Cortell v. Barrow

Florida District Courts of Appeal
Cortell v. Barrow, 510 So. 2d 1077 (1987)
12 Fla. L. Weekly 1834; 1987 Fla. App. LEXIS 9604
Cobb, Cowart, Upchurch

Cortell v. Barrow

Opinion of the Court

COWART, Judge.

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 trial1 that the $8,864.41 she paid into the trust account fully discharged her obligations to the employer, supporting her position with testimony of a C.P.A. she retained. The testimony of the employee’s C.P.A. cannot alter the fact that the employee (and her parents) expressly agreed to be bound by the named accountant’s determination of the amount she embezzled. This is an essential covenant in both the reimbursement and guarantee agreements, and there is nothing in the record showing the named accountant erred in determining that the embezzled funds totaled $16,713.85. The employee’s retained C.P.A. based his testimony solely on the employee’s calculations, without examining the employer’s records. Finally, nothing in either the reimbursement or guarantee agreements placed a $10,000 ceiling on the amount the employee would repay the employer. Even if so, we find that the employer would not be bound thereby because the employee, in failing to place the full $10,000 into the trust account as agreed, breached the reimbursement *1079agreement. Therefore, we reverse the judgment in favor of the employee and her parents, and remand this case to the trial court to enter a judgment for $7,849.44 ($16,713.85 less $8,864.41) in favor of the employer and against the employee and her parents on the employer’s breach of contract action.2

REVERSED and REMANDED.

COBB, J., concurs. UPCHURCH, C.J., dissents with opinion.

. 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

UPCHURCH, Chief Judge,

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