Third District Court of Appeal
State of Florida
Opinion filed January 11, 2023.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-1646
Lower Tribunal No. 20-11484
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Laurentina Kocik, etc.,
Appellant,
vs.
Jorge Fernandez, et al.,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, William
Thomas, Judge.
Nelson Mullins Riley and Scarborough, and Mark F. Raymond,
Kimberly J. Freedman, and Francisco Armada, for appellant.
Legon Fodiman & Sudduth, P.A., and Todd R. Legon, and Jeffrey A.
Sudduth, for appellees.
Before SCALES, LINDSEY, and LOBREE, JJ.
LINDSEY, J.
Appellant Laurentina Kocik appeals from a final judgment in favor of
Appellee Jorge Fernandez, which requires her to sell all her stock in Gem
Paver, Inc. for $450,000. This case turns on whether Fernandez has
standing to enforce a Buyout Clause in the Shareholder Agreement.
Because Fernandez has standing as an agent of Gem Paver under Florida’s
party in interest rule, we affirm.
I. BACKGROUND
In 1990, four married couples entered into a Shareholder Agreement
for Gem Paver. The Agreement authorized 1,000 shares of stock and
distributed the shares among Jorge and Anna Fernandez, Jurek and
Laurentina Kocik, Roman and Angela Lannes, and Pablo and Mercedes
Diaz. The Agreement contains a Buyout Clause that requires each wife to
sell all her shares at a specified price upon the death of her husband:
A Stockholder (or the personal representative of his estate)
shall sell all of his stock in the Corporation, and the Corporation
shall purchase all of said stock at a price equal to Ten Thousand
Dollars ($10,000.00) for each one percent (1%) of the authorized,
issued and outstanding shares of the Corporation owned by that
Stockholder . . . upon the occurrence of: (i) as to the stock owned
by Kocik, the death of Jurek; (ii) as to the stock owned by
Fernandez, the death of Jorge; (iii) as to the stock owned by
Lannes, the death of Roman; or (iv) as to the stock owned by
Diaz, the death of Pablo.
Throughout the years, numerous transactions took place redistributing
the shares among the couples. Two transactions are worth mentioning. The
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first occurred in 2000 when Roman Lannes was diagnosed with a terminal
illness. The Kociks and Fernandezes had an agreement with Roman to
purchase his shares, but Roman died before this agreement could be
executed. The Buyout Clause was not invoked, and the Kociks and
Fernandezes paid Roman’s estate the previously agreed upon price. 1
The second transaction occurred in 2003 when the Fernandezes
purchased the Diazes’ remaining shares. These transactions resulted in the
Kociks and Fernandezes becoming the only remaining shareholders. After
a mediated settlement, it was determined that the Kociks owned 45% of Gem
Paver while the Fernandezes owned 55%.
In 2019, Jurek Kocik passed away. Upon Jurek’s death, Jorge
Fernandez sent a letter to Laurentina Kocik (the personal representative of
Jurek’s estate) notifying her that he was invoking the Buyout Clause. Jorge
sought to purchase the Kociks’ 45% interest in Gem Paver and tendered
Laurentina a check for $450,000. Laurentina refused to sell, resulting in
Jorge’s underlying action to enforce the Buyout Clause.
Relevant to this appeal, Jorge Fernandez seeks specific performance
against Laurentina Kocik, requiring her to sell the Gem Paver shares for
1
The Kociks and Fernandezes paid Roman’s estate $125,925.91 for an
8.5% interest. Under the Buyout Clause, the payment would have been
$85,000.
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$450,000. In response, Kocik asserted multiple affirmative defenses, filed a
counterclaim for a declaration that she owned the shares, and requested an
accounting and distribution. Both parties filed cross motions for partial
summary judgment.
The lower court initially denied Fernandez’s motion for partial summary
judgment, concluding that he lacked standing to enforce the Buyout Clause
because he had brought the claim in his individual capacity and that only
Gem Paver had standing to seek specific performance. On rehearing the
court issued an amended order in favor of Fernandez based on his standing
as an agent of Gem Paver. 2 The circuit court subsequently rejected Kocik’s
affirmative defenses and granted summary judgment against her on her
counterclaim. Kocik appealed.
II. ANALYSIS
As this case is before the Court upon a grant of summary judgment,
our standard of review is de novo. See Volusia County. v. Aberdeen at
Ormond Beach, L.P.,
760 So. 2d 126, 130 (Fla. 2000). “The court shall grant
summary judgment if the movant shows that there is no genuine dispute as
2
Because we affirm the trial court’s determination of standing based on
agency, we need not address Fernandez’s standing in his individual
capacity.
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to any material fact and the movant is entitled to judgment as a matter of
law.” Fla. R. Civ. P. 1.510(a).
On appeal, Kocik challenges Fernandez’s standing to sue for specific
performance on behalf of Gem Paver. Though Fernandez brought this action
in his own name, it is clear from the allegations and relief requested in the
Complaint that Fernandez sought specific performance on Gem Paver’s
behalf. Specifically, under Count I for Specific Performance, the Complaint
provides as follows:
43. Paragraph 4 of the Shareholders’
Agreement requires Defendant to sell all of the
Kocik Shares to Gem Paver Systems, Inc. at a
price of $10,000 for each one percent (1%) of the
corporation owned by the Kocik Shareholder upon
the death of Jurek Kocik.
44. Accordingly, following the death of Jurek
Kocik, Defendant was and remains obligated to sell
the Kocik Shares, which represent 45% of the
outstanding shares of Gem Paver Systems, Inc., to
Gem Paver Systems, Inc. for the price of
$450,000.00.
....
51. Upon a finding by this Court that Kocik has
breached the Shareholders’ Agreement, Plaintiff
demands specific performance of the
Shareholders’ Agreement by Defendant,
requiring Defendant to accept the $450,000.00
payment for the Kocik Shares, convey title for the
Kocik Shares back to Gem Paver Systems, Inc. .
...
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(Emphasis added).
Consistent with the Complaint, Fernandez submitted an affidavit, as
the corporate representative of Gem Paver, with his motion for summary
judgment, which averred that “when Mr. Kocik passed away in September
2019, I became the sole director and/or officer of Gem Paver.” The affidavit
further stated that Fernandez was “acting as Gem Paver’s agent in
prosecuting this action on its behalf, and Gem Paver has authorized Mr.
Fernandez to prosecute and proceed in whatever matter and/or method of
practice that Mr. Fernandez deems appropriate in pursuing this action on
Gem Paver’s behalf.” The affidavit also ratified all past action taken by
Fernandez in enforcing the Shareholders’ Agreement.
In her response to Fernandez’s motion for summary judgment, Kocik
objected to the affidavit as false and self-serving. But Kocik never objected
to Fernandez’s authority to act on behalf of Gem Paver. Because this was
never objected to, the trial court concluded that it was undisputed Fernandez
was Gem Paver’s agent:
The undisputed evidence is that Gem Pavers
appointed Fernandez as its agent in the case. In
doing so, Gem Pavers authorized each and every
action taken by Fernandez and has agreed to be
legally bound by any action taken to judgment in this
case. Pursuant to Florida rules of civil procedure
1.210, Fernandez has standing to pursue these
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claims on Gem Pavers behalf and the fact that Gem
Pavers authorized Fernandez to act as his agent
after the lawsuit was filed does not alter this Court’s
decision. See Kumar Corp. v. Nopal Lines, Ltd.,
462
So. 2d 1178 (Fla. 3d DCA 1985).
On appeal, Kocik raises for the first time an argument that Gem Paver
could not appoint Fernandez as its agent because doing so would require
unanimous shareholder approval under the Agreement. Because this
argument was not made in the trial court, it cannot be presented for the first
time on appeal. See, e.g., Sunset Harbour Condo. Ass’n v. Robbins,
914
So. 2d 925, 928 (Fla. 2005) (“As a general rule, it is not appropriate for a
party to raise an issue for the first time on appeal. ‘In order to be preserved
for further review by a higher court, an issue must be presented to the lower
court and the specific legal argument or ground to be argued on appeal or
review must be part of that presentation if it is to be considered preserved.’”
(citations omitted) (quoting Tillman v. State,
471 So. 2d 32, 35 (Fla.1985))).
We therefore find no error with the trial court’s conclusion that the
undisputed evidence was that Gem Paver appointed Fernandez as its agent.
Accordingly, we agree that pursuant to Florida Rule of Civil Procedure 1.210,
Fernandez had standing to sue on behalf of Gem Paver in his own name.
See Fla. R. Civ. P. 1.210(a) (“Every action may be prosecuted in the name
of the real party in interest, but a personal representative, administrator,
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guardian, trustee of an express trust, a party with whom or in whose name a
contract has been made for the benefit of another, or a party expressly
authorized by statute may sue in that person’s own name without joining the
party for whose benefit the action is brought.”); see also Kumar,
462 So. 2d
at 1185 (“Florida real party in interest rule is permissive only, and a nominal
party, such as an agent, may bring suit in its own name for the benefit of the
real party in interest. . . . It is a fundamental proposition of the law of agency
that a principal may subsequently ratify its agent’s act, even if originally
unauthorized, and such ratification relates back and supplies the original
authority.” (footnote and citations omitted)).
a. Kocik’s Affirmative Defenses
Kocik raised two affirmative defenses as to why the Buyout Clause is
unenforceable. First, that Fernandez waived enforcement of the Clause
through his past transactions—specifically, the purchase of Roman Lannes’s
shares after his death. Second, that the Buyout Clause discriminates on the
basis of gender and violates the Equal Protection Clause of the U.S.
Constitution as well as Article 10, Section 5 of the Florida Constitution.
i. Waiver
Waiver is the voluntary and intentional relinquishment of a known right,
and “[a] party may waive any rights to which he or she is legally entitled, by
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actions or conduct warranting an inference that a known right has been
relinquished.” Torres v. K-Site 500 Assocs.,
632 So. 2d 110, 112 (Fla. 3d
DCA 1994).
Kocik argues that the Buyout Clause is unenforceable because it was
not invoked after the death of Roman Lannes, thus resulting in Fernandez
waiving his right to enforce the Clause in this case. However, the transaction
involving Lannes’s shares is different from the situation here. Roman Lannes
was diagnosed with a terminal illness and reached an oral agreement with
the Kociks and Fernandezes to sell his remaining shares. Following
Roman’s death, both the Kociks and Fernandezes paid Lannes’s estate the
amount orally agreed upon.
This is a materially different scenario than the present case and does
not evince an intent by either the Kociks or Fernandezes to intentionally
waive enforcement of the Buyout Clause in the future. Additionally, none of
the other transactions that occurred between the shareholders involved the
Buyout Clause as they were all inter vivos transfers, and the Buyout Clause
is only relevant upon the death of one of the husbands. Thus, we find no
waiver occurred here.
ii. Equal Protection
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Kocik also argues that the Buyout Clause violates both the Equal
Protection Clause of the U.S. Constitution and Article 10, Section 5 of the
Florida Constitution. Kocik reasons that because the Buyout Clause is
contingent upon one of the male husbands dying, it discriminates against the
female shareholders based on gender. We reject this argument as there is
no state action. This is a private contract between private parties. Kocik
argues, nonetheless, that Shelley v. Kraemer,
334 U.S. 1 (1948) is
applicable. Shelley’s application, however, has been limited to racial
discrimination. See Davis v. Prudential Sec., Inc.,
59 F.3d 1186, 1191 (11th
Cir. 1995) (“The holding of Shelley, however, has not been extended beyond
the context of race discrimination.”). We therefore find no constitutional
violations.
b. Kocik’s Counterclaim
Kocik brought a counterclaim requesting a declaration that she owned
the disputed Gem Paver shares. She also requested an accounting and
distribution. Because we affirm the lower court’s order enforcing the Buyout
Clause, we affirm the court’s grant of summary judgment against Kocik on
her counterclaim.
III. CONCLUSION
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For the reasons set forth above, we affirm the final summary judgment
in favor of Fernandez on his action to enforce the Buyout Clause and affirm
the circuit court’s judgment in favor of Fernandez on Kocik’s counterclaim.
Affirmed.
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