Sterbenz et al v. Anderson
Filing
153
ORDER: Defendant Lois N. Anderson's Motion to Amend Judgment to Reflect Setoff 147 is DENIED and Anderson's Motion for New Trial 150 is DENIED. Signed by Judge Virginia M. Hernandez Covington on 3/28/2013. (MEB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CHRISTOPHER A. STERBENZ,
Plaintiff,
v.
Case No.
8:11-cv-1159-T-33TBM
LOIS N. ANDERSON,
Defendant.
__________________________________/
ORDER
This cause is before the Court pursuant to Defendant Lois
N. Anderson’s Motion to Amend Judgment to Reflect Setoff (Doc.
# 147) filed on November 9, 2012. Plaintiff Christopher A.
Sterbenz filed a response in opposition to the motion (Doc. #
148)
on
November
23,
2012.
Also
before
the
Court
is
Anderson’s Motion for New Trial (Doc. # 150) filed on December
3, 2012, to which Sterbenz filed a response in opposition
(Doc. # 151) on December 5, 2012.
After due consideration and for the reasons that follow,
the Court denies the Motion for New Trial and denies the
Motion to Amend Judgment.
I.
Background
Plaintiff Christopher Sterbenz initiated this action on
May 25, 2011, alleging one count for negligence against
Defendant Lois N. Anderson, arising out of damages sustained
by his condominium unit from a sewage backup. (Doc. # 1).
Sterbenz alleged that Anderson, who owns the condominium unit
directly above Sterbenz’s, flushed an inappropriate item -specifically a clothing garment -- down her toilet, where it
became lodged in the sewer line shared by both condominiums,
causing the sewage to back up and overflow through Sterbenz’s
toilet and into his condominium.
On June 20, 2011, Anderson
filed an Answer and alleged several affirmative defenses
including comparative negligence and collateral source setoff.
(Doc. # 7).
On
November
28,
2011,
Anderson
filed
a
third-party
complaint against Westchester Lake Condominium Association,
Inc. and Ameri-Tech Realty, Inc. alleging negligence and
common law indemnification. (Doc. # 19).
After receiving
leave from the Court, Sterbenz filed an amended complaint on
January 3, 2012, to add negligence, contract, and quasicontract claims against Westchester and a negligence claim
against Ameri-Tech. (Doc. # 23).
The parties mediated the case on April 23, 2012, before
Rex
Delcamp,
Esq.,
at
which
Sterbenz
reached
a
partial
settlement of his claims against Westchester. (Doc. ## 46,
48).
Sterbenz filed a notice of voluntary dismissal of his
claims against Westchester and Ameri-Tech on May 14, 2012
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(Doc. # 51), and Anderson subsequently dismissed her third
party complaint against them on August 28, 2012 (Doc. # 71).
The case proceeded to trial on November 5, 2012, during
which the Court denied Anderson’s motion for sanctions for
Sterbenz’s loss of the garment that had been retrieved from
the sewer line and denied Anderson’s request for a comparative
negligence instruction. (Doc. # 144).
On November 6, 2012,
the jury returned a verdict in favor of Sterbenz awarding him
$69,689.00 in damages. (Doc. # 142).
The Clerk entered
Judgment in Sterbenz’s favor that same day. (Doc. # 143).
On November 9, 2012, Anderson filed the instant Motion to
Amend Judgment, seeking a setoff from the amount of damages
the jury awarded against Anderson for the amounts Westchester
paid Sterbenz in settlement. (Doc. # 147).
Anderson also
filed the instant Motion for New Trial, arguing that the
Court’s failure to give an adverse inference jury instruction
as a spoliation sanction and refusal to give a comparative
negligence jury instruction unduly prejudiced her, warranting
a new trial. (Doc. # 150).
These motions are now before the
Court.
II.
Motion for New Trial
A.
Legal Standard
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Federal Rule of Civil Procedure 59 governs motions for a
new trial and generally provides that a new trial may be
granted “on all or some of the issues -- and to any party -. . . after a jury trial, for any reason for which a new trial
has heretofore been granted in an action at law in federal
court.” Fed. R. Civ. P. 59.
The Supreme Court has noted that
a party may seek a new trial on grounds that “the verdict is
against the weight of the evidence, that the damages are
excessive, or that, for other reasons, the trial was not fair
to the party moving; and may raise questions of law arising
out of alleged substantial errors in admission or rejection of
evidence or instructions to the jury.” Montgomery Ward & Co.
v. Duncan, 311 U.S. 243, 251 (1940).
By
her
pursuant
to
present
Rule
motion,
59(a)
of
Anderson
the
seeks
Federal
a
Rules
new
trial
of
Civil
Procedure, arguing that the Court rendered two erroneous
rulings in this matter that prejudiced Anderson: (1) the
Court’s denial of Anderson’s request for spoliation sanctions;
and (2) the Court’s refusal to give a comparative fault jury
instruction.
B.
Spoliation Sanctions
Prior to trial, on October 15, 2012, Anderson filed a
Motion
for
Determination
of
Spoliation
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of
Evidence
and
Appropriate Sanctions (Doc. # 92), requesting the Court to
impose sanctions against Sterbenz due to his failure to
preserve evidence, specifically the garment retrieved from
Anderson’s
requested
and
the
Sterbenz’s
Court
to
shared
dismiss
sewer
the
line.
case,
Anderson
or
in
the
alternative, to enter an order excluding Sterbenz’s experts
from testifying at trial and/or issue a jury instruction on
spoliation of evidence which raises an adverse presumption
against Sterbenz. Id. at 5.
On November 2, 2012, the Court entered an Order which,
among other things, deferred ruling on Anderson’s motion until
trial. (Doc. # 132).
Specifically, the Court noted that
Sterbenz could not confirm at that point whether the garment
had been destroyed, and, thus, the Court could not determine
at that point whether any evidence had in fact been spoliated.
Id. at 10-11. The Court thus deferred ruling on the motion
until trial “when the presence or absence of the relevant
garment would reveal and establish whether or not it has been
destroyed.”
Id. at 11.
At trial, the garment was not provided by Sterbenz, thus,
revealing that it had in fact been disposed of.
Accordingly,
the Court heard arguments from the parties regarding whether
sanctions were appropriate.
After hearing arguments from the
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parties, the Court determined that the disposal of the garment
did not constitute sanctionable spoliation and orally denied
Anderson’s motion for sanctions. (Doc. # 144).
In her present motion, Anderson argues that she was
prejudiced by the absence of the garment at trial and asserts
that a new trial is warranted based on the Court’s refusal to
give an adverse inference jury instruction.
The Court does
not find Anderson’s argument persuasive.
The decision whether to impose spoliation sanctions is
committed to the discretion of the Court.
See United States
v. Lanzon, 639 F.3d 1293, 1302 (11th Cir. 2011).
“In this
circuit, an adverse inference is drawn from a party’s failure
to preserve evidence only when the absence of that evidence is
predicated on bad faith.” Bashir v. Amtrak, 119 F.3d 929, 931
(11th Cir. 1997)(citation omitted). Further, “mere negligence
in losing or destroying the records is not enough for an
adverse inference, as it does not sustain an inference of
consciousness of a weak case.”
Id. (internal quotations and
citations omitted).
As
in
his
response
to
Anderson’s
motion,
Sterbenz
maintained at trial that he did not know who had disposed of
the garment, that it could have been inadvertently disposed of
by any of the many workers repairing his condominium, and that
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he did not give anyone instructions or permission to destroy
it.
Anderson
Sterbenz’s
Anderson
did
not
contentions;
provided
no
present
thus,
any
probative
the
evidence
to
refute
Court
determined
that
evidence
indicating
that
Sterbenz purposely lost or destroyed the garment. Rather, the
garment appeared to have been lost only through Sterbenz’s
negligent failure to preserve it, which was an insufficient
basis for the imposition of spoliation sanctions.
In her present motion, Anderson does not provide any new
evidence suggesting that Sterbenz purposely destroyed or lost
the garment. Instead, Anderson essentially reargues that which
the Court previously considered and found lacking.
appears
to
concede
that
there
is
no
direct
Anderson
evidence
of
intentional spoliation on Sterbenz’s part and urges the Court
to determine via circumstantial evidence that Sterbenz acted
in
bad
faith
in
allowing
the
garment
to
be
destroyed.
Anderson cites Walter v. Carnival Corp., NO. 09-20962-CIV,
2010 WL 2927962, at *2 (S.D. Fla. July 23, 2010), for the
proposition that
[i]f direct evidence of bad faith is unavailable,
bad faith may be founded on circumstantial evidence
when the following criteria are met: (1) evidence
once existed that could fairly be supposed to have
been material to the proof or defense of a claim at
issue in the case; (2) the spoliating party engaged
in an affirmative act causing the evidence to be
-7-
lost; (3) the spoliating party did so while it knew
or should have known of its duty to preserve the
evidence; and (4) the affirmative act causing the
loss cannot be credibly explained as not involving
bad faith by the reason profferred by the
spoliator.
Id. at *2.
However,
Anderson
has
not
satisfied
the
enumerated
criteria because she has not provided any evidence indicating
that Sterbenz engaged in any affirmative act causing the
garment to be lost.
The court in Walter in fact reached the
same conclusion, finding that
the plaintiff has failed to present direct or
circumstantial evidence demonstrating Carnival’s
bad faith in losing the chair, or evidence showing
that Carnival engaged in an intentional affirmative
act causing the chair to be lost.
In fact, it
appears just as likely, if not more so, that the
chair was lost because of negligence, or an
oversight by an oblivious crew member in the chain
of custody, particularly since Carnival willingly
produced
other
evidence
demonstrating
the
construction and condition of the broken chair.
Id. at *3.
As in Walter, the evidence presented shows that Sterbenz
provided Anderson access to the garment for inspection and
photographs prior to trial, and that Anderson did in fact
examine and photograph the garment at that time.
In light of
this, while Sterbenz’s failure to maintain the garment for
presentation at trial was certainly imprudent, the Court
-8-
cannot say that his actions or inactions amounted to bad faith
as
required
sanction.
to
impose
an
adverse
inference
spoliation
Accordingly, Anderson’s Motion for a New Trial on
these grounds is denied.
C.
Comparative Negligence Jury Instruction
Next, Anderson argues that she is entitled to a new trial
based on the Court’s refusal to give a comparative negligence
jury instruction. The comparative negligence jury instruction
proposed by Anderson provides as follows:
The claims and defenses in this case are as
follows.
Christopher Sterbenz claims that Lois
Anderson was negligent in flushing a piece of
clothing down her toilet, which caused damage to
Mr. Sterbenz’s property.
Lois Anderson denies that claim and denies having
flushed any clothing items down her toilet at any
time or otherwise introducing such items into the
sewage system. Lois Anderson also claims the damage
resulted from the negligent actions or omissions of
Christopher Sterbenz.
Specifically, Lois Anderson claims that the damage
was caused by the negligent actions or omissions of
Christopher Sterbenz.
The parties must prove their claims or defenses by
the greater weight of the evidence.
I will now
define some of the terms you will use in deciding
this case.
(Doc. # 150 at 13).
After the close of testimony and after hearing arguments
from the parties, the Court declined to give this instruction
-9-
upon
finding
that
there
was
no
evidence
of
comparative
negligence on Sterbenz’s part.
“Comparative negligence . . . is a device designed to
allow compensation for plaintiffs who may themselves be partly
negligent, instead of eliminating their recovery altogether
under the common law doctrine of contributory negligence.”
Dep’t of Transp. v. Webb, 409 So. 2d 1061, 1063 (Fla. 1st DCA
1981). Thus, comparative negligence requires some additional,
separate negligence on the part of the plaintiff, such as when
a plaintiff sues for injuries sustained in a car accident but
his damages are reduced due to the fact that his injuries were
exacerbated by his failure to wear a seatbelt.
The evidence in this case established that the damage to
Sterbenz’s condominium was caused by a garment that had been
flushed down either Anderson’s toilet or Sterbenz’s toilet and
subsequently
became
lodged
in
the
sewer
Sterbenz’s and Anderson’s condominiums.
line
shared
by
Anderson did not
argue or present any evidence demonstrating that Sterbenz may
have been negligent in any other way to cause or exacerbate
the damage to his condominium.
Thus, Anderson’s argument and
proposed jury instruction amount to simply a denial that she
was the person who flushed the garment down the toilet and a
contention that Sterbenz, or an unknown intruder in his unit,
-10-
was in fact the party responsible for the garment being
flushed down the toilet.
Based on the impossibility that the
garment could have been partly flushed down Anderson’s toilet
and
partly
flushed
down
Sterbenz’s
toilet,
the
Court
determined that the garment could not have been negligently
flushed down the toilet by both parties.
Accordingly, the
Court
negligence
determined
that
a
comparative
jury
instruction was not appropriate.
In her present motion, Anderson does not present any new
evidence demonstrating that Sterbenz committed any additional,
separate
negligence
that
contributed
to
the
damage
his
condominium sustained. Rather, Anderson merely reiterates her
assertion that the comparative negligence instruction should
have been given because of the possibility that the garment
could have been flushed from Sterbenz’s condominium instead of
hers.
However, for the reasons explained above, the Court
again finds Anderson’s argument unavailing as it does not
provide any basis for comparative negligence on Sterbenz’s
part and, instead, amounts only to a denial of Anderson’s
fault.
However, if the jury had concluded that Sterbenz or
some unknown person in his unit had flushed the offending
garment down his toilet, then the jury would have found in
favor of Anderson.
-11-
As the jury was able to properly and fully evaluate
whether Anderson was negligent after considering the jury
instructions and verdict form that were given, the Court finds
that
a
comparative
appropriate.
negligence
jury
instruction
was
not
Thus, a new trial is not warranted based on the
Court’s refusal to give the inappropriate jury instruction,
and Anderson’s motion is denied on these grounds accordingly.
III. Motion to Amend Judgment for Setoff
A.
Legal Standard
The decision to alter or amend a judgment pursuant to
Rule 59(e) is committed to the sound discretion of the trial
court.
Am. Home Assur. Co. v. Glenn Estess & Assocs., Inc.,
763 F.2d 1237, 1238 (11th Cir. 1985).
A Rule 59(e) motion may
not be used to relitigate old matters or to raise arguments or
present evidence that were available prior to the entry of
judgment.
Michael Linet, Inc. v. Vill. of Wellington, Fla.,
408 F.3d 757, 759 (11th Cir. 2005).
“However, in tort actions allowing for a setoff under
sections 768.041 and 46.015, [Florida Statutes,] setoff is not
an affirmative defense to be considered by the jury but is a
determination regarding damages to be made by the court after
the verdict is rendered.”
Felgenhauer v. Bonds, 891 So. 2d
1043, 1045 (Fla. 2d DCA 2004).
-12-
B.
Analysis
Following the jury’s verdict finding Anderson liable, the
Clerk entered a Judgment in Sterbenz’s favor in the amount of
$69,689.00.
(Doc. # 143).
In her Motion to Amend Judgment,
Anderson requests the Court to amend the Judgment to reflect
Sterbenz’s receipt of settlement funds from former defendant
Westchester.
Anderson
does
not
know
how
much
Sterbenz
received in settlement of his claims and the parties dispute
whether the confidentiality of the settlement agreement has
been waived.
Anderson argues that she is entitled to a setoff pursuant
to
Sections
46.015(2)
and
768.041(2),
Florida
Statutes.
Section 46.015 provides:
Release of parties.. . .
(2) At trial, if any person shows the court that
the plaintiff, 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.
§ 46.015(a), Fla. Stat.
Section 768.041 similarly provides:
Release or covenant not to sue.. . .
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(2) 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.
§ 768.041(2), Fla. Stat.
Relying on D’Angelo v. Fitzmaurice, 863 So. 2d 311 (Fla.
2003), Anderson argues that she is entitled to set off the
settlement paid by Westchester from the amount of damages the
jury awarded Sterbenz.
In D’Angelo, the plaintiff reached a
settlement with one defendant prior to trial and the nonsettling defendant sought to set off this amount from the
damages the jury awarded against the non-settling defendant.
Id. at 312-13.
The Florida Supreme Court determined that the
defendant was not entitled to a setoff against the jury’s
noneconomic damages award but was entitled to a setoff against
the jury’s economic damages award. Id. at 318.
The Supreme
Court based its distinction on the fact that, at that time,
joint
and
several
liability
had
been
eliminated
for
noneconomic damages “but the setoff statutes continue to apply
to economic damages for which parties continue to be subject
to joint and several liability.” Id. at 316.
-14-
The parties agree that the damages awarded Sterbenz in
this
case
are
economic.
However,
Sterbenz
argues
that
D’Angelo no longer supports Anderson’s position because the
Florida Legislature subsequently abolished joint and several
liability for all negligence claims, regardless of whether the
damages are economic or noneconomic in nature.
768.81(3), Fla. Stat.1
See Section
Thus, argues Sterbenz, the Florida
Supreme Court’s reason for denying setoffs from noneconomic
damages in D’Angelo, i.e., the elimination of joint and
several liability for such damages, should now be extended to
apply to economic damages also, given that joint and several
liability has since been eliminated for economic damages as
well.
The Court need not make such a determination here,
because the Court determines that the facts of the instant
case
are
distinguishable
from
those
in
D’Angelo.
Specifically, D’Angelo analyzed a situation in which a nonsettling tortfeasor sought to set off amounts paid by another
tortfeasor in settlement of the medical malpractice tort
1
Section 768.81(3), Florida Statutes, provides that
“In a negligence action, the court shall enter judgment
against each party liable on the basis of such party’s
percentage of fault and not on the basis of the doctrine of
joint and several liability.”
-15-
claims against both of them.
However, in the instant case,
the
Anderson,
non-settling
tortfeasor,
seeks
to
set
off
amounts paid by Westchester in settlement of separate contract
claims brought against Westchester only.
The Amended Complaint in this case alleged causes of
action against Anderson for negligence (Count I), against
Westchester for negligence (Count II), breach of declaration
of condominium and failure to maintain common areas (Count
III), and quantum meruit (Count IV), and against Ameri-Tech
for negligence (Count V).
Westchester
at
(Doc. # 23).
mediation,
Sterbenz
After settling with
filed
a
Rule
41(a)
stipulation of voluntary dismissal of his claims against both
Westchester
and
Ameri-Tech.
(Doc.
#
51).
However,
the
stipulation expressly states that:
Counts
2
(alleging
negligence
by
Defendant
Westchester Lake Condominium Association, Inc.) and
5 (alleging negligence by Defendant Ameri-Tech
Realty, Inc.) are dismissed with prejudice without
any consideration.
Counts 3 and 4 (alleging
contract claims against Westchester) have been the
subject of a settlement agreement between Plaintiff
and Westchester and are also dismissed with
prejudice.
(Doc. # 51)(emphasis added).
Additionally, the Court’s in
camera review of the settlement agreement confirms that it was
executed in settlement of Counts 3 and 4 only.
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Florida’s setoff statutes “presuppose[] the existence of
multiple defendants jointly and severally liable for the same
damages.”
D’Angelo, 863 So. 2d at 314.
“In short, only
payments made by joint tortfeasors, i.e., persons jointly
liable with the nonsettling defendant, qualify for a setoff
under section 768.041.”
Nationsbank, N.A. v. KPMG Peat
Marwick LLP, 813 So. 2d 964, 969 (Fla. 4th DCA 2002).
Thus,
under Florida law, “the right of setoff set forth in Section
768.041 . . . applies only where the co-defendant’s settlement
is for the same tort or injury as the one committed or caused
by the tortfeasor seeking setoff.”
Lapidus v. Citizens Fed.
Sav. & Loan Ass’n, 389 So. 2d 1057, 1058 (Fla. 3d DCA 1980).
“[T]o the extent that the jury’s verdict was in part or in
whole an award of damages on account of a breach of contract,
a distinct cause of action brought against [the non-settling
defendant]
only,
Sections
768.041 and
768.31(5), Florida
Statutes, expressly restricted to torts, are inapplicable.”
Id.
Here,
the
amount
paid
by
Westchester
was
paid
in
settlement of the separate contract claims Sterbenz brought
solely against Westchester and not the negligence claim for
which Anderson was found liable.
Thus, in this situation,
setoff is not available because the settlement was not for the
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same tort -- or any tort -- as the one committed or caused by
Anderson.
Florida
courts
have
held
similarly
in
analogous
situations. For example, in Osheroff v. Rauch Weaver Millsaps
& Co., 882 So. 2d 503 (Fla. 4th DCA 2004), a real estate
broker sued certain property buyers and sellers after the
sellers failed to pay the broker a commission. The jury found
in favor of the broker and against the sellers on a breach of
contract claim, against the buyers on a tortious interference
claim, and against both the buyers and sellers on a civil
conspiracy claim.
Id. at 505-06.
The broker then settled
with the sellers, and the buyers sought to set off the
settlement amount from the tortious interference and civil
conspiracy awards assessed against them. Id. at 506.
The Osheroff court, however, denied the setoff request,
upon finding that the buyers could not be jointly liable on
the breach of contract count brought against the seller.
The
court explained that “the [buyers] cannot be jointly liable
with the [sellers] for any breach of contract claim because
the
[buyers]
had
no
agreement
with
the
brokers
to
be
responsible for any brokerage fees.” Id.
Anderson
likewise
cannot
be
jointly
liable
with
Westchester for the contract claims alleged against it because
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Anderson had no contractual duty to maintain the condominium
complex’s common areas, including the sewer lines.
Again,
Anderson is “required to support [her] claim to setoffs on a
showing that the recoveries from the designated settlements
were joint obligations with [her] debt for [negligence].”
KPMG Peat Marwick LLP, 813 So. 2d at 971.
As Anderson has not
and cannot establish any joint obligation on her part on the
contract claims Westchester settled, the Court finds that
Anderson is not entitled to a setoff under Florida law.
Regarding Anderson’s contention that denying a setoff
will result in an impermissible windfall for Sterbenz, the
Court is not convinced.
In Osheroff, the court noted that
“settlement of a breach of contract action does not preclude
recovery on a tortious interference claim involving the same
contract because while the damages recoverable by each cause
of action are overlapping, they are not necessarily coextensive.”
Id.
Furthermore, the Florida Supreme Court has expressly
rejected the argument that a potential windfall necessarily
requires a setoff. See D’Angelo, 863 So. 2d at 318 (“The
windfall argument was rejected in Wells, and we again reject
the argument.”).
As explained in D’Angelo:
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Settlement dollars are not synonymous with damages
but merely a contractual estimate of the settling
tortfeasor’s liability; they include not only
damages but also the value of avoiding the risk and
expense of trial.
Given these components of a
settlement, there is no conceptual inconsistency in
allowing a plaintiff to recover more from a
settlement or partial settlement than he could
receive as damages.
Id. (quoting Wells v. Tallahassee Mem’l Reg’l Med. Ctr., Inc.,
659 So. 2d 249, 252 (Fla. 1995)).
Accordingly, any potential
“windfall” that Sterbenz may receive does not require or
entitle Anderson to a setoff in this case.
Thus,
for
the
reasons
explained
above,
the
Court
determines that setoff is not required or available in this
case and Anderson’s Motion to Amend Judgment to Reflect Setoff
is due to be denied.
Accordingly, it is hereby
ORDERED, ADJUDGED and DECREED:
(1)
Defendant Lois N. Anderson’s Motion for New Trial (Doc.
# 150) is DENIED.
(2)
Anderson’s Motion to Amend Judgment to Reflect Setoff
(Doc. # 147) is DENIED.
DONE and ORDERED in Chambers, in Tampa, Florida, this
28th day of March, 2013.
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Copies to: All Counsel of Record
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