Full Opinion

Third District Court of Appeal State of Florida Opinion filed January 26, 2022. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D21-0301 Lower Tribunal Nos. 17-14299 CC, & 20-268 AP ________________ Jose Gutierrez, Appellant, vs. Thomas D. Sullivan, Appellee. An appeal from the County Court for Miami-Dade County, Patricia Marino Pedraza, Judge. AM Law, LLC, and Gary M. Murphree, for appellant. Damian & Valori LLP | Culmo Trial Attorneys, P.A., and Melanie E. Damian, for appellee. Before SCALES, LINDSEY, and MILLER, JJ. MILLER, J. In this dispute over arboricultural services, appellant, Jose Gutierrez, challenges a final judgment rendered in favor of appellee, Thomas Sullivan, following a bench trial. On appeal, Gutierrez contends the trial court was required to accept evidence of apparent authority and mutual agreement. Discerning no reversible error, we affirm. BACKGROUND The genesis of this dispute is an agreement entered into between Gutierrez and an acquaintance, Jose Lima, for the provision of tree pruning and trimming services. At Lima’s request, Gutierrez agreed to perform the services on Sullivan’s Miami Beach property six days a week over a month- long period in July and August of 2014. Lima paid Gutierrez $1,500.00, but the parties did not reach an agreement as to the remaining balance. A dispute ensued before the work was completed, and Gutierrez sent both an invoice and demand letter to Sullivan, requesting payment in the amount of $11,770.00. Sullivan did not respond, and Gutierrez filed a four-count complaint in the county court alleging breach of contract, account stated, unjust enrichment, and equitable lien. In the complaint, Gutierrez alleged he contracted directly with Sullivan for the provision of services in the month of 2 August of 2014. He did not raise agency. Sullivan answered and denied all material allegations in the complaint. Gutierrez withdrew his claim for equitable lien. The court then convened a bench trial, at the conclusion of which Gutierrez sought entry of judgment under an agency theory. The court rendered final judgment in favor of Sullivan, and the instant appeal followed. STANDARD OF REVIEW “When a cause is tried without a jury, the trial judge’s findings of fact are clothed with a presumption of correctness on appeal, and these findings will not be disturbed unless the appellant can demonstrate that they are clearly erroneous.” Universal Beverages Holdings, Inc. v. Merkin, 902 So. 2d 288, 290 (Fla. 3d DCA 2005). ANALYSIS The judgment in this case rests on the premise that Lima lacked actual or apparent authority to bind Sullivan. We review this finding for competent, substantial evidence. See Haas Automation, Inc. v. Fox, 243 So. 3d 1017, 1023 (Fla. 3d DCA 2018). In this regard, we do not consider the evidence or inferences the trial court eschewed in rendering its finding. Instead, we evaluate the sufficiency of the evidence supporting the decision of the trial 3 court. See Swanigan v. Dobbs House, 442 So. 2d 1026, 1027 (Fla. 1st DCA 1983). An agency relationship based upon apparent authority arises where the asserting party proves the following three elements: (1) a representation by the purported principal; (2) reliance on that representation by a third party; and (3) a change in position by the third party in reliance upon such representation. Lensa Corp. v. Poinciana Gardens Ass’n, Inc., 765 So. 2d 296, 298 (Fla. 4th DCA 2000). A third-party’s reliance on the apparent authority of a principal’s agent must “rest in the actions of or appearances created by the principal, and ‘not by agents who often ingeniously create an appearance of authority by their own acts.’” Id. (citation omitted) (quoting Taco Bell of Cal. v. Zappone, 324 So. 2d 121, 124 (Fla. 2d DCA 1975)). In this vein, apparent authority does not arise from the mere subjective belief of the person dealing with the purported agent. Guadagno v. Lifemark Hosps. of Fla., Inc., 972 So. 2d 214, 218 (Fla. 3d DCA 2007). Rather, any such belief must be objectively reasonable. Id. Florida courts have repeatedly found that whether an agency relationship exists is a question of fact. See Villazon v. Prudential Health Care Plan, Inc., 843 So. 2d 842, 853 (Fla. 2003); S. Fla. Coastal Elec., Inc. v. Treasures on Bay II Condo Ass’n, Inc., 89 So. 3d 264, 267 (Fla. 3d DCA 4 2012). However, “when the evidence presented by both parties is so unequivocal that reasonable persons could reach but one conclusion, a question that is ordinarily one of fact becomes a question of law to be determined by the court.” U.S. v. Morrison, 28 So. 3d 94, 100 (Fla. 1st DCA 2009). Here, the relevant facts were in dispute. Although Gutierrez did not allege agency in the operative complaint, he testified that Lima lived in a small apartment on Sullivan’s property and had keys to the front door of the residence. He further stated that Lima informed him he was Sullivan’s property manager and that he had a “big[,] huge job in the house, the big house and he need[ed] somebody to do the job.” 1 Gutierrez agreed to trim the trees, and Lima paid him $1,500.00 in three preliminary installments. There was no further agreement as to the balance due. After Gutierrez began working, a dispute arose concerning the trimming of two of the tallest trees. Gutierrez abandoned the remaining tasks and then invoiced Sullivan directly. The invoice, along with certain photographs purportedly depicting the work performed, was admitted into evidence. 1 Our high court has determined that a defendant cannot “be found liable under a theory of vicarious liability that was not specifically pled.” Goldschmidt v. Holman, 571 So. 2d 422, 423 (Fla. 1990). 5 Conversely, Sullivan testified that Lima was not his property manager, but rather a handyman living in an apartment located above his garage. He paid Lima $2,000.00 a month to perform certain services, including landscaping. Lima was assisted with tree trimming by another fully compensated individual. Sullivan denied ever authorizing Lima to engage anyone to perform landscaping tasks. He further claimed he had never observed Gutierrez on his property, and he did not recall that his trees appeared to have been trimmed during the relevant time period. When viewing the photographs introduced into evidence by Gutierrez, Sullivan contended some of the depicted trees appeared untrimmed. Given the conflicting testimony, the trial court acted within the bounds of its discretion in concluding that the principal, Sullivan, did not knowingly permit the purported agent, Lima, to assume apparent or ostensible authority. Indeed, under these facts, the court could have equally concluded that Lima was a renegade tree trimmer seeking to subcontract his own duties, for which he was independently receiving compensation. See Smith v. Sears, Roebuck & Co., 681 So. 2d 871 (Fla. 1st DCA 1996) (“The conflicting evidence . . . might have supported a different conclusion by the finder of fact. It is the function of the trial court, not the appellate court, 6 however, to evaluate and weigh the testimony and other evidence introduced at trial to arrive at findings of fact.”). Accordingly, the trial court’s refusal to impute agency is supported by competent, substantial evidence and the claims for breach of contract and account stated fail. 2 We next examine the claim for unjust enrichment. The trial court found $1,500.00 to be adequate compensation for the work performed. This conclusion is not squarely supported by Sullivan’s testimony, as the record is devoid of any indication as to the collective payments made to Lima and Sullivan’s other worker. “Even when based on erroneous reasoning,” however, “a conclusion or decision of a trial court will generally be affirmed if the evidence or an alternative theory supports it.” Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979); see also Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644 (Fla. 1999). Here, the same evidence relied upon by the trial court in rejecting agency supports the conclusion Gutierrez is not entitled to recover damages for unjust enrichment. The essential elements of unjust enrichment are: (1) plaintiff has conferred a benefit on the defendant, who has knowledge thereof; (2) 2 “There can be no liability on an account stated if there has been no mutual agreement . . . .” Braun v. Noel, 188 So. 2d 564, 565 (Fla. 3d DCA 1966). 7 defendant voluntarily accepts and retains the benefit conferred; and (3) the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying the value thereof to the plaintiff. Hillman Const. Corp. v. Wainer, 636 So. 2d 576, 577 (Fla. 4th DCA 1994). Here, while Gutierrez contended that he made valuable improvements to Sullivan’s property by trimming and pruning several trees, Sullivan testified he had no knowledge of the benefit and “[t]he record contains no evidence to rebut [Sullivan]’s testimony regarding [his] lack of knowledge.” Cole Taylor Bank v. Shannon, 772 So. 2d 546, 551 (Fla. 1st DCA 2000). Sullivan further testified he did not authorize the provision of services and was completely unaware of the work performed by Gutierrez until years later when he was served with the complaint. This testimony was sufficient to sustain the ultimate conclusion reached by the trial court. See Coffee Pot Plaza P’ship v. Arrow Air Conditioning & Refrigeration, Inc., 412 So. 2d 883, 884 (Fla. 2d DCA 1982) (“Where unjust enrichment is asserted, a party is liable for services rendered only when he requests the other party to perform the services or knowingly and voluntarily accepts their benefits.”); Citicorp Real Est., Inc. v. Buchbinder & Elegant, P.A., 503 So. 2d 385, 387 (Fla. 3d DCA 1987) (“There is little question . . . that Citicorp reaped substantial benefits from the services of the 8 law firm . . . . However, not every person who may ultimately benefit from another’s labors thereby becomes responsible to pay for those labors. It is only when it can be fairly said that the benefiting party has knowingly and voluntarily accepted the benefits that the benefiting party may be held to have been unjustly enriched.”); Jackson-Jester v. Aziz, 48 So. 3d 88, 91 (Fla. 2d DCA 2010) (“[I]n order to prove that [appellants] were unjustly enriched by the benefit, it must be shown that they either requested that [appellee] confer the benefit or that they knowingly and voluntarily accepted the benefit.”); CMH Homes, Inc. v. LSFC Co., LLC, 118 So. 3d 964, 966 (Fla. 1st DCA 2013) (“[T]here is no evidence that any benefit was either requested or knowingly and voluntarily accepted by LSFC or its predecessor.”); see also E & M Marine Corp. v. First Union Nat. Bank, 783 So. 2d 311, 312–13 (Fla. 3d DCA 2001) (finding lender was not unjustly enriched by marina’s repairs on vessel, where lender did not request marina make repairs, repairs were made before borrower’s default gave lender right to seek possession, and lender did not learn of vessel’s whereabouts until after repairs were completed); Flatirons Bank v. Alan W. Steinberg Ltd. P’ship, 233 So. 3d 1207, 1212 (Fla. 3d DCA 2017) (finding partnership was not unjustly enriched by bank, even though bank’s former board chairman gave partnership stolen bank funds, because partnership had no knowledge funds 9 were tainted in any way or originated from bank). Consequently, there is “an alternative basis to justify affirming the decision.” Malu v. Sec. Nat. Ins. Co., 898 So. 2d 69, 73 (Fla. 2005). Declining to “substitute [our] judgment for that of the trial court on questions of fact, likewise of the credibility of the witnesses as well as the weight to be given to the evidence by the trial court,” Goldfarb v. Robertson, 82 So. 2d 504, 506 (Fla. 1955), as this “is not the function of the appellate court,” we therefore affirm the final judgment in all respects. Shaw v. Shaw, 334 So. 2d 13, 16 (Fla. 1976). Affirmed. 10