Levitan v. Dancaescu
| Decision Date | 14 September 2022 |
| Docket Number | 1D21-806 |
| Parties | John D. LEVITAN, Sr., Appellant, v. Lucian G. DANCAESCU, Appellee. |
| Court | Florida District Court of Appeals |
Bart A. Houston, Fort Lauderdale, for Appellant.
T. A. Borowski, Jr. and Darryl Steve Traylor, Jr. of Borowski & Traylor, P.A., Pensacola, for Appellee.
In this appeal from a summary final judgment, Appellant asserts that the trial court erred in granting Appellee's motion for summary judgment while Appellant's motion for leave to amend his answer was pending. We decline to address this argument—which is not preserved for appeal—because Appellant never requested that the trial court rule on his motion before ruling on the summary judgment motion. Appellant further asserts that the trial court erred in concluding that Appellee was entitled to summary judgment based on the clear and unambiguous language of the parties’ agreement. Finding merit as to this second argument, we reverse and remand for further proceedings.
The parties in this case entered into an agreement for Appellant to purchase LDRK Capital, LLC, ("LDRK") from Appellee for $2,000,000.00. The agreement provided that LDRK was the owner of two Brazilian treasury bonds or LTN bonds and that "[Appellant] acknowledge[d] that he independently reviewed the information posted on the website www.tesouro.fazenda.gov.br prior to this agreement and that no representations as to the Market Value were made by [Appellee] and [Appellant's] interest in these bonds [wa]s strictly speculative."
Appellee subsequently filed a one-count complaint against Appellant for breach of contract. Appellant filed a counterclaim for damages, alleging that the LTN bonds sold to him "were represented to be true, valid, marketable, and in force," but were instead "fraudulent and counterfeit, without value whatsoever," and that Appellant relied upon these representations to his detriment.
Appellee moved for summary final judgment, claiming that there were no genuine issues of material fact and that he was entitled to judgment as a matter of law on the complaint and counterclaim. Specifically, Appellee asserted that the language of the parties’ agreement refuted the alleged representations made by Appellee regarding the LTN bonds. In support of the motion, Appellee filed his sworn affidavit, which stated in pertinent part that (1) he made no representations to Appellant as to the market value of LDRK or assets owned by LDRK; (2) Appellant's interest was strictly speculative; and (3) he sold LDRK to Appellant based on representations Appellant made to him that he understood that he was purchasing a speculative interest.
In opposition to Appellee's motion for summary judgment, Appellant filed three affidavits. The first affidavit was executed by James Tanenbaum, a New York attorney, who stated that in response to Appellant's concerns about the genuineness of the bonds, he contacted the Brazilian firm of Pinherio Guimaraes about the validity of the bonds and received a letter from the firm, whose ultimate conclusion was that "the LTN was probably counterfeit" and that even if "the LTN was authentic, the LTN was not redeemable due to the passage of the statute of limitations on the right to enforce the LTN." The second affidavit was executed by Fabio Yanitchkis Couto and Laura Norbert Costa, attorneys with the Brazilian firm of Pinherio Guimaraes, who stated that their firm issued a letter to James Tanenbaum informing him of the firm's ultimate conclusion that "the LTN was probably counterfeit" and that even if "the LTN was authentic, the LTN was not redeemable due to the passage of the statute of limitation on the right to enforce the LTN." Attached to the affidavit was a true and correct copy of the letter. The third and final affidavit was executed by Appellant who stated that (1) Appellee represented that the LTN bonds were genuine and in force ; that (2) he subsequently contacted Merrill Lynch Capital Markets and Emerging Markets Groups as well as Credit Suisse Capital Markets & Gaming Groups and was told that the bonds were fraudulent; and that (3) he paid the Brazilian firm of Pinheiro Guimaraes for a report that concluded the bonds were probably counterfeit.
Appellee subsequently filed Plaintiff's Motion to Strike or Disregard Parol Evidence. Appellee claimed that Appellant could not use the parol evidence contained in the affidavits to vary the plain and unambiguous language of the parties’ agreement in order to impose representations or warranties regarding the "speculative" bonds that were expressly disclaimed by the parties as part of their bargain.
At the summary judgment hearing, Appellee's counsel argued that parol evidence regarding whether the bonds were legitimate was not relevant because the parties’ agreement expressly provided that it was for the sale of a membership interest in LDRK and that no representations were made regarding the value of the bonds held by LDRK. Appellant's counsel responded that the seminal issue in the case was whether the bonds were genuine, fraudulent, or counterfeit and that the affidavits submitted by Appellant were sufficient to create a genuine issue of material fact as to whether the bonds were genuine so as to defeat Appellee's summary judgment motion. Appellee's counsel replied that the agreement itself refuted Appellant's assertion that the legitimacy of the bonds was a fundamental issue.
Following the hearing, the trial court entered a Summary Final Judgment for Plaintiff. Upon finding that there was no genuine issue of material fact and that Appellee was entitled to judgment as a matter of law, the trial court granted Appellee's motion for summary judgment and entered judgment in favor of Appellee.
Appellant then filed a motion for rehearing, which claimed that the judgment was not final because it failed to address and dispose of Appellant's counterclaim. Appellee responded by submitting a proposed amended judgment addressing the issues raised in Appellant's motion for rehearing and requested that the court enter the proposed amended judgment and deny the rehearing motion.
The trial court denied Appellant's motion for rehearing and entered an Amended Summary Final Judgment for Plaintiff, which included additional findings of fact. Specifically, the court found that (1) no term in the contract conditioned Appellant's obligation to pay on the value of the LTN bonds; and that (2) "the plain and unambiguous language of the Contract expressly disclaimed any representation regarding the value of the LTN bonds insomuch as it provided that ‘no representations as to the Market Value’ of those bonds was [sic] made by Plaintiff to Defendant, and that Defendant's interest in the bonds was ‘strictly speculative.’ " Accordingly, the court reaffirmed that Appellee was entitled to summary judgment, entered judgment in favor of Appellee, and ordered that Appellant take nothing on his counterclaim. This appeal followed.
Because a motion for summary judgment requires the trial court to determine whether the movant is entitled to judgment as a matter of law, the granting of such a motion is reviewed de novo. Chirillo v. Granicz , 199 So. 3d 246, 252 (Fla. 2016) ; Volusia Cnty. v. Aberdeen at Ormond Beach, L.P. , 760 So. 2d 126, 130 (Fla. 2000) ; Castleberry v. Edward M. Chadbourne, Inc. , 810 So. 2d 1028, 1029 (Fla. 1st DCA 2002). "Where no material facts are in dispute and the ‘determination of the issues of a lawsuit depends upon the construction of a written instrument and the legal effect to be drawn therefrom, the question at issue is essentially one of law only and determinable by entry of summary judgment.’ " Holmes v. Fla. A & M Univ. ex rel. Bd. of Trs. , 260 So. 3d 400, 403 (Fla. 1st DCA 2018) (quoting Cox v. CSX Intermodal, Inc. , 732 So. 2d 1092 (Fla. 1st DCA 1999) ). "However, ‘[w]here the terms of the written instrument are disputed and reasonably susceptible to more than one construction, an issue of fact is presented as to the parties’ intent which cannot properly be resolved by summary judgment.’ " Strama v. Union Fid. Life Ins. Co. , 793 So. 2d 1129, 1132 (Fla. 1st DCA 2001) (quoting Universal Underwriters Ins. Co. v. Steve Hull Chevrolet, Inc. , 513 So. 2d 218, 219 (Fla. 1st DCA 1987) ). The initial determination of whether the contract term is ambiguous is a question of law for the court. Holmes , 260 So. 3d at 404 ; Strama , 793 So. 2d at 1132. Contractual ambiguities are either patent or latent. Nationstar Mortg. Co. v. Levine , 216 So. 3d 711, 715 (Fla. 4th DCA 2017). "A patent ambiguity is intrinsically apparent on the face of the document due to ‘the use of defective, obscure, or insensible language.’ " Id. (quoting Emergency Assocs. of Tampa, P.A. v. Sassano , 664 So. 2d 1000, 1002 (Fla. 2d DCA 1995) ). In contrast, a latent ambiguity arises "where the language employed is clear and intelligible and suggests but a single meaning, but some extrinsic fact or extraneous evidence creates a necessity for interpretation or a choice among two or more possible meanings." Thompson v. Watts , 111 So. 3d 986, 989 (Fla. 1st DCA 2013) ; Barnwell v. Miami-Dade Cnty. Sch. Bd. , 48 So. 3d 144, 145–46 (Fla. 1st DCA 2010). "As a general rule, evidence outside the contract language, which is known as parol evidence, may be considered only when the contract language contains a latent ambiguity." Thompson , 111 So. 3d at 989.
In this case, Appellant claims that the trial court erred in granting Appellee's motion for summary judgment because a genuine issue of material fact existed as to whether Appellee falsely represented that the LTN bonds were valid. Appellee responds that the trial court properly granted his motion for summary judgment because the plain and unambiguous language of the parties’ agreement disclaimed that any representation had been made regarding the value of the speculative bonds. Specifically, Appellant acknowledged in the agreement that "he independently...
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