BRICKELL FINANCIAL SERVICES - MOTOR CLUB, INC. d/b/a ROAD AMERICA MOTOR CLUB and ROAD AMERICA MOTOR CLUB, INC. v. ROAD TRANSPORTATION, LLC d/b/a RoadsideMasters.com ( 2020 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
BRICKELL FINANCIAL SERVICES – MOTOR CLUB, INC. d/b/a
ROAD AMERICA MOTOR CLUB and
ROAD AMERICA MOTOR CLUB, INC.,
Appellant,
v.
ROAD TRANSPORTATION, LLC d/b/a ROADSIDEMASTERS.COM,
Appellee.
Nos. 4D19-986 and 4D19-1481
[June 10, 2020]
Consolidated appeal from the Circuit Court for the Fifteenth Judicial
Circuit, Palm Beach County; Roger B. Colton, Senior Judge, and Cymonie
Rowe, Judge; L.T. Case No. 502018CA003044.
Kristen M. Fiore of Akerman LLP, Tallahassee, and Christine B.
Gardner of Akerman LLP, West Palm Beach, for appellant.
Steven M. Katzman and Charles J. Bennardini of Katzman Wasserman
Bennardini & Rubinstein, P.A., Boca Raton, for appellee.
GERBER, J.
Brickell Financial Services – Motor Club, Inc. d/b/a Road America
Motor Club and Road America Motor Club, Inc. (“the servicer”) appeals
from the trial court’s final judgment and costs judgment in favor of Road
Transportation, LLC d/b/a Roadsidemasters.com (“the marketer”). The
servicer primarily argues the trial court erred in: (1) finding the term
“Settlement Sum” in the parties’ mediation agreement unambiguously
referred to a $350,000 sum referenced in the agreement, and (2)
prohibiting the servicer’s representative from testifying about the parties’
mediation communications regarding the dollar amount to which the term
“Settlement Sum” referred.
We agree with the servicer’s arguments. The mediation agreement,
either intentionally or inadvertently, referred to two different sums: the
“Settlement Sum,” for which a dollar amount is not identified, “and the
amount referenced in paragraph 1a above” which stated “a total of
$350,000 that would otherwise be owed, as commissions.” (emphases
added). Because the mediation agreement, at least facially, referred to the
“Settlement Sum” and the $350,000 as two different sums, the trial court
erred in finding the term “Settlement Sum” unambiguously referred to the
$350,000 sum referenced in the agreement. As a result of that error, the
trial court further erred in prohibiting the servicer’s representative from
testifying about the parties’ mediation discussions regarding the dollar
amount to which the term “Settlement Sum” referred. Thus, we reverse
the trial court’s final judgment and costs judgment in the marketer’s favor.
We remand for a new trial.
We present this opinion in three sections:
1. The pre-trial history;
2. The non-jury trial; and
3. Our review.
1. The Pre-Trial History
For several years, the servicer and the marketer participated in a
business relationship which they internally described as “AAA for trucks.”
The servicer provided roadside assistance services to truckers, and the
marketer sold those services as memberships to trucking companies.
The parties’ relationship was governed by an agency agreement. Under
the agreement, the marketer would collect gross membership fees from the
trucking companies, and then would transfer such fees, minus the
marketer’s commissions, to the servicer. The agreement further provided,
“In case of any dispute arising from, or in connection with the subject
matter of this Agreement, including the interpretation or enforcement of
this Agreement … any such dispute shall be submitted for mandatory
mediation.”
Some years into the parties’ relationship, the servicer sent a mediation
demand to the marketer. The servicer alleged the marketer had breached
the agency agreement by retaining $765,189.70 in fees which the marketer
should have transferred to the servicer.
After mediation, the parties executed a mediation agreement. The
mediation agreement centered around the disposition of membership fees
being paid by a substantial client, Arrow Truck Sales, Inc. (“Arrow”). The
mediation agreement’s primary provision reads, in pertinent part:
1. [The marketer] shall pay to [the servicer], and [the servicer]
shall accept from [the marketer], the Settlement Sum, which
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shall be in full and complete payment and settlement of any
and all claims by and among the parties. The Settlement Sum
shall be paid as follows: a) [the servicer] is entitled to receive a
total of $350,000 that would otherwise be owed, as
commissions, to [the marketer] pursuant to the parties contract
with Arrow ([the servicer] estimates that it is holding $260,000
of that amount); b) [the marketer] hereby assigns its right to
receive all funds owed to it under the parties contract with
Arrow until the Settlement Sum and the amount referenced in
paragraph 1a above is paid in full; c) once the Settlement Sum
is paid in full, [the marketer’s] assignment of its right to
payment under the parties contract with Arrow shall
terminate and [the marketer] shall then start receiving its
contractual right to monies under the parties’ contract with
Arrow; and d) in the event that the parties’ relationship with
Arrow terminates before the Settlement Sum is paid in full,
[the marketer] shall pay [the servicer] $20,000 per month until
the Settlement Sum is paid in full.
(emphases added). At the time of the mediation agreement, the exact
dollar amount which the servicer was holding from Arrow was $257,725,
thus fairly close to the $260,000 estimated in section 1a.
Sometime later, the servicer sent a settlement accounting to the
marketer. The servicer’s settlement accounting indicated the marketer
originally owed $765,189.70 to the servicer, but the servicer agreed in the
settlement to write off $139,563.15, leaving a balance of $625,626.55.
From that balance, the servicer’s settlement accounting further deducted
the $257,725 in the marketer’s commissions from Arrow which the
servicer already had received, thus leaving a “Total Due” of $367,901.55.
The marketer objected to the servicer’s settlement accounting as not
accurately reflecting the settlement. Sometime later, the marketer filed a
one-count breach of contract complaint against the servicer. The marketer
alleged the “Settlement Sum” under the mediation agreement was
$350,000, and the servicer breached the mediation agreement by receiving
more funds than the marketer owed under the mediation agreement.
The servicer filed an answer and affirmative defenses denying the
marketer’s allegations. One of the servicer’s affirmative defenses alleged
no meeting of the minds existed in forming the mediation agreement.
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2. The Non-Jury Trial
At the non-jury trial, the marketer’s opening statement indicated the
evidence would show the “Settlement Sum” under the mediation
agreement was $350,000. The servicer’s opening statement indicated the
“Settlement Sum” was the approximate $625,000 amount shown in its
settlement accounting after deducting the servicer’s $139,563.15 write-off
from the $765,189.70 which the marketer owed to the servicer.
The marketer began its case-in-chief by calling the servicer’s
representative as an adverse witness. The servicer’s representative
acknowledged that the dollar amount “$625,000” did not appear anywhere
in the mediation agreement.
The marketer then had its representative testify on direct examination
that the “Settlement Sum” under the mediation agreement was $350,000.
On cross-examination, the marketer’s representative was shown the
servicer’s settlement accounting, and acknowledged $765,189.70 was the
amount which the servicer asserted was owed before the mediation;
$139,563.15 was the amount which the servicer had agreed to write off as
part of the settlement; $257,725.00 was the amount of Arrow commissions
which the marketer had agreed to waive as part of the settlement; and the
line showing “Total Due” indicated “367,901.55.”
However, the marketer’s representative insisted the servicer’s
settlement accounting indicated the marketer only had to pay the servicer
an additional $92,275 to satisfy the mediation agreement, as the difference
between the marketer’s understanding of the $350,000 “Settlement Sum”
minus the $257,725 which the servicer already had received.
During the servicer’s case-in-chief, the servicer’s counsel sought to ask
the servicer’s representative about the parties’ mediation communications
regarding the settlement amount. The marketer’s counsel objected,
arguing mediation communications were confidential by statute.
The servicer’s counsel responded the settlement amount was unclear
from the mediation agreement, and a confidentiality exception existed
when an issue arose regarding a mediation agreement’s terms. Thus, the
servicer’s counsel requested the trial court to allow evidence to explain the
settlement amount to which the mediation agreement referred.
The trial court ruled the mediation communications were confidential,
and only permitted the servicer’s representative to testify about the dollar
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amount which the servicer first sought during the mediation. The
servicer’s representative testified the servicer first sought $765,000.
The servicer’s counsel then asked the servicer’s representative about
the dollar amounts appearing on the servicer’s settlement accounting. The
servicer’s representative testified the servicer had deducted from the
$765,189.70 “total due” both the $139,563.15 write-off and the $257,725
in the marketer’s commissions received from Arrow before mediation.
During closing arguments, the marketer reiterated its position that the
mediation agreement clearly defined the “Settlement Sum” as $350,000.
In contrast, the servicer argued the mediation agreement was
ambiguous by not identifying the dollar amount to which “Settlement
Sum” referred, and thus no meeting of the minds may have occurred on
that amount. According to the servicer, the $367,901.55 amount
identified in servicer’s settlement accounting was the compromised
amount which the marketer owed to the servicer after the $139,563.15
write-off and the $257,725 received from Arrow were subtracted from the
servicer’s claim entering the mediation.
The trial court issued a final judgment in the marketer’s favor. The
trial court found the terms of the mediation agreement were clear and
unambiguous, and the “Settlement Sum” under the mediation agreement
was $350,000. The trial court further found that because the servicer had
received not only the $350,000 from Arrow, but also an additional
$412,698.86 in commissions which the marketer should have received
from Arrow, the servicer owed the marketer that $412,698.86 surplus,
plus pre-judgment interest on that amount.
Another judge later entered a costs judgment in the marketer’s favor.
The servicer appealed from the both the final judgment and the costs
judgment. We consolidated both appeals for our review.
3. Our Review
On appeal, the servicer primarily argues the trial court erred in: (1)
finding the term “Settlement Sum” in the parties’ mediation agreement
unambiguously referred to the $350,000 sum referenced in the agreement,
and (2) prohibiting the servicer’s representative from testifying about the
parties’ mediation communications regarding the dollar amount to which
the term “Settlement Sum” referred.
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In contrast, the marketer primarily argues: (1) the mediation agreement
clearly defined the “Settlement Sum” as $350,000, and (2) the parties’
mediation communications regarding the dollar amount to which
“Settlement Sum” referred were confidential by statute.
We agree with the servicer’s arguments. We address each argument in
turn.
a. The trial court erred in finding the term “Settlement Sum” in
the parties’ mediation agreement unambiguously referred to
the $350,000 sum referenced in the agreement.
“[S]ettlement agreements are interpreted like a contract and reviewed
de novo.” Marlin Yacht Mfg., Inc. v. Nichols, 254 So. 3d 1022, 1024 (Fla.
4th DCA 2018). Further, “[w]hether a contract is ambiguous is reviewed
de novo.” E-Commerce Coffee Club v. Miga Holdings, Inc., 222 So. 3d 9, 11
(Fla. 4th DCA 2017).
“As settlement agreements are contractual in nature, they are
interpreted and governed by contract law. Just as with other contracts, to
be enforceable a settlement agreement must be sufficiently specific and
mutually agreeable as to every essential element.” Barone v. Rogers, 930
So. 2d 761, 763-64 (Fla. 4th DCA 2006) (citations and internal quotation
marks omitted). “However, where the wording of an agreement is
ambiguous, its interpretation involves questions of fact, precluding
summary disposition.” Id. at 764.
A patent ambiguity, i.e., an ambiguity appearing on an agreement’s
face, may arise due to the agreement’s use of an undefined essential term.
Nationstar Mortg. Co. v. Levine, 216 So. 3d 711, 716 (Fla. 4th DCA 2017).
“[C]ourts allow parol evidence regarding identity, capacity, and the parties’
relationship with one another even when the ambiguity exists on the face
of the document because the court would not be rewriting the terms of the
contract.” Id. (emphasis and citations omitted).
Applying de novo review here, we conclude a patent ambiguity appears
on the mediation agreement’s face. The mediation agreement’s primary
provision reads, in pertinent part:
1. [The marketer] shall pay to [the servicer], and [the servicer]
shall accept from [the marketer], the Settlement Sum,
which shall be in full and complete payment and
settlement of any and all claims by and among the parties.
The Settlement Sum shall be paid as follows: a) [the servicer]
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is entitled to receive a total of $350,000 that would
otherwise be owed, as commissions, to [the marketer]
pursuant to the parties contract with Arrow ([the servicer]
estimates that it is holding $260,000 of that amount); b) [the
marketer] hereby assigns its right to receive all funds owed
to it under the parties contract with Arrow until the
Settlement Sum and the amount referenced in paragraph 1a
above is paid in full; c) once the Settlement Sum is paid in
full, [the marketer’s] assignment of its right to payment
under the parties contract with Arrow shall terminate and
[the marketer] shall then start receiving its contractual
right to monies under the parties’ contract with Arrow; and
d) in the event that the parties’ relationship with Arrow
terminates before the Settlement Sum is paid in full, [the
marketer] shall pay [the servicer] $20,000 per month until
the Settlement Sum is paid in full.
(emphases added).
As emphasized above, the mediation agreement, either intentionally or
inadvertently, referred to two different sums: the “Settlement Sum,” for
which a dollar amount is not identified, “and the amount referenced in
paragraph 1a above” which stated “a total of $350,000 that would
otherwise be owed, as commissions.” (emphases added). Because the
mediation agreement, at least facially, referred to the “Settlement Sum”
and the $350,000 as two different sums, the trial court erred in finding
the term “Settlement Sum” unambiguously referred to the $350,000 sum
referenced in the agreement.
Further, because of the patent ambiguity as to the dollar amount to
which the term “Settlement Sum” referred, its interpretation involved a
question of fact, precluding the trial court’s summary disposition in the
marketer’s favor. Parol evidence was required to either identify the
mutually-agreed “Settlement Sum” dollar amount or determine no meeting
of the minds existed as to this essential term, thus precluding the
mediation agreement’s formation. See Barone, 930 So. 2d at 764-65 (an
evidentiary hearing was required to determine whether a meeting of the
minds existed regarding a settlement agreement’s term or, if not, whether
the disputed term was an essential element such that without assent to
the term no contract came into existence).
Based on the foregoing, the proper remedy is to remand for a new trial,
at which the trial court shall consider parol evidence regarding the dollar
amount to which the term “Settlement Sum” referred.
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b. The trial court erred in prohibiting the servicer’s
representative from testifying about the parties’ mediation
communications regarding the dollar amount to which the
term “Settlement Sum” referred.
Section 44.405, Florida Statutes (2018), states, in pertinent part:
(1) Except as provided in this section, all mediation
communications shall be confidential. A mediation
participant shall not disclose a mediation communication to a
person other than another mediation participant or a
participant’s counsel. A violation of this section may be
remedied as provided by s. 44.406. If the mediation is court
ordered, a violation of this section may also subject the
mediation participant to sanctions by the court, including, but
not limited to, costs, attorney’s fees, and mediator’s fees.
(2) A mediation party has a privilege to refuse to testify and
to prevent any other person from testifying in a subsequent
proceeding regarding mediation communications.
….
(4)(a) Notwithstanding subsections (1) and (2), there is no
confidentiality or privilege attached to a signed written
agreement reached during a mediation, unless the parties
agree otherwise, or for any mediation communication:
….
5. Offered for the limited purpose of establishing or refuting
legally recognized grounds for voiding or reforming a settlement
agreement reached during a mediation ….
….
§ 44.405, Fla. Stat. (2018) (emphasis added).
No reported case appears to have addressed an appellate court’s
standard of review of a trial court’s decision under section 44.405(4)(a)5.,
regarding whether a confidentiality or privilege attaches to a mediation
communication “[o]ffered for the limited purpose of establishing or refuting
legally recognized grounds for voiding or reforming a settlement agreement
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reached during a mediation.” However, our sister court, citing a variety of
other recognized privileges, has held that “[w]hether a privilege exists, as
well as its parameters, is subject to de novo review.” Traffanstead v. State,
290 So. 3d 985, 987-88 (Fla. 1st DCA 2019) (citations omitted).
We agree with our sister court’s observation. Thus, we conclude the
standard of review of a trial court’s decision under section 44.405(4)(a)5.,
regarding whether a confidentiality or privilege attaches to a mediation
communication “[o]ffered for the limited purpose of establishing or refuting
legally recognized grounds for voiding or reforming a settlement agreement
reached during a mediation,” is de novo.
Applying de novo review, we conclude the trial court erred in prohibiting
the servicer’s representative from testifying about the parties’ mediation
communications regarding the dollar amount to which the term
“Settlement Sum” referred. The servicer’s purpose for offering that
testimony clearly was for “the limited purpose of establishing or refuting
legally recognized grounds for voiding or reforming a settlement agreement
reached during a mediation.” § 44.405(4)(a)5., Fla. Stat. (2018). The
legally recognized ground at issue here, as pled in the servicer’s affirmative
defenses, was whether a meeting of the minds occurred in forming the
mediation agreement. We recognize the possibility that a meeting of the
minds may not have occurred, because the mediation agreement, either
intentionally or inadvertently, referred to the “Settlement Sum” and the
$350,000 as two different sums, and did not identify the dollar amount to
which “Settlement Sum” referred.
As stated above, the proper remedy is to remand for a new trial, at
which the trial court shall consider the parties’ mediation communications
regarding the dollar amount to which the term “Settlement Sum” referred.
We are not prepared to consider, as the servicer requests, whether the
“Settlement Sum” was the $625,626.55 which the servicer calculated in
its settlement accounting (by subtracting the $139,563.15 write-off from
the alleged $765,189.70 amount owed). Because the trial court ultimately
did not consider the settlement accounting based on its errant
interpretation that the mediation agreement was unambiguous, our
consideration of the settlement accounting’s weight would be premature.
However, on remand, the trial court shall weigh the settlement
accounting, along with the parties’ mediation communications, and any
other admissible evidence, in determining whether a meeting of the minds
occurred regarding the dollar amount to which the term “Settlement Sum”
referred and, if so, what that amount was.
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c. Our conclusion is consistent with our precedent on this topic.
Our conclusion is consistent with our prior decision in DR Lakes Inc.
v. Brandsmart U.S.A. of West Palm Beach, Inc., 819 So. 2d 971 (Fla. 4th
DCA 2002), which pre-dated the legislature’s enactment of section 44.405
in 2004, but interpreted section 44.405’s predecessor, section 44.102(3),
Florida Statutes (2001). Id. at 972-74. We shall examine DR Lakes in
detail, as its facts and reasoning are quite similar to the instant case.
DR Lakes involved a real estate transaction between the appellant seller
and the appellee buyer. Id. at 972. The parties’ original agreement
provided the buyer was to receive a $600,000 credit to defray the expense
of constructing a road necessary for the property’s development. Id.
Before the transaction closed, a dispute arose between the buyer and
seller, resulting in litigation. Id. at 973. After mediation, the parties
entered into a settlement agreement which obligated the seller, in the event
the road could be built in phases, to construct the road’s first phase. Id.
The seller later filed a motion to enforce the settlement agreement,
alleging the agreement contained a clerical error. Id. More specifically,
the seller argued the parties had agreed in mediation that the buyer would
no longer be entitled to the $600,000 credit, because the obligation to build
the road had been shifted from the buyer to the seller. Id. However, the
seller argued, the mediation agreement inadvertently still provided the
buyer with the $600,000 credit. Id.
At an evidentiary hearing on the motion to enforce settlement, the buyer
objected to testimony regarding the parties’ mediation communications,
based on section 44.102(3), Florida Statutes (2001), which then provided:
Each party involved in a court-ordered mediation proceeding
has a privilege to refuse to disclose, and to prevent any person
present at the proceeding from disclosing, communications
made during such proceeding. All oral or written
communications in a mediation proceeding, other than an
executed settlement agreement, shall be exempt from the
requirements of chapter 119 [public meeting and record
requirements] and shall be confidential and inadmissible as
evidence in any subsequent legal proceeding, unless all
parties agree otherwise.
819 So. 2d at 973.
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The trial court agreed with the buyer that section 44.102(3) precluded
any evidence as to what occurred during mediation. Id.
We reversed, reasoning in pertinent part:
The reason for confidentiality as to statements made
during mediation where a settlement agreement is not
reached is obvious. Mediation could not take place if litigants
had to worry about admissions against interest being offered
into evidence at trial, if a settlement was not reached. Once
the parties in mediation have signed an agreement,
however, the reasons for confidentiality are not as
compelling ….
… We cannot imagine that the legislature intended that a
party to a contract reached after mediation should not have
the same access to the courts to correct a $600,000 mutual
mistake, as a party entering into the same contract outside of
mediation. We therefore hold that the privilege does not bar
evidence as to what occurred at mediation under the facts in
this case.
On remand, in order to be entitled to relief, seller will have
to establish that this clerical error was a mutual mistake, as
described in Steffens v. Steffens, 422 So. 2d 963 (Fla. 4th DCA
1982):
When an instrument is drawn and executed which is
intended to carry into execution an agreement but
which by mistake of the draftsman violates or does not
fulfill that intention, equity will reform the instrument
so as to conform to the intent of the parties. Relief
should be given where, through a mistake of the
scrivener, the instrument contains a clerical error or
fails to define the terms as agreed on by the
parties.
Although it may be difficult for seller to prove that this
mistake was mutual, given the position of the buyer, seller
should still have the opportunity to put on all of its evidence.
Id. at 973-75 (emphasis added; other internal citations and footnote
omitted).
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Despite the difficulty which we predicted for the seller on remand, the
trial court, after a non-jury trial, ruled in the seller’s favor. BrandsMart
U.S.A. of West Palm Beach, Inc. v. DR Lakes, Inc., 901 So. 2d 1004, 1005
(Fla. 4th DCA 2005). The trial court found the parties had agreed the
buyer would no longer be entitled to the $600,000 credit, and “[t]o the
extent the [mediation agreement] was not explicit on that point, it
represented a scrivener’s error in memorialization of the parties’
agreement.” Id.
We affirmed, concluding the seller’s witnesses’ testimony constituted
competent, substantial evidence supporting the trial court’s ruling. Id. at
1006. We further noted: “The parties’ conflicting stories at trial do not
preclude a finding that a mutual mistake was established by clear and
convincing evidence.” Id.
The reasoning upon which we based our first DR Lakes decision
appears to have been statutorily codified two years later when the
legislature enacted section 44.405(4)(a)5. That is, after initially stating in
section 44.405(1) that “all mediation communications shall be
confidential,” the legislature created an exception in section 44.405(4)(a)5.
for any mediation communication “[o]ffered for the limited purpose of
establishing or refuting legally recognized grounds for voiding or reforming
a settlement agreement reached during a mediation.” That exception
applies to the instant case.
Conclusion
Based on the foregoing, we reverse the trial court’s final judgment in
the marketer’s favor, and we remand for a new trial. At the new trial, the
trial court shall consider the parties’ mediation communications regarding
the dollar amount to which the term “Settlement Sum” referred, along with
the servicer’s settlement accounting and any other admissible evidence, in
finding whether a meeting of the minds occurred regarding the dollar
amount to which the term “Settlement Sum” referred and, if so, what that
amount was. Of course, should the trial court find from the evidence that
no meeting of the minds occurred, the trial court shall decline to enforce
the purported mediation agreement and shall proceed with the cause. See
A-1 Duran Roofing, Inc. v. C.M.R. Prop., Inc., 903 So. 2d 299, 299 (Fla. 3d
DCA 2005) (“After taking the testimony the trial court shall determine
whether these persons had a meeting of the minds reaching a full and
complete settlement of the cause. If the trial court finds that such a
meeting of the minds occurred, then the trial court shall enforce the terms
thereof exactly as reached. Should the trial court find from the testimony
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that no meeting of the minds occurred it shall decline to enforce any
purported settlement agreement and shall proceed with the cause.”).
For purposes of the remand, we remind the parties and the trial court
that “[t]he party seeking to enforce a settlement agreement bears the
burden of showing the opposing party assented to the terms of the
agreement.” Spiegel v. H. Allen Holmes, Inc., 834 So. 2d 295, 297 (Fla. 4th
DCA 2002). Further, “[a] trial court’s finding that there was a meeting of
the minds must be supported by competent substantial evidence.” Id. As
the marketer has been the party seeking to enforce the mediation
agreement (alleging $350,000 as the “Settlement Sum”), while the servicer
is relying in part on its affirmative defense that no meeting of the minds
occurred, the marketer shall bear the burden of showing the marketer
assented to the mediation agreement.
Because we are reversing the trial court’s final judgment in the
marketer’s favor, we also must reverse the trial court’s costs judgment in
the marketer’s favor. See Mulato v. Mulato, 734 So. 2d 477, 478 (Fla. 4th
DCA 1999) (“[W]here the judgment on which a cost judgment is predicated
is reversed, the original cost judgment also cannot stand.”) (citation
omitted).
All other arguments which the marketer has raised in the defense of
this consolidated appeal lack merit, without further discussion.
Reversed and remanded for proceedings consistent with this opinion.
GROSS and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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