Da Cunha v. Mann
| Decision Date | 15 July 2015 |
| Docket Number | Nos. 3D13–3057,3D14–1141.,3D14–1137,s. 3D13–3057 |
| Citation | 183 So.3d 1113 |
| Parties | Rener DA CUNHA, etc., et. al., Appellants, v. Shmuel MANN, et. al., Appellees. |
| Court | Florida District Court of Appeals |
Boldt Law Firm, Kimberly L. Boldt, Miami, and Jeffrey D. Mueller and Mario R. Giommoni, Boca Raton; Hoffman & Hoffman, P.A., John Hoffman and Theresa Hoffman; Dorot & Bensimon, P.L., and Datan Dorot, for appellants.
The Bernstein Law Firm, Michael I. Bernstein and Jason B. Pear; Therrel, Baisden, P.A., Jonathan Feuerman, Miami, for appellees.
Before ROTHENBERG, LAGOA and FERNANDEZ, JJ.
Rener Da Cunha, etc., et al., appeal the trial court's Final Judgment of Declaratory Relief recognizing Shmuel Mann, et al.'s rights, pursuant to a Memorandum of Understanding. Da Cunha also appeals the Order Granting Joint Motion to Compel Compliance with Settlement Agreement. We strike paragraph fifteen of the Final Judgment of Declaratory Relief, and reverse the Order Granting Joint Motion to Compel Compliance with Settlement Agreement because the trial court's orders effectively disposed of an issue that was neither pled nor litigated, and the court disposed of the issue without a party's consent.
The Ira S. Barton Revocable Trust ("Barton Trust") created two subtrusts upon Dr. Ira S. Barton's death: (1) a minor trust for the sole benefit of the minor child of Da Cunha ("Minor Trust"), and (2) a trust for the benefit of the Ira S. Barton Chessed Foundation, Inc. ("Chessed Foundation"). Bramco, LLC was a company intended to provide management services to the businesses and entities that funded the Chessed Foundation. The Barton Trust also provided for the distribution of the parties' membership interests in Bramco, LLC.
Rener Da Cunha is one of several appellants, each of whom is a beneficiary under the Barton Trust.1 The trustees of the Barton Trust consist of the appellees who are also the trustees of the Chessed Foundation.2 Those with membership interests in Bramco, LLC include all of the appellants and appellee Shmuel Mann.3
Mann filed a Motion for Final Summary Judgment for Declaratory Relief. He sought to be named trustee of the Minor Trust, and recognition that the Barton Trustees had issued the respective interests in Bramco, LLC to the beneficiaries designated in the Barton Trust. In paragraph fifteen of the Final Judgment of Declaratory Relief, the trial court ordered as follows:
Subject to the reservation of rights by the Trustees of the Ira S. Barton Revocable Trust relating to the Memorandum of Understanding ... all the membership interests in Bramco, LLC have been distributed by the Trustees of the Ira S. Barton Revocable Trust to the parties set forth in Paragraph 14 above effective as [of] September 23, 2013.
After the hearing on the motion for final summary judgment, Mann's counsel provided the trial court with a proposed order on the Motion for Final Summary Judgment for Declaratory Relief. Da Cunha alleged that paragraph fifteen of the Final Judgment of Declaratory Relief was not included in the approved order, but was somehow inserted in the order that circulated after the hearing. Da Cunha moved for rehearing. The trial court summarily denied the motion.
Mann thereafter filed a Joint Motion to Compel Compliance with Binding Settlement Agreement with Incorporated Memorandum of Law. Da Cunha opposed the motion, after which the trial court concluded that the Memorandum of Understanding constituted a binding and enforceable agreement.
Da Cunha filed a Motion to Stay Pending Appeal, which this Court granted. He also filed a Motion to Strike and Objection to Joint Motion to Compel Compliance with Binding Settlement Agreement. Da Cunha asserts that we should strike paragraph fifteen from the trial court's Final Judgment of Declaratory Relief and reverse the Order Granting Joint Motion to Compel Compliance with Settlement Agreement. We agree.
We review a motion to grant summary judgment de novo. See Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000) ; Sierra v. Shevin, 767 So.2d 524, 525 (Fla. 3d DCA 2000). If "an issue was not presented by the pleadings nor litigated ... during the hearing on the pleadings ... decree adjudicating [the] issue is, at least, voidable on appeal." Dysart v. Hunt, 383 So.2d 259, 260 (Fla. 3d DCA 1980) ; Rotta v. Rotta, 34 So.3d 107, 107–08 (Fla. 3d DCA 2010) (); Airport Plaza Ltd. P'ship v. United Nat'l Bank of Miami, 611 So.2d 1256, 1257 (Fla. 3d DCA 1992) ().
The trial court may only adjudicate an issue that was not pled if it was tried with the opposing party's express or implied consent. Dysart, 383 So.2d at 260. Implied consent is given in one of two ways. See Bilow v. Benoit, 519 So.2d 1114, 1116 (Fla. 1st DCA 1988). One way a party can give implied consent is when the party fails to object to issues that were raised in the pleadings. Id. Another way a party gives implied consent is when the party fails to object to questions and answers given at trial that were irrelevant to the issues raised in the pleadings. Id.
Mann asserts that the Final Judgment of Declaratory Relief should be upheld because it did not adjudicate any rights of the parties, and Da Cunha gave express or implied consent. We disagree with this assertion. Even if the trial court did not adjudicate the rights of the parties, the court raised an issue not contained in the pleadings when it recognized the rights of the trustees under the Memorandum of Understanding. Additionally, Da Cunha objected to the order on the Motion for Final Summary Judgment for Declaratory Relief and did not give consent.
As this Court stated in Airport Plaza Ltd. Partnership, it is improper to introduce at trial an issue which the parties did not raise in their pleadings. Airport Plaza Ltd. P'ship, 611 So.2d at 1257. In that case, the appellants sought rescission of a contract and alleged that the appellees made two fraudulent misrepresentations in their complaint. Id. at 1256. At trial, the appellants alleged a new, third misrepresentation. Id. at 1257. The trial court did not consider the third misrepresentation when it ruled against the appellants. Id.
First, neither Da Cunha nor Mann pled the existence or validity of the Memorandum of Understanding in any of their...
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