5D01-137 Mercado v. Lion's Enterprises

SUPREME COURT CASES

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D01-137

Case Date: 12/10/2001

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2001

EMARDO MERCADO AND ELOISA MERCADO, Appellants, v. Case No. 5D01-137 LION'S ENTERPRISES, INC., ETC., Appellee. / Opinion filed December 14, 2001 Appeal from the Circuit Court for Osceola County, John H. Adams, Sr., Judge. Mark C. Filburn, Dani S. Theobald of Shepard, Filburn & Goodblatt, P.A., Orlando, for Appellants. Scott C. Roberts of Stump, Storey & Callahan, P.A., Orlando, for Appellee. PETERSON, J. Emardo and Eloisa Mercado, husband and wife, appeal an adverse summary judgment entered on counts I, III, IV and V of a counterclaim filed by Lion's Enterprises, Inc., d/b/a Lion's luxury Villas (Lion's). Lion's provided property management for the Mercados' home that was rented to tourists on a weekly basis. Lion's paid expenses from the rental income, but if expenses exceeded income, the Mercados were to reimburse Lion's. When a deficit of $13,682.60 resulted and the Mercados failed to pay, Lion's filed a lien against the home. The Mercados responded with an action to discharge the lien and for an accounting. Lion's counterclaimed

for breach of contract (count I), for an equitable lien (count II), for a constructive trust (count III), for an open account (count IV), and for an account stated (count V). Lion's motion for a summary judgment as to counts I, III, IV and V was granted. We vacate the summary judgment because the record indicates that issues of fact remain. See Visingardi v. Tirone, 193 So. 2d 601 (Fla. 1966); Mejiah v. Rodriguez, 342 So. 2d 1066 (Fla. 3d DCA 1977). The unresolved issues include: 1. The written contract between the parties indicates that a

fee of $290 per month would be charged for Lion's services that included a management fee of $100, pool and lawn maintenance of $160 and pest control of $30. The detail attached to the counterclaim as an exhibit indicates charges in excess of those contractual charges. 2. Lion's support for its motion for summary judgment on

count IV, an open account, required a showing that it was based upon a connected series of transactions with no break or interruption. Central Ins. Underwriters, Inc. v. National Ins. Fin. Co., 599 So. 2d 1371 (Fla. 3d DCA 1992). The profit and loss statement and accompanying transaction reports that attempt to support the counterclaim do not contain a complete list of the items and services that the alleged debt of $13,682.60 represents. For instance, some paid items shown on the profit and loss statement are not included in the transaction detail, several duplicate payments appear on the transaction detail,1 a

Duplicate charges and payments appear on the lawn care detail, the Sprint telephone detail, and pest control detail. 2

1

charge for $1,000 in legal fees during the year 2000 appears on the profit and loss statement with no supporting documentation, there is no transaction detail for the rental income, and many check numbers are missing on the transaction detail.2 These discrepancies create a factual question as to whether the amount of alleged indebtedness includes items and services that should not have been included, whether all items which were supposed to have been paid under the contract were in fact paid, and whether the actual balance shown is correct. Accord Myrick v. St. Catherine Laboure Manor, Inc., 529 So. 2d 369, 372 (Fla. 1st DCA 1988) ( citing Florida Shade Tobacco Growers, Inc. v. Jno. H. Swisher & Son, Inc., 369 So. 2d 657 (Fla. 1st DCA 1977)); see also H & H Design Builders, Inc. v. Travelers' Indem. Co., 639 So. 2d 697, 700 (Fla. 5th DCA 1994). Additionally, the Mercados' original affidavits, reply, and answer all assert that Lion's committed fraud by taking the Mercados' rental income and diverting it to Lion's own use while failing to pay some of the Mercados' mortgage and utility payments. These allegations appear to be sufficient to raise an issue of fact precluding summary judgment regarding Lion's use of the funds entrusted to it and the accuracy of the profit and loss statements. 3. As to Count V

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