Banco Industrial De Venezuela, C.A. v. De Saad

21 So. 3d 46, 2009 Fla. App. LEXIS 13761, 2009 WL 2949276
CourtDistrict Court of Appeal of Florida
DecidedSeptember 16, 2009
Docket3D08-1713
StatusPublished
Cited by4 cases

This text of 21 So. 3d 46 (Banco Industrial De Venezuela, C.A. v. De Saad) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Banco Industrial De Venezuela, C.A. v. De Saad, 21 So. 3d 46, 2009 Fla. App. LEXIS 13761, 2009 WL 2949276 (Fla. Ct. App. 2009).

Opinions

SUAREZ, J.

Banco Industrial De Venezuela, C.A. (“Banco”), and BIV Investments and Management, Inc. (“BIV”), appeal a final summary judgment in favor of Esperanza de Saad (“de Saad”) and Joseph Beeler, P.A. (“Beeler”), in an action for statutory indemnification and breach of contract. We affirm the trial court’s grant of final summary judgment on both the count for statutory indemnification and the count for breach of contract.

FACTS AND PROCEDURE BELOW

De Saad is the former vice-president and general manager of Banco’s Miami agency, BIV. As part of an undercover sting operation involving a U.S. Customs confidential informant, de Saad was alleged to have facilitated the deposit of approximately $4 million in drug proceeds into BIV accounts. On May 19, 1998, the United States charged de Saad with ten counts of money laundering and one count of conspiracy to launder money while acting in her capacity as the vice-president of BIV. De Saad retained the services of attorney Beeler to represent her in the criminal proceedings. As part of their fee agreement, de Saad assigned Beeler her right to seek indemnification for attorney’s fees and costs under sections 607.0850(1) and (3), Florida Statutes (1999). After a lengthy trial in which the jury found her guilty on all counts, the trial judge granted de Saad’s motion for judgment of acquittal as to all counts finding that the United States had failed to prove all of the necessary elements of the alleged crimes. The United States filed an appeal of the trial court’s acquittal. Seven months after her acquittal, de Saad was charged and pled [48]*48guilty to one count of money structuring on the condition that the government drop the appeal of the judgment of acquittal on the money laundering and conspiracy charges. The government dropped the appeal. De Saad then sought from BIV her past wages pursuant to her contract of employment and also sought indemnification for attorney’s fees incurred in her defense of the money laundering and conspiracy charges. BIV denied both claims.

De Saad then filed the present state court action against BIV. Her amended complaint seeks statutory indemnification pursuant to section 607.0850 to recover the costs and attorney’s fees in defending the money laundering charges and claims past wages based on breach of her Employment Contract with BIV.1 Beeler filed a complaint in intervention based on the assigned right to attorney’s fees and costs in defending de Saad on the money laundering charges.2 De Saad, Beeler and BIV moved for summary judgment on the indemnification claims. The trial court entered summary judgment on liability in favor of de Saad and Beeler on the statutory indemnification counts. The trial court held a bench trial on indemnification damages and awarded de Saad $2,895,096.41 on the indemnification claim and Beeler $1,636,168.13. Following the bench trial, both sides moved for summary judgment on the breach of contract claims. The trial judge granted summary judgment on the breach of contract claims in favor of de Saad and Beeler. On the breach of contract claims, the trial court entered final summary judgment in favor of de Saad and Beeler and awarded $1,058,023.82 to de Saad exclusively. This appeal followed.

BTVS APPEAL OF THE FINAL SUMMARY JUDGMENT FOR INDEMNIFICATION

BIV contends on appeal that the trial court did not apply the correct law on the claims for indemnification. We disagree. BIV argues, in support of its appeal, that a question remains, under the terms of sections 607.0850(1) and (3), as to whether or not de Saad’s acquittal meets the statutory requirements of being “successful on the merits or otherwise,” and whether the acts with which she was charged were performed by “reason of the fact” that she was an officer of the corporation. Section 607.0850, Florida Statutes (1999) provides in pertinent part:

607.0850 Indemnification of officers, directors, employees, and agents.—

(1) A corporation shall have power to indemnify any person who was or is a party to any proceeding (other than an action by, or in the right of, the corporation), by reason of the fact that he or she is or was a director, officer, employee, or agent of the corporation ....
[[Image here]]
(3) To the extent that a director, officer, employee, or agent of a corporation has been successful on the merits or othenm.se in defense of any proceeding referred to in subsection (1) or subsection (2), or in defense of any claim, issue, or matter therein, he or she shall be indemnified against expenses actually and reasonably incurred by him or her in connection therewith.

(emphasis supplied)

The case of Perconti v. Thornton Oil Corp., No. CIV. A. 18630-N.C., 2002 WL [49]*49982419 (Del.Ch.2002) interprets a Delaware statute, which is strikingly similar to section 607.0850, in a factually similar situation to the present. That case deals with indemnification of a corporate officer in defense of a lawsuit. Perconti was charged with twenty counts of embezzlement from Thornton Oil Corporation. Perconti went to trial, a mistrial was declared, and the charges against him were dismissed. The Delaware statute, as does the Florida Statute, requires that the former director or officer of the corporation who seeks indemnification must have been both “successful on the merits or otherwise” and must have been prosecuted “by reason of the fact” that the person was a director, officer, employee or agent of the corporation.3

Perconti filed an action for statutory indemnification to recover expenses incurred in defending the criminal suit. Thornton Oil Corporation contended that indemnification was precluded because Perconti’s activities were undertaken for personal gain and not for corporate purpose. The Court of Chancery held that:

[t]he right of a ‘successful’ corporate officer to indemnification derives from his status as a corporate officer. If the conduct resulting in the prosecution was done in his capacity as a corporate officer, without regard to what his motivation may have been, then the ensuing prosecution was “by reason of the fact that” he was a corporate officer.

Perconti, 2002 WL 982419, at *4.

The court went on to hold that the statute “[ajssures indemnification to the corporate officer who has been ‘successful’ in the criminal proceeding. It does not require a determination that the corporate officer was ‘innocent’.” Perconti, at *4; see Merritt-Chapman & Scott Corp. v. Wolfson, 321 A.2d 138, 141 (Del.Super.Ct.1974) (holding that any result other than conviction must be considered success). The Delaware court found that dismissal of the charges was equivalent to “success on the merits” under the statute. It concluded that there were no material facts in dispute, and that Perconti, as a matter of law, was entitled to summary judgment indemnifying him in accordance with the indemnification statute.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Roundpoint Mortg. Co. v. Florez
2016 NCBC 17 (North Carolina Business Court, 2016)
Banco Industrial De Venezuela C.A., Miami Agency v. De Saad
68 So. 3d 895 (Supreme Court of Florida, 2011)
Banco Industrial de Venezuela, C.A. v. de Saad
126 So. 3d 259 (District Court of Appeal of Florida, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
21 So. 3d 46, 2009 Fla. App. LEXIS 13761, 2009 WL 2949276, Counsel Stack Legal Research, https://law.counselstack.com/opinion/banco-industrial-de-venezuela-ca-v-de-saad-fladistctapp-2009.