P & O PORTS v. CONTINENTAL STEVEDORING

• Decision Date: 25 May 2005
• Docket Number: No. 3D03-2878.,3D03-2878.
• Citation: 904 So.2d 507
• Parties: P & O PORTS FLORIDA, INC., Appellant, v. CONTINENTAL STEVEDORING & TERMINALS, INC., Appellee.
• Court: Florida District Court of Appeals

904 So.2d 507

P & O PORTS FLORIDA, INC., Appellant, v. CONTINENTAL STEVEDORING & TERMINALS, INC., Appellee.

No. 3D03-2878.

District Court of Appeal of Florida, Third District.

May 25, 2005.

Holland & Knight and Rodolfo Sorondo, Jr. and Christopher N. Bellows, Miami, for appellant. Bilzin Sumberg Baena Price & Axelrod and Michael N. Kreitzer, Miami, and Allen J. Smith, for appellee.

Before GREEN, CORTI—AS, and ROTHENBERG, JJ.

ROTHENBERG, J.

Defendant, P & O Ports Florida, Inc. (P & O), appeals from a final judgment in favor of plaintiff, Continental Stevedoring & Terminals, Inc. (Continental).

P & O's predecessor, I.T.O. Corporation of Florida, and Continental formed the Eller-I.T.O. Stevedoring Company (Eller-I.T.O.). Stevedoring is the loading and unloading of cargo and baggage to and from ships. The parties operate pursuant to the Eller-I.T.O. Stevedoring Company L.L.C. Amended and Restated Limited Liability Company Agreement (Agreement), which includes a non-compete provision and a buy-sell provision (also known as a put-take provision). The buy-sell provision is found in section 13 of the Agreement. Paragraph 13.2 provides in pertinent part:

Should either Member desire to purchase the other Member's Membership Interest in the Company, then the Member (the "Offering Member") desiring to effect such a purchase shall make a written offer for such acquisition, which offer shall be at such price and upon such terms and conditions as the Offering Member deems appropriate. After the offer is made, the Member receiving the Offer (the "Offeree Member") may either accept the offer or purchase the Offering Shareholder's fifty percent (50%) Membership Interest upon the same terms and conditions as the Offering Member's offer. The Offeree Member shall have thirty (30) days from the date that such offer is communicated within which to either accept the offer or elect to purchase the Offering Member's fifty percent (50%) Membership Interest on the same terms and conditions as the offer.

The non-compete provision is found in paragraph 14.1 of the Agreement, and provides in pertinent part:

Each member agrees that . . . it will not directly or indirectly, engage in or conduct, at the Port of Miami, or any other location within Dade County, Florida, any of the Business activities conducted by the Company . . . such limitation to survive any transfer or other disposition by any member of its Membership Interest but to terminate upon the first to occur of: (a) three (3) years after the purchase of such Membership Interest pursuant to the provisions of section 13 or 16 hereof; or (b) the dissolution of the Company. . . .

On April 9, 2003, P & O made an offer to buy Continental's interest in Eller-I.T.O. for 7.2 million dollars. The offer included the condition that the parties would waive the non-compete provision of the agreement. Continental did not want to sell its share for only 7.2 million dollars, and it did not want to buy P & O's share without the protection of the non-compete provision.

Continental sought a judicial determination that P & O's offer was invalid by filing a complaint seeking declaratory and injunctive relief. The declaratory judgment count asked the court to find that the offer was made in bad faith; that the parties intended that the non-compete provisions of the Agreement survive a transfer of a member's interest and P & O's offer attempted to frustrate that intent; that because P & O's offer was legally unenforceable, Continental had no duty to buy or to sell; and that P & O was in violation of the Agreement because it was competing with Continental. The count for preliminary and permanent injunction sought to prohibit P & O's attempt to exercise the buy-sell option of paragraph 13.2 of the Agreement. The trial court tolled the time for Continental's response for ninety days, and appointed a Special Master to conduct an evidentiary hearing.

The Special Master determined that the portion of the buy-sell provision which provides that an offer can be made "upon such terms and conditions as the Offering Member deems appropriate," was ambiguous, and therefore permitted the parties to present extrinsic evidence regarding their intent when drafting the Agreement.

After the hearing, but before the Special Master issued his report, P & O attempted to revoke its offer by writing to Continental that its buy-sell offer was "hereby rescinded and withdrawn." Continental filed a motion to deem the revocation invalid, but the motion was never ruled upon.

The Special Master found that when entering into the contract, the parties did not intend "condition" to mean the termination of the non-compete provision; and he found that the non-compete provision survives any purchase or sale of a membership interest for three years from the date of the purchase and sale. The Special Master recommended that the trial court declare the offer to be valid; find that the non-compete agreement survives the sale; and that it enter an injunction against the parties prohibiting them from competing with each other at the Port of Miami for three years. The trial court entered a Final Judgment adopting the Special Master's recommendations over P & O's objections. P & O appealed.

Paragraph 13.2 of the Agreement provides that, in making an offer to purchase the other Member's interest in the company, the offer must be in writing and "shall be at such price and upon such terms and conditions as the Offering Member deems appropriate." Paragraph 14.1, however, prohibits Members from competing against each other and provides that such limitation is "to survive any transfer or other disposition by any Member" for a term of three (3) years or upon dissolution of the Company.

We therefore conclude, as did the trial court, that the Agreement is ambiguous because it is not clear from its terms whether the non-compete provision in paragraph 14.1 is a condition which can be modified in an offer pursuant to paragraph 13.2. Thus, the Special Master correctly conducted an evidentiary hearing to determine the parties' intent.

The factual findings of the Special Master, adopted by the trial court, will not be disturbed if supported by "substantial competent evidence." See North Am. Islamic Trust, Inc. v. Muslim Ctr. of Miami, Inc., 771 So.2d 1227 (Fla. 3d DCA 2000)

; Anderson v. Anderson, 736 So.2d 49 (Fla. 5th DCA 1999); Abreu v. Amaro, 534 So.2d 771 (Fla. 3d DCA 1988); Zerquera v. Centennial Homeowners' Ass'n, Inc., 721 So.2d 751 (Fla. 3d DCA 1998).

Mr. Novacek, the former president of Continental, who personally negotiated the Agreement, testified that the parties never intended by the language of the Agreement that a waiver of the non-competition provision could be one of the conditions of the "put-take." He also testified that the non-compete clause was intended to survive a change in ownership. P & O argued, however, that Continental had used a similar buy-sell provision to remove its former partner, Harrington & Company (Harrington) and its principals from the stevedoring business and to bring in P & O.¹ Continental's offer to Harrington and its principals included a condition in its offer expanding the terms of the non-competition provision. When Harrington objected that an offer containing such a condition was not valid, Continental responded in a letter (written near the time that Continental was negotiating its agreement with P & O) that the offer was valid, and that Harrington's objections ignored "the express and clear terms, as well as the intent, of [the buy-sell provision] that the Offer can contain price and other terms as are `appropriate.'" Continental and Harrington reached a settlement, so there was never a judicial determination of the appropriateness of Continental's offer.

The Special Master determined (and the trial court adopted these findings) that the parties intended that the non-compete provision survive a change in ownership. Thus, an offer could not include a condition waiving the non-compete provision of the Agreement. Although there was evidence to support a contrary conclusion, as there is substantial competent evidence to support the trial court's conclusions, we will not disturb the trial court's findings on appeal. See Stevens v. Cricket Club Condominium, Inc., 784 So.2d 517, 518-19 (Fla. 3d DCA 2001)

(finding that an appellate court's function is not to reweigh the evidence, but to determine if the record contains competent substantial evidence to support the conclusions of the trier of fact, and that the trial court's findings are presumed correct); Raulerson v. Metzger, 375 So.2d 576 (Fla. 5th DCA 1979)(if there exists any substantial competent evidence on the record, the findings of fact must stand and the judgment entered thereon must be affirmed).

We find, however, that once the trial court concluded that the parties could not change the provisions in the non-compete clause as a condition of the offer, it was error to strike the improper condition and to allow Continental to accept the judicially altered offer. We conclude that Continental was not free to accept the offer as modified by the court and P & O was not legally bound by its offer which had been materially altered by the court. See Friel v. Jones, 206 A.2d 232 (Del.Ch.1964)

(an acceptance of an offer, in order to be effectual, must be identical with the offer); Grasso v. First USA Bank, 713 A.2d 304, 308 (Del.Super.1998)(to be effective, the acceptance must be identical to the offer). Once the court changed the terms, there was no offer, as P & O clearly did not intend to make the monetary offer without the elimination of the non-compete provision. See Zalis v. M.E.J. Rich Corp., 797 So.2d 1289 (Fla. 4th DCA 2001)(if the condition is invalid, it follows that the whole offer is invalid as well).

In the concurring opinion it is argued that this cause should be dismissed because P & O revoked its offer prior to acceptance by...