Opinion
No. 91-445.
July 14, 1992. Rehearing Denied November 24, 1992.
Appeal from the Circuit Court, Dade County, Ronald M. Friedman, J.
Bailey Hunt Jones Busto and Guy B. Bailey, Jr., and William A. Fragetta, Miami, for appellant.
Sinclair, Louis, Siegel, Heath, Nussbaum Zavertnik and Paul A. Louis, Shapo, Freedman Fletcher and David A. Freedman, Miami, for appellees.
Before NESBITT, JORGENSON and LEVY, JJ.
This case involves an action brought by August Paniello, the son-in-law of Santo Trafficante, based upon a document entitled "Trust Acknowledgment" which Trafficante received for introducing appellee Oakley G. Smith to another individual in order to facilitate a mortgage loan to build a hospital. The "Trust Acknowledgment" document which Trafficante received in 1965 provided, in pertinent part, that:
Oakley G. Smith, is holding in trust, for the benefit of ____ 150 shares of stock of the total authorized shares of Brusa Corp. — A Fla. Corp. That said 150 shares of stock . . . constitutes a 25% interest in the said Corporation. That the said shall receive 25% of the net profits of the said Corporation.
In 1988, Paniello presented the "Trust Acknowledgment" document to Smith and demanded 25% of the hospital's past profits and an accounting. Smith refused, and Paniello brought this action. In his defense, Smith testified that the "Trust Acknowledgment" had been redeemed in exchange for a cash payment made to Trafficante in 1966. Smith further testified that, although full payment was made to Trafficante on the "Trust Acknowledgment", Trafficante did not return the document to Smith at the time because Trafficante had recently moved his residence and claimed that he could not find the document. According to Smith, Trafficante told Smith that he would return the document as soon as it was located, and Smith agreed because Trafficante had a reputation that his word was his bond, and that his promises would be honored. Obviously, it is of great significance to the result reached herein to note that Smith's direct and positive testimony, which established that Trafficante had been completely repaid and, further, explained why the "Trust Acknowledgment" had not been returned by Trafficante to Smith, is totally uncontradicted. Neither Paniello nor anyone else offered any evidence that, in any way, could be construed as conflicting with Smith's testimony. The fact that Paniello currently possesses the "Trust Acknowledgment" is not inconsistent with Smith's testimony regarding that document.
The trial court dismissed various counts in Paniello's amended complaint and entered an adverse final summary judgment on the remaining counts, finding that the claim was barred by laches, the statute of limitations, and illegality under Florida's mortgage brokerage statute. However, because Paniello had the "Trust Acknowledgment" document in his physical possession, the trial court denied summary judgment on the repayment issue holding that an issue of fact was created, despite Smith's direct and positive testimony that full payment had been made.
First, no matter how the document is characterized, whether as a true trust agreement or, as argued, merely collateral for money owed by Smith, there was direct, positive, and affirmative evidence offered by Smith in the form of his own uncontroverted and undisputed testimony to the effect that repayment was made. Thus, despite the fact that Paniello had physical possession of the "Trust Acknowledgment", Smith's testimony clearly established that any money that may have been owed under the terms of the document had been paid, and that the only reason that the document was not returned was because Trafficante stated that he had lost or misplaced the document. As we stated in Alan Alan, Inc. v. Gulfstream Car Wash, Inc., 385 So.2d 121 (Fla. 3d DCA 1980):
It is a well-settled principle that a fact cannot be established by circumstantial evidence which is perfectly consistent with direct, uncontradicted, reasonable and unimpeached testimony that the fact does not exist. Pennsylvania R. Co. v. Chamberlain, 288 U.S. 333, 53 S.Ct. 391, 77 L.Ed. 819 (1933); Kuykendall v. United Gas Pipe Line Co., 208 F.2d 921 (5th Cir. 1953); Curtis v. Hunt, 158 Ala. 78, 48 So. 598 (1909); Neill v. Hill, 32 Ga. App. 381, 123 S.E. 30 (1924); Bulatao v. Kauai Motors, Ltd., 49 Haw. 1, 406 P.2d 887 (1965); Louisville R. Co. v. Potter, 175 Ky. 258, 194 S.W. 308 (1917); Mooney v. Mooney, 244 Mo. 372, 148 S.W. 896 (1912); Williams v. Ford, 233 S.C. 304, 104 S.E.2d 378 (1958); Cleveland Wrecking Co. v. Butler, 57 Tenn. App. 570, 421 S.W.2d 380 (1967); Esso Standard Oil Co. v. Stewart, 190 Va. 949, 59 S.E.2d 67 (1950); Tisthammer v. Union Pacific R. Co., 41 Wyo. 382, 286 P. 377 (1930). See 23 C.J. Evidence § 1792, n. 54 (1921); 32A C.J.S. Evidence § 1039, n. 26 (1964); 30 Am.Jur.2d Evidence § 1091, n. 20 (1967).See also, Child v. Child, 474 So.2d 299 (Fla. 3d DCA 1985) (contrary and conclusive direct evidence overcomes circumstantial evidence) review denied, 484 So.2d 7 (Fla. 1986).
Here, any inference created by Paniello's possession of the document is clearly overcome and refuted by the direct, positive, and uncontradicted evidence of payment that is contained in Smith's testimony.
For the foregoing reasons, we find that the trial court erred in accepting Paniello's argument relating to his possession of the document and, consequently, denying Smith's motion for summary judgment on the repayment issue. Accordingly, the denial of Smith's Motion for Summary Judgment on the repayment issue is reversed and remanded with instructions to the trial court to grant Smith's motion for summary judgment on the repayment issue. We affirm all of the remaining summary judgments and orders entered by the trial court in all respects.
Affirmed in part; reversed in part and remanded with directions.
NESBITT and LEVY, JJ., concur.
In my view, genuine issues of material fact remain regarding whether Oakley Smith paid Santo Traficante and discharged the debt allegedly evidenced by the "Trust Acknowledgment." However, the record clearly establishes that Paniello's action is barred by laches; the order of final summary judgment should thus be affirmed on that basis.
Laches applies to actions brought to impose constructive trusts. Steinhardt v. Steinhardt, 445 So.2d 352 (Fla. 3d DCA 1984), rev. denied, 456 So.2d 1181 (Fla. 1984). In Steinhardt, this court held that an action for imposition of a constructive trust would not lie where the protagonists in a long-standing family dispute had died during the period when the parties failed to act on their claims, thus severely hampering defense of those claims. Steinhardt, 445 So.2d at 357. The deaths of the major witnesses, coupled with the vast increase in the value of the family business during that time, "combine[d] together to establish the defense of laches as to all the constructive trust claims asserted herein." Id. Steinhardt bars Paniello's claim. Paniello's testimony, viewed in a light most favorable to him, establishes that Traficante gave him the document in 1967 or 1968 in exchange for a loan. Despite financial difficulties over the years, Paniello never approached Smith to collect his putative share of the hospital. Traficante was the only individual who could have established the circumstances surrounding the execution of the document, the alleged repayment of the underlying debt, and his purported transfer of the document to his son-in-law, Paniello. Traficante died on March 3, 1987; Paniello first claimed an ownership interest in October, 1988. Thus, even assuming that Traficante transferred his interest in the hospital to Paniello, Paniello waited twenty years and until after Traficante died to claim an ownership interest based on the document. His action is barred by the passage of time.