[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 16

- 16784 Non

- Argument Calendar

________________________ D.C. Docket No. 1:13

- cv - 22267

- DLB

MULTIQUIMICA DOMINICANA, S.A., a Dominican Republic Corporation, Plaintiff

- Appellee

versus CHEMO INTERNATIONAL, INC., a Florida corporation, Defendant

- Appellant.

________________________ Appeal from the United States District Court for the Southern District of Florida

________________________ (September 1, 2017)
Before ROSENBAUM, JULIE CARNES, and JILL PRYOR, Circuit Judges. PER CURIAM:

Case: 16-16784 Date Filed: 09/01/2017 Page: 1 of 122 I. This appeal comes before us on the issue of whether the district court committed clear error when it found that Defendant

- Appellant Chemo International, Inc. (“Chemo”) , waived its right to collect underpaid commissions owed to it by Plaintiff

- Appellee M ultiquimica Dominicana, S.A. (“Multiquimica”). Multiquimica, a Dominican Republic manufacturer of paint resins and emulsions, and Chemo, a Florida corporation , successfully did business together for many years beginning in 1995 . During this time, Chemo held two roles. First, Chemo purchased various raw materials from Multiquimica. In this capacity, Chemo would submit a purchase order and was then required to pay for the goods delivered. Second, Chemo acted as a distributor for Multiquimica . Chemo
acq uire d customers to purchase Multiquimica’s products and f or each of its sales on behalf of Multiquimica, Chemo earned a commission. 1 Eventually, the relationship deteriorated, and in 2013, Multiquimica filed a lawsuit against Chemo. Multiquimica claimed Chemo owed it $403,786.80 for various unpaid goods. 2 Chemo did not file a counterclaim, but in its Answer, Chemo asserted the affirmative defense of offset. In this regard, Chemo claimed

1 Chemo’s commission rate varied throughout the parties’ relationship. Although the commission rate was disputed at trial, the rate is irrelevant for the purposes of this appeal

. 2 Multiquimica originally sought $436,176.80, but the parties later agreed the amount should be reduced to $403,786.80

.

Case: 16-16784 Date Filed: 09/01/2017 Page: 2 of 123 that Multiquimica owed it money from both unpaid and under paid commissions, 3 beginning in 2005 until the end of the parties’ relationship in 2010. Accordingly, Chemo sought to offset the amount owed it in commissions a gainst the $403,786.80 Multiquimica claimed it was due

. Because the parties were unable to set tle their disputes, the case proceeded to a three

- day bench trial. At trial, Multiquimica responded to Chemo’s defense of offset by asserting that Chemo had waived its right to the underpaid commissions

. 4 According to Multiquimica, Chemo cashed the under paid checks without objection. And it was not until years later that Chemo complained about the underpayments. In the meantime, Chemo continued to work on behalf of Multiquimica for years. Based on these circumstances, Multiquimica claimed Chemo waived its right to the balance of the commissions. 5 Following trial, the district court entered its Findings of Fact and Conclusions of Law. The district court concluded that Chemo had breached its

3 The claim of unpaid commissions w as based on amounts never paid by Multiquimica. In contrast, the claim of underpaid commissions was based on Chemo’s allegation that, in certain instances, Mul t iquimica failed t o pay the full commission due. 4 Chemo’s Answer did not require a re sponse , so Multiquimica was permitted to assert waiver, for the first time, at trial. See Fed. R. Civ. P. 12(b) (“If a pleading sets out a claim for relief that does not require a respo nsive pleading, an opposing party may assert at trial any defense to that claim.”). 5 The evidence showed Chemo complained about the underpayments in mid

- 2009. But the underpayments began in 2005, and the record is silent as to Chemo’s alleged complaints from 2005 to 2009. Case: 16-16784 Date Filed: 09/01/2017 Page: 3 of 124 contract with Multiquimica and owed it $403,786.80 for unpaid goods. As to Chemo’s claim for unpaid commissions, the district court found that Multiquimica owed Chemo $284,495.37

. But as to the underpaid commissions, the district court found in favor of Multiquimica. The distric t court concluded that Chemo had waived its right to full payment when it accepted Multiquimica’s checks without complaint. In the end, the district court concluded that Multiquimica was entitled to judgment on its breach

- of

- contract claim in the amount o f $403,786.80, and Chemo was entitled to an offset for unpaid commissions in the amount of $284,495.37. Chemo appeals only the district court’s finding of waiver with respect to the underpaid commissions. After careful consideration, we affirm.
I I . Follo wing a bench trial, we review the district court’s findings of fact for clear error and its conclusions of law de novo

. Proudfoot Consulting Co. v. Gordon , 576 F.3d 1223, 1230 (11th Cir. 2009) (citation omitted) . A factual finding is clearly erroneous “ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Id. (citations omitted). If the district court’s factual determination of the evi dence is plausible in light of the record, we may not reverse that finding even if we would have weighed the evidence differently.

Case: 16-16784 Date Filed: 09/01/2017 Page: 4 of 125 Anderson v. City of Bessemer , 470 U.S. 564, 574 (1985). So where two permissible views of the evidence can exist , a factfin der’s choice between them cannot be clearly erroneous. Id. ; Fla. Int’l Univ. Bd. of Trs. v. Fla. Nat’l Univ.,
Inc. , 830 F.3d 1242, 1255 (11th Cir. 2016). This case came before the district court on the basis of the court’s diversity jurisdiction. As acknowledged by the district court and the parties , the waiver issue presented here is governed by Florida law. See Air Prod s . and Chem s ., Inc. v. La. Land and Exp l . Co. , 867 F.2d 1376, 1379 (11th Cir. 1989). 6

II I . We first note that u nder Florida law, waiver is a n issue of fact. See MDS (Canada) Inc. v. Rad Source Techs., Inc. , 720 F.3d 833, 85 1 (11th Cir. 2013) (citing Rutig v. Lake Jem Land Co. , 20 So. 2d 498 (Fla. 1945) (“The question of waiver is usually one of fact for consideration by a tria l jury on issues properly defined.”) ; see also Leonardo v. State Farm Fire and Cas. Co. , 675 So. 2d 176, 178

- 79 (Fla. Dist. Ct. App. 1996) (waiver is an issue that should be resolved on a

case - by

- case basis, by the trier of fact)

. Rulings relating to waiver also involve equitable principles. MDS , 720 F.3d at 853. A trial judge’s finding on the issue of

6 Florida’s choic e - of

- law rules require contract

- performance disputes to be governed by the law of the contract’s place of performance. Gov’ t Emp s . Ins. Co. v. Grounds , 332 So. 2d 13, 14

- 15 (Fla. 1976) (per curiam ). The place of performance is where the cause of action was brought, maintained, and defended. See id. at 15.

Case: 16-16784 Date Filed: 09/01/2017 Page: 5 of 126 waiver will be reversed only if no “competent, substantial evidence” support s it.
See Bolin v. State , 793 So. 2d 894, 897 (Fla. 2 001) (citing Hill v. Ray Carter Auto Sales, Inc. , 745 So. 2d 1136, 1138 (Fla. D ist. C t. A pp. 1999)). Florida law defines waiver as “ the voluntary and intentional relinquishment of a known right or conduct which implies the voluntary and intentional relinq uishment of a known right.” Raymond James Fin. Servs. , Inc. v. Saldukas , 896 So. 2d 707, 711 (Fla. 2005) (citation omitted)

. To establish waiver, a party must show (1) the existence at the time of the alleged waiver of a right, privilege, advantage, or benefit which may be waived; (2) the actual or constructive knowledge of th at right; and (3) the intention to relinquish th at right. Goodwin v. Blu Murray Ins. Agency, Inc. , 939 So. 2d 1098, 1104 (Fla. Dist. Ct. App. 2006); see also Air Prods. a nd Chems., Inc. , 867 F.2d at 1379. Florida law recognizes that w aiver may be express or implied by conduct

. Id

. But in order for waiver to be implied by conduct, th e acts, conduct, or circumstances must make out a clear case. See Goodwin , 939 So. 2d at 1104 (c iting Fireman’s Fund Ins. Co. v. Vogel , 195 So. 2d 20, 24 (Fla. Dist. Ct. App. 1967)) ; MDS , 720 F.3d at 852 (citation omitted)

. Further, Florida courts have recognized that waiver does not arise merely from “ forbearance for a reasonable time .” See Firema n’s Fund , 195 So. 2d at 24. Waiver is an affirmative defense, so the party invoking the defense has the burden of proof. Goodwin , 939

Case: 16-16784 Date Filed: 09/01/2017 Page: 6 of 127 So. 2d at 1104 (citation omitted)

. We determine whether waiver is established by “examining only the actions and intent of the party charged with waiver, and not the party asserting the defense.” Air Prods. and Chems. , Inc. , 8 67 F.2d at 1379 (citation omitted). Here, Multiquimica invoke d the affirmative defense of waiver , so it ha d the burden of proof to establish the defense

. With respect to underpaid commission s , the district court determined that Chemo had waived its claim. Accordingly, the district court concluded that Chemo did not have a valid cla im for offset for any underpaid commissions. In support of its ruling, and having had the benefit of hearing testimony during a three

- day trial, the district court made a factual finding that throughout their relationship, “Multiquimica paid commissions t o Chemo and Chemo accepted and deposited payment of commissions without disputing the amounts paid at the time it deposited the checks.” T he district court then determined that Chemo’s deposit of commissions without any objection was an acceptance of the commissions and waiver of any dispute regarding the rate. In support of its finding of waiver by Chemo, the district court relied on CB Abrogast v. Bryan , 393 So. 2d 606, 6 09 (Fla. Dist. Ct. App. 1981), and held, “ A party cannot accept a commission rate and continue its work only to later complain that the reduction in commiss ion was a breach of contract.”

Case: 16-16784 Date Filed: 09/01/2017 Page: 7 of 128 T he district court did not abuse its discretion when it found that Ch emo waived its claim to underpaid commissions

. We therefore affirm. Here, the first two element s of waiver are not at issue

— Chemo had a right to be paid commissions and was fully aware of that right. Rather, t he crux of this appeal surround s the third e lement of waiver

— whether the district court r easonably concluded t hat Chemo had the intention to relinquish its right to be paid a full commission. We acknowledge that under Florida law, mere delay is insufficient to support a claim of waiver. See A ir Prods. and Chems. , Inc. , 867 F.2d at 1380 (citing O’Brien v. O’Brien , 424 So. 2d 970, 971 (Fla. Dist. Ct. App. 1983)). Instead, to imply waiver from conduct, Multiquimica must show that Chemo’s dilatory behavior amount s to more than just delay. W e also acknowledge that waiver does not arise from forbearance for a reasonable time. To be sure, the evidence presented at trial could have been weighed in more than one way . But we find no error in the district court’s conclusion because Multiquimica p resented competent, substantial evidence that Chemo intended to waive its commissions. To begin with, Multiquimica set forth evidence tending to show that Chemo continued to perform as if a contract were still intact. Despite the fact that Multiquimica allegedly breached its duty to fully pay Chemo’s commissions, Chemo continued to do business with Multiquimica for years after the

Case: 16-16784 Date Filed: 09/01/2017 Page: 8 of 129 underpayments began. These actions tend to support a finding of waiver. See Am.
Somax Ventures v. Touma , 547 So. 2d 1266, 1268

- 69 (Fla. D ist. C t. A pp. 1989). Chemo also did not merely delay in lodging its complaint regarding the underpayments . Rather, in addition, it accepted and cashed checks and continued its business relationship with Multiquimica without objection for years . Significantly, t he evidence suggests that Chemo did not wr i te Multiquimica to complain about underpayments of commissions until four years after the alleged underpayments began

. The first written complaint by Chemo was dated March 2009 and related to shipments made in 2005. Based on this timeline, nearly four
years pas sed between shipment and Chemo’s objection. 7 True, in a different case, we found no waiver where five years pas sed before the plaintiff complained abo ut underpayments. Air Prod s. and Chem s. , Inc. , 867 F.2d at 1379

- 80 . But we did so because unlike here, the circumstances supported a finding of mere delay

. This case involves more than mere delay. Instead, affirmative action support s waiver

— the acceptance and receipt of checks, and the continuation of a business relationship without objection regarding the amounts paid.

7 While we realize Chemo c laims that it made verbal objections prior to this time, the district court was in the best position to make credibi lity determinations and apparently concluded such objections had not sufficiently been made.

Case: 16-16784 Date Filed: 09/01/2017 Page: 9 of 1210 As to Florida precedent, the intermediate courts of appeal ha ve found reasonably timely objections to underpaym ent when objections were lodged within ten months, see Mercede v. Mercede Park Italian Rest., Inc. , 392 So. 2d 997 (Fla.
D ist. C t. A pp. 1981) (no waiver after ten months of forbearance), but have concluded that waiver occurred where a party accepted a redu ced commission for six years before bringing suit. S ee Colonial Penn Cmtys., Inc. v. Crosley , 443 So. 2d 1030 (Fla. D ist. C t. A pp. 1984) (waiver after six years of forbearance) ; Abrogast , 393 So. 2d at 606 (waiver after failing to object for six years).
W ithin that range, specific determinations of reasonable forbearance have been left as a question for the factfinder. See Goodwin , 939 So. 2d at 1104 . As relevant here, at least one Florida intermediate court has concluded that a party’s forbearance for four years presented a question of fact f or the jury as to whether waiver had occurred. Id. at 1104. In remanding the case for a factual finding , the Goodwin C ourt implicitly acknowledged that forbearance for four years could constitute w aiver. Id. Because here , Chemo arguably delayed for four years in objecting to the underpayments, we cannot say that the district court clearly erred in finding waiver. 8

8 T he district court did not explicitly note the period of time that pas sed between the underpayment of commissions and Chemo’s objection . But th e evidence presented during the three

- day trial demonstrates a significant delay

.

Case: 16-16784 Date Filed: 09/01/2017 Page: 10 of 1211 We acknowledge that Chemo contests the timeframe at issue. It contends that because Multiquimica did not make payments for the 2005 shipments until 2007, Chemo actually voiced its object ion in less than four years. But even assuming Chemo is correct, that still leaves approximately two years ’ worth of time that Chemo accepted checks an d failed to object to Multiquimica ’s underpayments

. Because Florida law is ambiguous about exactly what timeframe constitutes reasonable forbearance for the purpose s of establishing waiver, we must affirm the district court’s holding . Even if we were to disagree with the district court’s determination that the length of Chemo’s forbearance was unreasonable, under Florida law, we cannot say that the district court clearly erred. In defense of its delay, Chemo asserts that it deposit ed the commission checks immediately in order to continue function ing as a business. But Chemo’s argument cuts both ways. If Chemo was in urgent need of its commissions , that fact only underscores the potential unreasonableness of wait ing two to four yea rs to object to the underpayment. We do not suggest that Chemo was required to object contemporaneously to the underpayments to avoid a finding of waiver , but

we find no error in the district court’s determination that waiver occurred where
two to four ye ars had elapsed before Chemo voiced its objection

. IV. For the foregoing reasons, we affirm the ruling of the district court. Case: 16-16784 Date Filed: 09/01/2017 Page: 11 of 1212 AFFIRM ED . Case: 16-16784 Date Filed: 09/01/2017 Page: 12 of 12