JOYERIA PARIS, SRL v. Escobar et al

Filing 57

ORDER granting 53 Motion for Judgment. Signed by Magistrate Judge John J. O'Sullivan on 10/6/2014. (mkr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 13-22214-CIV-O’SULLIVAN
[CONSENT]
JOYERIA PARIS, SRL,
Plaintiff,
v.
GUS & ERICK CUSTOM SERVICES,
INC. and GUSTAVO ESCOBAR,
Defendants,
________________________/
ORDER
THIS MATTER comes before the Court on the Plaintiff’s Verified Renewed Motion
for Final Judgment (DE # 53, 9/15/14).
BACKGROUND
On October 10, 2013, the plaintiff filed a three-count amended complaint for breach
of contract, fraud and a violation of the Florida Deceptive and Unfair Trade Practices Act
(“FDUTPA”), Fla. Stat. § 501.204. See Amended Complaint (DE# 11, 10/10/13). The Court
dismissed the fraud and FDUTPA claims without prejudice to replead. See Order (DE# 22,
12/17/13). The plaintiff did not file a second amended complaint.
The parties reached a settlement at mediation on July 2, 2014. See Mediation
Report (DE# 50, 7/7/14). The following day, the Court entered an Order dismissing the case
with prejudice and retaining jurisdiction until September 1, 2017 to enforce the settlement
terms. See Order of Dismissal with Prejudice (DE# 49, 7/3/14).
On September 15, 2014, the plaintiff filed the instant motion seeking the entry of a
final judgment against the defendants for breaching the settlement agreement. See
Plaintiff’s Verified Renewed Motion for Final Judgment (DE # 53, 9/15/14). On October 1,
2014, the defendants filed their response to the instant motion. See Defendant’s Response
in Opposition to Plaintiff’s Motion for Final Judgment (DE# 55, 10/1/14). The plaintiff filed its
reply on October 2, 2014. See Plaintiff’s Reply Supporting It’s [sic] Verified Renewed Motion
for Final Judgment (DE# 56, 10/2/14). This matter is ripe for adjudication.

ANALYSIS
A settlement agreement is a contract and its construction as well as its enforcement
are governed by principles of Florida’s general contract law. Wong v. Bailey, 752 F.2d 619,
621 (11th Cir. 1985). “The party seeking to enforce a settlement agreement bears the
burden of showing the opposing party assented to the terms of the agreement.” BP
Products North America, Inc. v. Oakridge at Winegard, Inc., 469 F. Supp. 2d 1128, 1133
(M.D. Fla. 2007) (citation omitted). The unambiguous language in a contract is to be given a
realistic interpretation based on the plain, everyday meaning conveyed by the words. Kipp v.
Kipp, 844 So.2d 691, 693 (Fla. 4th DCA 2003). If necessary, because the agreement is
unclear, the court shall “‘determine the intention of the parties from the language of the
agreement, the apparent objects to be accomplished, other provisions in the agreement that
cast light on the question and the circumstances prevailing at the time of the agreement.’”
Somerset Pharmaceuticals, Inc. v. Kimball, 49 F. Supp. 2d 1335, 1338 (M.D. Fla.
1999)(quoting Schwartz v. Florida Bd. of Regents, 807 F.2d 901, 905 (11th Cir. 1987)).
The settlement agreement entered into by the parties required the defendants to
make 36 consecutive, monthly payments of $2,777.77. See Mediation Settlement
Agreement (DE# 53 at 3, 9/15/14). The initial payment was due on August 1, 2014. In its
verified motion, the plaintiff avers that the defendants breached the settlement agreement
by failing the make the initial payment on August 1, 2014. See Plaintiff’s Verified Renewed
Motion for Final Judgment (DE # 53, 9/15/14). To date, the defendants have made no
payments towards the settlement amount. See Plaintiff’s Reply Supporting It’s [sic] Verified
Renewed Motion for Final Judgment (DE# 56 at 1-2, 10/2/14) (stating that on September 5,
2014, the defendants delivered a check for the payments due on August 2014 and
September 2014, but the check bounced). In their response, the defendants state that they
attempted to make the first payment, but the plaintiff’s counsel had moved offices.1 See

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The plaintiff’s counsel acknowledges that he moved offices, but in mid-August, not
when the initial payment was due on August 1, 2014. See Plaintiff’s Reply Supporting It’s
[sic] Verified Renewed Motion for Final Judgment (DE# 56 at 1, 10/2/14).
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Defendant’s Response in Opposition to Plaintiff’s Motion for Final Judgment (DE# 55 at 1,
10/1/14). The defendants further state that they will make three payments in the beginning
of October, 2014. However, to date, the defendants have made no attempts to cure the
breach.
The settlement agreement provides that: “If any payment is not timely received by
plaintiff’s counsel then plaintiff’s counsel may file a motion for final judgment with counsel’s
affidavit of non-payment, with a judgment being entered against the defendants for
$200,000.00 minus any sums paid under this agreement.” Mediation Settlement Agreement
(DE# 53 at 3, 9/15/14). Because no payment was made by the August 1, 2014 due date,
the defendants are in breach of the settlement agreement. Accordingly, the Court will grant
the instant motion and enter a separate judgment in the amount of $200,000.00 against the
defendants.
CONCLUSION
Based on the foregoing, it is
ORDERED AND ADJUDGED that the Plaintiff’s Verified Renewed Motion for Final
Judgment (DE # 53, 9/15/14) is GRANTED.
DONE AND ORDERED, in Chambers, in Miami, Florida, this 6th day of October,
2014.
________________________________
JOHN J. O’SULLIVAN
UNITED STATES MAGISTRATE JUDGE
Copies furnished to:
All counsel of record

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