DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

BUREK, INC., d/b/a PINCH A PENNY, a/k/a

SOUTH TAMPA POOL SUPPLIES & SERVICES;

and JOHN L. BUREK, JR.,

Appellants,

v.

SUSAN L. GAGE, as personal representative of the

Estate of George Williams Gage, III; and 

BENJAMIN DOUGLAS EHAS,

Appellees.

Nos. 2D22-2163, 2D22-2818

CONSOLIDATED

September 29, 2023

Appeals from the Circuit Court for Hillsborough County; Rex Barbas, 

Judge.

Tracy Raffles Gunn of Gunn Appellate Practice P.A., Tampa, for 

Appellants.

Lisa M. Tanaka, Bennie Lazzara, Jr., and Michael K. Beck of Wilkes & 

Associates, P.A., Tampa, for Appellee Susan L. Gage, as personal 

representative of the Estate of George Williams Gage, III. 

No appearance for Appellee Benjamin Douglas Ehas.
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PER CURIAM.

Affirmed.

CASANUEVA and KHOUZAM, JJ., Concur. 

ATKINSON, J., Dissents with opinion.

ATKINSON, Judge, Dissenting.

I respectfully dissent. Cf. D'Angelo v. Fitzmaurice, 863 So. 2d 311, 

318 (Fla. 2003) (answering the "question . . . whether Gouty [v. Schnepel, 

795 So. 2d 959 (Fla. 2001)] stands for the proposition that 'a failure to 

establish liability will obviate set-off or that there must be a finding of no 

liability to preclude recovery' " and "limit[ing] the Gouty holding to cases 

where a settling defendant is expressly found not liable" (quoting 

D’Angelo v. Fitzmaurice, 832 So. 2d 135, 137 (Fla. 2d DCA 2002)); WalMart Stores, Inc. v. Strachan, 82 So. 3d 1052, 1054 (Fla. 4th DCA 2011) 

("In Anderson [v. Vander Meiden ex rel. Duggan, 56 So. 3d 830 (Fla. 2d 

DCA 2011)], the beneficiary of trusts brought separate complaints 

against the defendant and other nonparties alleging mishandling of the 

trusts. . . . Unlike the defendant in Anderson, Wal–Mart is seeking 

discovery of the settlement amounts, not discovery to ascertain whether 

the settled claims arose from the same injury. Here, it is undisputed 

that all of the claims in this case relate to the auto accident and arise 

from the same injuries. . . . [Wal–Mart] does not need the settlement 

information to show that the claims arise from the same injury. . . . If on 

appeal Wal–Mart is determined to be entitled to a set-off, the case can be 

remanded for the trial court to allow discovery of the settlement amounts 

and to set-off these amounts from the final judgment."). See § 46.015(2), 

Fla. Stat. (2022) ("At trial, if any person shows the court that the plaintiff, 
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or his or her legal representative, has delivered a written release or 

covenant not to sue to any person in partial satisfaction of the damages 

sued for, the court shall set off this amount from the amount of any 

judgment to which the plaintiff would be otherwise entitled at the time of 

rendering judgment." (emphasis added)); § 768.041(2), Fla. Stat. (2022) 

("At trial, if any defendant shows the court that the plaintiff, or any 

person lawfully on her or his behalf, has delivered a release or covenant 

not to sue to any person, firm, or corporation in partial satisfaction of the 

damages sued for, the court shall set off this amount from the amount of 

any judgment to which the plaintiff would be otherwise entitled at the 

time of rendering judgment and enter judgment accordingly." (emphasis 

added)).

Opinion subject to revision prior to official publication.