
unjust enrichment claim involving the investment in the entertainment
business. We affirm on the cross-appeal, and most of the issues on the
direct appeal. We reverse, however, on the unjust enrichment and
conversion basis for the judgment as to Valerie Fulton (one of the buyers)
and the buyers’ agency, Fulton Insurance Agency, Inc.
The parties were at one point good friends and business associates.
When the seller’s husband became ill, the seller and her husband sold the
assets of their insurance agency (“seller’s agency”) to the buyers through
an asset purchase agreement (“APA”). The APA was executed on January
24, 2001, by the respective insurance agencies of the seller and buyer.
The buyers’ agency agreed “to pay [the seller’s agency] an amount equal to
one (1) times the actual amount of commission received by the renewals
on the Clients during the twelve (12) month period after the effective date
of this Agreement.”
Needless to say, the seller did not receive the anticipated payments,
which ultimately led to this litigation.
The buyers and the buyers’ agency moved for a directed verdict on the
unjust enrichment claim on the basis that an express agreement existed
between them and the seller’s agency and no evidence was presented to
show the buyers pierced the corporate veil exposing them to personal
liability. The buyers also moved for a directed verdict on the conversion
claim because a debt owed, which can be discharged with money, cannot
form the basis of a conversion claim. The trial court reserved ruling.
During jury deliberations, the buyers and the buyers’ agency renewed their
motions for directed verdict.
The jury returned the following verdict:
 Breach of Contract (Count 1): The buyers’ agency breached the
APA and was the legal cause of damage to the seller.
 Unjust Enrichment (Count 2): The buyer Valerie Fulton and the
buyers’ agency were unjustly enriched by the receipt of assets from
the seller’s agency without paying the seller’s agency or the seller
the reasonable value of those assets.
 Conversion (Count 3): The buyer Valerie Fulton and the buyers’
agency converted the assets of the seller’s agency to their benefit.
The jury awarded $98,000 in damages to the seller.
Post-trial, the buyers and the buyers’ agency moved to renew their
motions for directed verdict, for judgment notwithstanding the verdict, and
in the alternative for a new trial. The trial court denied the motions.
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On appeal, the buyers and the buyers’ agency argue the trial court
should have directed a verdict on the seller’s claim for unjust enrichment
against the buyer Valerie Fulton and the buyers’ agency because the jury
found that there was an express agreement between the seller’s agency
and the buyers’ agency, which was breached. We agree.
“[A] plaintiff cannot pursue an equitable theory, such as unjust
enrichment or quantum meruit, to prove entitlement to relief if an express
contract exists.” Ocean Commc’ns, Inc. v. Bubeck, 956 So. 2d 1222, 1225
(Fla. 4th DCA 2007). “A contract implied in law, or ‘quasi contract,’
operates when there is no contract ‘to provide a 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.’” Id. (quoting Commerce P’ship 8098 Ltd. P’ship v. Equity
Contracting Co., 695 So. 2d 383, 386 (Fla. 4th DCA 1997)).
Here, the evidence established the existence of a written agreement
between the buyers’ agency and the seller’s agency. The jury found that
the written agreement was breached by the buyers’ agency. Because a
written agreement was found to exist and was breached, the seller cannot
recover under the equitable theory of unjust enrichment. Kovtan v.
Frederiksen, 449 So. 2d 1, 1 (Fla. 2d DCA 1984) (“It is well settled that the
law will not imply a contract where an express contract exists concerning
the same subject matter.”).
The buyer Valerie Fulton also argues that there can be no personal
liability on her part because the evidence did not establish that she
personally benefitted beyond the $98,000 awarded for the buyers’ agency’s
breach of contract. We agree. “The main body of corporate law is to the
effect that directors, officers and stockholders are not liable for corporate
acts simply by reason of their official relation to the corporation.” Munder
v. Circle One Condo., Inc., 596 So. 2d 144, 145 (Fla. 4th DCA 1992). Here,
the damages were confined to the same $98,000 awarded against the
buyers’ agency for breach of contract. There simply was no evidence that
the buyer Valerie Fulton benefitted beyond that amount or that she
benefitted separate and apart from the buyers’ agency.
Lastly, the jury found that both the buyer Valerie Fulton and the
buyers’ agency converted assets of the seller’s agency to their benefit.
However, once again, the $98,000 in damages were incurred as a result of
the buyers’ agency’s breach of contract. There was no evidence that the
seller sustained any additional damages by the buyer and buyers’ agency’s
conversion of other assets.
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We find no error in the trial court’s denial of the motions for directed
verdict prior to submission of the factual issues to the jury. There were
issues of fact for the jury to determine. However, the trial court should
have granted the buyers and buyers’ agency’s motions for a judgment
notwithstanding the verdict to relieve the buyer Valerie Fulton and the
buyers’ agency from damages as a result of the unjust enrichment and
conversion claims once the jury determined a finite amount of damages
attributable for the buyers’ agency’s breach of contract. We affirm the
judgment in all other respects.
Reversed in part and Remanded for Correction of the Judgment.
DAMOORGIAN and GERBER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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