BERNABE SOMOZA, ALVARO SOMOZA, ISABEL URCUYO DE SOMOZA AND PALOMINO DEVELOPMENT CORPORATION, APPELLANTS,
v.
MARCIAL SOLIS, APPELLEE
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The court reversed a judgment for breach of a profit-sharing agreement because the plaintiff failed to prove the defendants realized any profits from the enterprise, which was essential to his claim for a percentage of profits.
A plaintiff claiming breach of a profit-sharing agreement must prove the defendants actually realized profits from the enterprise, and absent such proof, judgment for the plaintiff cannot stand.
[1] In a breach of profit-sharing agreement claim, the plaintiff bears the burden of proving that the defendants realized profits from the enterprise, and judgment cannot be…
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Join FLexlaw to unlock all legal intelligenceSomoza and other defendants, through their acknowledged agent, signed writings regarding a profit-sharing agreement with Solis, who was employed in th…
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PER CURIAM.
Assuming, arguendo, that the several writings signed by the acknowledged agent of the defendants-appellants (the parties to be charged) sufficiently satisfied the statute of frauds requirement that an agreement, as here, “that is not to be performed within the space of 1 year from the making thereof” be evidenced by some written note or memorandum, § 725.01, Fla.Stat. (1979), nonetheless, we find no competent evidence in this record to prove, as was the plaintiff-appellee’s burden, that the defendants realized, or intentionally avoided realizing, any profits from the enterprise in which the plaintiff was employed so as to entitle the plaintiff to a money judgment in his favor for a percentage of such profits, as called for by the agreement. It is, moreover, clear that the sole theory upon which this case was tried was plaintiff’s claim that the defendants had breached the agreement by failing to pay the plaintiff a percentage of the alleged profits, that the sole basis for the judgment entered for the plaintiff (as expressly stated in the trial court’s order of clarification) was this alleged breach, that no other theory of recovery was asserted or tried by consent, and that, therefore, there is no other justification for the judgment entered. Accordingly, the judgment under review is
Reversed.
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Mendoza v. Maricela Maury, 550 So. 2d 1167 (Fla. 3d DCA 1989)…PER CURIAM. Affirmed. Kaney v. Kaney, 532 So. 2d 1305 (Fla. 2d DCA 1988); Frank v. Freitag, 515 So. 2d 335 (Fla. 3d DCA 1987); Somoza v. Solis, 511 So. 2d 618 (Fla. 3d DCA 1987); Southern Bell Tel. & Tel. v. Kaminester, 400 So. 2d 804 (Fla. 3d DCA 1981).…