Blackburn v. Bartsocas
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
January Term 2008
ACE J. BLACKBURN, JR., JOAN A. WAGNER, CHRIS A. ECONOMOU
and GUS MORFIDIS, as Curators of the Estate of Konstantinos Boulis
a/k/a Gus Boulis, Deceased,
Appellants,
v.
CONSTANTIN BARTSOCAS and KIKI VASILICI BARTSOCAS,
Appellees.
Nos. 4D06-2267, 4D06-2407 & 4D06-2787
[ March 5, 2008 ]
ON AMENDED MOTION FOR REHEARING
HAZOURI, J.
We grant appellees’ amended motion for rehearing, grant the motion
for clarification, withdraw our previous opinion and substitute the
following in its place.
Appellants/cross-appellees, Ace J. Blackburn, Jr., Joan A. Wagner,
Chris A. Economou, and Gus Morfidis, as Personal Representatives of the
Estate of Konstantinos Boulis a/k/a Gus Boulis (“The Estate”), appeal
from the following orders of the trial court: (1) Order Granting Partial
Summary Judgment in Favor of the Defendants; (2) Order Denying
Defendants’ Motion for Judgment Notwithstanding the Verdict and
Incorporated Request for Remittitur and/or New Trial on Damages; and
(3) Order Granting Plaintiffs’ Motion for Pre-Judgment Interest in this
court’s case number 4D06-2267. The Estate also appeals from the trial
court’s Order Denying Defendants’ Motion for Judgment Notwithstanding
the Verdict and Corrected Incorporated Request for Remittitur and/or
New Trial on Damages and Denying Plaintiffs’ Motion for Declaratory
Judgment in this court’s case number 4D06-2407. The Estate also
appeals the Final Judgment in favor of appellees/cross-appellants,
Constantin Bartsocas and Kiki Vasilici Bartsocas in case number 4D062787. The Bartsocases filed their cross-appeal of the Order Granting
Partial Summary Judgment in Favor of the Defendants and the Order
Denying Defendants’ Motion for Judgment Notwithstanding the Verdict
and Corrected Incorporated Request for Remittitur and/or New Trial on
Damages and Denying Plaintiffs’ Motion for Declaratory Judgment. The
three cases were consolidated by this court.
Although there are numerous points on appeal and cross-appeal, the
fundamental issue in the case is whether the jury’s verdict awarding the
Bartsocases $1,211,231.00 under their unjust enrichment claim can be
sustained. We find that it cannot and reverse.
The Bartsocases’ claim arises out of a longstanding relationship
The initial
between themselves and the decedent, Gus Boulis.1
relationship developed as a friendship when all of the parties resided in
Canada, where Boulis was involved in ownership, operation and
management of various “Mr. Submarine” franchise restaurants. The
Bartsocases left Canada to open a restaurant in the Florida Keys. In
1978, Boulis visited the Bartsocases in the Keys and decided to move to
Florida and develop certain business enterprises. From 1979 through
2000, the parties worked in certain businesses which were formed as
corporations by Boulis.
Boulis was the owner of the corporations and all properties associated
therewith. The Bartsocases worked in several of the businesses. They
contend that they had an oral partnership agreement with Boulis in
which they would invest their time and effort with little, if any,
compensation and at some point in time would share in the proceeds and
profits of the partnership. From 1979 through 2000, the Bartsocases
received $384,519.00 from the alleged partnership.
Upon Boulis’s untimely death, the Bartsocases made a claim with the
Estate for benefits under the alleged partnership agreement, which the
Estate denied. The Bartsocases filed their complaint against the Estate
asserting numerous causes of action. However, when the case went to
trial, the only claims remaining were for breach of an implied
partnership, unjust enrichment and promissory estoppel. The jury
returned a verdict finding there was no implied partnership nor were the
Bartsocases entitled to a claim of promissory estoppel, but found in the
Bartsocases’ favor on their unjust enrichment claim and awarded them
$1,211,231.00.
At trial the Bartsocases presented the expert testimony of Ronald
Patella, a certified public accountant, to establish the measure of their
1
Gus Boulis died on February 6, 2001.
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damages.
Patella testified that, under the theory of an implied
partnership, the net value of the Bartsocases’ interest in the implied-inlaw partnership real estate was $10,465,446.00, which was one-half of
the net partnership assets.
Patella made an alternative calculation pursuant to the theory of
unjust enrichment by placing a value on what he referred to as the
Bartsocases’ “sweat equity.”
Patella defined “sweat equity” as the
services that one renders to a business or partnership for which one is
not compensated. According to Patella, there are two types of partners.
One supplies the money to capitalize the businesses and the other
invests time in working in the businesses.
Patella calculated the
Bartsocases’ “sweat equity” from the data provided by Kiki Bartsocas as
to the number of hours she and Gus Bartsocas had contributed to the
service of the restaurant operations and the amount that a restaurateur
would have to pay an employee to do the same work. The gross total for
the years 1979 through 2000 was $1,595,750.00. To reach the unpaid
sweat equity calculation, Patella took the gross figure and then
subtracted the total proceeds the Bartsocases withdrew from the
business relationship during those years which was $384,519.00,
yielding a net of $1,211,231.00 of sweat equity. This is the exact figure
that the jury returned for the Bartsocases on their unjust enrichment
claim.
The basis of a calculation for sweat equity was the testimony of Kiki
Bartsocas which, as stated before, was based upon the hours that she
and her husband worked and the value of that time based upon wages
Boulis would have to pay to an employee to replace the Bartsocases.
The Estate argues, inter alia, that the claim for sweat equity is in
reality a claim for past wages and is limited by section 95.11(4)(c),
Florida Statutes (2001), which provides that an action to recover wages
or overtime or damages or penalties concerning the payment of wages
and overtime shall be commenced within two years. Therefore the Estate
asserts that the wage claim calculation is limited to the years 1999 and
2000. We agree.
The Estate also argues that the trial court should not have awarded
the Bartsocases prejudgment interest. We disagree.
“[W]hen a verdict liquidates damages on a plaintiff’s out-of-pocket,
pecuniary losses, plaintiff is entitled, as a matter of law, to prejudgment
interest at the statutory rate from the date of that loss.” Argonaut Ins.
Co. v. May Plumbing Co., 474 So. 2d 212, 215 (Fla. 1985). “[O]nce
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damages are liquidated, prejudgment interest is considered an element of
those damages as a matter of law, and the plaintiff is to be made whole
from the date of the loss.” Kissimmee Util. Auth. v. Better Plastics, Inc.,
526 So. 2d 46, 47 (Fla. 1988). Once the wages owed to the Bartsocases
become liquidated, prejudgment interest will be an element of their
damages.
We therefore reverse and remand for entry of a judgment on behalf of
the Bartsocases which reflects the wage claim for the two years prior to
the filing of their complaint plus prejudgment interest. As to the points
raised on cross-appeal, we hereby affirm.
Affirmed in Part; Reversed in Part and Remanded with Directions.
KLEIN, J., and EMAS, KEVIN M., Associate Judge, concur.
*
*
*
Consolidated appeals and cross-appeal from the Circuit Court for the
Seventeenth Judicial Circuit, Broward County; Thomas M. Lynch IV and
Robert B. Carney, Judges; L.T. Case No. 01-18136 04.
Glenn J. Waldman and Craig J. Trigoboff of Waldman Feluren
Hildebrandt & Trigoboff, P.A., Weston, for appellants.
John R. Hargrove and Carol A. Gart of Gordon Hargrove & James,
P.A., Fort Lauderdale, for appellees.
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