Chicken Kitchen USA, LLC v. Maiden Specialty Insurance Company
Filing
148
ORDER denying 130 Defendant's Motion for Summary Judgment. Signed by Magistrate Judge Jonathan Goodman on 8/31/2016. (jf00)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 14-23282-CIV-GOODMAN
[CONSENT CASE]
CHICKEN KITCHEN USA, LLC, as assignee of
THREE CHEFS AND A CHICKEN, INC.
Plaintiff,
v.
MAIDEN SPECIALTY INSURANCE
COMPANY,
Defendant.
__________________________________________/
ORDER DENYING DEFENDANT’S SUMMARY JUDGMENT MOTION
In the instant bad faith insurance case, Defendant, Maiden Specialty Insurance
Company (“Maiden”), seeks summary judgment against Plaintiff, Chicken Kitchen
USA, LLC (“Chicken Kitchen”), 1 as to the unenforceability of Chicken Kitchen and
In the underlying action, Chicken Kitchen USA, LLC v. Three Chefs and a Chicken, et
al., United States District Court for the Southern District of Florida, Case No. 12-20891CIV-HUCK/BANDSTRA, Chicken Kitchen sued its former franchisee, Three Chefs and
a Chicken (“Three Chefs”), for the following counts: Breach of Contract; Injunctive
Relief; Misappropriation of Trade Secret; Injury to Business Reputation and Dilution;
Trade Dress Infringement; Unfair Competition under the Lanham Act; Unfair
Competition under Florida Common Law; and Violation of the Florida Deceptive and
Unfair Trade Practices Act (“Underlying Action”). [ECF No. 131, ¶ 17].
1
Three Chefs’ 2 Coblentz Agreement.3 In its motion [ECF No. 130, pp. 17-20], Maiden also
asks this Court to find in the alternative that no reasonable jury could conclude that
Maiden acted in bad faith under the totality of the circumstances. The Undersigned has
reviewed Maiden’s motion [ECF No. 130] and statement of material facts in support of
its motion [ECF No. 131], Chicken Kitchen’s response [ECF No. 139], and Maiden’s
reply [ECF No. 143]. The Undersigned denies Maiden’s motion.
I.
Chicken Kitchen’s Procedural Defects
Chicken Kitchen did not file a statement of disputed facts in response to
Maiden’s statement of undisputed material facts in support of its summary judgment
motion. [ECF No. 131]. Chicken Kitchen did, however, submit rebutting evidence in its
response, including the affidavit of its principal Christian Mahe De Berdouare; records
Three Chefs is the named insured under a commercial general liability policy
with Maiden that covers “advertising injury” (the “Policy”). [ECF No. 131, Exhibit “A”].
The Policy’s limit per occurrence is $1 million and the aggregate is $2 million. [ECF No.
1, Exhibit “B”].
2
In the Underlying Action, Three Chefs and Chicken Kitchen reached a $1.2
million settlement. Under the settlement, Chicken Kitchen could not collect from Three
Chefs, and Three Chefs assigned Chicken Kitchen the insurance policy rights to pursue
that judgment directly from Maiden. [ECF No. 139, pp. 1-2]. This settlement that
Maiden seeks to invalidate is the Coblentz Agreement, which is an agreement where “an
insurer will be bound to a settlement agreement/consent judgment negotiated between
an insured and claimant” under certain conditions. Wrangen v. Pa. Lumbermans Mut. Ins.
Co., 593 F. Supp. 2d 1273, 1278 (S.D. Fla. 2008); Coblentz v. Am. Sur. Co. of New York, 416
F.2d 1059, 1063 (5th Cir. 1969) (holding that such agreements are valid under Florida
law).
3
2
of Chicken Kitchen’s damages in the Underlying Action; and Mr. Mahe De Berdouare’s
deposition. [ECF Nos. 139-1; 139-2; 139-3].
Nevertheless, despite Chicken Kitchen’s submission of evidence which turned
out to rebut some of Maiden’s undisputed facts, the Undersigned could, under Local
Rule 56.1, deem as admitted all the facts submitted by Maiden in support of its
arguments.
As the plain language of Local Rule 56.1 states, “(a): A motion for summary
judgment and the opposition thereto shall be accompanied by a statement of material
facts as to which it is contended . . . there does exist a genuine issue to be tried[.]” S.D.
Fla. L.R. 56.1(a) (emphasis supplied). The Local Rule requires that such statement “(1)
Not exceed ten (10) pages in length; (2) Be supported by specific references to pleadings,
depositions, answers to interrogatories, admissions, and affidavits on file with the
Court; and (3) Consist of separately numbered paragraphs.” Id. (emphasis supplied).
Specifically, for statements of material facts submitted in opposition to a motion
for summary judgment, the Local Rule requires “correspond[ence] with the order and
with the paragraph numbering scheme used by the movant” and requires that
“[a]dditional facts which the party opposing summary judgment contends are material
shall be numbered and placed at the end of the opposing party’s statement of material
facts [.]” Id. (emphasis supplied). Failure of a respondent to file a statement of disputed
facts, in the format as required above, causes “[a]ll material facts set forth in the
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movant’s statement” to be “deemed admitted unless controverted by the opposing
party’s statement[.]" S.D. Fla. L.R. 56.1(b) (emphasis added).
When a party properly compiles with Local Rule 56.1, it is relatively easy for a
court to determine whether there is a genuine disputed issue of fact. Basically, all a
court needs to do is to look at the opposing statement of material facts on a paragraphby-paragraph basis and quickly see whether any paragraphs are designated as
disputed. When a party does not comply with the Local Rule, however, then it is
exceedingly difficult for a court to discern if there is a factual dispute. A court needs to
review the entire opposing memorandum and determine whether any particular
sentence or paragraph is, in fact, a rebuttal piece of evidence which might generate a
disputed issue of material fact. This can be an arduous process, and, in any event,
generates unnecessary work for the court and its staff.
Chicken Kitchen did not follow any of the procedural requirements of Local Rule
56.1. Its lack of compliance is so clear-cut that the Court undoubtedly has the discretion
to deem Maiden’s facts admitted and then enter summary judgment in Maiden’s favor
as Chicken Kitchen’s defective response essentially leaves the Court with “the
functional analog of an unopposed motion for summary judgment.” Lugo v. Carnival
Corp., 154 F. Supp. 3d 1341, 1343 (S.D. Fla. 2015) (admitting facts from defendant’s
undisputed material facts statement after reviewing the record based on plaintiff’s
violation of Local Rule 56.1); Regions Bank v. 62’ Ocean Sport Fish, No. 13–20966–CIV,
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2014 WL 4055707, at *2 (S.D. Fla. Aug. 14, 2014) (admitting undisputed facts in
plaintiff’s statement supported by the record based on defendants’ violation of Local
Rule 56.1). 4
However, in recognition that the opposition contains a significant amount of
evidence which can be viewed as rebutting the facts asserted in the motion’s material
facts statement, this Court will take a more conservative approach and will consider
Chicken Kitchen’s rebutting (albeit procedurally improper) evidence.
The absence of a statement of disputed facts is not the only procedural defect in
Chicken Kitchen’s opposition. Chicken Kitchen’s response to Maiden’s summary
judgment motion neglects to state anywhere that the enforceability of the Coblentz
Agreement is materially disputed. Rather, Chicken Kitchen seeks from this Court a “de
facto” cross motion for summary judgment and an affirmative ruling that the Coblentz
Agreement was in fact indisputably executed in good faith. By arguing that the Coblentz
Agreement should be deemed valid now by the Court, Chicken Kitchen is asking for a
ruling which must depend on the absence of material factual disputes.
On the other hand, Maiden did not file a motion to strike Chicken Kitchen’s
opposition response for violating the Local Rule, nor did it interpose any objection to
the response's procedural failings. In fact, its reply never even mentioned that the
opposition response blatantly failed to follow the straightforward procedural directives
established by the Local Rule. See [ECF No. 131].
4
5
Although never explicitly stated in Chicken Kitchen’s opposition (and although
Chicken Kitchen essentially argues that a summary judgment would be appropriate,
albeit in its favor), this argument implicitly raises actual material disputes of fact as to
the enforceability of the Coblentz Agreement and whether Maiden acted in bad faith in
the Underlying Action. Despite Chicken Kitchen’s unacceptable briefing in opposition
to Maiden’s motion and despite its implicit argument that there are no material disputes
of fact, the Undersigned disagrees and therefore will not prevent a jury from weighing
the disputed evidence and evaluating the credibility of both side’s witnesses.
II.
Factual and Procedural History
The Underlying Action arose from the restaurant chain Chicken Kitchen’s
dispute with its former franchisee, Three Chefs. [ECF No. 139, p. 2]. On August 27, 1999,
Chicken Kitchen entered into a Franchisee Agreement with The McDonnough’s
Investment Group, Inc. (“McDonnough Investment Group”), whose principals are
Rudyard A. McDonnough, Rudyard McDonnough, Jr., and Richard McDonnough
(collectively “the McDonnoughs”) and opened up a Chicken Kitchen franchise
restaurant on 11423 Southwest 40th Street, Miami, Florida 33165 (“WestBird Store”).
[ECF Nos. 1, ¶¶ 10-12; 131, Exhibit “B”]. Chicken Kitchen and the McDonnoughs
operated under the Franchise Agreement until its termination in November 2007. [ECF
Nos. 1, ¶ 13; 139, p. 2).
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In June of 2011, Chicken Kitchen alleged in the Underlying Complaint that Three
Chefs opened a competing restaurant called “3 Chefs and a Chicken” on the same street
as the WestBird Store and that it was a replica of the Chicken Kitchen restaurant. [ECF
Nos. 1, ¶ 14; 139, p. 3). Chicken Kitchen claimed that the McDonnoughs were essentially
operating a Chicken Kitchen restaurant under a different name and without Chicken
Kitchen’s permission to avoid compensating Chicken Kitchen under the Franchise
Agreement. [ECF No. 1, ¶ 15].
In February 22, 2012, Three Chefs and Richard McDonnough notified Maiden of
the Underlying Action and sought Maiden’s defense under the Policy’s “personal and
advertising injury” coverage. [ECF Nos. 1, ¶¶ 18-22; 131-3; 131-41].
Three Chefs and the McDonnoughs asked Maiden to retain Richard Ross, Esq. as
counsel [ECF Nos. 1, ¶ 23; 131-3]. Maiden did not approve of Three Chefs’ choice of
counsel and Maiden also contested that the Policy covered Three Chefs for all of
Chicken Kitchen’s alleged injuries. [ECF Nos. 131-11; 131-16; 131-18; 139, p. 4]. Maiden
instead hired Moises Melendez, Esq. to defend Three Chefs under a reservation of
rights concerning coverage and indemnification and Maiden denied a defense to the
McDonnoughs on the ground that they were not named as insureds under the Policy.
[ECF No. 131-11].
On July 25, 2012, Maiden initiated a declaratory judgment action against Three
Chefs, the McDonnoughs, and Chicken Kitchen in the United States District Court for
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the Southern District of Florida, seeking a declaration of the parties’ rights and
obligations under the Policy. [ECF No. 131-14]. On August 21, 2012, the McDonnoughs
and Three Chefs sent correspondence to Mr. Melendez advising that they had decided
to retain different counsel in light of the declaratory judgment action. [ECF Nos. 131-11;
131-14].
On September 20, 2012, Eric L. Berger, Esq., counsel for Three Chefs and the
McDonnoughs in the declaratory action, sent correspondence to Mr. Moses, Esq.,
Maiden’s attorney, advising him that in light of the declaratory action, the insureds had
rejected Maiden’s defense and Maiden was barred from the Underlying Action’s
mediation. [ECF No. 131-19]. In the aftermath of the mediation, Maiden’s claims
adjuster, Vicky Cowley, alleges that she spoke with Chicken Kitchen’s counsel, and
Maiden offered $50,000 to settle the Underlying Action. [ECF No. 131-13].
On October 25, 2012, Three Chefs executed the Coblentz Agreement with Chicken
Kitchen in the amount of $1,200,000.00 and Three Chefs agreed to assign its right, title,
and interest in the Policy to Chicken Kitchen. [ECF No. 131-20]. On November 7, 2012,
the Court entered an Order approving the parties’ Joint Motion, thereby entering a
consent Final Judgment in the sum of $1,200,000.00. [ECF Nos. 131-21; 131-22].
On March 13, 2014, a Declaratory Judgment was entered in favor of Three Chefs
and the McDonnoughs by United States District Judge Joan A. Lenard, who ruled that
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allegations in Chicken Kitchen’s Complaint were covered under the Policy as “personal
and advertising injuries.” [ECF Nos. 131-25; 139, p. 4].
On September 5, 2014, Chicken Kitchen filed the instant action against Maiden to
enforce payment under the Coblentz Agreement. [ECF No. 1].
III.
Legal Standard
Summary judgment is appropriate only when the Court is satisfied “that there is
no genuine dispute as to any material fact and that the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). An issue is “genuine” if there is sufficient
evidence such that a reasonable jury could return a verdict for either party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” if it may affect the
outcome of the suit under the governing law. See id. As the movant, Maiden bears the
initial burden of showing, by reference to materials on file, that there are no genuine
issues of material fact that should be decided at trial. Id. As succinctly explained by the
Eleventh Circuit Court of Appeals, “by definition, a summary judgment ruling involves
no findings of fact.” Rich v. Sec’y, Fla. Dep’t of Corr., 716 F.3d 525, 530 (11th Cir. 2013).
IV.
Legal Analysis
This case involves a Coblentz Agreement, or “a negotiated final consent judgment
entered against an insured” that was not defended by his insurer. Wrangen, 593 F. Supp.
2d at 1278. Generally, under a Coblentz Agreement, an insured defendant enters into a
settlement that assigns to the plaintiff the insured's rights against the insurer in
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exchange for a release from personal liability. Mobley v. Capitol Specialty Ins., No. 1320636-CIV, 2013 WL 3794058, at *2 (S.D. Fla. July 19, 2013) (applying Florida law).
To bind Maiden to the Coblentz Agreement, Chicken Kitchen must initially prove
that (1) damages are covered by the Policy; 5 (2) Maiden wrongfully refused to defend;
and (3) the settlement is reasonable and made in good faith. Wrangen, 593 F. Supp. 2d at
1278; Chomat v. N. Ins. Co. of N.Y., 919 So. 2d 535, 538 (Fla. 3d DCA 2006). Maiden
retains “the ultimate burden of proof” at trial. Chomat, 919 So. 2d at 538.
Under Florida law, a Coblentz agreement is unenforceable against the insurance
carrier if the settlement is “not reasonable in amount” or “is tainted by bad faith, fraud,
collusion or is entered into without efforts to minimize liability.” See Mid-Continent Cas.
Co. v. Am. Pride Bldg. Co., LLC, 534 F. App’x. 926, 928 (11th Cir. 2013). Chicken Kitchen
has not properly moved for affirmative relief (i.e., it did not seek an actual summary
judgment), thus the Court will address only Maiden’s arguments: (a) that Maiden did
not refuse to defend Three Chefs; (b) that the Coblentz Agreement was tainted by bad
faith, fraud, collusion or was entered into without efforts to minimize liability; (c) that
the settlement amount is unreasonable; and (d) that no reasonable jury could conclude
that Maiden handled Three Chefs’ claim in bad faith.
Three Chefs’ coverage under the Policy and the Policy’s applicability to the
Underlying Action is undisputed. [ECF Nos. 131-25; 139, p. 4].
5
10
a. Whether Maiden Refused to Defend Three Chefs
An insurance provider's duty to defend an insured party “depends solely on the
facts and legal theories alleged in the pleadings and claims against the insured.”
Stephens v. Mid-Continent Cas. Co., 749 F.3d 1318, 1323 (11th Cir. 2014) (internal citations
omitted); Anapolsky v. Nat’l Union Fire Ins. Co., No. 12-21275-Civ, 2013 WL 11842018, at
*5 (S.D. Fla. Aug. 21, 2013) (“If the complaint sets forth facts which bring the claim
within policy coverage, the duty to defend arises.”) (internal citations omitted).
Maiden did hire Mr. Melendez to represent Three Chefs in the Underlying
Action and there is no evidence presented by Chicken Kitchen that disputes the quality
of such representation. In fact, Maiden’s adjuster spoke with Chicken Kitchen’s counsel
in attempt to settle the case for $50,000, even though Three Chefs barred Maiden from
participating in the mediation. [ECF Nos. 131-13; 131-19].
However, there is undisputed evidence that Maiden prevented Three Chefs to
proceed with a lawyer of its choice [ECF Nos. 1, ¶¶ 23-27; 131-3] and that Maiden
issued a reservation of its rights and actively fought against the Policy’s coverage of
Three Chefs in the Underlying Action. [ECF Nos. 131-11; 139, p. 4]. Maiden refused to
represent all the defendants in the Underlying Action and filed an unsuccessful
declaratory judgment action in attempt to avoid coverage. [ECF Nos. 131-11; 131-14;
139, p. 4]. These facts could support a conclusion that Maiden did not fulfill its duty. As
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a result, whether Maiden fulfilled its duty to defend Three Chefs in the Underlying
Action is disputed.
b. Whether the Settlement Was Tainted by Bad Faith, Fraud, Collusion or
Was Entered into without Efforts to Minimize Liability
Maiden relies on Culbreath v. Travelers Casualty and Surety Company of America.,
No. 8:12–cv–2928–T–26EAJ, 2015 WL 9434387, at *5 (M.D. Fla. Oct. 22, 2015), for the
proposition that the Coblentz Agreement was executed in bad faith because Three Chefs
decided to “lie down” and accept an inflated judgment without negotiation as long as
the judgment would come from the insurer. [ECF No. 130, pp. 6, 12]. Maiden offers
undisputed evidence as to this point through the affidavits of Three Chefs
representatives, Richard McDonnough and Rudyard A. McDonnough, and Three
Chefs’ attorneys in the Underlying Action, Richard Ross, Esq. and Eric Berger, Esq.
[ECF Nos. 86; 87; 89; 91]. In each affidavit, the affiants consistently swear to the fact that
Chicken Kitchen presented one settlement figure to Three Chefs and that it was “simply
accepted” without “give and take negotiations” or an “evaluation of the reasonableness
of the settlement amount” by Three Chefs’ attorneys. [ECF Nos. 86; 87; 89; 91].
In “determining whether a settlement is reasonable, a Florida court considers not
only such objective factors as the extent of plaintiff's injuries, but also certain subjective
factors . . . including the degree of certainty of the tortfeasor's subjection to liability, the
risks of going to trial and the chances that the jury verdict might exceed the settlement
offer.” Wrangen, 593 F. Supp. 2d at 1279 (internal quotations and citations omitted).
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Chicken Kitchen alleges that Three Chefs could not afford the costs of the litigation, let
alone a judgment in any amount if Chicken Kitchen prevailed and Maiden refused
coverage. [ECF No. 139, p. 14]. Thus, a jury needs to weigh the evidence and determine
whether Three Chefs’ acceptance of a $1.2 million settlement without negotiation or
investigation by counsel was in fact in bad faith or whether it was Three Chefs’ only
viable option.
c.
Whether the Settlement Amount Was Unreasonable
Maiden also argues that the amount of the settlement was completely
unreasonable. Maiden claims that this Court cannot consider Mr. Mahe de Berdouare’s
statements in his affidavit, deposition, and damage calculations as to the reasonableness
of the settlement amount because such filings are self-serving. Maiden cites to Walker v.
Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) for the proposition that self-serving
statements made by an interested party do not constitute sufficient evidence to survive
a summary judgment motion. [ECF No. 143, p. 7].
This Court disagrees. The Eleventh Circuit Court of Appeals has more recently
ruled that as a “general principle, a plaintiff's testimony cannot be discounted on
summary judgment unless it is blatantly contradicted by the record, blatantly
inconsistent, or incredible as a matter of law, meaning that it relates to facts that could
not have possibly been observed or events that are contrary to the laws of nature.”
Feliciano v. City of Miami Beach, 707 F.3d 1244, 1253 (11th Cir. 2013); Reid v. Sec., Fla. Dept.
13
of Corr., 486 F. App’x 848, 852 (11th Cir. 2012) (“[F]or purposes of summary judgment,
there is nothing inherently wrong with ‘self-serving testimony,’ and it may not be
disregarded by the district court in determining whether there is a genuine dispute of
fact on a material issue in the case.”); Price v. Time, Inc., 416 F.3d 1327, 1345 (11th Cir.
2005) (“Courts routinely and properly deny summary judgment on the basis of a party's
sworn testimony even though it is self-serving.”).
Mr. Mahe de Berdouare’s statements in support of Chicken Kitchen’s response
are, of course, self-serving. Parties do not typically submit affidavits in support of, or to
contest, summary judgment motions unless the affidavits are helpful. In fact, it would be
difficult to imagine a scenario where a party submitted an affidavit which was not
helpful to its side -- in other words, self-serving. Mr. Mahe de Berdouare states in his
affidavit that the Underlying Action’s damages amounted to more than $2 million, that
Three Chefs was operating a replica of Chicken Kitchen without having to compensate
Chicken Kitchen under the Franchise Agreement, that Three Chefs used identical
recipes and products to the formerly operated WestBird Store, and that Three Chefs
hired at least six of Chicken Kitchen’s employees to run its stores. [ECF No. 139-2].
The damage calculations included in Chicken Kitchen’s response [ECF No. 1392] corroborate Mr. Mahe de Berdouare’s statements in his affidavit and deposition [ECF
Nos. 139-1; 139-3]. His affidavit and calculations list the following damages: (a) loss of
profits at the WestBird Store estimated to be more than $200,000; (b) unaccounted for
14
lost profits at other Chicken Kitchen locations; (c) unaccounted for costs of hiring and
training new employees; (d) diminution of value of the WestBird store; and (e) loss of
value of the Chicken Kitchen brand.
These statements alone do not explain how Mr. Mahe de Berdouare came to
believe that $2 million dollars were owed. Maiden certainly has a right to discredit such
numbers through its own investigation. However, the existence of such statements and
testimony alone is enough to deny Maiden’s motion. Maiden may challenge those
statements at trial, through cross-examination and the submission of other evidence,
including perhaps expert witness opinion testimony. For now, however, the
Undersigned cannot simply choose to flat-out discredit all of those permissable lay
opinions and enter summary judgment for Maiden.
e.
Whether Under the Totality of the Circumstances No Jury Could Find that
Maiden Handled Three Chefs’ Claim in Bad Faith
Under Florida law, insurers owe a duty to their insureds to act in good faith.
State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So. 2d 55, 58 (Fla. 1995). To satisfy the duty
of good faith, “an insurer does not have to act perfectly, prudently, or even reasonably.”
Novoa v. GEICO, 542 F. App’x 794, 796 (11th Cir. 2013). Rather, insurers must “refrain
from acting solely on the basis on their own interests in settlement.” Laforet, 658 So. 2d
at 58.
Maiden argues that it should prevail on summary judgment because disputing
whether the Policy covered Three Chefs in the Underlying Action and filing a
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declaratory action regarding the same, standing alone, does not constitute bad faith. As
previously discussed above, there are material disputes of fact as to whether Maiden
fulfilled its duty to defend, whether the settlement was made in good faith, and
whether the amount of such settlement is reasonable.
Summary judgment may not be granted where the record reflects conflicting
versions of material facts which require credibility determinations. Hilburn v. Murata
Elecs. N. Am., Inc., 181 F.3d 1220, 1225 (11th Cir. 1999); Van Poyck v. Dugger, 779 F. Supp.
571, 572 (M.D. Fla. 1991). See also Slusser v. Orange Cty. Pub. Schs., 936 F. Supp. 895, 898
(M.D. Fla. 1996) (noting that in summary judgment proceedings, the court may not
weigh the credibility of the parties, and if the determination of the case rests on which
competing version of the facts or events is true, then the case should be presented to the
trier of fact).
Here, the credibility of the parties, and their competing versions of the facts as to
the enforceability of the Coblentz Agreement and whether Maiden acted in bad faith
must reach a jury. Through Mr. Mahe de Berdouare’s affidavit, deposition, and damage
calculations, Chicken Kitchen demonstrated (albeit in a procedurally improper way) the
existence of factual issues which require this action to proceed to trial.
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V.
Conclusion
The Undersigned denies Maiden’s summary judgment motion.
DONE AND ORDERED in Chambers, in Miami, Florida, on August 31, 2016.
Copies furnished to:
All Counsel of Record
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