TODD KOZEL v. ASHLEY D. KOZEL ( 2019 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
TODD KOZEL, )
)
Appellant, )
)
v. ) Case No. 2D15-4364
)
ASHLEY D. KOZEL, )
)
Appellee. )
)
Opinion filed November 27, 2019.
Appeal from the Circuit Court for Sarasota
County; Nancy K. Donnellan, Judge.
Christopher N. Bellows and Rodolfo
Sorondo, Jr., of Holland & Knight LLP,
Miami (withdrew after briefing); John G.
Crabtree, Charles M. Auslander, and
Brian C. Tackenberg of Crabtree &
Auslander, Key Biscayne (substituted as
counsel of record); and Raoul G. Cantero
and Jesse L. Green of White & Case, LLP,
Miami, for Appellant.
Steven L. Brannock, Philip J. Padovano,
and Joseph T. Eagleton of Brannock &
Humphries, Tampa; and Jeffrey D. Fisher
and Zachary Potter of Fisher Potter Hodas,
PLLC, West Palm Beach, for Appellee.
SALARIO, Judge.
This case presents difficult questions about a trial court's continuing
jurisdiction after entry of a final judgment to enforce a settlement agreement. Todd
Kozel, the former husband, and Ashley Kozel, the former wife, entered into a property
settlement agreement to resolve a divorce case. The former husband agreed to
transfer shares of stock to the former wife by a date certain and to give her information
to determine her tax obligations when she sold it. The family court incorporated the
agreement into a final judgment of dissolution of marriage and retained jurisdiction to
enforce it. The former husband was late in delivering the stock to the former wife, and
the tax information he gave her was wrong.
Invoking the trial court's continuing jurisdiction to enforce the agreement,
the former wife filed papers seeking relief from the family court. Although her filings
were styled as petitions to enforce the agreement, they alleged what amounted to
claims for money damages for alleged breaches of contract. After granting partial
summary judgment on liability and holding a nonjury trial on damages, the family court
found the former husband in breach and awarded the former wife (1) $34,611,702 as
damages based on the failure to deliver the stock on time and (2) $3,850,500 as
damages for the breach of the obligation to provide tax information. The sum and
substance on appeal is this: A trial court's continuing jurisdiction to enforce a settlement
agreement generally does not include jurisdiction to award damages for breach that are
not specified in the agreement, and the agreement here did not specify the damages
the former wife sought and the family court awarded. We reverse the family court's
award of damages to the former wife—together with an injunction intended to secure
the payment of those amounts—and affirm the balance of the final judgment.
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The History and Relevant Terms of the Property Settlement Agreement
The former husband and former wife were married in 1992, and the former
wife filed a petition for dissolution of marriage in 2010. The former husband is the chief
executive officer of Gulf Keystone Petroleum, Ltd., an oil and gas exploration company.
When the parties divorced, much of their shared and substantial wealth consisted of
Gulf Keystone stock, which is publicly traded on the AIM Stock Exchange in London.
The parties settled the divorce case. A substantial chunk of the
consideration was to consist of Gulf Keystone stock that the former husband was to
transfer to the former wife as equitable distribution. The parties—both savvy people in
their own rights and both represented by capable counsel—documented their
understanding in a Property Settlement Agreement (PSA) dated January 12, 2012.
The former husband's obligation to transfer the Gulf Keystone stock to the
former wife was regulated, in the main, by paragraphs 6 and 7 of the agreement.
Paragraph 6A obligated the former husband to deliver to the former wife, as equitable
distribution, twenty-three million shares of stock on or before January 27, 2012. Upon
delivery, the former wife would be free to sell the stock to anyone at any time.
Paragraph 7 of the agreement, titled "Remedies Upon Default," spelled
out what would happen if the former husband failed to deliver the shares. As relevant
here, paragraph 7A provided as follows:
In the event that the Husband does not transfer to the Wife
all or any portion of the 23 million shares of GKP common
stock and/or the shares are transferred, but are not in full
compliance with Paragraph 6A above . . . then for each day,
starting on [January 28, 2012], that the Husband has not
fully and completely satisfied all of the terms and conditions
of Paragraph 6A, he shall be in default and he shall owe the
Wife payments as and for additional equitable distribution at
the rate of 6% per annum (calculated simply and not
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compounding) on the value of the 23 million Shares, or any
portion thereof as determined from time to time, which are
not transferred in compliance with Paragraph 6A above . . . .
(Emphasis added.) Paragraph 7A calls the interest payments the former husband
would be required to make in the event he failed to deliver the shares "Additional
Equitable Distribution," and it says that the former husband's obligation to make
additional equitable distribution payments if and when required is immediately
"enforceable by contempt and any other remedy at law or in equity."
Paragraph 7A then goes on to state:
In addition, should Husband fail to fully comply with
paragraph 6A above with regard to all 23 million Shares on
or before the close of business 5:00 p.m. EST on May 1,
2012, but he has timely paid the Additional Equitable
Distribution payments described herein, then on May 1,
2012, the Wife may move the court to hold the Husband in
contempt or to otherwise compel him to specifically perform
and/or transfer to her all 23 million Shares in compliance
with paragraph 6A, or for any other remedy at law or in
equity including, but not limited to, a money judgment.
Nothing contained in this Agreement, or paragraph 7 thereof,
shall be construed to limit or restrict the Wife's right to seek
or pursue all remedies at law and in equity to enforce her
rights to receive the 23 million Shares and/or the value
thereof in accordance with paragraph 6A.
(Emphasis added.) In sum, then, paragraph 7A said that in the event of a default on the
former husband's obligation to deliver the shares: (1) that the former husband would be
required to pay additional equitable distribution, an obligation the former wife could
immediately enforce using contempt or any other remedy; (2) that if the former husband
paid the additional equitable distribution but failed to deliver the shares by close of
business on May 1, 2012, the former wife could file a motion in the family court for
contempt or for legal and equitable remedies, including a money judgment; and (3) that
nothing in paragraph 7 of the agreement limited or restricted the former wife's right to
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seek any legal or equitable remedies for the former husband's failure to deliver the stock
as required.
Also relevant with respect to the payment of additional equitable
distribution, paragraph 7B of the agreement provided that the former husband
shall be entitled to a full or partial refund of those . . .
payments if, and only if, he (1) timely pays the Additional
Equitable Distribution payments and (ii) cures the [stock
delivery] default within 120 days from the date the default
occurred, and (iii) on the date the default is cured, the price
of the GKP Shares in default exceeds the price of the GKP
Shares on [January 28, 2012] . . . .
(Emphasis added.)
Paragraph 15 of the PSA also addressed various tax matters arising from
the dissolution of the parties' marriage and the transactions contemplated by their
agreement. To enable the former wife to determine and satisfy her tax obligations with
respect to any sale of the Gulf Keystone stock she was to receive, paragraph 15
obligated the former husband to provide the former wife with a document "setting forth
the [former husband's] tax basis and the holding period (as of the date of the transfer to
the wife)" of the stock he was delivering "as well as documentation establishing such tax
basis and holding period sufficient to allow the Wife to properly report any gains or
losses" to the Internal Revenue Service.
Finally, as relevant here, the PSA contains some general provisions
concerning remedies. Paragraph 20 says that the agreement would be incorporated
into a final judgment to be entered by the family court and would be "fully enforceable as
an order and/or Final Judgment of the court." It further provided:
Notwithstanding incorporation in the Final Judgment of
Divorce, this Agreement shall not be merged in it, but shall
survive the Final Judgment and shall be binding on the
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Parties for all time. The Parties agree that so long as one of
them continues to reside in the State of Florida, the courts of
the State of Florida shall retain jurisdiction for purposes of
enforcing this Agreement and that venue will lie in the county
where the Florida resident then resides. . . . Each party has
the right to enforce and/or defend this Agreement utilizing all
legal and/or equitable remedies including, but not limited to,
contract remedies, judgment remedies, and all other
remedies at law or in equity.
The parties presented the agreement to the family court, which entered a
final judgment of dissolution of marriage. The final judgment ordered the parties to
comply with the terms of the agreement and provided that the family court "retains
jurisdiction over the subject matter of this cause . . . to enforce this Final Judgment . . .
and to grant such other relief as is appropriate."
The Former Wife Seeks Relief for
Alleged Breaches of the PSA in the Family Court
The former husband did not deliver twenty-three-million shares of Gulf
Keystone stock to the former wife by January 27, 2012. Instead, he transferred the
stock to her in four batches at later dates: (1) 2,034,447 shares on January 30, 2012;
(2) 3,798,886 shares on February 3, 2012; (3) 5,666,667 shares on February 21, 2012;
and (4) 11,600,000 shares on March 1, 2012. While the former husband was in default
for failure to timely deliver the stock, he made all of the additional equitable distribution
payments required by paragraph 7A of the agreement. Ultimately, he delivered all of
the stock on or before May 1, 2012, the date upon which paragraph 7A said the former
wife could file a motion in the family court seeking, among other things, contempt, a
"money judgment," and any other remedy at law or in equity. The former wife was
required to refund the additional equitable distribution payments to the former husband
because the value of the stock on the dates the former husband delivered the stock
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exceeded its value on January 27, 2012, the original date set for complete delivery of
the shares, by more than $29 million.
The former husband also provided the former wife a letter stating his tax
basis in the stock. It turned out, however, that the information was inaccurate with
respect to the 5,666,667 shares transferred on February 21, 2012. After receiving
professional advice, the wife paid an additional $3.8 million in tax to the Internal
Revenue Service after selling those shares.
On November 28, 2012—eight months after the final transfer of stock—the
former wife filed in the family court a document titled "Former Wife's Supplemental
Petition And/Or Motion For An Award Of Damages Arising From Former Husband's
Breach of Property Settlement Agreement." In it, she alleged that the former husband
breached the agreement by failing to timely deliver the stock as required by paragraph
6A and that he did so in order to trade the stock for his own benefit. She further alleged
that the late delivery of the stock "caused [her] to suffer substantial damages" because
it denied her an opportunity to sell the stock at a time when market conditions were
favorable. She prayed for "appropriate legal and/or equitable relief that will make her
whole and will disgorge any improper profits made by the former husband."
The former husband responded that the family court lacked jurisdiction to
consider the former wife's claim. Relying on the supreme court's decision in Paulucci v.
General Dynamics Corp., 842 So. 2d 797, 803 (Fla. 2003), he alleged that the court
lacked jurisdiction to consider what amounted to a claim for general damages for breach
of contract. Shortly thereafter, the former wife amended her petition, styling it as one to
"enforce" the agreement. She alleged that the court had jurisdiction to enforce the PSA
through an award of damages for losses that she allegedly incurred as a result of the
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former husband's failure to deliver the stock timely. She later filed a second amended
petition that included allegations that the former husband had also breached the
agreement by providing inaccurate tax basis information and seeking legal and
equitable remedies for that breach as well.
The parties filed cross-motions for summary judgment, with the former
wife seeking partial summary judgments on liability on what had become known as the
"delayed delivery" and "tax basis" claims and the former husband seeking summary
judgment on the ground that the trial court lacked jurisdiction and that he had no liability
on the merits. The trial court granted partial summary judgment to the former wife on
both the delayed-delivery and tax-basis claims and denied the former husband's
summary judgment motions. The case proceeded to a three-day nonjury trial.
The former wife's case at trial focused on the damages caused by the
former husband's breaches of the PSA. With respect to the delayed-delivery claim, she
presented an expert economist who assessed her damages under the Madison Fund1
rule—a methodology some courts have used to determine benefit-of-the-bargain
damages in a case involving the breach of a contract to deliver stock. Without getting
too bogged down in details, the methodology essentially involved determining the
former wife's damages by reference to potentially reasonable transactions in which she
could have sold the stock had it been timely delivered and the prices and quantities at
which she could have made those transactions. The expert opined that under the
Madison Fund rule, the former wife had suffered benefit-of-the-bargain damages
somewhere in a range of $19.6 million to $45.2 million.
1Madison Fund, Inc. v. The Charter Co., 427 F. Supp. 597 (S.D.N.Y.
1977).
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On the tax-basis claim, the former wife presented expert testimony as to
the amount of her unpaid tax liability and showed that it was unlikely that the former wife
could get that payment back in a refund action. The former wife argued that the former
husband should be required to provide corrected tax-basis information and to pay her
the $3.8 million she later paid the IRS. Although the former wife was unclear about the
contractual basis for the monetary component of her request, she argued that the
agreement granted the family court the power to devise an appropriate legal or
equitable remedy, and she also stated that she was prepared to hold the $3.8 million in
escrow pending the resolution of a refund request by the IRS.
The Family Court's Order and the Issues on Appeal
The family court rendered an amended final order in which it held that it
had jurisdiction over the former wife's claims and, consistent with its summary judgment
rulings, that the former husband breached the stock-delivery and tax-basis provisions of
the agreement. On the delayed-delivery claim, it awarded the former wife $34,611,702.
On the tax-basis claim, it awarded $3,850,500, to be placed in escrow (presumably
pending the outcome of a refund request to the IRS).
In this timely appeal, the former husband raises five issues, all of which
are related to the monetary remedies the family court awarded. First, he asserts that
because he cured his failure to deliver the stock timely by making full delivery before
May 1, 2012, and by making the required additional equitable distribution payments, the
former wife had no entitlement to damages on the delayed-delivery claim. Second, he
argues that the family court lacked jurisdiction to award damages for delayed delivery of
the stock in a postjudgment proceeding because the law requires such a claim to be
maintained in a separate action. Third, he maintains that the family court's use of the
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Madison Fund methodology to determine the former wife's delayed-delivery damages
was inconsistent both with the terms of the agreement and Florida law governing
benefit-of-the-bargain damages in the context of late-delivered stock. Fourth, he
contends that the family court had no jurisdiction to award damages for breach of the
tax-basis provision of the agreement in a postjudgment proceeding as distinguished
from a separate action. And finally, he challenges an asset freeze injunction entered by
the family court to secure his payment of the monetary awards. We find the second and
fourth points concerning the family court's jurisdiction dispositive of the monetary
remedies, reverse the final judgment to the extent it awarded those remedies and an
injunction to secure their payment, and affirm the balance of the amended judgment
because it is not challenged here.
The Scope of the Family Court's Continuing Jurisdiction
The parties and the family court addressed the jurisdictional issues in this
case as relating to the family court's "subject matter jurisdiction." As more modern
Florida decisions frame it, however, the issues may more appropriately be considered
ones that involve the family court's "continuing jurisdiction." See Paulucci, 842 So. 2d at801 n.3 (citing Finkelstein v. N. Broward Hosp. Dist., 484 So. 2d 1241, 1243 (Fla.
1986)); McBride v. McBride, 549 So. 2d 787, 788 (Fla. 2d DCA 1989) (discussing a
family court's "continuing jurisdiction" to award attorneys' fees). The difference the
cases posit is this: Subject matter jurisdiction refers to a trial court's constitutional or
statutory authority to decide a class of cases, while continuing jurisdiction refers to a
trial court's jurisdiction to act in a case over which it had subject matter jurisdiction, but
which it finally resolved with the entry of a judgment. See Paulucci, 842 So. 2d at 801
n.3; 14302 Marina San Pablo Place SPE, LLC v. VCP-San Pablo, Ltd., 92 So. 3d 320,
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321 (Fla. 1st DCA 2012) (Ray, J., concurring) (describing the difference between
subject matter jurisdiction and continuing jurisdiction).
When a trial court renders a final judgment in an action, its jurisdiction
over that action is terminated, except that it retains continuing jurisdiction to enforce its
judgment. See Davidson v. Stringer, 147 So. 228, 229 (Fla. 1933) (stating that when a
judgment becomes final "the jurisdiction of the court is exhausted, and it cannot take
any further proceedings in the case"); Volume Servs. Div. of Interstate United Corp. v.
Canteen Corp., 369 So. 2d 391, 394 (Fla. 2d DCA 1979) (stating that "once a judgment
becomes final, the court ordinarily loses jurisdiction to entertain further proceedings").
In the family law context, this principle is subject to exceptions rooted in what, for lack of
a better description, might be called the continuing nature of family cases. See, e.g.,
Loza v. Marin, 198 So. 3d 1017, 1021 (Fla. 2d DCA 2016) (discussing continuing
jurisdiction to modify a child support award under section 61.13, Florida Statutes);
Mouton v. Mouton, 590 So. 2d 40, 41 (Fla. 2d DCA 1991) (en banc) (discussing
continuing jurisdiction to modify an alimony award under section 61.14). But where
these exceptions do not apply—and no one has argued that they do in this case—the
principle that a court's rendition of a final judgment terminates its jurisdiction except with
regard to enforcement also applies in family law cases. See, e.g., Damian v. Damian,
955 So. 2d 1178, 1180 (Fla. 2d DCA 2007) (holding that a family court exceeded its
jurisdiction to enforce a final judgment of dissolution where it modified rather than
enforced that agreement); Rocha v. Mendonca, 35 So. 3d 973, 976 (Fla. 3d DCA 2010)
(holding that a family court lacked continuing jurisdiction to afford remedies not
contemplated by the settlement agreement incorporated into the final judgment). The
question in a case like this is whether and to what extent a court's continuing jurisdiction
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to enforce a final judgment extends to claims for money damages for breaches of a
settlement agreement that it incorporated into the final judgment and retained
jurisdiction to enforce.
The leading case on the scope of a trial court's continuing jurisdiction to
enforce a settlement agreement is the supreme court's decision in Paulucci. There, a
plaintiff and a defendant in a civil action entered into a settlement agreement that
required the defendant to maintain an existing approval or secure a new approval from
regulators. 842 So. 2d at 799. The agreement specified that if the approval was not in
place after fifteen months, the defendant would be required to make rental payments to
the plaintiff in accord with a formula stated in the contract. Id. The trial court approved
the settlement agreement and incorporated it into a final judgment that retained
"jurisdiction . . . in order to enforce, construe, interpret, and otherwise ensure
compliance" with it. Id.The plaintiff later filed postjudgment motions in the trial court that heard
the case alleging that the defendant failed to perform under the contract's regulatory-
approval provisions. See id. at 800. The parties disputed "whether a remedy for the
alleged breaches remains within the jurisdiction of the court which approved the
settlement or must be brought as an independent action." Gen. Dynamics Corp. v.
Paulucci, 797 So. 2d 18, 20 (Fla. 5th DCA 2001). Reversing a trial court order on the
motions, the Fifth District held that the trial court lacked jurisdiction and certified a
question concerning the extent of a trial court's jurisdiction to enforce a settlement
agreement that the trial court has either incorporated into a final judgment or retained
jurisdiction to enforce. Paulucci, 842 So. 2d at 798, 800.
The supreme court resolved that question as follows:
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[W]hen a court incorporates a settlement agreement into a
final judgment or approves a settlement agreement by order
and retains jurisdiction to enforce its terms, the court has the
jurisdiction to enforce the terms of the settlement agreement
even if the terms are outside the scope of the remedy sought
in the original pleadings. However, the extent of the court's
continuing jurisdiction to enforce the terms of the settlement
agreement is circumscribed by the terms of that agreement.
Thus, if a party is claiming a breach of the agreement and is
seeking general damages not specified in the agreement,
the appropriate action would be to file a separate lawsuit.
Id. at 803 (emphasis added) (footnote omitted). In sum, the court recognized a
distinction between (1) a postjudgment proceeding to enforce the terms of a settlement
agreement, which may be initiated upon motion in the trial court that approved the
agreement and (2) a separate civil action for breach of the settlement agreement
seeking general damages, which may only be initiated by the filing of a new lawsuit.
See Id.To distinguish proper postjudgment enforcement of a settlement
agreement from a matter that must be brought in a separate action for breach, the court
approvingly quoted from the Fifth District's analysis. Id. Under that analysis, when a
court orders compliance with the terms of a settlement agreement—i.e., when it
requires a party to perform an obligation stated in the agreement—it is engaged in
proper postjudgment enforcement over which it has continuing jurisdiction. Id. (quoting
Gen. Dynamics Corp., 797 So. 2d at 20). When a court awards damages as a
substitute for a party's performance, however, it is not engaged in legitimate
postjudgment enforcement but rather is considering a separate claim for breach. Id. at
803. Applying that distinction to the facts before it, the supreme court held that "the
court approving the agreement had the authority to enforce [the] obligation to pay the
stipulated rental . . . but that any action for damages under the general breach provision
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(as opposed to enforcement of a duty accepted in the contract) would have to be
instituted as a separate action." Id. (quoting Gen. Dynamics Corp., 797 So. 2d at 20).
That makes sense because the obligation to pay the stipulated rental was an obligation
expressly stated in the settlement agreement, and the court could enforce that provision
of the agreement by compelling the defendant to make those payments. An obligation
to pay damages for breach, in contrast, was not found in the agreement and constituted
a separate claim that could only be maintained in a new lawsuit.
This distinction between compelling a party to perform an obligation stated
in a settlement agreement and awarding general damages for breach would seem to
resolve this case in the former husband's favor. Apart from the requirement that the
former husband pay additional equitable distribution in the event he failed to deliver the
stock on time—an obligation the former husband fulfilled—the PSA did not specify a
damage remedy for the delayed delivery of the stock. Rather, the former wife sought
and the family court awarded general, benefit-of-the-bargain damages for its breach
using a specialized methodology—the Madison Fund rule—that is not specified in the
PSA and that is not even the only way one might determine benefit-of-the-bargain
damages in a case like this. See, e.g., Shearson Loeb Rhoades, Inc. v. Medlin, 468 So.
2d 272, 273 (Fla. 4th DCA 1985) (explaining that contract damages for the delayed
delivery of stock are determined as of the date of the breach). Similarly, the family court
awarded what amounted to general damages for breach of the tax-basis provision of the
PSA in a sum that compensated her for her tax liability, a remedy also not specified in
the agreement. Couching these remedies as "enforcement" of the PSA does not
change what their substance is: general damages for breach. In view of the lines
Paulucci draws between proper postjudgment motions to enforce and separate civil
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actions, the family court lacked jurisdiction to make the money damages awards that it
did here. See also W.C. Riviera Partners, LC. v. W.C.R.P., LC., 912 So. 2d 587, 589
(Fla. 2d DCA 2005) (holding that the trial court lacked jurisdiction to consider a
postjudgment motion to "enforce" a settlement agreement that sought "damages . . .
incurred as a result of alleged breaches" of an escrow agreement entered into in
connection with a settlement); Rocha, 35 So. 3d at 976 (holding that a family court
lacked continuing jurisdiction to grant relief not contemplated under a marital settlement
agreement).
The family court concluded and the former wife argues on appeal,
however, that paragraph 7A of the PSA—governing remedies in the event of a default
on the stock-delivery provisions of paragraph 6—and paragraph 20 of the PSA, which
speaks to remedies more generally, authorized her to seek the relief she did in the
family court and, by extension, granted the family court continuing jurisdiction over her
delayed-delivery and tax-basis claims. We turn to those arguments now.2
2The former wife's arguments may to some extent be read as saying that a
court that retains jurisdiction to enforce a settlement agreement has continuing
jurisdiction to award general damages for its breach if the settlement agreement says it
has such jurisdiction. It is not clear to us that Paulucci is properly read as extending
that far, as distinguished from saying only that a court has continuing jurisdiction to
award monetary remedies that are specifically stated in the agreement. And the answer
may hinge, in part, on whether continuing jurisdiction, and Paulucci's explanation of its
application to monetary remedies, is a close cousin of subject matter jurisdiction in that
it goes to a court's power to decide a dispute involving a settlement agreement and
cannot be expanded by the parties' agreement. See 14302 Marina San Pablo Place
SPE, LLC, 92 So. 3d at 320-21, 321 n.3 (Ray, J., concurring) (noting that the First
District has held that failures of continuing jurisdiction are not waivable and render
judicial action without it void, while arguing that they should merely render the judicial
action voidable); cf. Dandar v. Church of Scientology Flag Serv. Org., 190 So. 3d 1100,
1103 (Fla. 2d DCA 2016) (discussing a trial court's jurisdiction after the parties have
settled a matter and filed a stipulation of dismissal under Florida Rule of Civil Procedure
1.420(a) instead of having the court approve the agreement and retain jurisdiction to
enforce it). This is not an issue that, as near as we can tell, either the supreme court or
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Paragraphs 7A and 20 Did Not Authorize the Family Court to
Award General Damages for the Delayed Delivery of Stock
The former wife's arguments require that we interpret paragraphs 7A and
20 of the PSA. Because we interpret a settlement agreement in a dissolution
proceeding the same way we interpret any other contract, we use the standard rules of
contract interpretation to do this work. See Rector v. Rector, 264 So. 3d 282, 286 (Fla.
2d DCA 2019) (citing Hobus v. Crandall, 972 So. 2d 867, 869 (Fla. 2d DCA 2007)).
That means that we look first to the ordinary meaning of the language of the contract
and, where that language is unambiguous, we will ordinarily construe the contract as
the parties wrote it. See Murley v. Wiedamann, 25 So. 3d 27, 29-30 (Fla. 2d DCA
2009); Gulf Oil Corp. v. Atl. Coast Line R.R., 196 So. 2d 456, 457 (Fla. 2d DCA 1967).
Where the contract is ambiguous in the sense that its text can reasonably be
understood as meaning more than one thing, further construction is required. See
Murley, 25 So. 3d at 29-30; see also Price v. Castle Key Indem. Co., 152 So. 3d 2, 3
(Fla. 2d DCA 2014). We may consider parol evidence only when the contract contains
a latent ambiguity—i.e., where the contract language suggests a single meaning, but
"some extrinsic fact or extraneous evidence creates a necessity for interpretation or a
choice among two or more possible meanings." Mac-Gray Servs., Inc. v. Savannah
Assocs. of Sarasota, LLC, 915 So. 2d 657, 659 (Fla. 2d DCA 2005) (quoting Ace Elec.
Supply Co. v. Terra Nova Elec., Inc., 288 So. 2d 544, 547 (Fla. 1st DCA 1974)).
our own has addressed. We need not address it here—and our opinion should not be
read as having addressed it—because, assuming for argument's sake that that parties
can by contract confer upon a court continuing jurisdiction to award general damages in
a postjudgment enforcement proceeding, the PSA here does not do so for the reasons
we explain in the text.
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In the former wife's column, paragraph 7A of the PSA clearly permitted her
to seek a "money judgment" or "any other remedy at law or in equity" in a postjudgment
proceeding in the family court based on the former husband's failure to timely deliver the
stock as required by paragraph 6A. And no one disagrees that this language is broad
enough to encompass a claim for general damages for a breach. But paragraph 7A
also conditions the former wife's right to seek that remedy through a postjudgment
proceeding in the family court—as distinguished from the independent civil action that
Paulucci would require—on the occurrence of specific circumstances. As described
above, paragraph 7A provides that the former wife could seek the remedy of contempt,
a money judgment, or any other legal or equitable remedy for the delayed delivery of
stock in the family court on or after May 1, 2012, "should Husband fail to fully comply
with paragraph 6A above with regard to all 23 million Shares on or before the close of
business 5:00 p.m. EST on May 1, 2012."3 (Emphasis added.) Nothing about the text
of this provision or the facts of this case implies that this provision carries anything but
one meaning: that is, that the former wife could seek money damages in postjudgment
proceeding in the family court if the former husband failed to deliver all twenty-three-
million shares of stock on or before May 1, 2012—i.e., "should" the former husband "fail
to fully comply" with that obligation on or before May 1, 2012. See Should, Merriam-
Webster.com, https://www.merriam-webster.com/dictionary/should (last visited Oct. 18,
2019) (defining "should," in relevant part, as a verb "used in auxiliary function to express
condition").
3This
provision was applicable in circumstances where the former
husband had complied with his obligation to make the additional equitable distribution
payments pursuant to paragraph 7A of the PSA, as was the case here.
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The facts here do not present those circumstances. On the contrary, the
former husband delivered all twenty-three-million shares to the former wife by March 1,
2012. Because all of the shares had been delivered on or before close of business May
1, 2012—two months before, in point of fact—the former wife was not authorized under
paragraph 7A to commence a postjudgment proceeding in family court seeking money
damages for breach of the former husband's obligation to deliver the stock timely. The
family court was thus without continuing jurisdiction to consider it.
The former wife argues that notwithstanding the former husband's delivery
of all twenty-three-million shares before May 1, 2012, we should interpret the PSA to
allow her to bring her claim for delayed-delivery damages in a postjudgment proceeding
in the family court because (1) paragraph 7A provides that nothing in the PSA "shall be
construed to limit or restrict" her right to "seek or pursue" any legal or equitable
remedies to "enforce her rights to receive the 23 million Shares and/or the value
thereof" and (2) paragraph 20 allows "[e]ach party . . . to enforce and/or defend" the
agreement using all legal and equitable remedies. The problem, however, is that if we
interpret these provisions as the former wife argues, we would necessarily read
paragraph 7A's provision that the former wife may seek those remedies in a
postjudgment proceeding in the family court if the former husband failed to deliver all of
the stock on or before May 1, 2012 out of the contract. Put differently, if paragraphs 7A
and 20 mean that the former wife could seek in a postjudgment proceeding in the family
court whatever legal or equitable remedy she wanted whenever she wanted to seek it,
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then paragraph 7A's condition—tying her right to do so to the former husband's failure
to deliver all of the stock on or before May 1, 2012—serves no purpose.4
When we interpret a contract, we cannot do so in a way that renders a
provision meaningless so long as there is a reasonable interpretation of the contract
that avoids that result. See Wells v. Wells, 239 So. 3d 179, 181 (Fla. 2d DCA 2018)
("However, courts 'will not interpret a contract in such a way as to render provisions
meaningless when there is a reasonable interpretation that does not do so.' " (quoting
Moore v. State Farm Mut. Auto. Ins. Co., 916 So. 2d 871, 877 (Fla. 2d DCA 2005))).
The remedial provision of paragraph 7A is reasonably understood as neither
"restricting" nor "limiting" the former wife's rights to seek or pursue a claim for general
damages. A party to a settlement agreement has a right to bring an independent action
for general damages for its breach consistent with the terms of the contract and
applicable law. And nothing in paragraph 7A's May 1, 2012 condition restricts or limits
the former wife's right to bring an independent action for breach. Conversely, a party
does not have a right to seek damages for breach of a settlement agreement in a
postjudgment proceeding in the court that approved the settlement unless the
settlement agreement specifies that remedy. See Paulucci, 842 So. 2d at 803; W.C.
Riviera, 912 So. 2d at 589. The PSA in this case does not provide a claim for general
4The former wife argues that it serves the purpose of establishing the
circumstances under which the former wife could pursue a contempt remedy from the
family court. But if that was all the provision was supposed to accomplish, paragraph
7A's provision that she could also seek "legal remedies" and a "money judgment" in the
family court in the event that the former husband failed to deliver all of the stock by May
1, 2012, is surplusage. Read as a whole, paragraph 7A is most naturally interpreted as
meaning that the former wife's ability to seek legal and equitable remedies in the family
court, as distinguished from an independent civil action, arose if the former husband
failed to comply with his obligation to deliver the stock on or before May 1, 2012.
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damages for delayed delivery to be litigated in a postjudgment proceeding in the family
court unless the former husband failed to deliver the stock on or before May 1, 2012.
Because the former husband did deliver the stock by then, the former wife has no right
to seek general damages for delayed delivery in a postjudgment proceeding in the
family court that can be "limited" or "restricted."
Nor does the fact that paragraph 7A refers to the use of legal or equitable
remedies to "enforce" the former wife's right to the shares or their value mean that she
could seek general damages not specified in the PSA in a postjudgment enforcement
proceeding. To make paragraph 20 carry that meaning, we would need to interpret the
term "enforce" as including an entitlement to pursue the specified remedies in
postjudgment proceedings in the family court. But neither the former wife nor the trial
court identified anything in the text of paragraph 7A or the ordinary meaning of the term
"enforce" to suggest that it carries that specialized meaning; nor is one apparent to us.
As Paulucci holds, the enforcement of a settlement agreement in a postjudgment
proceeding in the court that approved it does not include seeking general damages not
specified in the agreement.
Simply put, applying the May 1, 2012 condition of paragraph 7A in accord
with its unambiguous terms does not limit or restrict any right the former wife has to
seek or pursue any legal or equitable remedy to which she may be entitled; she is
always free to pursue those remedies in an independent action. Rather, interpreting
paragraph 7A as written denies the former wife a unique entitlement enjoyed by no
other litigant aggrieved by a breach of a court-approved settlement agreement to pursue
those claims in a postjudgment proceeding in the absence of any legal or contractual
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basis for the court's exercise of continuing jurisdiction. This interpretation is, in our
view, the only reasonable understanding of the plain language of paragraph 7A.
For substantially the same reasons, paragraph 20's provision that the
former wife may "enforce or defend" the agreement using all legal, equitable, and
contract remedies is not reasonably read as granting her a unique entitlement to litigate
a claim for general damages for breach of the PSA in a postjudgment proceeding in the
family court.5 Rather, paragraph 20 is reasonably understood as entitling the former
wife a right to use all legal, equitable, and contractual remedies available to her but not
to seek general damages for delayed delivery not specified in the agreement in
postjudgment proceedings in the family court in circumstances where the former
husband has delivered all of the stock on or before May 1, 2012. This interpretation
gives effect to paragraph 7A's provisions concerning the possible failure of the former
husband to deliver all of the stock by May 1, 2012, while simultaneously giving effect to
paragraph 20's enforcement provision.
We respectfully disagree with the former wife that Kinser v. Crum, 823 So.
2d 826 (Fla. 1st DCA 2002), and Buckley Towers Condominium, Inc. v. Buchwald, 321
So. 2d 628 (Fla. 3d DCA 1975), which she says Paulucci approved, support the
proposition that provisions similar to those in paragraph 20 justify the family court's
exercise of continuing jurisdiction to award money damages here. In Kinser, the First
District held that a court that had approved a settlement agreement had jurisdiction to
5Indeed, paragraph 20's statement that "[s]o long as [one of the parties]
continues to reside in the State of Florida, the courts of the State of Florida shall retain
jurisdiction for purposes of enforcing this Agreement and that venue will lie in the county
where the Florida resident then resides" would tend to suggest that they contemplated
potential proceedings in Florida courts other than the family court.
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render award of damages "pursuant to a mathematical calculation contained in the
settlement agreement" in a postjudgment enforcement proceeding. 823 So. 2d at 827.
And although Buckley Towers is not entirely clear, there the Third District appears to
have held that a court that had approved a settlement agreement had jurisdiction to
compel a party to that agreement to pay rent that it was required to pay under the
agreement. See 321 So. 2d at 628. In each case, then, the court was compelling the
payment of money that a settlement agreement specifically required to be paid—the
payment of contractually specified damages in one case and the payment of
contractually specified rents in the other—which is precisely what Paulucci says that a
court reserving jurisdiction to enforce a settlement agreement has continuing jurisdiction
to do. Neither case supports the proposition that provisions like those in paragraph 20
grant a court continuing jurisdiction to award general damages specified nowhere in the
agreement.
Finally, although the former wife contends that the PSA is unambiguous
such that parol evidence would not be admissible, she also argues that parol evidence
admitted without objection from the former husband showed that the parties could not
agree on a remedy for failure to timely deliver the stock and that the payment of
additional equitable distribution under paragraph 7A was intended as periodic support
during the time that the former husband was in default for failing to timely deliver the
stock rather than an exclusive remedy for such a default, so long as the former husband
delivered the stock by May 1, 2012. See Ross v. Fla. Sun Life Ins. Co., 124 So. 2d 892,
895-96 (Fla. 2d DCA 1960) (holding that a party who fails to object to the introduction of
parol evidence in the trial court cannot invoke the parol evidence rule on appeal); see
also King v. Bray, 867 So. 2d 1224, 1226 (Fla. 5th DCA 2004) (same). If she is right
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about that, the parol evidence might have a bearing on the parties' dispute over whether
the former husband's delivery of the stock before May 1, 2012 fully cured his failure to
deliver it on January 27, 2012—thus implying that the payment of additional equitable
distribution would be the former wife's exclusive remedy in this circumstance. But
whether or not the parties intended the payment of additional equitable distribution as
an exclusive remedy in the event of full delivery on or before May 1, 2012 does not bear
at all on the family court's continuing jurisdiction to consider a claim for general
damages for breach of the former husband's obligation to deliver the shares timely.
Regardless of whether the agreement allows the former wife the substantive right to
pursue a general damages remedy for delayed delivery of the stock when complete
delivery was made by May 1, 2012 (a matter we do not decide), the law concerning
continuing jurisdiction and the language of the parties' agreement shows that a claim for
that remedy (if it exists) can only be pursued by way of an independent action.
Paragraph 20 of the PSA Does Not Authorize the Family Court to
Award General Damages for the Provision of Inaccurate Tax Information
Because paragraph 7A relates solely to the former husband's failure to
timely deliver the stock, the only provision of the PSA that might enable the court to
fashion relief on the tax-basis claim is paragraph 20. The tax-basis claim is, like the
delayed-delivery claim, in essence and effect a claim for general damages for breach of
contract—i.e., it is a claim the former husband failed to deliver accurate tax information
and the former wife suffered losses in the form of a required tax payment as a result.
The family court's judgment treats the tax-basis claim in this way. For the same
reasons that apply to the delayed-delivery claim, then, paragraph 20 did not provide the
family court with any basis to consider a postjudgment-damages claim for breach of the
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tax-basis provision of the PSA.6 The trial court lacked continuing jurisdiction to afford
this remedy as well, and the former wife is required to pursue it by way of independent
action.
Conclusion
For the foregoing reasons, we reverse the monetary awards contained in
the amended final judgment as well as the asset freeze injunction that the family court
awarded to secure their payment. In all other respects, the amended final judgment is
affirmed. We remand the case to the family court for further proceedings consistent
with this opinion.
Affirmed in part; reversed in part; remanded.
CASANUEVA and VILLANTI, JJ., Concur.
6The former wife has asserted what amounts to a tipsy-coachman
argument that an indemnification provision in paragraph 15 of the agreement provides a
specific contractual remedy for the former husband's breach of the tax-basis provision of
paragraph 15 and thus supports the family court's exercise of continuing jurisdiction
over that claim. See Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644
(Fla. 1999) (stating that under the tipsy-coachman rule, "if a trial court reaches the right
result, but for the wrong reasons, it will be upheld if there is any basis which would
support the judgment in the record"). The former wife did not, however, allege a claim
for contractual indemnification under paragraph 15 in her petitions or litigate that claim
in her pretrial papers or at trial. The question of whether and to what extent the
indemnification provision of paragraph 15 entitles the former wife to indemnification on
the facts here has not been developed in the trial record, and we decline to reach the
issue for the first time on appeal. Cf. HSBC Bank USA, Nat'l Ass'n for Deutsche Alt-A
Sec. Mortg. Loan Tr., Series 2007-OA5 v. Nelson, 246 So. 3d 486, 489 (Fla. 2d DCA
2018) (refusing to address a tipsy-coachman argument for affirmance of a summary
judgment where the trial court explicitly declined to address the argument and it would
be "inappropriate" for the appellate court to do so in the first instance); Salazar v.
Hometeam Pest Def., Inc., 230 So. 3d 619, 622 (Fla. 2d DCA 2017) ("Correspondingly,
'we cannot employ the tipsy coachman rule where a lower court has not made factual
findings on an issue and it would be inappropriate for an appellate court to do so.' "
(quoting Bueno v. Workman, 20 So. 3d 993, 998 (Fla. 2d DCA 2009))).
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