LOUIS ATALLAH and BAM BAM ENTERTAINMENT, LLC v. TRANSWORLD BUSINESS BROKERS OF FLORIDA, LLC ( 2020 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
LOUIS ATALLAH, an individual, and
BAM BAM ENTERTAINMENT, LLC, d/b/a CYN NIGHTCLUB,
a Florida limited liability company,
Appellants,
v.
TRANSWORLD BUSINESS BROKERS OF FLORIDA, LLC, d/b/a
TRANSWORLD BUSINESS ADVISORS, a Florida limited liability
company,
Appellee.
No. 4D18-3804
[May 20, 2020]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Sandra Perlman, Judge; L.T. Case No. CACE17007634.
David W. Langley of David W. Langley, P.A., Plantation, for appellants.
Jacqueline F. Howe and Edward J. O’Sheehan of Shutts & Bowen LLP,
Fort Lauderdale, for appellee.
WARNER, J.
Louis Atallah and Bam Bam Entertainment LLC appeal from a final
summary judgment in favor of Transworld Business Brokers of Florida,
LLC. The trial court granted summary judgment to Transworld on its
claim for breach of contract regarding a commission on the sale of Cyn
Nightclub. Because Atallah’s affidavit in opposition to the motion for
summary judgment created material issues of fact, we reverse.
Transworld is in the business of brokering the sale of businesses. In
May 2016, Transworld and Bam Bam Entertainment LLC, d/b/a Cyn
Nightclub, entered into a Marketing Agreement whereby Bam Bam agreed
to give Transworld the exclusive right to sell Cyn Nightclub for a
commission. The agreement contains the name of “Louis Atallah and Ehab
Atallah,” as principal. After negotiating the agreement, Transworld
emailed it to Atallah’s daughter, Lulu, who returned it signed allegedly by
Louis Atallah “MGRM,” as Bam Bam’s managing member and in his
individual capacity as a guarantor.
About nine months later, when Transworld learned that Bam Bam was
planning to close the business and open under new ownership, it
demanded its commission from Bam Bam and Atallah. They refused, and
Transworld sued Bam Bam and Atallah for breach of contract. Bam Bam
and Atallah answered the complaint and denied many of the allegations.
They also alleged affirmative defenses, including that the complaint failed
to state a cause of action as no representative of Bam Bam ever signed the
alleged contract, nor did Atallah sign the guarantee. Transworld moved to
strike the affirmative defenses because the claim that no representative of
Bam Bam signed the contract was simply a denial of the allegations of the
complaint. The court granted the motion.
Transworld moved for summary judgment on both of its claims, arguing
that it was undisputed that Transworld was entitled to the commission
because Atallah/Bam Bam had sold the business while the marketing
agreement was in effect, and because they had attempted to terminate the
agreement prior to the end of the one-year term. In support of the motion,
Transworld submitted the affidavit of Thomas Milana, an employee of
Transworld, who attested that the Marketing Agreement and the Limited
Liability Company Resolution were true and correct and that Atallah had
executed the agreement. Milana attested that he had a phone
conversation with Louis Atallah where Atallah had asked to cancel the
agreement.
Atallah and Bam Bam filed a response in opposition to the motion for
summary judgment, arguing that Transworld was not owed a commission,
because he did not sign the contract. Atallah submitted an affidavit in
which he attested that he had determined the signatures on the Marketing
Agreement were not his, and that he never authorized anyone to sign on
his behalf. He also stated that he had never met with nor spoken with
Thomas Milana or anyone from Transworld. He indicated that English is
not his native language, and he would not have been able to communicate
with anyone from Transworld by telephone without the assistance of an
interpreter.
Despite the existence of the affidavits, the trial court granted summary
judgment and entered final judgment in the case. Atallah and Bam Bam
appeal.
“Summary judgment is proper if there is no genuine issue of material
fact and if the moving party is entitled to a judgment as a matter of law.”
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Volusia Cty. v. Aberdeen at Ormond Beach L.P., 760 So. 2d 126, 130 (Fla.
2000). Summary judgments should only be granted when there is a
complete absence of genuine issues of material fact and the moving party
is entitled to judgment as a matter of law. Holl v. Talcott, 191 So. 2d 40
(Fla. 1966). The correctness of a summary judgment is a matter of law
which is subject to de novo standard of review. State v. Presidential
Women’s Ctr., 937 So. 2d 114 (Fla. 2006).
There is a clear conflict in the affidavits on a material issue of fact—
whether the contract was signed by an authorized person. The Milana
affidavit states that Atallah signed it, and Atallah attested that he did not,
nor did he authorize anyone to sign it. He attests that he did not talk to
Milana on the phone, because he does not understand English well enough
to carry on a phone conversation. These issues are material to the cause
of action, and the court erred in granting summary judgment with these
issues unresolved.
In defense of the judgment, Transworld contends that because the
court struck the affirmative defense in which Atallah stated that he had
not signed the contract, summary judgment was proper. Transworld
ignores, however, that in its motion to strike it contended that the
affirmative defense was merely a denial of the allegations of the complaint.
One of the allegations was that Transworld and Atallah entered into the
contract, and Atallah denied that allegation. To prove that allegation,
Transworld offered Milana’s affidavit stating that the parties had entered
into the contract. However, Atallah’s affidavit that he did not sign the
contract refuted that allegation. It raised a material issue of fact.
Transworld argues that the summary judgment should be affirmed,
because Atallah failed to produce a transcript of the hearing on summary
judgment. See Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150
(Fla.1979). However, review of a summary judgment is a matter of law,
and Applegate does not apply. Sunrise Lakes Condo. Apts. Phase III, Inc. 5
v. Frank, 73 So. 3d 901 (Fla. 4th DCA 2011). “Summary judgment cannot
be granted unless the pleadings, depositions, answers to interrogatories,
and admissions on file together with affidavits, if any, conclusively show
that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Frost v. Regions Bank,
15 So. 3d 905, 906 (Fla. 4th DCA 2009). The affidavits in this case reveal
a clear dispute in the facts.
Alternatively, Transworld argues that Atallah’s affidavit was not
competent summary judgment evidence, because English was not his
native language and he conceded that he needed to use a translator to
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review documents written in English and to speak over the phone.
Transworld points out that the affidavit was itself written in English and
was not in Atallah’s native language. Transworld argues that under
section 90.606(1)(a), Florida Statutes (2017), when a judge determines that
a “witness cannot . . . understand the English language, or cannot express
himself or herself in English sufficiently to be understood, an interpreter
who is duly qualified to interpret for the witness shall be sworn to do so.”
This section deals with live witnesses, not attestations made by affidavit.
In his affidavit, Atallah states that he reviewed the motion and the
affidavits with the help of an interpreter and that he was testifying from
his personal knowledge. Florida Rule of Civil Procedure 1.510(e) (2018)
provides: “[s]upporting and opposing affidavits must be made on personal
knowledge, must set forth such facts as would be admissible in evidence,
and must show affirmatively that the affiant is competent to testify to the
matters stated therein.” His affidavit meets this test. The affidavit
contained evidence which would be admissible at trial, as Atallah could
testify from his personal knowledge as to whether he signed the contract
and guarantee.
Transworld’s reliance on Diaz v. Bell MicroProducts-Future Tech, Inc., 43
So. 3d 138 (Fla. 3d DCA 2010), is inapposite. There, the plaintiff was suing
on a personal guarantee executed in Spanish. It was attached to the
complaint but not translated from Spanish to English. The court held that
a document required to be attached to the complaint pursuant to Florida
Rule of Civil Procedure 1.130 must be filed in English. The purpose of this
rule “is to apprise the defendant of the nature and extent of the cause of
action so that he may plead with greater certainty.” Id. at 140. This has
no relevance to the affidavit in this case, which was executed in English
with the help of an interpreter.
For these reasons, we reverse the summary judgment and remand for
further proceedings.
KLINGENSMITH and KUNTZ, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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