Dennis Damio and Penny Damio v. Marine Hospitality Corporation, Viden Corporation, and Ori Avraham Gordin and Teresa Shelley, as Personal Representative of the Estate of Shelley w. Shelley , 2016 Fla. App. LEXIS 3125 ( 2016 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
DENNIS DAMIO and PENNY DAMIO,
Appellants,
v.
MARINE HOSPITALITY CORPORATION, a Florida corporation, VIDEN
CORPORATION, and ORI AVRAHAM GORDIN and TERESA SHELLEY,
as Personal Representatives of the Estate of Shelley W. Shelley, deceased,
Appellees.
No. 4D13-2117
[March 2, 2016]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Robert A. Rosenberg and William W. Haury, Jr., Judges;
L.T. Case No. 01-016973 CACE.
Bradford J. Beilly and John Strohsahl of Beilly & Strohsahl, P.A., Fort
Lauderdale, for appellants.
Lee H. Schillinger of Lee H. Schillinger, P.A., Hollywood, for appellees.
SCHER, ROSEMARIE, Associate Judge.
This case arises out of complicated shareholder transactions and
related disputes. Marine Hospitality Corporation and Viden Corporation
(“the Companies”) filed a twelve-count complaint against Dennis and
Penny Damio. The Damios filed a third-party complaint against Shelley
W. Shelley. After a prolonged nonjury trial, the trial court entered a final
judgment awarding the Companies damages against the Damios.
The Damios appeal the final judgment on the following grounds: 1) the
trial court erred by not ordering a new trial because the delay between the
trial and issuance of the final judgment was unreasonable and resulted in
an inconsistent and confusing judgment; 2) the trial court erred by not
ruling on the Damios’ derivative conversion claims; 3) the trial court erred
in its damage calculations, including granting judgment to the Companies
on a cause of action not pled and not tried by implied consent; and 4) the
trial court erred in dismissing the Damios’ third-party complaint. We
affirm on issues one, two, and four without further comment. We reverse
on issue number three, as explained below.
The trial court awarded damages to the Companies for the Damios’
breach of fiduciary duty,1 Dennis Damio’s liability for a $50,000
promissory note, and his liability for a second $50,000 promissory note.2
Dennis Damio maintains that the final judgment fails to credit him
$67,000 for expenses incurred by him to which the trial court previously
acknowledged he was entitled.
Two documents address amounts to be disbursed to Dennis Damio:
the Preliminary Shareholders Agreement (signed only by Dennis and
Penny Damio) and the subsequent Letter of Acceptance (signed by Dennis
Damio and Shelley W. Shelley). Whether Dennis Damio was entitled to a
disbursement of $67,000 is an issue of contract interpretation and subject
to de novo review. N. Star Beauty Salon, Inc. v. Artzt, 821 So. 2d 356, 358
(Fla. 4th DCA 2002). When examining a contract, the court shall consider
the plain language of the contract without giving it additional meaning.
Cont’l Fla. Materials Inc. v. Kusherman, 91 So. 3d 159, 164 (Fla. 4th DCA
2012).
Under the Preliminary Shareholders agreement, Damio was to receive
$167,000 to cover his expenses and was required to “give receipts and
details of all expenses.” However, the latter-executed Letter of Acceptance
does not require Damio to give receipts—it merely states that “[t]he
corporation will pay Dennis Damio $67,000.00 within the month of
November, 2000 to cover his previous expenses.” This letter, signed by
both parties, does not contain any condition precedent to the $67,000
payment to Damio. Accordingly, the trial court erred when it included the
$67,000 in the Companies’ damages for breach of fiduciary duty.3
Additionally, the trial court awarded $50,000 in principal and $55,125
in interest on the second promissory note. While the Companies’
controlling fourth-amended complaint and the amendment to the fourth-
amended complaint set forth a cause of action for the first promissory note,
1 The total awarded for breach of fiduciary duty was $315,509.69, broken down
as follows: $165,600 for improper wire transfers; $95,910 for prejudgment
interest on the transfers from October 2001; $27,811 for unauthorized American
Express charges; and, $26,188.69 for prejudgment interest on American Express
charges from July 2001.
2 The trial court also awarded $55,125 in interest for the first note and $55,125
in interest for the second note.
3 The Letter of Acceptance also calls for the first $100,000 “in profit” to be paid
to Dennis Damio. There is no evidence that there was any profit to distribute.
2
the Companies never pled a cause of action for the second promissory
note. Moreover, it was not tried by implied consent.
Accordingly, we remand this case to the trial court to reduce the final
judgment by $172,125: $67,000 for the November 2000 payment Dennis
Damio was entitled to receive, and $105,125 ($50,000 plus $55,125) for
the second promissory note. Because the final judgment includes
prejudgment interest awarded on the $67,000, that figure should also be
recalculated and the judgment reduced accordingly.
Reversed and Remanded.
MAY and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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