CEN: 20180237021 BOOK 29576 PAGE 1054 DATE:04/14/2015 08.5723 AM HARVEY RUVIN, CLERK OF COURT, MIA-DADE CTY IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT, IN AND FOR MIAMI-DADE COUNTY, FLORIDA CIVIL DIVISION CASE NO, 06-8787 CA 24 DORA PUIG, individually, THE PUIG GROUP, INC., and DORA PUIG, P.A., Plaintiffs, ; vs. PADC MARKETING, LLC, 1 Florida Limited Liability Company, COLLINS AVENUE ASSOCIATES, LLC, a Florida Limited Liability Company, and R. DONAHUE PEEBLES, individually, Defendants, / AMENDED ORDER ON DEFENDANT COLLINS AVENUE ASSOCIATES LLC’S MOTIO! FOR ENTRY OF FINAL JUDGMENT AND PLAINTIFF'S MOTION FOR JUDGMENT N' EEEND, VI SSOCIATESTLLG ci NI "ARTY CONTRACT CLAIMS THIS CAUSE came before the Court on February 25, 2015 on Defendant Collins Avenue Associates LLC’s Motion for Entry of Final Judgment and Plaintiff's Motion for Judgment Against Defendant Collins Avenue Associates LLC on the Breach of Contract and Breach of Third Party Contract Claims. The Court, having heard argument of counsel, reviewed the memoranda of law, and otherwise being advised in the premises, finds as follows: 1) This matter involves unpaid real estate commissions on resales of condominium units.GFN: 20160237021 BOOK 29576 PAGE 1056 Puig v. PADC Marketing, LLC 06-8787 CA 24 2 Defendant PADC Marketing LLC (PADC) is the managing company of a luxury residential condominium, The Residences at the Bath Club (condominium) whose managing member is Defendant R. Donahue Peebles (Peebles). Defendant Collins Avenue Associates, LLC (Collins) is the developer and owner of the condominium and is owned by Defendant Peebles. On December 18, 2000, Plaintiff Dora Puig, a licensed real estate broker under Chapter 475' with Plaintiffs Dora P.A. and The Puig Group Inc. entered into the Puig Employment Agreement with Defendant Collins to act as Director of Marketing and Sales [Sales Manager] to pre-sell the condominium units. Defendant Collins, the owner-developer, was Plaintiffs’ original ‘unregistered employer 2) In April of 2002, Defendant PADC was formed to act as a broker to market the sale of the condominium units. On April 26, 2002, Defendants Collins and PADC entered into the Exclusive Sales and Marketing Agreement by which Defendant PADC was the exclusive broker for the condominium, 3) On March 7, 2003, Plaintiffs and Defendants PADC and Collins entered into the following contracts: 1) an Assignment and Assumption of Puig Contract” [Puig Employment Agreement and Amendment No. 1] (Che Puig Contract) between Defendants Collins {the Assignor] and PADC [the Assignee]. In this Assignment, Defendant PADC assumed all of Defendant Collins rights and obligations as employer in the Puig Employment Agreement and Plaintiffs were limited to being an intended third party beneficiary of Paragraph 4 entitled “Compensation” of the Exclusive Sales and Marketing ‘Agreement. 2) Amendment No. | to the Puig Employment Agreement between Defendant PADC and Plaintiffs. This amendment acknowledges the Assignment and Assumption of Puig Contract, Acknowledgement and Release and the Joinder of Defendant Collins to Amendment No. | stating that Plaintiffs are intended third party beneficiaries of Paragraph 4 of the Exclusive Sales and Marketing Agreement. " Under this chapter, a salesperson may not sue anyone other than his or her employer-broker at the time the cause of action is alleged to have arisen. Marks v. MSF Mgmt. Corp., 540 So. 24 138, 140 (Fla. Sth DCA 1989). It is undisputed that at the time the cause of action arose, Defendant PADC was the registered employer-broker of the Plaintiffs. Paragraph 4 of the Assignment and Assumption of Puig Contract states: “[nJotwithstanding Section 3 above, Puig shall be an intended third party beneficiary of the provisions of Paragraph 4 of the Exclusive Sales and Marketing Agreement, which shall not be amended, terminated or otherwise changed, in a manner which is material and adverse to obtain payment of fees owed under the Puig Contract, without the prior written consent of Puig.”. GFN: 20180237021 BOOK 29576 PAGE 1056 Puig v. PADC Marketing, LLC 06-8787 CA 24 3) a Joinder of Defendant Collins to Amendment No. 1 of the Puig Employment ‘Agreement to acknowledge that Plaintiffs were intended third party beneficiaries of Paragraph 4 of the Exclusive Sales and Marketing Agreement.” 4) an Acknowledgment and Release of the Assignment and Assumption of Puig Contract executed by Plaintiffs releasing Defendant Collins from its obligations under the Puig Employment Agreement and Amendment No. 1 to Puig Employment Agreement (The Puig Contract) except any rights of Plaintiffs under section 4 of the Assignment and Assumption of Puig Contract.* 4) In 2006 Plaintiffs filed a complaint and in 2007 an amended complaint for the remaining counts against Defendant Collins of breach of contract (Count 1) [Puig Contract), breach of a third party beneficiary contract (Count IT) [Exclusive Sales and Marketing Agreement), and unjust enrichment (Count V) seeking unpaid real estate commissions on resales of condominium units. Defendant Collins filed an answer with affirmative defenses to the amended complaint. In 2009, Defendant PADC declared Chapter 7 bankruptcy and all claims against it were automatically stayed. 5) Both parties argued that no material issues of fact exist on the record as to the interpretation of the contracts for the breach of contract and breach of third party contract counts. The plain meaning of the contractual language controls concerning clear and unambiguous express contracts as a matter of law. Acceleration Nat'l Serv. Corp. v. Brickell Fin. Servs. Motor Club, Inc., 541 So. 24 738, 739 (Fla. 1989); > The Joinder of Collins Avenue states that “fiJn no event shall joinder of Collins Avenue in any way bind or obligate it under this Agreement, other than to the extent expressly set forth therein.” Therefore, none of the other contractual terms of the Assignment and Assumption of Puig Contract between Plaintiffs and Defendant PADC were joined by Defendant Collins. * The Acknowledgment and Release of the Assignment and Assumption of Puig Contract states in pertinent part that “Puig hereby releases, covenants not to sue or to instigate, initiate or pursue any manner of judicial or administrative proceeding, and forever discharges Assignor (Defendant Collins), and its past, present and future employees, directors, officers, . . . (collectively the “Assignor Released Parties”) of and from any all demands, damages, losses , costs, expenses, obligations, liabilities, claims, actions, causes of action, judgments, penalties and suits of any kind, nature or description whatsoever, whether or not now known, .. . in contract, or in tor, al law, in equity, or otherwise, . .. that Puig has, may have or may have had, against the Assignor Released Parties, or any of them, by reason of or growing out of, or arising or existing in connection with, or in any way relating to the Puig Contract or the performance of any of the terms or provisions thereof, or by reason of the breach or alleged breach or conduct or activity resulting in the breach or alleged breach, of any of the terms or provisions of the Puig Contract, except to the extent of any rights of Puig under Section 4 of the foregoing . . . Assignment and Assumption of Puig Contract.”8) 8) GFN: 20160237021 BOOK 29576 PAGE 1057 Puig v. PADC Marketing, LLC 06-8787 CA 24 4 Anthony v. Anthony, 949 So. 24 226, 227 (Fla. 34 DCA 2007). This Court finds that the four written agreements of March 7, 2003 were valid, binding, and enforceable express contracts. Therefore, Count V (unjust enrichment) is hereby dismissed. It is undisputed that on ot about March 7, 2003, Plaintiffs ceased to be employed by Defendant Collins and were employed by Defendant PADC. In May of 2004, Plaintiffs approached Defendant Peebles to engage in a resale program of the condominium units. As a broker, Defendant PADC would receive resale commissions from any reseller of the condominium units at closing. It is undisputed that Defendant PADC authorized its sales team and Plaintiffs to act as agents tor Defendant PADC concerning resales. It is undisputed that the clear and unambiguous terms of the Puig Employment Agreement provided that Defendant PADC shall pay Plaintiffs an annual salary and “an override of 1% of the Net Sales Price of each Unit sold” at the Bath Club. The resale program used the same standard 1% override paid to the Plaintiffs as commission (override commission as to resales). Defendant Collins admitted that the Puig Employment Agreement covered 23 transactions (13 resales and 10 assignments) of the condominium units. It is undisputed that the override commission as 10 resales of 1% amounted to $423,210.00 in 2005. It is undisputed that Defendant PADC never paid the Plaintiffs the override commission as to resales and therefore breached the Puig Employment Agreement, ‘The Puig Contract consisted of the Puig Employment Contract and Amendment No, 1. Prior to the assignment, Defendant Collins paid Plaintiffs directly under the Puig Employment Agreement. After the assignment, Defendant Collins reimbursed Defendant PADC who paid the Plaintiffs directly as her employer-broker under the Assignment and Assumption of Puig Contract. This Court finds that Plaintifis released Defendant Collins from any breach of its obligations of the Puig Contract under the Acknowledgment and Release of Puig Contract except Section 4 of the Assignment and Assumption of Puig Contract [that Plaintiffs are intended third party beneficiaries under the Exclusive Sales and Marketing Agreement]. The Acknowledgment and Release of Puig Contract states that the parties released all claims in contract against the Assignor [Defendant Collins] arising under the Puig Contract [Puig Employment Agreement and Amendment No. 1] except any rights of Plaintiffs under section 4 of the Assignment and Assumption of Puig Contract. This unambiguous language of the Acknowledgment and Release of Puig Contract specifically carves out rights to compensation to Plaintifis as a third party beneficiary under section 4 of the of the Assignment and Assumption of Puig Contract but not by Defendant Collins directly under the Puig Employment Agreement and Amendment No. 1. See Anthony, 949 So. 2d 226. Therefore, judgment on Count I is in favor of Defendant Collins, since no breach of the Puig Contract [except section 4 of theFN: 20160237021 BOOK 29576 PAGE 1058 Puig v. PADC Marketing, LLC 06-8787 CA 24 5 Assignment and Assumption of Puig Contract] could be enforced against it. 9) As to section 4 of the Assignment and Assumption of Puig Contract, Defendant Collins concedes that Plaintiffs pled breach of a third party beneficiary contract under the Exclusive Sales and Marketing Agreement. The elements to establish a breach of a third party beneficiary contract are: 1) the existence of a contract; 2) the clear or manifest intent of the contracting parties that the contract primarily and directly benefit the third party; 3) breach of the contract by a contracting party; and 4) damages to the third party resulting from the breach. Found Health v. Westside EKG Assocs. 944 So. 2d 194-95 (Fla. 2006). A third party beneficiary's right of action on the promise cannot rise higher than the rights of the contracting party through whom he claims. Crabtree v. Aema Cas & Sur., Co., 438 So. 2d 102, 105 (Fla, Ist DCA 1983). A third party beneficiary may maintain an action only against the promisor. Hialeah Hosp,, Inc. v. Raventos, 425 So. 2d 1205, 1206 (Fla. 3d DCA 1983). It is the undertaking on the part of the promisor, as a consideration to the promise, to benefit the third person that gives rise to a cause of action by the beneficiary against the promisor, resting upon the contract itself. Marianna Lime Prods Co. v. McKay, 147 So. 264, 265 (Fla. 1933). This Court finds that Defendant Collins was the promisor in this case under the Exclusive Sales and Marketing Agreement by joining under the Joinder of Collins Avenue to Amendment No. 1, and evinced an intent to benefit the Plaintiffs. 10) It is undisputed that Plaintiffs [Sales Manager] were an intended and express third party beneficiary of Paragraph 4 of the Exclusive Sales and Marketing Agreement to receive compensation for resales of condominium units between Defendant PADC [Agent] and Defendant Collins [Owner]. It is undisputed that Plaintiffs were actually paid $116,250.00 on seven resales, but that these resales were recalled and deducted from commissions owed on non-resales. This Court finds that Plaintiffs have proved their claim for breach of a third party beneficiary contract by Defendant Collins as a matter of law based upon the undisputed facts of this case. While, as a matter of law, Defendant Collins, as the promisor, may be correct that it fully performed its obligations to the promisee Defendant PADC (the broker) under the Exclusive Sales and Marketing Agreement by directly paying commissions on resales it owed to Defendant PADC for its services, Defendant Collins still remained obligated to pay Plaintiffs because it is undisputed that Defendant PADC never paid the third party beneficiary Plaintiffs (Sales Manager] their 1% override commission on the resales.* 11) However, under the Exclusive Sales and Marketing Agreement, Defendant PADC was obligated on the date it received the commissions on resales to pay the Sales * Defendant Collins promised to Defendant PADC to reimburse it for paying the 1% override commission to the Sales Manager [Plaintiffs].FN: 20160237021 BOOK 29576 PAGE 1059 Puig v. PADC Marketing, LLC 06-8787 CA 24 6 Manager [Plaintiffs]. Defendant PADC’s failure to pay the owed commissions on resales would be a breach of contract under Paragraph 4 of the Exclusive Sales and Marketing Agreement between the parties. However, no third party breach claim lies against a party who is merely a promisee of a contract. Riverview Condo. Corp. v. Campagna Constr. Co., 406 So. 24 101, 102 (Pla. 34 DCA 1981). Thus, Defendant PADC is not liable to Plaintiffs on their breach of a third party beneficiary contract, claim. 12) ‘There was a clear intent by the parties in consenting to Paragraph 4 of the Exclusive Sales and Marketing Agreement to directly benefit the Plaintiffs as third party beneficiaries to receive 1% override commissions on resales. Chapter 475 is inapplicable to Plaintiffs’ right as a third party beneficiary under the Exclusive Sales and Marketing Agreement which is a separate and distinct obligation to pay Plaintifis not related to the real estate transaction. § 475.42(1)(d), Fla. Stat Puig v. PADC Marketing, LLC, 26 So. 34 45 (Fla. 34 DCA 2009). Because of the Joinder of Defendant Collins to Amendment No. |, and the language of Patagraph 4 of the Exclusive Sales and Marketing Agreement, Defendant Collins, the promisor, consented to being responsible for all owed commissions on resales of condominium units to the Plaintiffs, the intended third party beneficiary. This Court finds that it could not be said that Plaintiffs [Sales Manager] received the benefit intended under the Exclusive Sales and Marketing Agreement. Yet the promisor, Defendant Collins, benefitied from the resales by receiving $345,000.00 representing a 2% assignment fee on the resales. Based on the clear and unambiguous terms of the Exclusive Sales and Marketing Agreement and the stipulated facts, this Court finds that Defendant Collins is liable for the 1% override commission in resales of condominium units due the Plaintiffs [Sales Manager] 13) This Court finds based on the above that Plaintiffs are entitled to judgment on Count 1 (breach of third party beneficiary contract) in the amount of $423,120.00 plus pre judgment interest at the applicable legal rate of interest for a total of $706,956.33 (7% interest for 2005; 9% interest for 2006; 11% interest for 2007-08; 8% interest for 2009; 6% interest for 2010-11; and 4.75% interest for 2012-15). Plaintiffs are also entitled to attomey’s fees under paragraph 27 of the Exclusive Sales and Marketing Agreement. This Court reserves jurisdiction to determine the amount of attomey's fees and costs as to Count IL Itis thereupon, ORDERED and ADJUDGED that: Defendant Collins Avenue Associates LLC’s Motion for Entry of Final Judgment is GRANTED as to Count I and Plaintiffs’ Motion for Judgment Against Defendant CollinsGN: 2010237021 BOOK 29576 PAGE 1050 Puig v. PADC Marketing, LLC (06-8787 CA 24 7 Avenue Associates LLC on the Breach of Contract and Breach of Third Party Contract Claims is GRANTED as to Count II. This Court reserves jurisdiction as to the amount of attorney's fees and costs as to Count TI DONE and ORDERED in Chambers at Miami-Dade County, Florida, this] day of April, 2015. CIRCUIT COUR! Copies furnished to: Michael J. Schlesinger, Esq. Hector J. Lombana, Esq. Geoffrey B. Marks, Esq. Michael J. Higer, Esq. Ramon A. Abadin, Esq.