DENNIS DAMIO AND PENNY DAMIO, APPELLANTS,
v.
MARINE HOSPITALITY CORPORATION, A FLORIDA CORPORATION, VIDEN CORPORATION, AND ORI AVRAHAM GORDIN AND TERESA SHELLEY, AS PERSONAL REPRESENTATIVES OF THE ESTATE OF SHELLEY W. SHELLEY, DECEASED, APPELLEES

Fla. 4th DCA | 2016-03-02
No. 4D13-2117
MAY and FORST, JJ., concur.
187 So. 3d 890 Florida District Court of Appeal, Fourth District (2016)

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Dennis and Penny Damio appealed a final judgment awarding damages to Marine Hospitality Corporation and Viden Corporation arising from shareholder transaction disputes. The appellate court affirmed most of the trial court's rulings but reversed in part, finding the trial court erred in including a $67,000 expense reimbursement and damages for an unpleaded second promissory note claim in its damage calculations.


Holding

The court affirmed the trial court's rulings on issues one, two, and four. The court reversed on issue three, holding that the trial court erred by including the $67,000 expense reimbursement in the Companies' damages award (as the Letter of Acceptance contained no condition precedent to payment) and by awarding damages on the second promissory note cause of action which was never pleaded or tried by implied consent.


Headnotes

[1] A trial court's delay in issuing a final judgment after a nonjury trial may warrant a new trial if the delay results in an inconsistent and confusing judgment.

[2] A court must rule on all claims presented in a complaint, including derivative claims.

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

Key Quotes

“This letter, signed by both parties, does not contain any condition precedent to the $67,000 payment to Damio. Accordingly, the trial court erred when it included the $67,000 in the Companies' damages for breach of fiduciary duty.”

Establishes that the Letter of Acceptance imposed no conditions on the $67,000 expense reimbursement, so the trial court erred in offset

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

Marine Hospitality Corporation and Viden Corporation filed a twelve-count complaint against Dennis and Penny Damio regarding shareholder transactions.…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
SCHER, ROSEMARIE, Associate Judge.

SCHER, ROSEMARIE, Associate Judge.

This case arises out of complicated shareholder transactions and related disputes. Marine Hospitality Corporation and Viden Corporation (“the Companies”) filed a twelve-count complaint against Dennis and Penny Damio. The Damios filed a third-party complaint against Shelley W. Shelley. After a prolonged nonjury trial, *891the trial court entered a final judgment awarding the Companies damages against the Damios.

The Damios appeal the final judgment on the following grounds: 1) the trial court erred by not ordering a new trial because the delay between the trial and issuance of the final judgment was unreasonable .and resulted in an inconsistent and confusing judgment; 2) the trial court erred by not ruling on the Damios’ derivative conversion claims; 3) the trial court erred in its., damage calculations, including granting judgment to the Companies on a cause of action not pled and not tried by implied consent; and 4) the trial court erred in dismissing the Damios’ third-party complaint. We affirm on issues one, two, and four without further comment; We reverse on issue number three, as explained below.

The trial court awarded damages to the Companies for the Damios’ breach of fiduciary duty,1 Dennis Damio’s liability for a $50,000 promissory note, and his liability for a second $50,000 promissory note.2 Dennis Damio maintains that the final judgment fails to credit him $67,000 for expenses incurred by him to which the trial court previously acknowledged he was entitled.

Two documents address amounts to be disbursed to Dennis Damio: the Preliminary Shareholders Agreement (signed only by Dennis and Penny Damio) and the subsequent Letter of Acceptance (signed by Dennis Damio and Shelley W. Shelley). Whether Dennis Damio was entitled to a disbursement of $67,000 -is an issue of contract interpretation and subject to de novo review. N. Star Beauty Salon, Inc, v. Artzt, 821 So.2d 356, 358 (Fla. 4th DCA 2002). When examining a contract, the court shall consider the plain language of the contract without giving it additional meaning.- Cont’l Fla. Materials Inc., v. Kushermam, 91 So.3d 159, 164 (Fla. 4th. DCA 2012).’

Under the Preliminary Shareholders agreement, Damio was to receive $167,000 to cover his expenses and was required to “give receipts and details of all expenses.” However, the latter-executed Letter of Acceptance does not require Damio to give receipts—it merely states that “[t]he corporation will pay Dennis Damio $67,000.00 within the month of November, 2000 to cover his previous expenses.” This letter, signed by both parties, does not contain any condition precedent to the $67,000 payment to Damio. Accordingly, the trial court erred when it included the $67,000 in the Companies’ damages for breach of fiduciary duty.3

Additionally, the. trial court awarded $50,000 in principal and $55,125 in interest on the second promissory note. While the Companies’ controlling fourth-amended complaint and the amendment to the fourth-amended complaint set forth a cause of action' for the first promissory note, the Companies never pled a cause of action for the second promissory note. Moreover, it was not tried by implied consent.

*892Accordingly, we remand this case to the trial court to reduce the final judgment by $172,125: $67,000 for the November 2000 payment Dennis Damio was entitled to receive, and $105,125 ($50,000 plus $55,125) for the second promissory note. Because the final judgment includes prejudgment interest awarded on the $67,000, that figure should also be recalculated and the judgment reduced accordingly.

Reversed and Remanded.

MAY and FORST, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw