Third District Court of Appeal

State of Florida

Opinion filed July 15, 2015.

Not final until disposition of timely filed motion for rehearing.

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Nos. 3D14-1141; 3D14-1137; 3D13-3057

Lower Tribunal Nos. 13-27; 13-2406

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Rener Da Cunha, etc., et. al.,

Appellants,

vs.

Shmuel Mann, et. al.,

Appellees

Appeals from the Circuit Court for Miami-Dade County, Maria M. Korvick,

Judge.

Boldt Law Firm, Kimberly L. Boldt and Jeffrey D. Mueller and Mario R.

Giommoni (Boca Raton); Hoffman & Hoffman, P.A., John Hoffman and Theresa

Hoffman; Dorot & Bensimon, P.L., and Datan Dorot, for appellants.

The Bernstein Law Firm, Michael I. Bernstein and Jason B. Pear; Therrel,

Baisden, P.A., Jonathan Feuerman, for appellees.

Before ROTHENBERG, LAGOA and FERNANDEZ, JJ.

FERNANDEZ, J.

Rener Da Cunha, etc., et al., appeal the trial court's Final Judgment of

Declaratory Relief recognizing Shmuel Mann, et al.’s rights, pursuant to a
Memorandum of Understanding. Da Cunha also appeals the Order Granting

Joint Motion to Compel Compliance with Settlement Agreement. We strike

paragraph fifteen of the Final Judgment of Declaratory Relief, and reverse the Order

Granting Joint Motion to Compel Compliance with Settlement Agreement because

the trial court’s orders effectively disposed of an issue that was neither pled nor

litigated, and the court disposed of the issue without a party’s consent. 

The Ira S. Barton Revocable Trust (“Barton Trust”) created two subtrusts

upon Dr. Ira S. Barton's death: (1) a minor trust for the sole benefit of the minor child

of Da Cunha (“Minor Trust”), and (2) a trust for the benefit of the Ira S. Barton

Chessed Foundation, Inc. (“Chessed Foundation”). Bramco, LLC was a company

intended to provide management services to the businesses and entities that funded

the Chessed Foundation. The Barton Trust also provided for the distribution of the

parties' membership interests in Bramco, LLC. 

Rener Da Cunha is one of several appellants, each of whom is a beneficiary

under the Barton Trust.1 The trustees of the Barton Trust consist of the appellees

who are also the trustees of the Chessed Foundation.2 Those with membership

interests in Bramco, LLC include all of the appellants and appellee Shmuel Mann.3

1 The other appellants include Daniela Da Cunha, Luis Quevedo, and Olivia

Botero.

2 The appellees include Asher Dadon, Eyal Anavim, David Shapiro, Joseph

Duchman, and Barbara Williamson.

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Mann filed a Motion for Final Summary Judgment for Declaratory Relief. He

sought to be named trustee of the Minor Trust, and recognition that the Barton

Trustees had issued the respective interests in Bramco, LLC to the beneficiaries

designated in the Barton Trust. In paragraph fifteen of the Final Judgment of

Declaratory Relief, the trial court ordered as follows:

Subject to the reservation of rights by the Trustees of the

Ira S. Barton Revocable Trust relating to the

Memorandum of Understanding . . . all the membership

interests in Bramco, LLC have been distributed by the

Trustees of the Ira S. Barton Revocable Trust to the parties

set forth in Paragraph 14 above effective as [of] September

23, 2013.

After the hearing on the motion for final summary judgment, Mann's counsel

provided the trial court with a proposed order on the Motion for Final Summary

Judgment for Declaratory Relief. Da Cunha alleged that paragraph fifteen of the

Final Judgment of Declaratory Relief was not included in the approved order, but

was somehow inserted in the order that circulated after the hearing. Da Cunha

moved for rehearing. The trial court summarily denied the motion.

Mann thereafter filed a Joint Motion to Compel Compliance with Binding

Settlement Agreement with Incorporated Memorandum of Law. Da Cunha

opposed the motion, after which the trial court concluded that the Memorandum of

Understanding constituted a binding and enforceable agreement.

3 Mann is also the current trustee of the Minor Trust.

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Da Cunha filed a Motion to Stay Pending Appeal, which this Court granted.

He also filed a Motion to Strike and Objection to Joint Motion to Compel

Compliance with Binding Settlement Agreement. Da Cunha asserts that we

should strike paragraph fifteen from the trial court's Final Judgment of Declaratory

Relief and reverse the Order Granting Joint Motion to Compel Compliance with

Settlement Agreement. We agree.

We review a motion to grant summary judgment de novo. See Volusia Cnty.

v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000); Sierra v.

Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000). If "an issue was not presented

by the pleadings nor litigated . . . during the hearing on the pleadings . . . decree

adjudicating [the] issue is, at least, voidable on appeal." Dysart v. Hunt, 383

So. 2d 259, 260 (Fla. 3d DCA 1980); Rotta v. Rotta, 34 So. 3d 107, 107-08 (Fla.

3d DCA 2010)(vacating a $400,000 judgment entered in favor of the husband

because the relief was never pled, asserted, claimed in any other fashion, or a

subject of the trial); Airport Plaza Ltd. P’ship v. United Nat’l Bank of Miami, 611

So. 2d 1256, 1257 (Fla. 3d DCA 1992)(holding that it is "improper to introduce at

trial issues not previously raised in the pleadings").

The trial court may only adjudicate an issue that was not pled if it was tried

with the opposing party's express or implied consent. Dysart, 383 So. 2d at 260.

Implied consent is given in one of two ways. See Bilow v. Benoit, 519 So. 2d

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1114, 1116 (Fla. 1st DCA 1988). One way a party can give implied consent is

when the party fails to object to issues that were raised in the pleadings. Id. 

Another way a party gives implied consent is when the party fails to object to

questions and answers given at trial that were irrelevant to the issues raised in the

pleadings. Id.

Mann asserts that the Final Judgment of Declaratory Relief should be

upheld because it did not adjudicate any rights of the parties, and Da Cunha

gave express or implied consent. We disagree with this assertion. Even if the trial

court did not adjudicate the rights of the parties, the court raised an issue not

contained in the pleadings when it recognized the rights of the trustees under the

Memorandum of Understanding. Additionally, Da Cunha objected to the order on

the Motion for Final Summary Judgment for Declaratory Relief and did not give

consent.

As this Court stated in Airport Plaza Ltd. Partnership, it is improper to

introduce at trial an issue which the parties did not raise in their pleadings. Airport

Plaza Ltd. P’ship, 611 So. 2d at 1257. In that case, the appellants sought

rescission of a contract and alleged that the appellees made two fraudulent

misrepresentations in their complaint. Id. at 1256. At trial, the appellants alleged a

new, third misrepresentation. Id. at 1257. The trial court did not consider the third

misrepresentation when it ruled against the appellants. Id. 

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First, neither Da Cunha nor Mann pled the existence or validity of the

Memorandum of Understanding in any of their pleadings. None of the petitions,

responses, answers, or motions filed at the time of the hearing on the Motion for

Final Summary Judgment for Declaratory Relief raised the parties' rights under the

Memorandum of Understanding as an issue before the trial court. Moreover, none

of these documents even mentioned the Memorandum of Understanding.

Furthermore, Mann could have created a separate breach of contract action to

enforce the Memorandum of Understanding as a binding agreement. Despite

failure to do so, the trial court determined that "[s]ubject to the reservation of

rights by the Trustees of the Ira S. Barton Revocable Trust relating to the

Memorandum of Understanding . . . all the membership interests in Bramco, LLC

have been distributed by the Trustees." It was not until the filing of the Joint

Motion to Compel Compliance with Binding Settlement Agreement with

Incorporated Memorandum of Law that Mann actually raised this issue before

the trial court.

Second, as we already mentioned, Da Cunha objected to the order on the

Motion for Final Summary Judgment for Declaratory Relief. Additionally, Da

Cunha did not give express or implied consent. Mann contends that Da Cunha's

support of the Motion for Final Summary Judgment for Declaratory Relief, his

failure to reject money he received from the dissolution of Bramco, LLC, and his

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consent to the summary judgment order are evidence of Da Cunha's express or

implied consent to determine whether the parties had rights under the

Memorandum of Understanding. This contention is misplaced.

The Motion for Final Summary Judgment for Declaratory Relief did not raise

the issue of the binding nature of the Memorandum of Understanding. It merely

recognized distribution of the Barton Trust. Further, the Motion for Final

Summary Judgment for Declaratory Relief never mentions the Memorandum of

Understanding, does not address the Memorandum of Understanding’s binding

nature, and does not assert any rights or obligations of the parties under the

Memorandum of Understanding. Da Cunha's failure to reject the money he

received as a result of the Memorandum of Understanding also fails to

demonstrate implied consent for the court to adjudicate the Memorandum of

Understanding as a binding and enforceable agreement.

Da Cunha contends, as he did below, that he did not expressly approve the

order on the Motion for Final Summary Judgment for Declaratory Relief because a

different order circulated for approval. He alleges that paragraph fifteen was added

after the parties approved the original fourteen-paragraph order. On review, this

Court must consider the evidence in the light most favorable to, and draw all

competing inferences in favor of, the nonmoving party. Estate of Marimon ex rel. 

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Falcon v. Florida Power & Light Co., 787 So. 2d 887, 890 (Fla. 3d DCA 2001). 

Da Cunha thus did not expressly consent to the order. 

In conclusion, we strike paragraph fifteen from the Final Summary

Judgment of Declaratory Relief. Additionally, we reverse the Order Granting Joint

Motion to Compel Compliance with Settlement Agreement that adjudicated the

Memorandum of Understanding a binding and enforceable agreement, and remand

to the trial court to allow Da Cunha to assert defenses to the Settlement Agreement.

Reversed and remanded with instructions.

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