DIETER ZIKOFSKY, AN INDIVIDUAL, APPELLANT,
v.
ROBBY VAPOR SYSTEMS, INC., APPELLEE
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Zikofsky appealed a judgment awarding damages to Robby Vapor Systems, Inc., which had substituted as plaintiff in a settlement agreement enforcement case. The appellate court affirmed, rejecting Zikofsky's arguments that Robby Vapor Systems lacked standing, that discovery should have been allowed for his fraud defense, and that he should have been permitted to add counterclaims late in litigation.
Robby Vapor Systems was entitled to enforce the settlement agreement because it expressly permitted 'successors, assignees and affiliated entities' to enforce its terms. The trial court did not abuse its discretion in sustaining objections to discovery because Zikofsky failed to plead his fraud defense with the required specificity. The trial court did not abuse its discretion in denying the late motion to add claims that came less than three months before trial.
[1] A settlement agreement may be enforced by successors, assignees, and affiliated entities if the agreement so provides.
[2] A trial court has broad discretion regarding discovery matters.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Robby Vapor Systems was entitled to enforce the 1997 settlement agreement. The settlement agreement indicated "successors, assignees and affiliated entities" could enforce its terms.”
Establishes that Robby Vapor Systems had standing to enforce the agreement based on its express language.
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Join FLexlaw to unlock all legal intelligenceZikofsky and Robby Vapor Systems entered into a 1997 settlement agreement. Robby Vapor Systems substituted as plaintiff pursuant to an agreed order on…
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GROSS, J.
We affirm the final judgment awarding damages to Robby Vapor Systems, Inc., which substituted as the plaintiff in the case pursuant to an agreed order on March 6, 2001. Contrary to appellant’s argument, Robby Vapor Systems was entitled to enforce the 1997 settlement agreement. The settlement agreement indicated “successors, assignees and affiliated entities” could enforce its terms.
We find no abuse of discretion in the trial court’s sustaining of Robby Vapor Systems’ objections to appellant’s requests for production. The requests supposedly pertained to appellant’s affirmative defense of fraud which read: “As his fourth affirmative defense, Defendant states that the Settlement Agreement was procured by fraud.”
A trial court has broad discretion regarding discovery matters. See, e.g., SCI Funeral Servs. of Fla., Inc. v. Light, 811 So. 2d 796, 798 (Fla. 4th DCA 2002). Where fraud is an issue, the scope of discovery turns on the nature of the fraud alleged. In order to raise an affirmative defense of fraud, the “pertinent facts and circumstances constituting fraud must be pled with specificity, and all the essential elements of fraudulent conduct must be stated.” Cocoves v. Campbell, 819 So. 2d 910, 912 (Fla. 4th DCA 2002). “An affirmative defense of fraud that is not pleaded with particularity is deemed waived.” Id. at 913. Allegations of fraud that are too general, vague, or conclusory are insuffi cient to establish the defense. See Myers v. Myers, 652 So. 2d 1214, 1215 (Fla. 5th DCA 1995).
Appellant’s general allegation was insufficient to establish an affirmative defense of fraud. It was not an abuse of discretion for the court to sustain objections to discovery when appellant failed to properly raise the defense.
We find no abuse of discretion in the trial court’s denial of appellant’s motion to add a counterclaim and third party complaint. The motion came less than three months before trial, over two years after Robby Vapor Systems had last amended its complaint.
Finally, we find appellant’s complaints concerning his status as an employee to be moot, since the trial court did not enforce the restrictive covenant.
AFFIRMED.
POLEN, C.J., and KLEIN, J., concur.
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Dieter Zikofsky v. Mktg. 10, Inc., 904 So. 2d 520 (Fla. 4th DCA 2005)…ow the counterclaim and third party complaint, because the motion to add these pleadings "came less than three months be [*523] fore trial, over two years after Robby Vapor Systems had last amended its complaint.” Zikofsky v. Robby Vapor Sys., Inc., 846 So. 2d 684, 685 (Fla. 4th DCA 2003). . We note that in Equitable Life, before the first trial, the insurance company became aware of the facts that would have supported a fraudulent inducement defense. 178 So. at 128. However, unlike this case, a procedural g…
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In re Standard Jury Instructions-Contract & Bus. Cases, 116 So. 3d 284 (Fla. 2013)…In order to raise an affirmative defense of fraud, the “pertinent facts and circumstances constituting fraud must be pled with specificity, and all the essential elements of fraudulent conduct must be stated.” Zikofsky v. Robby Vapor Systems, Inc., 846 So. 2d 684, 684 (Fla. 4th DCA 2003) (citation omitted). 3. The party seeking to use the defense of fraud must specifically identify misrepresentations or omissions of fact. Cocoves v. Campbell, 819 So. 2d 910, 912-13 (Fla. 4th DCA 2002). 4. Fraud must be ple…
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Kaigler v. State, 913 So. 2d 1254 (Fla. 2d DCA 2005)…the technical illegality of the arrest.”); see also Lang v. State, 826 So. 2d 433, 435 (Fla. 2d DCA 2002) (in dicta, extending the Nesmith principle to illegal stops). Other district courts of appeal have ruled similarly. See, e.g., Perry v. State, 846 So. 2d 684, 589 (Fla. 4th DCA 2003) (holding that an officer’s noncompliance with the strip search statute was not a defense to resisting an officer with violence), review granted, 894 So. 2d 971 (Fla.2005); Tillman v. State, 807 So. 2d 106, 110 (Fla. 5th DCA)…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Myers v. Cardy Mae Myers, 652 So. 2d 1214 (Fla. 5th DCA 1995)
- Cocoves v. Campbell, 819 So. 2d 910 (Fla. 4th DCA 2002)
- SCI Funeral Servs. OF Fla., Inc. v. Light, 811 So. 2d 796 (Fla. 4th DCA 2002)