UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA 

MIAMI DIVISION

Case No. 20-cv-23104-KMW

WOODARD-CM, LLC, 

Plaintiff,

v.

SUNLORD LEISURE PRODUCTS, INC. 

d/b/a PATIO RENAISSANCE; PRESTIGE 

INTERNATIONAL INVESTMENTS CO., 

LTD.; ALBERT LORD f/k/a AI PING LUO; 

SUNRISE CASUAL FURNITURE, INC.; 

MARK GORR; GORR & ASSOCIATES, 

INC.; JUSTIN PFAHL; and PFAHL 

ENTERPRISES, INC.

Defendants,

____________________________________/

DEFENDANT SUNLORD LEISURE PRODUCTS, INC.’S REPLY IN SUPPORT OF 

MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO LIABILITY FOR PRESETTLEMENT CONDUCT AND INCORPORATED MEMORANDUM OF LAW

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Defendant Sunlord Leisure Products, Inc. (“Sunlord”) hereby responds as follows: 

INTRODUCTION

Plaintiff Woodard argues that the release contained in section 9 of the parties’ Agreement1

was not supported by any material monetary consideration and carved out claims based on the presettlement conduct Woodard also bases its current claims on. Woodard’s arguments are belied by 

the Agreement’s own express language, and the Court need not look beyond the Agreement to 

enter partial summary judgment in Sunlord’s favor. Contrary to Woodard’s allegations, Sunlord’s 

representations that it had not engaged in copying, marketing, or sale of furniture bearing 

Woodard’s Mallin designs at the time the Agreement was executed—representations which are 

themselves true2–were not the only consideration for the Agreement. The Agreement imposed 

numerous prospective obligations on Sunlord and therefore is not somehow unenforceable for lack 

of consideration. Further, the release contained in Section 9 is broad and all-encompassing, and 

covers all claims, whether known or unknown, that Woodard could have asserted in the Prior Suit. 

The first sentence of the Agreement, which Woodard’s Response latches onto yet which merely 

includes a carveout for claims to enforce the Agreement itself, cannot be read to modify the 

Agreement’s broad release language and carve out pre-Agreement conduct that also formed the 

basis for the Prior Suit. Woodard’s proposed interpretation would eviscerate the Agreement’s 

release language and render it ineffective and meaningless. Woodward would have released 

1 This reply adopts and uses the defined terms contained in Sunlord’s Statement of Material Facts 

in Support of the Motion [D.E. 125]. 

2 Woodard’s Response claims that because Sunlord has chosen not to litigate the veracity of these 

representations at the summary judgment stage, it somehow has admitted making the alleged 

misrepresentations referenced in Woodard’s Complaint. However, the simple reason why the 

Motion does not address this issue is because it is not appropriate to resolve it by summary 

judgment. Apart from the fact that these allegations are not material to Sunlord’s Motion, they are 

also refuted by the evidence presented by Sunlord in responding to Woodard’s Motion for 

Sanctions [D.E. 62]. 

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nothing. It also contradicts Woodard’s agreement to dismiss the Prior Suit’s claims with prejudice

and the Agreement’s own non-reliance provision.

Woodard also argues that res judicata cannot apply to bar any claims based on preAgreement conduct in this case because the res judicata effect of its dismissal of the Prior Suit 

with prejudice is controlled by the Agreement and cannot bar a claim for breach of the Agreement 

itself. Woodard apparently takes the position that, simply by styling its claim for breach of preAgreement conduct against Sunlord as one for breach of the Agreement itself, Woodard can

circumvent the Agreements’ all-encompassing release language. Florida law is clear that Woodard 

cannot maintain any such claims for pre-Agreement conduct against Sunlord, regardless of how 

they are pled, because Sunlord both released them and dismissed them with prejudice.

Finally, Woodard argues the Mergens rule cannot apply to bar Woodard’s fraudulent 

misrepresentation claims because the Prior Suit did not plead a fraud claim against Sunlord. While 

the Prior Complaint did not plead a fraud claim, it did allege fraud or dishonesty on the part of 

Sunlord, such that these claims fall under the ambit of the Mergens rule. As Woodard well knows, 

its claims in the Prior Suit are based on the same type of conduct alleged in this litigation—i.e., 

that Sunlord willfully and unlawfully used Woodard’s trademarks and marketing materials and 

knowingly and falsely replicated, marketed, and sold Woodard’s furniture designs as its own in 

order to profit at Woodard’s expense. Regardless of whether they were pled as fraud claims or 

Lanham Act claims, Woodard’s claims in the Prior Suit are based on the same allegedly fraudulent 

and dishonest conduct as its fraud claim in the instant case and are therefore barred by Mergens. 

ARGUMENT

1. The Agreement’s release is not void or unenforceable for lack of consideration.

Woodard’s Response argues, among other things, that the parties’ Agreement could not 

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have released Sunlord from any pre-Agreement conduct that occurred before the Agreement’s 

August 29, 2019 effective date because Woodard received no monetary consideration from 

Sunlord other than Sunlord’s representations that it had never engaged in the pre-Agreement use 

of Woodard’s trademarks in connection with its sale of furniture and that it had not otherwise 

copied, sold, or marketed furniture bearing the Enjoined Designs. These allegations are refuted 

by the terms of the Agreement itself, wherein Sunlord agreed to a number of prospective postSettlement obligations, including, among other things: (1) the obligation not to advertise or market 

any furniture bearing the Enjoined Designs or engage in any advertising or marketing using 

Woodard’s trademarks (see Agreement, § 3); (2) the obligation not to further contest or challenge 

Woodard’s trademarks or its Mallin furniture designs (see id., § 5); (3) the obligation not to use or 

distribute the price sheets attached as exhibits to the Agreement (see id., § 4); (4) a release from 

Sunlord in favor of Woodard (id., § 8); and (5) a waiver of jury trial in any action brought to 

enforce the Agreement or to seek a preliminary or permanent injunction from Sunlord (id., § 11.3).

These provisions constitute adequate consideration for the Agreement. See, e.g., In re 

O’Lone, Case No. 3:00-bk-5003-JAF, 2009 WL 10742936, at *4 (Bankr. M.D. Fla. Aug. 20, 2009) 

(finding parties’ release of claims constituted adequate consideration for settlement agreement 

(citing Citibank Int’l v. Mercogliano, 574 So. 2d 1190 (Fla. 3d DCA 1991)). In fact, as Woodard 

well knows, it relied on the Agreement to obtain a preliminary injunction against Sunlord shortly 

after it commenced this litigation. Accordingly, to the extent Woodard argues the Agreement was 

not supported by any consideration other than Sunlord’s warranties or representations that it had 

not previously engaged in conduct prohibited by the Agreement prior to the Agreement’s execution

such that the Agreement’s release is somehow rendered unenforceable, that argument is belied by 

the Agreement’s terms. 

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2. The Agreement’s release language bars Woodard from maintaining claims 

against Sunlord based on pre-Agreement conduct.

The Agreement’s release language is all-encompassing and bars any claims Woodard may 

have had against Sunlord based on pre-Agreement conduct. Nor does the first sentence of the 

release, which merely preserves claims to enforce the Agreement based on “rights, obligations, 

duties, liabilities, and claims . . . expressly created by th[e] Agreement,”3somehow alter the scope 

of the release, which is broadly worded and includes “all rights, claims, appeals, demands, and 

causes of action, whether known or unknown, that were asserted or that could have been asserted 

in the [Prior Suit].”4

Settlement agreements are contracts and are governed by principles of Florida’s general 

contract law. Schwartz v. Florida Bd. of Regents, 807 F.2d 901, 905 (11th Cir. 1987). Florida law 

requires that a court interpret a contract according to its plain language and express terms. Dirico 

v. Redland Estates, Inc., 154 So. 3d 355, 357 (Fla. 3d DCA 2014). In doing so, a court must 

attempt to interpret the contract in a manner that gives effect to each of the various provisions 

thereof, if reasonably possible. Dew Seven, LLC v. Big Lots Stores, Inc., 354 Fed. App’x 415, 416-

17 (11th Cir. 2009) (quoting Fisher v. Certain Interested Underwriters at Lloyds Subscribing to 

Contract No. 242/99, 930 So. 2d 756, 758-59 (Fla. 4th DCA 2006)). A contract’s intended 

meaning “is not to be gathered from any one expression but from a general view of the whole 

writing, with all parts being compared, used, and construed, each with reference to the others.” 

Paddock v. Bay Concrete Indus., Inc., 154 So. 2d 313, 315-16 (Fla. 2d DCA 1963).

Here, the Agreement’s release is broad and all-encompassing. It covers all “rights, claims,

appeals, demands and causes of action, whether known or unknown, that were asserted or that 

3 Agreement, § 9.

4

Id.

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could have been asserted in the [Prior Suit].” “It is hornbook law that the execution of a valid 

release results in the termination of all rights covered by the agreement.” Hall v. Burger King. 

Corp., 912 F. Supp. 1509, 1520 (S.D. Fla. 1995); see also Pettinelli v. Danzig, 722 F.2d 706, 707-

08 (11th Cir. 1984) (holding agreement and release executed by investors in corporation which 

settled all claims prior to agreement’s effective date conclusively resolved all claims that arose 

prior to date of release); Brooklands, Inc. v. Sweeney, Case No. 14–81298–CIV, 2015 WL 

1930239, at *5 (S.D. Fla. April 28, 2015) (granting motion to dismiss claim for fraudulent 

inducement to the extent it was based on pre-release conduct and the agreement contained a general 

release and a non-reliance provision confirming parties were not relying on the representations of 

the other in executing the agreement); Plumpton v. Continental Acreage Dev. Co., Inc., 830 So. 2d 

208, (Fla. 5th DCA 2002) (finding stipulation for settlement which contained general release as to 

all claims except for the rights expressed in the stipulation barred pre-release claims).

Despite the release’s broad wording, Woodard argues it cannot have released its claims 

against Sunlord arising from pre-Agreement conduct because they were preserved by the release’s 

first sentence, which preserves claims expressly created or retained by the Agreement. Woodard’s 

proposed interpretation of the Agreement’s release would render it meaningless. If the first 

sentence operated to preserve claims Woodard may have had against Sunlord stemming from its 

alleged pre-Agreement sale of furniture bearing the Enjoined Designs or its alleged use of 

Woodard’s trademarks—the same conduct that formed the basis of Woodard’s claims in the Prior 

Suit—the last sentence of the release would be rendered meaningless. Under Woodard’s 

nonsensical interpretation, the release would not have operated to release any claims it had against 

Sunlord. Woodard’s interpretation also renders the release inconsistent with section 7 of the 

Agreement, wherein Woodard agreed to release its claims in the Prior Suit with prejudice. If, as 

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Woodard contends, the first sentence of the release was intended to preserve pre-Agreement claims 

based on the same alleged conduct as the Prior Suit, Woodard would presumably not have agreed 

to dismiss the Prior Suit with prejudice. Woodard’s proposed interpretation of the release language 

is also inconsistent with section 10.2 of the Agreement, which contains a non-reliance provision 

wherein Woodard confirmed it was not relying on any representations, statements, or promises of 

Sunlord in deciding to execute the Agreement, except as expressly stated therein. As the court 

noted in Brooklands, such non-reliance provisions are further evidence of a party’s intent to 

generally release pre-settlement claims. See Brooklands, 2015 WL 1930239 at *5 (finding fraud 

claims based on pre-release settlement conduct and alleged misrepresentations and omissions 

during course of settlement agreement were unreasonable “particularly where, as here, the release 

agreement includes a clear, unambiguous non-reliance provision confirming the parties are not 

relying on the representations of the other. . . .”). 

The only reasonable way to interpret the first sentence of section 9 in concert with the rest 

of the Agreement is to conclude that the first sentence preserved claims based on conduct arising 

after the Agreement’s effective date, not pre-Agreement claims which Woodard simply didn’t 

assert or flesh out in the Prior Suit. For instance, if Sunlord had violated sections 2.1 and/or 2.2 

of the Agreement by continuing to sell furniture bearing the Enjoined Designs after the 

Agreement’s Effective Date, such a claim would be excluded from the release. Otherwise, section 

9’s final sentence, which makes clear that the release covers all “known or unknown” claims that 

Woodard could have asserted in the Prior Suit, would be rendered meaningless. Nor has Woodard 

otherwise pled a fraudulent inducement claim to set aside or rescind the Agreement based on 

Sunlord’s alleged misrepresentations. Having elected to enforce the Agreement, as worded, 

Woodard is bound by the Agreement’s release language. 

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Nor are the Rosen or Mizner cases Woodard cites in support of its position applicable. 

Rosen v. Florida Ins. Guaranty Ass’n, 802 So. 2d 291 (Fla. 2001), involved the issue of whether a 

settlement agreement executed by a law firm’s former client contained a release or a covenant not 

to execute a judgment. Rosen, 802 So. 2d at 297-98. The court applied the general principal that 

the parties’ intent controls the scope of their releases to conclude the agreement’s language clearly 

included a covenant not to execute a judgment, not a release. Id. Rosen did not involve the 

interpretation of the breadth or scope of release language contained in a settlement agreement. 

Likewise, Mizner Grand Condo. Ass’n, Inc., Case No. 08-82280-CIV, 2010 WL 2162902 (S.D. 

Fla. 2010), involved the issue of whether a release contained in a settlement agreement entered 

into between a condominium association and its developer for purposes of settling construction 

defects claims applied to release breach of insurance claims brought by the condominium 

association, as the developer’s assignee, against the developer’s insurer. Mizner Grand Condo. 

Ass’n, Inc., 2010 WL 2162902, at *3-4. Here, there is no ambiguity as to the breadth of the release 

language or the scope of the claims it was intended to cover. The release unambiguously covers 

all claims Woodard did or could have brought in the Prior Suit, whether those claims were known 

to it or not. The Agreement’s release language unambiguously bars any pre-Agreement claims.

Sunlord’s Motion must be granted. 

3. Res judicata also bars any pre-Agreement claims Woodard seeks to assert against 

Sunlord.

5

Alternatively, Sunlord is entitled to summary judgment on Woodards’ claims to the extent 

5 Woodard’s argument that Sunlord’s Answer and Defenses failed to raise a res judicata defense 

is disingenuous. Sunlord has a pending Motion to Dismiss Counts II, III, XXII, XXIII, and XXIV 

of Woodard’s Complaint [D.E. 57] and the pleadings have not yet closed. Further, Sunlord’s 

Answer and Affirmative Defenses to Counts I and XXV [D.E. 56], in paragraphs 12-14, raises 

defenses based on Woodard’s release of any claims arising from pre-Agreement conduct, its 

waiver of any such claims, and the fact that its damages are limited by the Agreement’s terms. 

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they arise from Sunlord’s alleged pre-Agreement conduct because such claims are barred by the 

doctrine of res judicata. As part of the Agreement, Woodard dismissed the Prior Suit’s claims 

with prejudice. A voluntary notice of dismissal with prejudice constitutes a final judgment on the 

merits for purposes of res judicata. Openmind Solutions, Inc. v. Doe, Case No. 12-21098-CIVUngaro, 2012 WL 13059259, at *2 (S.D. Fla. June 11, 2012). Where, as here, a voluntary dismissal 

with prejudice is based on a settlement agreement, the preclusive effect of the dismissal must be 

based on the terms of the settlement agreement itself. Norfolk S. Corp. v. Chevron, U.S.A., Inc.,

371 F.3d 1285, 1289 (11th Cir. 2004). 

Here, while Woodard acknowledges it dismissed the Prior Suit with prejudice per the 

Agreement, it argues res judicata cannot apply because its current claims involve a breach of the 

Agreement itself, and the res judicata doctrine does not apply to subsequent claims to enforce a 

settlement agreement after a prior litigation has been dismissed. It relies on Renny v. Bertoloti, 

252 So. 3d 761 (Fla. 4th DCA 2018), to argue that, because Woodard’s current claims seek to 

enforce the Agreement itself, res judicata cannot operate as a bar. There, the court held that a 

dismissal provision contained in a confidential settlement agreement between the plaintiff and 

certain defendants did not bar a claim plaintiff had against another defendant, Bertoloti, arising 

from plaintiff’s claim for breach of a proposal for settlement served by Bertoloti and accepted by 

plaintiff. Renny, 252 So. 3d at 764-65. The court concluded that nothing in the confidential 

settlement agreement precluded plaintiff from accepting Bertoloti’s own proposal for settlement

where Bertoloti was not a party or intended third party beneficiary to the settlement agreement. 

Id. at 765-66. Here, unlike in Renny, Woodard’s claims against Sunlord in the instant action are, 

at least in part, based on pre-Agreement conduct that also formed the basis of the claims Woodard 

pled against Sunlord in the Prior Suit—claims which Woodard has not only dismissed with 

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prejudice, but also released Sunlord from by virtue of the Agreement’s unambiguous release 

language. Having both dismissed the Prior Suit’s claims with prejudice and agreed to broad release 

language releasing any such claims, Woodard cannot now use the same pre-Agreement conduct it 

pled in the Prior Suit as a basis for its current claims against Sunlord. 

4. The Mergens rule applies because the Prior Suit’s claims are based on the same 

type of alleged fraud and dishonesty as the instant action’s claims.

Woodard’s argument that the Mergens rule doesn’t apply because its Prior Suit did not 

plead a fraud claim against Sunlord is also meritless. While the Prior Suit did not plead a fraud 

claim against Sunlord, it did include allegations of fraud and dishonesty. Specifically, Woodard’s 

Prior Complaint pled, among other claims, claims for false description and false designation of 

origin which alleged, among other things, that Sunlord willfully and falsely attempted to pass 

Woodard’s own products off as its own and willfully and unlawfully used Woodard’s trademarks 

and materials as its own, which actions constituted false representations intended to deceive or 

cause Woodard’s potential customers confusion. 

Woodard now attempts to distance itself from these allegations by claiming its Prior Suit 

was based on the aforementioned conduct while its current claims stem from Sunlord’s 

representations in the Agreement that it had not engaged in the same conduct. In doing so, 

Woodard seeks to create a distinction without a difference. Regardless of whether it styles its 

claims as Lanham Act claims, breach of contract claims, or fraud claims, they are based on the 

same allegations—that Sunlord allegedly improperly used Woodard’s trademarks and allegedly 

copied, marketed, and sold its furniture designs in order to profit at Woodard’s expense. While 

Woodard attempts to disclaim the Prior Suit’s allegations as nothing more than “buzzwords” that 

are not ultimately pled in service of a fraud claim, the conduct alleged in Woodard’s Prior Suit is 

the same conduct that forms the backbone of its fraud claim in the instant action. Indeed, the 11th 

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Circuit Court of Appeal has made clear that the fraud on which a plaintiff’s post-settlement fraud 

claims are based need not even be the same fraudulent conduct so long as the conduct is of the 

same type of conduct that also forms the basis of the plaintiff’s current fraud claim. Affiliati 

Network, Inc. v. Wanamaker, Case No. 20-10085, 2021 WL 567656, at *3-4 (11th Cir. Feb. 16, 

2021). That is exactly the case here. 

In opposing Sunlord’s Motion, Woodard relies primarily on Fla. Bar v. Pettie, 424 So. 2d 

734, 737 (Fla. 1982). Pettie has nothing to do with the application of the Mergens rule. It involved

the question of whether participation in a criminal conspiracy to import marijuana violated 

disciplinary rules prohibiting an attorney from engaging in conduct involving dishonesty. Pettie, 

424 So. 2d 737. Pettie is inapplicable to this case. Here, Woodard seeks to use the same conduct 

it used to support its claims in the Prior Suit to now support its fraud allegations in the instant 

action. It asks the Court to conclude that same conduct does not rise to the level of fraud or 

dishonesty necessary to support the Mergens rule’s application yet does rise to the level of fraud 

or dishonesty necessary to support Woodard’s pending fraud claim.

5. Woodard’s public policy argument is meritless.

Woodard asks the Court to deny Sunlord’s Motion as a matter of public policy, and claims 

granting Sunlord’s Motion will incentivize parties to participate in dishonest conduct. Sunlord’s 

Motion seeks to do no such thing. Rather, it simply asks the Court to apply Florida’s public policy 

of enforcing settlement agreements whenever possible. Landan v. Caliber Home Loans, Inc., Case 

No. 0:19-cv-61984-RUIZ/SELTZER, 2019 WL 11505352, at *2 (S.D. Fla. Dec. 16, 2019). 

Having agreed to be bound by the Agreement’s release, Woodard cannot renege on that promise.

WHEREFORE, Sunlord respectfully request that this Court enter an order granting 

Sunlord’s Motion and granting such other and further relief as the Court deems just and proper.

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Date: September 15, 2021 Respectfully submitted,

LEVINE KELLOGG LEHMAN

SCHNEIDER + GROSSMAN LLP

Counsel for Defendant Sunlord Leisure 

Products, Inc.

201 South Biscayne Boulevard

Citigroup Center, 22nd Floor

Miami, FL 33131

Telephone: (305) 403-8788

Facsimile: (305) 403-8789

By: /s/ Victor Petrescu 

LAWRENCE A. KELLOGG, P.A.

Florida Bar No. 328601

Primary: lak@lklsg.com 

Secondary: ah@lklsg.com

VICTOR PETRESCU, ESQ.

Florida Bar No. 0085268

Primary: vp@lklsg.com 

Secondary: ah@lklsg.com

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on September 15, 2021, the foregoing document was 

electronically filed with the Clerk of the Court using CM/ECF. I also certify that the foregoing 

document is being served this day on all counsel of record in the manner specified, via 

transmission of Notices of Electronic Filing generated by CM/ECF.

By: /s/ Victor Petrescu 

Victor Petrescu, Esq.

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SERVICE LIST

John Cyril Malloy, III, Esq. 

Oliver Alan Ruiz, Esq. 

Meredith Frank Mendez, Esq.

Jonathan Woodard, Esq.

Malloy & Malloy, P.L. 

Email: jcmalloy@malloylaw.com 

Email: oruiz@malloylaw.com

Email: mmendez@malloylaw.com

Email: jwoodard@malloylaw.com

Law Offices of Robert F. Reynolds, P.A.

Robert F. Reynolds, Esq.

Email: rreynolds@robertyreynoldspa.com

Conrad & Scherer LLP

William R. Scherer, Esq.

Steven H. Osber, Esq.

Email: wscherer@conradscherer.com

Email: sosber@conradscherer.com

Secondary: wrspleadings@conradscherer.com

Secondary: ekreiling@conradscehrer.com

Secondary: jlira@conradscherer.com

Steve Qi & Associates

Steve Qi, Esq.

Email: steveqi@sqilaw.com

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