Opinion
No. 3D99-1959.
Opinion filed August 2, 2000.
An appeal from the Circuit Court for Dade County, David L. Tobin, Judge; L.T. No. 98-16345.
Rice, Fowler, Rodriguez, Kingsmill Flint, LLP, and Carlos A. Garcia-Perez and John H. Rooney, Jr., for appellant.
Sheryl E. Berkowitz; Donna Weston; Swickle, Thomas Rosenblum and Randy Rosenblum, for appellee.
Before COPE, GERSTEN, and FLETCHER, JJ.
Virtual Computacion y Communicaciones, S.R.L., appeals a summary final judgment in favor of Yacov Fischzang, doing business as Infocomp and Mailbox Express. In this breach of contract case, we conclude that disputed issues of material fact remain regarding the terms of the parties' agreement. We therefore reverse and remand for further proceedings.
Virtual, a Bolivian corporation, desired to buy electronic equipment from Berges Et Company, Inc. ("Betco"), a Florida corporation, and have it shipped to Bolivia. Virtual hired Fischzang, whose office is in Miami-Dade County, to act as its agent in buying the equipment and shipping it to Bolivia. The shipper was to be Cargomaster, a company also located in Miami-Dade County.
Virtual sent the total purchase price of $35,130 to Fischzang. Fischzang in turn sent the money to Cargomaster. Cargomaster's owner deposited these funds in his own account, did not pay Betco, and has not returned the funds to Virtual.
In the meantime, Betco released the equipment to Cargomaster. Cargomaster shipped the goods to Bolivia, where Virtual received them. When Betco complained that it had not been paid, Virtual paid them in full. As a result, Virtual has paid twice for the same equipment.
Virtual sued Fischzang and Cargomaster for the $35,130. Fischzang moved for summary judgment, contending that he had no responsibility for the theft of funds which occurred at Cargomaster. The trial court granted summary judgment for Fischzang, and Virtual has appealed.
The claim against Cargomaster remains pending in the trial court.
For purposes of summary judgment, we read the summary judgment record in the light most favorable to Virtual as the nonmoving party. See Turner v. PCR, Inc., 754 So.2d 683, 684 (Fla. 2000); Colon v. Outback Steakhouse of Florida, Inc., 721 So.2d 769, 770 (Fla. 3d DCA 1998). All factual inferences are to be drawn in the light most favorable to Virtual. See Colon, 721 So.2d at 770.
According to Fischzang, Virtual knew and agreed that the $35,130 would flow from Fischzang to Cargomaster to Betco. Cargomaster's owner has admitted that he took the money entirely on his own and that Fischzang had no part in this conversion. Fischzang argued that he had no responsibility for Cargomaster's unauthorized taking of the funds.
According to Virtual, Fischzang agreed to buy the goods and use Cargomaster for shipping. Virtual states that it was not told, and did not agree, to have the funds for the purchase of the equipment routed through Cargomaster. Virtual contends in substance that Fischzang cannot escape liability under his contract by delegating his performance to Cargomaster. See Metrolimo, Inc. v. Lamm, 666 So.2d 552, 553 (Fla. 3d DCA 1995);Fisherman's Paradise, Inc. v. Greenfield. 417 So.2d 306, 308 (Fla. 3d DCA 1982). There is also a dispute between the parties regarding the authenticity of an e-mail and invoice relied on by Fischzang in support of his position.
As outlined, there are disputed issues of material fact regarding the terms of the parties' agreement. Under Virtual's version, the agreement was for Fischzang to pay Betco and arrange shipment via Cargomaster. Virtual states that the routing of the purchase through Cargomaster was neither disclosed to, nor agreed by, Virtual. Fischzang takes the opposite position. We must reverse the summary judgment and remand for further proceedings.
Fischzang argues that he was legally required to use a licensed customs broker for this transaction. He contends that Virtual knew this, knew that Fischzang was not a licensed customs broker, and knew that Cargomaster was a licensed customs broker. He contends that, as a matter of law, Virtual must necessarily have known that the funds would have to flow through Cargomaster.
The problems with this argument are first, that Virtual contradicts it with its affidavit. Second, Fischzang has not cited any legal authority which would support the proposition that under United States law, it was necessary to use a licensed customs broker for this export transaction. The legal authorities cited by Fischzang appear to apply only to transactions for the importation of goods into the United States, not export transactions. See 19 U.S.C. § 1641 (2000); 19 C.F.R. § 111.1, 111.36 (2000); Fusco v. United States Treasury Dept., 12 C.I.T. 835 (Ct. Int'l Trade 1988).
Virtual's affidavit also stated that Fischzang had represented that he and Cargomaster were engaged in a joint enterprise through which they would acquire and ship merchandise to customers in Bolivia. Virtual contends that Fischzang and Cargomaster at relevant times used a common address and telephone number, and a common disclaimer of liability on the shipping invoice used in this case. Virtual argued that in a joint venture, each venturer has liability for the acts of its joint venture partner.
Fischzang objected that the claim of joint venture had not been pled by Virtual. Virtual countered by requesting leave to amend its pleadings, but leave was denied. Since there must be further proceedings in this case, we conclude that on remand Virtual must be granted leave to amend its pleadings.
After entering judgment in favor of Fischzang, the trial court awarded attorney's fees to him under section 57.105(1), Florida Statutes (1997). The attorney's fee award is reversed.
Reversed and remanded for further proceedings consistent herewith.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.