Cortell v. Barrow
Cortell v. Barrow
Opinion of the Court
An employer, appellant Barney Cortell, hired appellee Vicky Barrow to assist in managing his rental properties. On numerous occasions Barrow embezzled money from the employer, altering business records to conceal her thefts. The employee entered into an agreement, separately guaranteed by her parents, appellees Henry and Gertrude Naumaiskis, to reimburse the employer for the stolen funds.
In the reimbursement agreement, the employee admitted that she misappropriated and mismanaged the revenue, accounts, and property of the employer for her personal gain to the financial detriment of the employer. The employee acknowledged that the employer is entitled to reimbursement for all sums of money taken by her during her employment. This agreement also provided that an audit would be necessary to determine how much money was embezzled and a mutually satisfactory certified public accountant was named to perform the audit, the cost of which was to be borne by the employee. In the agreement the employee agreed to place $10,000 in a separate trust account to be held in escrow pending completion of the audit. Credit against the amounts dispersed to the employer from the trust account was to be given the employee for any sums she paid directly to the employer. The employee placed $8,864.41 in escrow but failed to place the full $10,000 as agreed.
The named accountant determined that the embezzled funds totaled $16,713.85. When the employee failed to pay that sum, the employer brought an action, on several theories, for that sum less credit for $8,864.41 which the employee had put into the trust account pursuant to the agreement. After a non-jury trial, the trial court found the employer entitled to no additional sums.
The employee contended at trial
REVERSED and REMANDED.
. The employee has made no appearance in this appeal.
. By electing to affirm the contract, the employer waived his action for civil theft and treble damages against the employee.
Dissenting Opinion
dissents.
I respectfully dissent. The trial court’s final judgment does not make any findings but only recites that “Plaintiffs have failed, to carry their burden of proof.” This court should not search for reasons to invalidate the ruling below since to do so violates the well established rule that trial court decisions are presumed valid and should be affirmed, if correct, regardless of whether the reasons advanced are erroneous. Van-dergriffv. Vandergriff, 456 So.2d 464 (Fla. 1984).
The record below provides several reasons to support the judgment. There was testimony that the “agreement” was only entered after Cortell’s intimidation and threat to institute criminal proceedings. (It is interesting to note that no criminal charges were filed until after disagreement as to the amount due arose.) The court may have concluded there was not a valid agreement. See § 843.14, Fla.Stat. (1985); (compounding a felony). If there were no valid agreement, then Barrow was not bound to accept the calculations of the accountant. When the dispute arose as to the accounting, Barrow submitted a check for $6,000 which was marked “final payment.” This check was accepted and cashed. Since either of these reasons supports the decision below, I would affirm.
Reference
- Full Case Name
- Barney CORTELL and Harriet Cortell v. Vicky BARROW
- Cited By
- 1 case
- Status
- Published