GE Medical Systems S.C.S. v. SYMX Healthcare Corporation
Filing
101
FINDINGS OF FACT AND CONCLUSIONS OF LAW. Order granting 21 Motion to Enforce Settlement Agreement and for Entry of a Consent Judgment; denying 32 Cross-Motion to Reopen Case and Set Scheduling Conference. The Clerk of Court shall ADMINISTRATIVELY CLOSE the case. Signed by Judge Beth Bloom on 3/3/2021. See attached document for full details. (kpe)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 18-cv-20922-BLOOM/Louis
GE MEDICAL SYSTEMS S.C.S.,
Plaintiff,
v.
SYMX HEALTHCARE
CORPORATION,
Defendant.
_______________________________/
FINDINGS OF FACT AND CONCLUSIONS OF LAW
THIS CAUSE is before the Court upon Plaintiff GE Medical Systems S.C.S.’s
(“Plaintiff”) Motion to Enforce Settlement Agreement and for Entry of a Consent Judgment, ECF
No. [21] (“Motion to Enforce”), and Defendant SYMX Healthcare Corporation’s (“Defendant”)
Cross Motion to Reopen Case and Set Scheduling Conference, ECF No. [32] (“Motion to
Reopen”), (collectively, the “Motions”). The Court held a four-day evidentiary hearing on the
Motions. The parties submitted their proposed findings of fact and conclusions of law prior to the
evidentiary hearing,1 which they supplemented following the evidentiary hearing’s conclusion.
See ECF No. [99] (Defendant’s Proposed Findings of Fact and Conclusions of Law); ECF No.
[100] (Plaintiff’s Proposed Findings of Fact and Conclusions of Law). The Court has carefully
considered the Motions, all opposing and supporting submissions, the evidence and testimony
presented during the evidentiary hearing, the record in this case, the applicable law, and is
See ECF No. [61] (Defendant’s Proposed Findings of Fact and Conclusions of Law); ECF No. [62]
(Plaintiff’s Proposed Findings of Fact and Conclusions of Law).
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otherwise fully advised. Accordingly, the Court makes the following findings of fact and
conclusions of law.
I. BACKGROUND & PROCEDURAL HISTORY
This case involves the parties’ conduct relative to certain agreements between Plaintiff and
Defendant for the purchase and installation of medical equipment for the Ridge Hospital in Accra,
Ghana. Pursuant to the agreements, Plaintiff agreed to deliver purchased medical equipment and
to provide certain services, such as installation and routine maintenance on the equipment,
consistent with its standard limited warranties. Ultimately, Defendant purchased over $6.8 million
of medical equipment from Plaintiff for the Ridge Hospital project. Yet, as summarized by the
parties,
[a] dispute arose between GE and SYMX concerning payment of certain of the
Ridge Hospital Sales Agreements.
. . . . GE claim[ed] that SYMX owe[d] GE an outstanding total amount of
USD $2,657,151.77 (the “Outstanding Amount”) in connection with the Ridge
Hospital Sales Agreements. GE filed a lawsuit related to its claims against SYMX
entitled GE Medical Systems S.C.S. v. Symx Healthcare Corporation, U.S. District
Court for the Southern District of Florida, case no. 18‐cv‐20922‐CMA (the “GE
Lawsuit”).
. . . . For its part, SYMX [] alleged claims against GE for costs related to the
delivery of the equipment identified in the Ridge Hospital Sales Agreements, as
well as claims that GE interfered with SYMX’s relationship with Americaribe,
Inc.[2] and others. SYMX filed a lawsuit related to its claims against GE entitled
Symx Healthcare Corporation v. GE Healthcare, Inc., Circuit Court of the Eleventh
Judicial Circuit in and for Miami‐Dade County, Florida, case no. 2018‐001897‐
CA‐01 (the “SYMX Lawsuit”). SYMX also [] alleged counter-claims against GE
in the GE Lawsuit, including allegations that GE has caused SYMX to suffer lost
business opportunity and lost profits.
ECF No. [21-1] at 2.
Nonetheless, in light of their long working relationship, the parties attempted throughout
Americaribe is the wholly owned subsidiary of Bouygues Construction, “one of the largest construction
companies in the world,” and it awarded Defendant the Ridge Hospital project in March 2014. ECF No.
[32] at 2.
2
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2017 to negotiate mutually agreeable settlement terms regarding (1) Plaintiff’s claims regarding
Defendant’s failure to pay the outstanding debt owed for the medical equipment delivered; and (2)
Defendant’s grievances against Plaintiff for certain costs that it incurred as a result of Plaintiff’s
untimely delivery of medical equipment. After extensive negotiations, Plaintiff ultimately agreed
to reduce Defendant’s outstanding balance in exchange for its prompt payment and to allow
Defendant to pay its debt in installments, rather than Plaintiff’s normal business practice of
demanding payment in full. As such, by December 2017, the parties agreed that the final settlement
amount would be discounted to $2,352,594.94, which would be paid by Defendant in five
installments. Despite the parties’ mutual agreement on the settlement amount and payment
schedule, at the start of 2018, no settlement agreement had been signed and no payments had been
made.
Instead, on January 19, 2018, Defendant filed suit in Florida state court for a declaratory
judgment that it was not liable for the amount owed to Plaintiff for the Ridge Hospital equipment.
Defendant claimed that Plaintiff had breached the sales contracts by missing delivery and
installation deadlines and had tortiously interfered with Defendant’s business relationships in
Ghana.
Plaintiff subsequently filed this action on March 12, 2018, asserting breach of contract and
account stated claims against Defendant for the failure to pay for the equipment that was delivered.
Plaintiff sought to recover the full amount of the debt—namely, $2,657,151.77, plus interest. See
ECF No. [1].3 On April 13, 2018, Defendant filed its Answer, Affirmative Defenses, and
Counterclaim, which asserted a compulsory counterclaim against Plaintiff for breach of contract
for the failure to timely deliver the medical equipment. ECF No. [7].
3
As discussed in more detail below, this case was originally assigned to the Honorable Cecilia M. Altonaga.
3
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After initiating their respective lawsuits, the parties renewed their settlement negotiations
and ultimately “reached a global agreement on settlement terms and conditions to resolve any and
all disputes arising out of the Ridge Hospital Sales Agreements.” ECF No. [21-1] at 2 (“Settlement
Agreement” or “Agreement”). On May 4, 2018, Defendant sent Plaintiff a signed copy of the
Settlement Agreement. ECF No. [91-35] at 47. On May 10, 2018, Plaintiff returned its countersigned copy of the Agreement to Defendant. Id. at 65. Finally, on May 17, 2018, Defendant
circulated a fully executed Settlement Agreement that was initialed by both parties. Id. at 83.
On May 14, 2018, the parties filed a Joint Motion for Enlargement of Deadlines Pending
Settlement, ECF No. [15], explaining that,
[s]ince the entry of the Court’s scheduling order, the parties have reached a
settlement agreement. The parties further agreed that within three (3) business days
of the Effective Date of the Settlement Agreement or three (3) business days after
the initial installment of the Settlement Payment clears GE’s bank account,
whichever is later, a notice of settlement would be filed in this action.
Given that settlement is likely to be concluded, the parties jointly request a
30-day enlargement of the mediation scheduling deadline and the exchange of
initial disclosures.
ECF No. [15] at 1. The next day, the Court administratively closed the case sua sponte, stating that
“[i]f the parties fail[ed] to complete the expected settlement, either party [could] request the Court
to reopen the case.” ECF No. [16].
On January 25, 2019, Plaintiff filed its Motion to Enforce, seeking to enforce the parties’
Settlement Agreement and obtain a consent judgment against Defendant pursuant to its terms. See
ECF No. [21]. Defendant opposed Plaintiff’s Motion to Enforce and requested that Plaintiff be
sanctioned for allegedly making “knowingly false” statements to the Court during the course of
the proceedings about whether Defendant had made any installment payments under the
Agreement. See ECF No. [32]. Defendant contemporaneously filed its Cross-Motion to Reopen
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within its response to the Motion to Enforce, which sought to reopen the case to allow Defendant
to proceed with its claims against Plaintiff and add additional claims. Id.4
Plaintiff’s Motion to Enforce was referred to the Honorable Chris M. McAliley, United
States Magistrate Judge, for a Report and Recommendation. See ECF No. [33]. After extensive
briefing by the parties, see ECF Nos. [21], [32], [39], & [40], Judge McAliley issued her Report
and Recommendation, which was limited to Plaintiff’s Motion to Enforce, see ECF No. [43] at 1
n.1 (“Report”). The Report set forth a thorough analysis of the facts and the applicable law and
ultimately recommended that the Court grant Plaintiff’s Motion to Enforce and issue the consent
judgment against Defendant. Id. at 22-23. Both parties subsequently filed objections to the Report,
and Defendant renewed its request for an evidentiary hearing. See ECF Nos. [47] & [48]. Upon
review of the Report, the briefing, and the parties’ objections, the Court determined that an
evidentiary hearing was warranted in light of the numerous factual disputes and contractual
ambiguities raised by the parties. See ECF No. [52].5 Accordingly, the Court scheduled a two-day
evidentiary hearing on the Motions.
On November 21, 2019, Judge Altonaga commenced the evidentiary hearing and heard
testimony from two of Plaintiff’s high-level executives: (1) the complete testimony of Chris
Bonnett (“Mr. Bonnett”), the Managing Director of Project Development for GE Healthcare in
Africa, and (2) the direct examination of Eyong Ebai (“Mr. Ebai”), GE Healthcare’s General
Manager for West and Central Africa. Upon the completion of Mr. Ebai’s direct examination, the
It is worth noting that, although styled as a reply, Defendant’s Reply in Support of the Motion to Reopen,
ECF No. [42], is effectively a sur-reply that readdresses the merits of Plaintiff’s Motion to Enforce. The
Court reminds the parties that, pursuant to the Local Rules in the Southern District, sur-replies are not
permitted absent prior leave of Court. See S.D. Fla. L.R. 7.1(c)(1).
4
The Court further indicated that “[i]f, after an evidentiary hearing, the Settlement Agreement is enforced
against SYMX, SYMX will be required to pay GE’s attorney’s fees and costs.” ECF No. [52] at 2 n.1.
5
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hearing was recessed until the following day. See Tr. of Evidentiary Hr’g, Nov. 21, 2019
[hereinafter 1st Hr’g Tr.], ECF No. [78].
Shortly after the conclusion of the proceedings on November 21, 2019, Judge Altonaga
filed a notice alerting the parties of her ownership of stock in the General Electric Company, which
in turn owns Plaintiff. See ECF No. [66]; ECF No. [10] (Plaintiff’s corporate disclosure statement).
A telephonic hearing was held that evening to address Judge Altonaga’s continued participation in
this case. See ECF Nos. [67] & [68]. Ultimately, Judge Altonaga recused herself, ECF No. [69],
and the case was reassigned to the Undersigned the following day, see ECF No. [70].
Following reassignment, this Court ordered that the parties confer and file a joint status
report detailing the pending issues in the case. ECF No. [71]. Eventually, the evidentiary hearing
was recommenced on June 11, 2020, Tr. of Evidentiary Hr’g, June 11, 2020 [hereinafter 2nd Hr’g
Tr.], ECF No. [96]; and it continued on June 12, 2020, Tr. of Evidentiary Hr’g, June 12, 2020
[hereinafter 3rd Hr’g Tr.], ECF No. [97]; until its ultimate conclusion on June 15, 2020, Tr. of
Evidentiary Hr’g, June 15, 2020 [hereinafter 4th Hr’g Tr.], ECF No. [98]. Over the course of the
evidentiary hearing, Plaintiff presented Mr. Ebai’s complete testimony, followed by the live
testimony of its counsel of record, Ana M. Barton (“Ms. Barton”), and the sworn declaration of
Ayele Locoh-Donou (“Ms. Locoh-Donou”), GE Healthcare’s Africa General Counsel. Defendant
then presented the testimony of Andrew Ramos (“Mr. Ramos”), President of SYMX.
Based on the extensive testimony and documentary evidence presented by the parties, the
Court makes the following findings of fact and conclusions of law.
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II. FINDINGS OF FACT
A. Settlement Negotiations
As explained above, the parties initiated settlement negotiations in 2017 to resolve their
respective disputes arising from the Ridge Hospital project. Independently from these negotiations,
throughout the end of 2017 and the beginning of 2018, Plaintiff repeatedly informed Defendant
that most of the standard warranties on the medical equipment were set to expire in 2018, which
meant that Plaintiff’s ability to service the equipment would cease unless the parties executed a
separate service contract. ECF Nos. [91-60], [91-22], & [91-18]. In mid-February 2018, after their
settlement negotiations had been stalled, Plaintiff sent a letter to Defendant explaining again that
the medical equipment at the Ridge Hospital would no longer be covered by the warranty and that,
without a service contract, Plaintiff could no longer maintain, service, repair, or provide support
for the equipment with expired warranties. ECF No. [91-20].
Mr. Bonnett and Mr. Ebai testified that Plaintiff was not willing to enter into a service
agreement without a finalized settlement agreement and receipt of at least an initial settlement
payment because it did not want to allow Defendant to incur additional debt without Defendant’s
good-faith effort to repay its outstanding debt. 1st Hr’g. Tr. 68:15-69:8, 74:15-75:8; 2nd Hr’g. Tr.
41:21-42:11. By March of 2018, Defendant reached out to Plaintiff to resume settlement
negotiations, in part because it needed a new service agreement with Plaintiff for the Ridge
Hospital equipment. ECF No. [91-21]; 3rd Hr’g. Tr. 95:20-97:5. Thus, settlement negotiations
resumed at that time with an additional focus on resolving the service agreement issue.
Ultimately, on May 4, 2018, Defendant sent Plaintiff a signed copy of the Settlement
Agreement. ECF No. [91-35] at 47. On May 10, 2018, Plaintiff returned its counter-signed copy
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of the Agreement to Defendant. Id. at 65. Finally, on May 17, 2018, Defendant circulated a fully
executed Settlement Agreement that was initialed by both parties. Id. at 83.
B. The Settlement Agreement
The parties’ dispute stems from their conflicting interpretations of the language in the
Settlement Agreement and their opposing positions on whether the Agreement became effective
at all. On the one hand, Plaintiff contends that the Agreement became binding upon its execution
on May 10, 2018. On the other hand, Defendant argues that the Settlement Agreement never
became effective because it never made the first—or any—contractually required installment
payment, which Defendant contends was a condition precedent to the formation of the parties’
Agreement. Notably, however, neither party disputes the existence of the Settlement Agreement
or the fact that it was extensively and freely negotiated and thereafter fully executed by all parties
through their authorized representatives on May 10, 2018. The relevant provisions of the
Settlement Agreement are set forth in full below.
The first line of the executed Settlement Agreement indicates that it was “made and entered
into on this 4th day of May 2018 (the “Effective Date”) . . . .” ECF No. [21-1] at 2.6 Similarly, the
last page of the Agreement states, “this Settlement Agreement has been entered into and executed
by the Parties hereto through their duly authorized representatives, and is hereby delivered on the
Effective Date.” Id. at 4. Yet, paragraph (5), which is central to the parties’ dispute, states,
“Duration. This Settlement Agreement becomes effective upon payment of the first instalment
payment,” discussed below. Id. at 3.
6
The original typewritten date on the executed Agreement is crossed out and the May 4, 2018, date is
written in by hand and initialed by one of the parties. ECF No. [21-1] at 2. Likewise, with the exception of
the signature page, every page of the Settlement Agreement is initialed by both parties, and each page of
the attachments, aside from the one-page attachment for Annex 1, are also initialed by both parties. See
generally id.
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Paragraph (2) of the Settlement Agreement, which is titled “Consideration,” provides that,
“[a]s full and final settlement of the Parties’ respective claims, the Parties agree to the following
terms[.]” Id. at 2.
a. The Settlement Payment and payment schedule. SYMX agrees to pay to GE
the sum of USD $2,325,594.49 (the “Settlement Payment”). The Settlement
Payment shall be made by wire transfer to GE’s bank account, as per Annex 3
of this Settlement Agreement, according to the following payment schedule and
terms:
i. 15 Calendar days from execution by both parties of this Settlement
Agreement, SYMX shall pay USD $480,000. SYMX shall provide written
proof of the wire payment made (via a SWIFT transfer) simultaneously
upon its signature of the Settlement Agreement and the funds must clear
into GE’s bank account within seven (7) days following signature of the
Settlement Agreement.
ii. June 7, 2018, SYMX shall make a payment of $468,148.50.
iii. July 9, 2018, SYMX shall make a payment of $468,148.50.
iv. August 9, 2018, SYMX shall make a payment of $468,148.50.
v. September 10, 2018, SYMX shall make a payment of $468,148.50.
On each payment due date listed above, SYMX will immediately send to GE
proof of the wire payment (SWIFT) corresponding to the instalment payment
due on that given date.
b. Event of Default by SYMX. The Parties agree that time is of the essence with
respect to completion of the payment schedule described above, and that the
failure under any circumstance by SYMX to make any of the payments stated
above, or by GE to receive the payments, on their respective due dates shall be
deemed a material breach of this Settlement Agreement.
In case of late or non-payment in relation to any of the payments above, GE
shall provide written notice to SYMX, effective on delivery by federal express
upon Andrew Ramos at 201 Alhambra Circle, Suite 605, Coral Gables, Florida
33134. SYMX shall have twenty (20) calendar days from such notice to cure
its default and thereafter, GE reserves the right to:
i.
Call immediately upon SYMX for payment of any remaining amount of the
Settlement Payment due and unpaid,
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ii. Charge interest at a rate of 3% per annum on any unpaid amount of the
Settlement Payment, and/or
iii. Undertake any legal action or claim before the U.S. District Court for the
Southern District of Florida to collect payment of any remaining amount
due. Any attorneys’ fees and costs borne by GE in relation to any legal
proceedings or claims shall be paid by SYMX if GE is the prevailing party.
SYMX further agrees that if it defaults on any of the above payment schedule
deadlines, and the default is not cured within twenty (20) calendar days from
GE’s written notice of default, GE may obtain a consent judgment against
SYMX in the amount corresponding to then-outstanding amount owed under
the Settlement Payment upon filing an affidavit of service of notice of default
and failure to cure.
c. Limited release. Subject to full payment of the Settlement Payment by SYMX,
the Parties agree that payment of the Settlement Agreement shall be deemed to
be a full and final settlement with respect to the Outstanding Amount claimed
by GE and all of its affiliates, parents, subsidiaries, and related entities both
foreign and domestic, as well as any amounts or claims that have been, or could
have been, asserted by SYMX against GE, including for costs arising out of
delivery of the equipment identified in the Ridge Hospital Sales Agreements
and interference with SYMX’s relationship with Americaribe, Inc. and others,
as described in the SYMX Lawsuit and the GE Lawsuit, whether known or
unknown. SYMX will not have any further obligations towards GE with respect
to payment of the Outstanding Amount if each of the payment terms listed
above is satisfied, and likewise GE will not owe SYMX any amounts in
connection with any claimed or unclaimed costs arising out of the Ridge
Hospital Sales Agreements.
Upon SYMX’s complete payment of the Settlement Payment, the Parties
mutually release and discharge each other and each of their respective affiliates,
parents, subsidiaries, and related entities (both foreign and domestic) of any and
all claims, rights, demands, or set-offs that could have been brought in either
the SYMX Lawsuit or the GE Lawsuit.
d. Dismissal of pending lawsuits.
i. SYMX shall voluntarily dismiss the SYMX Lawsuit with prejudice within
three (3) business days of the Effective Date of this Settlement Agreement.
ii. GE shall file a notice of settlement in the GE Lawsuit (and request that all
case deadlines be stayed pending the settlement payment schedule) within
three (3) business days of the Effective Date of this Settlement Agreement
or three (3) business days after the initial instalment of the Settlement
Payment clears GE’s bank account, whichever is later. Upon SYMX’s
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complete payment of the Settlement Payment, GE shall voluntarily dismiss
the GE Lawsuit with prejudice, and SYMX will voluntarily dismiss its
counter-claims in the GE Lawsuit with prejudice. In the event of default by
SYMX of any of the Settlement Payment Instalments, GE may request that
the Court presiding over the GE Lawsuit enter the consent judgment
referenced above.
e. Condition of future business. Full and complete payment of the Settlement
Payment shall be a condition precedent to GE’s considering any future business
relationship with SYMX, in particular for the sale, shipment, and/or installation
of medical equipment upon commercially reasonable terms to be negotiated in
good faith for Phase II of the Ridge Hospital in Ghana. As an exception, GE
agrees to enter into a service agreement with SYMX for the Phase 1 equipment
that has already been delivered by GE, provided that payment terms for any
such future service agreement shall match exactly with those to be entered into
between SYMX and its contractor. Payment is to be received by GE within
seven (7) days from receipt by SYMX of each payment for service contract
from its contractor.
Id. at 2-3.
Notably, the first installment payment described in paragraph (2) is tied to the date of the
Agreement’s execution by both parties and, as indicated above, it is undisputed that the Agreement
was fully executed on May 10, 2018. See, e.g., ECF No. [32] at 5; ECF No. [40] at 4; ECF No.
[48] at 2; ECF No. [50] at 3; see also ECF No. [90-7]. Therefore, Defendant’s first installment
payment under the Agreement was due by May 25, 2018. See ECF No. [40-1] at 80-81.
Moreover, paragraph (4) of the Settlement Agreement, which addresses the service
agreement on existing medical equipment, states:
Warranty and Maintenance. GE agrees to provide the required warranty
coverage stipulated in the document entitled “Ridge Hospital – GE Equipment
Commissioning Dates,” attached as Annex 2 to this Settlement Agreement, and
agrees to provide maintenance services for selected equipment based on the price
quote previously provided by GE for the warranty period indicated in Annex 2.
However, if at any point SYMX does not make any of the milestone settlement
payments described in paragraph (2) above, GE reserves the right to suspend or
terminate maintenance services to end-user sites as per the provision of the initial
equipment sales contract.
ECF No. [21-1] at 3-4.
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Finally, paragraph (9) states:
Terms Read and Understood. Each of the Parties represents that it has carefully
read and fully understands the terms, conditions, legal effects, and intent of this
Settlement Agreement after consultation with independent legal counsel. Each
Party acknowledges receipt of a copy of this Settlement Agreement before signing
it and understands that every provision of this Settlement Agreement is contractual
and legally binding.
Id. at 4.
C. Post-Settlement Conduct
On May 10, 2018—the same day the Settlement Agreement was fully executed—
Defendant reached out to Plaintiff about finalizing the service contract for the equipment at the
Ridge Hospital. See ECF No. [91-28]. Mr. Ebai responded by e-mail on May 14, 2018, stating that
Plaintiff was drafting the service proposal, but would not share it until “the settlement agreement
is activated with a payment,” referencing the first installment payment deadline of May 25, 2018.
Id. This e-mail, and Mr. Ebai’s explanation that his e-mail demonstrated his belief that the
Settlement Agreement was binding at the time of execution, is consistent with Plaintiff’s
reluctance to allow Defendant to continue to incur more debt without first making any attempt to
pay off the debt it had already incurred. 2nd Hr’g. Tr. 86:16-88:15. Defendant never suggested that
the Settlement Agreement was not binding at the time of this e-mail. 2nd Hr’g. Tr. 89:15-25.
Similarly, Mr. Ebai repeatedly reached out to Defendant after this correspondence to inquire about
the timing of payment, and at no point did Defendant indicate that it was not bound to the terms
of the Agreement.
On the same day, the parties filed their Joint Motion for Enlargement of Deadlines Pending
Settlement, ECF No. [15], which quoted the language from paragraph (2)(d)(ii) of the Agreement,
in order to stay any pending deadlines set by the Court, ECF No. [13]. Tellingly, on May 4, 2018,
the day that Defendant executed the Settlement Agreement, it also dismissed its pending state court
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action against Plaintiff with prejudice, consistent with its Settlement Agreement obligations. ECF
No. [21-3]. Mr. Ramos’s testimony explaining the dismissal with prejudice of the state court
claims—namely, that he was not concerned that Defendant’s claims in the state court action would
be lost if the state court action was dismissed with prejudice—provides no additional support for
Defendant’s position that the Settlement Agreement was not binding at the time of execution. 4th
Hr’g Tr. 62:25-65:18.7 In fact, Defendant’s dismissal with prejudice on the same day it executed
the Agreement strongly suggests that Defendant understood its obligations under the Agreement
to be enforceable.
On May 22, 2018, Mr. Ramos called Ms. Locoh-Donou and requested that Plaintiff agree
to extend the deadline for the first settlement payment. ECF No. [91-35] ¶ 13. Mr. Ramos also put
the request in writing, stating that he was giving “due notice” that he would be delayed “on the
payment of $480,000[] that [would] become due on May 25th to [Plaintiff] in connection with the
Settlement Agreement.” ECF No. [91-27]. He cited delays on the availability of the letter of credit
against which Defendant would draw funds to pay Plaintiff, but assured he was “fully committed
to the resolution of [Defendant’s] obligation with [Plaintiff]” and that the remaining payments
would be timely made “according to the original schedule.” Id.
When Defendant failed to make the first installment payment by May 25, 2018, Ms. Barton
sent a default notice to Defendant and its counsel to trigger the 20-day cure period as set forth in
the Settlement Agreement. See ECF No. [21-4]. Neither Defendant nor its attorney responded that
the Settlement Agreement was not binding. 2nd Hr’g. Tr. 8:18-24. Ms. Barton ultimately sent
default notices for every payment that was due under the terms of the Settlement Agreement. Id.
Specifically, Mr. Ramos testified as follows: “[M]y understanding was that we were not going to lose our
position with those other claims at that time. . . . I mean, my understanding was that . . . those claims were
going to be added to the . . . federal case.” 4th Hr’g Tr. 64:16-17, 65:16-18.
7
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Instead, on June 12, 2018, three days before the cure period for the first defaulted payment
was set to expire, Mr. Ramos called Mr. Ebai and requested that GE extend the deadline for Symx
to cure its default and make the first installment payment, which Mr. Ebai denied. ECF No. [9132]. Echoing Mr. Ramos’s request to Mr. Ebai, on June 12, 2018, Defendant’s attorney also wrote
to GE’s attorney:
My client spoke to your client asking for a 30 day extension. There is a sizable letter
of credit posted to guarantee payments to my client, but the draw scheduled has
been extended due to documentation issues. A judgment against my client will
ensure no one gets anything. On the other hand, my client intends to fully perform
and has the ability it is solely an issue of timing. I am in trial this afternoon, we can
discuss it tomorrow. In the meantime, my client is looking into the possibility of
borrowing against the first draw per your client’s suggestion.
ECF No. [91-39]. Defendant’s attorney was referencing Plaintiff’s ability to secure a consent
judgment for Defendant’s default. This request similarly evinces Defendant’s understanding that
the Settlement Agreement became binding upon execution.
On June 28, 2018, Plaintiff’s credit control team in Ghana received an e-mail from GE
Global Operations in which it first learned that Defendant had made a payment of $502,500.00 to
a GE bank account in the United States. ECF No. [91-57]; 2nd Hr’g. Tr. 101:2-17. That payment
was made on May 10, 2018 (the day the Settlement Agreement was fully executed) and was
directed to “GE Medical Systems.” ECF No. [91-58]. The reference number included in the wire
did not match any purchase orders in GE’s global system, making it difficult to properly assign
the payment. 2nd Hr’g. Tr. 103:2-20.
From GE’s receipt of the payment on May 10, 2018, to its contact with Plaintiff on June
28, 2018, GE Global Operations was unable to match the $502,500.00 payment to any existing
purchase order. In addition, GE indicated that it does not engage in new business with clients that
are in arrears, which added further confusion to its attempts to identify the intended recipient of
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the payment. Thus, when it was notified of the payment on June 28, 2018, Plaintiff’s team in Ghana
believed that it was intended for the settlement debt. 2nd Hr’g. Tr. 104:24-105:16. Mr. Ebai further
testified that he had no knowledge that Defendant was engaged with GE in another part of the
world. 2ndHr’g. Tr. 105:18-23.
To ensure that the payment was based upon the Settlement Agreement, Mr. Ebai reached
out to Mr. Ramos numerous times about the payment, and that it would be credited to the
settlement debt. ECF No. [91-33]; 2nd Hr’g. Tr. 106:10-13, 107:5-10. Defendant never clarified
that the payment was intended for a different GE entity. Neither Symx’s counsel nor Mr. Ramos
responded (during the calls or after) that the payment was not intended for the settlement.
In September 2018, Defendant’s counsel called Plaintiff’s counsel and again requested
more time for Defendant to make the settlement payments and threatened bankruptcy if Plaintiff
pursued a consent judgment. Moreover, Mr. Ramos and Defendant’s counsel requested a meeting
with Plaintiff and its counsel to discuss the issues between them. 3rd Hr’g. Tr. 17:24-22:16. The
meeting occurred in October 2018, at which time Defendant first informed Plaintiff that the
$502,500.00 payment was intended for a different project with Baptist Hospital in the Cayman
Islands. 2nd Hr’g. Tr. 21:22-22:10. Neither Mr. Ramos nor Defendant’s counsel mentioned a belief
that the Settlement Agreement was not binding at this time.
III. CONCLUSIONS OF LAW
A. Enforcement of Settlement Agreements
“[A] district court has jurisdiction to enforce a settlement agreement, at least when one
party refuses to abide by the agreement prior to dismissal of the action.” Kent v. Baker, 815 F.2d
1395, 1400 (11th Cir. 1987); see also Szanto v. Bistritz, 743 F. App’x 940, 942 (11th Cir. 2018)
(“[W]here the parties enter[] into a settlement agreement and then allege[] breach of the agreement
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before dismissal—the district court retain[s] jurisdiction to enforce the terms of the settlement
agreement”). “Settlement agreements are favored as a means to conserve judicial resources. Courts
will enforce them when it is possible to do so.” Spiegel v. H. Allen Holmes, Inc., 834 So. 2d 295,
297 (Fla. 4th DCA 2002) (citing Long Term Mgmt., Inc. v. Univ. Nursing Ctr., Inc., 704 So. 2d
669, 673 (Fla. 1st DCA 1997)). “A settlement is . . . intended to resolve litigation, not proliferate
or protract it.” Matter of Blue Crest Holding Asset, Inc., No. 17-cv-21011, 2018 WL 2227739, at
*10 (S.D. Fla. May 16, 2018) (quoting Naumann v. Cambridge Tankers, Inc., 1988 AMC 1996,
1998 (E.D. Pa. 1988)). “To foster settlements, the settling parties must have legal assurance that
the other party will not pursue any further litigation.” Sea-Land Serv. v. Sellan, 64 F. Supp. 2d
1255, 1260 (S.D. Fla. 1999); see also Murchison v. Grand Cypress Hotel Corp., 13 F.3d 1483,
1487 (11th Cir. 1994) (“We favor and encourage settlements in order to conserve judicial
resources. We cannot allow a litigant to attack the integrity of the settlement process by attempting
to recharacterize the focus of his litigation after he decides he is unhappy with the settlement.”).
The construction and enforcement of a settlement agreement is governed by the applicable
state contract law. Hayes v. Nat’l Serv. Indus., 196 F.3d 1252, 1254 (11th Cir. 1999); see also
Conte v. Winn Dixie Stores, Inc., No. 3:13cv463/MCR/EMT, 2014 WL 4693072, at *2 (N.D. Fla.
Sept. 22, 2014) (“A motion to enforce the settlement agreement essentially is an action to
specifically enforce a contract . . . .”). In this case, it is undisputed that Florida law governs.8
B. Contract Interpretation
“To prove the existence of a contract, a plaintiff must establish: (1) offer; (2) acceptance;
(3) consideration; and (4) sufficient specification of the essential terms.” Kolodziej v. Mason, 774
See ECF No. [21-1] at 4 (“Governing Law. This Settlement Agreement shall be governed by and
construed in all respects in accordance with the laws of the State of Florida and each Party undertakes to
irrevocably and unconditionally submit to the non‐exclusive jurisdiction and venue of the Federal Courts
of the State of Florida.”).
8
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F.3d 736, 740-41 (11th Cir. 2014) (quoting Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1272 (11th
Cir. 2009)) (citing St. Joe Corp. v. McIver, 875 So. 2d 375, 381 (Fla. 2004)); see also Don L. Tullis
& Assocs., Inc. v. Benge, 473 So. 2d 1384, 1386 (Fla. 1st DCA 1985) (“To be enforced, the
agreement must be sufficiently specific and mutually agreeable on every essential element.”);
Gaines v. Nortrust Realty Mgmt., Inc., 422 So. 2d 1037, 1040 (Fla. 3d DCA 1982) (“Parties to a
settlement agreement must reach mutual agreement on every essential element of the proposed
settlement.”).
[M]utual assent is a prerequisite for the formation of any contract, see Gibson v.
Courtois, 539 So. 2d 459, 460 (Fla. 1989) (“Mutual assent is an absolute condition
precedent to the formation of the contract.”); Jacksonville Port Auth. v. W.R.
Johnson Enters. Inc., 624 So. 2d 313, 315 (Fla. 1st DCA 1993) (“In order to create
a contract it is essential that there be reciprocal assent to a certain and definite
proposition.” (internal quotation marks omitted)); Barroso v. Respiratory Care
Servs., Inc., 518 So. 2d 373, 376 (Fla. 5th DCA 1987) (noting that mutual or
reciprocal assent must be proven to establish an oral contract).
Mutual assent is not necessarily an independent “element” unto itself;
rather, [courts] evaluate the existence of assent by analyzing the parties’ agreement
process in terms of offer and acceptance. See Newman v. Schiff, 778 F.2d 460, 465
(8th Cir. 1985). A valid contract—premised on the parties’ requisite willingness to
contract—may be “manifested through written or spoken words, or inferred in
whole or in part from the parties’ conduct.” L&H Constr. Co. v. Circle Redmont,
Inc., 55 So. 3d 630, 634 (Fla. 5th DCA 2011) (internal quotation marks omitted).
[Courts] use “an objective test . . . to determine whether a contract is enforceable.”
See Robbie v. City of Miami, 469 So. 2d 1384, 1385 (Fla. 1985); see also [Leonard
v. Pepsico, Inc., 88 F. Supp. 2d 116, 128 (S.D.N.Y. 1999) (noting that the
determination of whether a party made an offer to enter into a contract requires “the
[c]ourt to determine how a reasonable, objective person would have understood”
the potential offeror’s communication), aff’d, 210 F.3d 88 (2d Cir. 2000)].
Kolodziej, 774 F.3d at 741 (footnote omitted); see also Hanson v. Maxfield, 23 So. 3d 736, 739
(Fla. 1st DCA 2009).
Thus, under this objective test, “the making of a contract depends not on the agreement of
two minds in one intention, but on the agreement of two sets of external signs—not on the parties
having meant the same thing but on their having said the same thing.” BP Prods. N. Am., Inc. v.
Oakridge at Winegard, Inc., 469 F. Supp. 2d 1128, 1133 (M.D. Fla. 2007) (quoting Blackhawk
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Heating & Plumbing Co. v. Data Lease Fin. Corp., 302 So. 2d 404, 407 (Fla. 1974)). Indeed, that
an executed contract presents “difficulties of construction about which the parties disagree does
not enable [them] to contend that the minds of the parties never met, since by signing the writing
the parties bind themselves to such interpretation as the court may place upon the words and
symbols employed by them.” Blackhawk Heating & Plumbing Co., 302 So. 2d at 408.9
Additionally, a party seeking to enforce a settlement agreement “has the burden to prove assent by
the opposing party and must establish that there was a meeting of the minds or mutual or reciprocal
assent to certain definite” or essential terms. U.S. Doe v. Health First, Inc., No. 6:14-cv-501-Orl37DCI, 2017 WL 1929700, at *4 (M.D. Fla. May 10, 2017) (quoting Giovo v. McDonald, 791 So.
2d 38, 40 (Fla. 2d DCA 2001)).
As a general proposition, “[w]here one contracting party signs the contract,
and the other party accepts and signs the contract, a binding contract results.” D.L.
Peoples Group, Inc. v. Hawley, 804 So. 2d 561, 563 (Fla. 1st DCA 2002) (citing
Skinner v. Haugseth, 426 So. 2d 1127, 1129 (Fla. 2d DCA 1983)); see also Mandell
v. Fortenberry, 290 So. 2d 3, 7 (Fla. 1974) (“There is a presumption that the parties
signing legal documents are competent, that they mean what they say, and that they
should be bound by their covenants.”); Dodge of Winter Park, Inc. v. Morley, 756
So. 2d 1085, 1085-86 (Fla. 5th DCA 2000) (“Generally, it is enough that the party
against whom the contract is sought to be enforced signs it.”).
Rocky Creek Ret. Props., Inc. v. Est. of Fox ex rel. Bank of Am., N.A., 19 So. 3d 1105, 1108 (Fla.
2d DCA 2009).
Despite the preference for enforcing settlement agreements, courts must still ensure that a
meeting of the minds occurred on all essential settlement terms before enforcing the parties’
agreement. Schlosser v. Perez, 832 So. 2d 179, 182 (Fla. 2d DCA 2002) (citations omitted).
Courts generally view a litigant’s subsequent, inconsistent attempts to limit contractual language with
skepticism, where the parties previously memorialized a written agreement on their meeting of the minds.
See Blackhawk Heating & Plumbing Co., 302 So. 2d at 408 (“A subsequent difference as to the construction
of the contract does not affect the validity of the contract or indicate the minds of the parties did not meet
with respect thereto.”). Such efforts are “not indicative of a lack of mutual assent,” but rather seek to breach
the settlement agreement. Matter of Blue Crest Holding Asset, Inc., 2018 WL 2227739, at *12.
9
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Further, settlement agreements are construed in accordance with the general principles of contract
interpretation. Robbie, 469 So. 2d at 1385; Williams v. Ingram, 605 So. 2d 890, 893 (Fla. 1st DCA
1992). “The party seeking to enforce a settlement agreement bears the burden of showing the
opposing party assented to the terms of the agreement.” BP Prods. N. Am., Inc., 469 F. Supp. 2d
at 1133 (citing Carroll v. Carroll, 532 So. 2d 1109 (Fla. 4th DCA 1988)).
1. Plain Language
Under Florida law, it is well settled that, “[w]hen interpreting a contract, the court must
first examine the plain language of the contract for evidence of the parties’ intent.” Heiny v. Heiny,
113 So. 3d 897, 900 (Fla. 2d DCA 2013) (quoting Murley v. Wiedamann, 25 So. 3d 27, 29 (Fla.
2d DCA 2009)).
Provisions in a contract should be “construed in the context of the entire agreement”
and read “in a way that gives effect to all of the contract’s provisions.” Retreat at
Port of Islands, LLC v. Port of Islands Resort Hotel Condo. Ass’n, 181 So. 3d 531,
533 (Fla. 2d DCA 2015). Courts should not employ an interpretation of a
contractual provision that would lead to an absurd result. See Interline Brands, Inc.
v. Chartis Specialty Ins. Co., 749 F.3d 962, 966 (11th Cir. 2014) (“Under Florida
law, ‘if one interpretation looking to the other provisions of the contract and to its
general object and scope would lead to an absurd conclusion, such interpretation
must be abandoned, and that adopted which will be more consistent with reason
and probability.’” (quoting Inter-Ocean Cas. Co. v. Hunt, 189 So. 240, 243 (Fla.
1939))). On the other hand, “[i]t is never the role of a trial court to rewrite a contract
to make it more reasonable for one of the parties,” Barakat v. Broward [Cnty.]
Hous. Auth., 771 So. 2d 1193, 1195 (Fla. 4th DCA 2000), or, in the guise of
interpretation, relieve a contracting party from the consequences of a bad bargain,
Prestige Valet, Inc. v. Mendel, 14 So. 3d 282, 283 (Fla. 2d DCA 2009).
Famiglio v. Famiglio, 279 So. 3d 736, 740 (Fla. 2d DCA 2019); see also Circuitronix, LLC v.
Kapoor, 440 F. Supp. 3d 1345, 1358-59 (S.D. Fla. 2020).
The “polestar guiding the court in the construction of a written contract is the intent of the
parties.” Crastvell Trading Ltd. v. Marengere, 90 So. 3d 349, 353 (Fla. 4th DCA 2012). “The
intent of the parties to the contract should govern the construction of a contract. To determine the
intent of the parties, a court should consider the language in the contract, the subject matter of the
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contract, and the object and purpose of the contract.” Am. Home Assurance Co. v. Larkin Gen.
Hosp., Ltd., 593 So. 2d 195, 197 (Fla. 1992); see also Sugar Cane Growers Co-op. of Fla., Inc. v.
Pinnock, 735 So. 2d 530, 535 (Fla. 4th DCA 1999) (“In construing a contract, the legal effect of
its provisions should be determined from the words of the entire contract.”). “The Court may draw
reasonable inferences from unambiguous contract language to determine what the parties
intended.” Hirsch v. Jupiter Golf Club LLC, 232 F. Supp. 3d 1243, 1251-54 (S.D. Fla. 2017) (citing
Bombardier Cap. Inc. v. Progressive Mktg. Grp., Inc., 801 So. 2d 131, 134 (Fla. 4th DCA 2001)).
The “plain meaning” of words used simply means that they are “to be given their natural,
ordinary meaning.” Hirsch v. Jupiter Golf Club LLC, 232 F. Supp. 3d 1243, 1251 (S.D. Fla. 2017)
(quoting Ferox, LLC v. ConSeal Int’l, Inc., 175 F. Supp. 3d 1363, 1371 (S.D. Fla. 2016)). “In order
to determine the common usage or ordinary meaning of a term, courts often turn to dictionary
definitions for guidance.” CBS Inc. v. PrimeTime 24 Joint Venture, 245 F.3d 1217, 1223 (11th Cir.
2001). Florida courts have further explained that, “no word or part of an agreement is to be treated
as a redundancy or surplusage if any meaning, reasonable and consistent with other parts, can be
given to it . . . .” Royal Am. Realty, Inc. v. Bank of Palm Beach & Tr. Co., 215 So. 2d 336, 338
(Fla. 4th DCA 1968). To that end, “Courts will generally strive to interpret a contract based on the
definitions contained within the contract.” Fla. Inv. Grp. 100, LLC v. Lafont, 271 So. 3d 1, 5 (Fla.
4th DCA 2019) (citing Grant v. State Farm Fire & Cas. Co., 638 So. 2d 936, 937 (Fla. 1994)).
“Where the parties to a contract take pains to define a key term specially, their dealings under the
contract are governed by that definition.” Id. (quoting In re Blinds to go Share Purchase Litig.,
443 F.3d 1, 7 (1st Cir. 2006)). Thus, where an agreement specifically sets forth defined terms,
these contractual definitions will control. Id.
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Similarly, courts are to “read provisions of a contract harmoniously in order to give effect
to all portions thereof.” City of Homestead v. Johnson, 760 So. 2d 80, 84 (Fla. 2000). “Where the
terms of a written agreement are in any respect doubtful or uncertain . . . and the parties to it have,
by their own conduct, placed a construction upon it which is reasonable, such construction will be
adopted by the court[.]” Blackhawk Heating & Plumbing Co., 302 So. 2d at 407 (citation omitted);
see also Lalow v. Codomo, 101 So. 2d 390, 393 (Fla. 1958) (“The intention of the parties must be
determined from an examination of the whole contract and not from the separate phrases or
paragraphs. Further, the actions of the parties may be considered as a [means] of determining the
interpretation that they themselves have placed upon the contract.” (citation omitted)); Rafael J.
Roca, P.A. v. Lytal, Reiter, Clark, Roca, Fountain & Williams, 856 So. 2d 1, 5 (Fla. 4th DCA
2003) (“Where an agreement is ambiguous, the meaning of the agreement may be ascertained by
looking to the interpretation the parties have given the agreement and the parties’ conduct
throughout their course of dealings.”); Mayflower Corp. v. Davis, 655 So. 2d 1134, 1137 (Fla. 1st
DCA 1994) (“Courts have also looked to the conduct of the parties throughout their course of
dealings to determine their intentions and the meaning of the agreement.”).10
10
Indeed, under Florida law, courts apply the contract principle known as the “rule of validity,” which
holds that in the interpretation of contracts judges will presume that the parties intended a
binding, valid agreement, at least in some respect, even if not in all that a party may claim.
See James v. Gulf Life Ins. Co., 66 So. 2d 62, 63 (Fla. 1953) (“Where the language of an
agreement is contradictory, obscure, or ambiguous, or where its meaning is doubtful, so
that it is susceptible of two constructions, one of which makes it fair, customary, and such
as prudent men would naturally execute, while the other makes it inequitable, unusual, or
such as reasonable men would not be likely to enter into, the interpretation which makes a
rational and probable agreement must be preferred.”); Bacon v. Karr, 139 So. 2d 166 (Fla.
2d DCA 1962) (contracts duly executed for a lawful purpose should, if legally possible, be
upheld); City of Orlando v. Murphy, 84 F.2d 531 (5th Cir. 1936) (when possible, contract
should receive such construction as will uphold it, rather than render it nugatory). The law
assumes that parties have made an agreement for some lawful, enforceable purpose, that
courts should not apply a strained or unusual meaning so as to render it entirely
unenforceable. Diversified Enters. Inc. v. West, 141 So. 2d 27 (Fla. 2d DCA 1962).
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As noted above, the parties’ dispute stems from their disagreement about whether the
Settlement Agreement became binding upon its execution or after the completion of the first
installment payment. In order to determine the intent of the parties in drafting the Settlement
Agreement, the Court first looks to the plain language of the Agreement.
At the outset, the Court notes that the Settlement Agreement specifically defines the term
“Effective Date,”11 which is ordinarily understood to mean “[t]he date on which a statute, contract,
insurance policy, or other such instrument becomes enforceable or otherwise takes effect. This
date sometimes differs from the date on which the instrument was enacted or signed.” EFFECTIVE
DATE, Black’s Law Dictionary (11th ed. 2019). The Agreement further states that “[c]apitalized
terms used herein and not otherwise defined herein shall have the meanings ascribed to such terms
in the Settlement Agreement.” ECF No. [21-1] at 2. Because “[c]ourts will generally strive to
interpret a contract based on the definitions contained within the contract,” Fla. Inv. Grp. 100,
LLC, 271 So. 3d at 5, the Court considers the explicit use of the defined term Effective Date to be
of great weight in its construction of the Settlement Agreement. See Atl. Specialty Ins. Co. v.
Pastukov, 750 F. App’x 909, 911 (11th Cir. 2018) (“A contractual provision setting the date an
agreement takes effect is consistent with Florida law, which recognizes that, ‘[g]enerally, the
parties to a contract are competent to fix the effective date.’” (quoting CNA Int’l Reinsurance Co.,
Ltd. v. Phx., 678 So. 2d 378, 380 (Fla. 1st DCA 1996))); see also Hartford Ins. Co. of the Midwest
v. Surrency, 537 So. 2d 208, 208 (Fla. 5th DCA 1989) (“[P]arties can contract for a policy to begin
on a particular date.”). Similarly, the omission of “Effective Date” in the Duration clause suggests
that the parties intended that provision to mean something other than “[t]he date on which a statute,
J.R.D. Mgmt. Corp. v. Dulin, 883 So. 2d 314, 316-17 (Fla. 4th DCA 2004) (some citations omitted).
11
The Settlement Agreement indicates that it was “made and entered into on this 4th day of May 2018 (the
“Effective Date”) . . . .” ECF No. [21-1] at 2.
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contract, insurance policy, or other such instrument becomes enforceable or otherwise takes
effect.” EFFECTIVE DATE, Black’s Law Dictionary (11th ed. 2019). Further, the use of
“Effective Date” in other provisions of the Settlement Agreement, such as paragraph (2)(d) on the
dismissal of pending lawsuits, supports the interpretation that the obligations in the Agreement
took effect independent of the first installment payment.
Moreover, paragraph (2) details mutual promises and consideration exchanged for the full
and final settlement of the parties’ disputes. See CONSIDERATION, Black’s Law Dictionary
(11th ed. 2019) (“Something (such as an act, a forbearance, or a return promise) bargained for and
received by a promisor from a promisee; that which motivates a person to do something, esp. to
engage in a legal act.”). The provisions in paragraph (2) reflect the parties’ respective obligations
under the Agreement, which are notably unqualified by any conditional language.
First, under paragraph (2)(a), the schedule of installment payments is set forth in detail.
The first installment payment is set to be due within “15 Calendar days from execution by both
parties of this Settlement Agreement . . . .” ECF No. [21-1] at 2 (emphasis added). The plain
language of this provision clearly links the first installment payment date to the parties’ execution
of the Agreement, not its Effective Date. Moreover, the mandatory language used in the installment
payment provisions—namely, that Defendant “shall” pay each payment on the date specified—
indicates that these payments are obligatory, rather than conditional as Defendant argues. Indeed,
the United States Supreme Court has previously explained that the use of “the word ‘shall’ usually
connotes a requirement.” CITGO Asphalt Ref. Co. v. Frescati Shipping Co., Ltd., 140 S. Ct. 1081,
1088 n.3 (2020) (quoting Kingdomware Techs., Inc. v. United States, 579 U.S. –––, –––, 136 S.
Ct. 1969, 1977 (2016)). Thus, the use of this mandatory language forecloses any argument that a
contracting party “merely has an elective ‘right’” under the agreement, “but no duty to do so.” Id.;
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see also Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35 (1998)
(recognizing that “shall” is “mandatory” and “normally creates an obligation impervious to judicial
discretion”).
Likewise, the provisions in the Settlement Agreement that address default, which are set
forth in paragraph (2)(b), provide further support for the mandatory, unqualified nature of
Defendant’s payment obligations. Specifically, the Agreement states that “the failure under any
circumstance by SYMX to make any of the payments stated above, or by GE to receive the
payments on their respective due dates shall be deemed a material breach of this Settlement
Agreement.” ECF No. [21-1] at 2-3 (emphasis added). Florida courts have defined the word “any”
to mean “‘one or another without restriction or exception;’ often synonymous with ‘either,’ ‘every’
or ‘all.’” Dows v. Nike, Inc., 846 So. 2d 595, 601 (Fla. 4th DCA 2003) (quoting Acceleration Nat’l
Serv. Corp. v. Brickell Fin. Servs. Motor Club, Inc., 541 So. 2d 738, 739 (Fla. 3rd DCA 1989)).
As with the mandatory language of the installment payment provision, the default provision is
explicit in requiring payment of every installment without any conditional language. In fact, the
express requirement that each payment be received “on [its] respective due date[]” supports
Plaintiff’s interpretation that the Settlement Agreement became binding upon its execution, rather
than upon payment of the first installment payment. “[T]he parties may enter into any contract
they desire, and they are bound by the language of that contract . . . no matter how disadvantageous
that language later proves to be for one party or the other.” Kel Homes, LLC v. Burris, 933 So. 2d
699, 704 (Fla. 2d DCA 2006).
Finally, as will be discussed below, the parties specifically agreed to a condition precedent
in paragraph (2)(e), where any future business relationship was expressly conditioned on the full
and complete payment of the Settlement Payment. The exclusion of any similar conditional
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language in the Duration clause directly contradicts Defendant’s position regarding when the
Agreement took effect.
In sum, upon examining the plain language of the Agreement as a whole, the Court finds a
consistent intent to create a binding agreement upon execution, and this overall language supports
Plaintiff’s position.
2. Course of Performance
“Generally speaking, the practical interpretation of a contract by the parties to it for any
considerable period of time before it comes to be the subject of controversy is deemed of great, if
not controlling, influence.” Old Colony Tr. Co. v. City of Omaha, 230 U.S. 100, 118 (1913).
Contract interpretation begins with a review of the plain language of the agreement
because the contract language is the best evidence of the parties’ intent at the time
of the execution of the contract. Royal Oak Landing Homeowner’s Ass’n, Inc. v.
Pelletier, 620 So. 2d 786, 788 (Fla. 4th DCA 1993). But “‘Intention’, as the term is
used in connection with contracting parties . . . when not clearly expressed, may be
demonstrated by conduct.” Smart v. Brownlee, 195 So. 2d 4, 5 (Fla. 4th DCA 1967).
In this vein, the Court may review the original contracting parties’ post-contract
course of performance of the agreement to interpret their intent. See Treasure
Salvors, Inc. v. Unidentified, Wrecked & Abandoned Sailing Vessel, 556 F. Supp.
1319, 1336 (S.D. Fla. 1983) (citing Restatement (Second) of Contracts (1981)
§ 202(4), which provides “[w]here an agreement involves repeated occasions for
performance by either party with knowledge of the nature of the performance and
opportunity for objection to it by the other, any course of performance accepted or
acquiesced in without objection is given great weight in the interpretation of the
agreement”); Downs v. United States, No. 06-20861-CIV, 2010 WL 3222140, at *4
n.6 (S.D. Fla. Aug. 16, 2010) (citing Lalow v. Codomo, 101 So. 2d 390, 393 (Fla.
1958)) (“[T]he actions of the parties may be considered as a means of determining
the interpretation that they themselves have placed upon the contract.”) (also citing
11 Samuel Williston & Richard A. Lord, A Treatise on the Law of Contracts §
32:14 (4th ed. 1999)) (“Given that the purpose of judicial interpretation is to
ascertain the parties’ intentions, the parties’ own practical interpretation of the
contract—how they actually acted, thereby giving meaning to their contract during
the course of performing it—can be an important aid to the court.”). . . .
The Florida Supreme Court has adopted the principle of contract
construction, which allows the Court to look to the parties’ conduct in performing
their contract to resolve the absence of a provision on access, finding,
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Where the terms of a written agreement are in any respect doubtful
or uncertain, or if the contract contains no provisions on a given
point, or if it fails to define with certainty the duties of the parties
with respect to a particular matter or in a given emergency, and the
parties to it have, by their own conduct, placed a construction upon
it which is reasonable, such construction will be adopted by the
court, upon the principle that it is the duty of the court to give effect
to the intention of the parties where it is not wholly at variance with
the correct legal interpretation of the terms of the contract.
Blackhawk Heating & Plumbing Co. v. Data Lease Fin. Corp., 302 So. 2d 404, 407
(Fla. 1974).
Hirsch v. Jupiter Golf Club LLC, 232 F. Supp. 3d 1243, 1252-53 (S.D. Fla. 2017).
In this case, the parties’ course of post-contract performance provides further support for
the Court’s conclusion that the Settlement Agreement became binding and enforceable upon its
execution. Most notably, Defendant’s actions reflect a consistent understanding that it was bound
by the parties’ Agreement. Indeed, Defendant’s repeated requests for extensions of the payment
deadlines, along with his former counsel’s statement that “judgment against [Defendant] will
ensure no one gets anything,” evince a clear understanding that Defendant had an obligation under
the Settlement Agreement to make the installment payments on the dates specified. See ECF No.
[91-39]. Defendant’s explanation that the requested extensions were reflective of its ongoing intent
to resolve the parties’ disputes is belied its consistent unwillingness to meet the terms of the
Agreement.
Likewise, the Court does not find Mr. Ramos’s testimony regarding the dismissal of the
state court claims with prejudice to be credible. Specifically, Mr. Ramos testified that he was not
concerned with dismissing the state court case with prejudice because his “understanding was that
[Defendant was] not going to lose [its] position with those [state court] claims at that time,” but he
offered no justification for why Defendant dismissed those claims on the day it executed the
Settlement Agreement, if it believed the Agreement was not yet binding. 4th Hr’g Tr. 64:16-17.
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Rather, Defendant’s dismissal with prejudice demonstrates its understanding that the contractual
obligations were binding at the time of execution, not later.12 Moreover, Defendant’s failure to
suggest at any point after the Settlement Agreement’s execution that its payment obligation was a
condition precedent to the formation of the Agreement is noteworthy, especially in light of
Plaintiff’s repeated and ongoing attempts to secure payment pursuant to the terms of the contract
on the specified dates. “In other words, one party to a settlement is not required to be a mind reader
or to know the private thoughts or intentions of the other party; rather, the parties need only agree
on what they have actually said or expressed to each other.” In re Rolsafe Int’l, LLC, 477 B.R.
884, 906 (Bankr. M.D. Fla. 2012).
The record in this case and the communications between the parties refute any suggestion
that both parties were aware of the alleged condition precedent in the Duration clause. In particular,
Defendant fails to provide any explanation for why, beginning on May 26, 2018, Plaintiff sent five
separate notices of default to Defendant, based on the Settlement Agreement payment schedule.
See ECF Nos. [91-37], [91-38], [91-41], [91-42], & [91-43]. Similarly, Defendant’s failure to
challenge or question these notices of default, based on its purported understanding that the
Agreement was not yet binding, strongly suggests that the parties mutually understood that the
Agreement was binding at the point of execution.
The Court is also unpersuaded by Defendant’s argument that Plaintiff understood that the Agreement
would not take effect before Defendant made the first payment because it failed to file a Notice of
Settlement in this action, as set forth in the Agreement. This argument ignores the clear and explicit
language of paragraph (2)(d)(ii), which states that the notice of settlement “(and request that all case
deadlines be stayed pending the settlement payment schedule)” would be filed “within three (3) business
days of the Effective Date of this Settlement Agreement or three (3) business days after the initial instalment
of the Settlement Payment clears GE’s bank account, whichever is later.” ECF No. [21-1] at 3. Obviously,
Defendant’s continued failure to make the first installment payment would, under this language, delay
Plaintiff’s obligation to file any notice of settlement. Any contrary interpretation merits no further
discussion.
12
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Additionally, Defendant’s reliance on its communications with Plaintiff about securing a
service agreement after the Settlement Agreement was executed fails to rebut the overwhelming
record evidence of the parties’ understanding that they had a binding and enforceable agreement
as of its execution on May 10, 2018. These communications, when read in context, further
substantiate Plaintiff’s position that it was unwilling to allow Defendant to continue incurring new
debt absent some good-faith effort to pay off its $2.3 million of existing debt. Moreover, the
testimony presented by Plaintiff regarding its reasoning and consistent understanding throughout
these interactions was both credible and consistent with the Agreement, the record evidence of the
parties’ conduct, and the communications.
“In considering expressions of agreement, the court must not hold the parties to some
impossible, or ideal, or unusual standard. It must take language as it is and people as they are. All
agreements have some degree of indefiniteness and some degree of uncertainty.” Blackhawk
Heating & Plumbing Co., 302 So. 2d at 409. Here, the parties manifested their intent to enter into
a binding and enforceable agreement through negotiating and executing the Settlement Agreement,
and they reiterated this mutually agreed intent through their post-contract communications and
course of performance. Upon a thorough review of the evidence and testimony presented, the Court
concludes that these interactions provide a consistent narrative suggesting that each party agreed
and understood its respective obligations under the Settlement Agreement.
C. Condition Precedent
“A condition precedent represents an obligation to be performed before the contract is
effective.” Biscayne Cove Condo. Ass’n v. QBE Ins. Corp., 971 F. Supp. 2d 1121, 1135 (S.D. Fla.
2013) (quoting Allstate Floridian Ins. Co. v. Farmer, 104 So. 3d 1242, 1246 (Fla. 5th DCA 2012)).
Specifically, “[a] condition precedent is an act or event, other than a lapse of time, that must occur
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before a binding contract will arise.” Mitchell v. DiMare, 936 So. 2d 1178, 1180 (Fla. 5th DCA
2006) (citing J. Calamari & J. Perrilo, Contracts, § 11-5 (3d ed. 1987); Restatement (Second) of
Contracts § 250 (1981)).
“A condition may be either a condition precedent to the formation of a contract or a
condition precedent to performance under an existing contract.” Id. “In the case of a condition
precedent to formation, . . . the contract does not exist unless and until the condition occurs.” Id.
(emphasis added). Thus, “[n]o binding contract is formed when a condition precedent to its
formation never occurs.” Surgical Partners, LLC v. Choi, 100 So. 3d 1267, 1269 (Fla. 4th DCA
2012). On the other hand, “[i]n the case of a condition precedent to performance, a contract exists
that may be enforced pursuant to its terms.” Mitchell, 936 So. 2d at 1180 (emphasis added).
While no particular words are necessary for the existence of a condition, such terms
as “if”, “provided that”, “on condition that”, or some other phrase that conditions
performance, usually connote an intent for a condition rather than a promise. In the
absence of such a limiting clause, whether a certain contractual provision is a
condition, rather than a promise, must be gathered from the contract as a whole and
from the intent of the parties.
However, where the intent of the parties is doubtful or where a condition
would impose an absurd or impossible result then the agreement will be interpreted
as creating a covenant rather than a condition. . . . “Because of their harshness in
operation, conditions are not favorites of the law.”
In re Est. of Boyar, 592 So. 2d 341, 343 (Fla. 4th DCA 1992) (quoting Hohenberg Bros. Co. v.
George E. Gibbons & Co., 537 S.W.2d 1, 3 (Tex. 1976)).
Thus, “[a]s a general rule, conditions precedent are not favored, and courts will not construe
provisions to be such, unless required to do so by plain, unambiguous language or by necessary
implication.” Id. (citing 17A Am. Jur. 2d Contracts § 471 (1991)); see also Solymar Invs., Ltd. v.
Banco Santander S.A., 672 F.3d 981, 997 n.15 (11th Cir. 2012) (expressing “doubt that conditions
precedent that are not expressly referenced by a written agreement may vary the explicit terms of
a written agreement under Florida law” (citations omitted)); Gunderson v. Sch. Dist. of
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Hillsborough Cnty., 937 So. 2d 777, 779 (Fla. 1st DCA 2006) (“Provisions of a contract will only
be considered conditions precedent or subsequent where the express wording of the disputed
provision conditions formation of a contract and or performance of the contract on the completion
of the conditions.” (emphasis added)); Gay v. Brencorp, Inc., No. 3:09-cv-1002-J-JBT, 2012 WL
162354, at *8 (M.D. Fla. Jan. 19, 2012), aff’d, 554 F. App’x 811 (11th Cir. 2014). Indeed, “[i]t is
a principle of contract law that a mere stipulation or covenant in a contract will not be construed
as a condition precedent, particularly where a forfeiture would result and where it appears a
condition precedent, if desired, could have been provided for by express agreement.” In re Est. of
Boyar, 592 So. 2d at 344 (quoting Palmquist v. Allardyce Petroleum Corp., 520 P.2d 783, 784
(Mont. 1974)).
Defendant argues that the Duration clause of the Settlement Agreement creates a condition
precedent to the formation of the contract, which never occurred. As such, Defendant contends
that a contract was never formed. However, upon reading the plain language of the Duration clause,
in the context of the Settlement Agreement as a whole, it is clear that no condition precedent to
the formation of the contract exists.
The Duration clause states that “[t]his Settlement Agreement becomes effective upon
payment of the first instalment payment identified in paragraph (2) above.” ECF No. [21-1] at 2.
Keeping in mind that Florida law considers “the language used in a contract [to be] the best
evidence of the intent and meaning of the parties,” Boat Town U.S.A., Inc. v. Mercury Marine Div.
of Brunswick Corp., 364 So. 2d 15, 17 (Fla. 4th DCA 1978), the Court finds no support in the
express wording of the Duration clause for Defendant’s position that the parties intended to create
a condition precedent to the formation of a binding contract. See Serra v. Saturn of Clearwater,
Inc., No. 8:08-cv-856-T-33MAP, 2008 WL 5412213, at *4 (M.D. Fla. Dec. 29, 2008). The Court
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will not infer such a condition in the absence of plain and unambiguous language. Gunderson, 937
So. 2d at 779 (“Provisions of a contract will only be considered conditions precedent or subsequent
where the express wording of the disputed provision conditions formation of a contract and or
performance of the contract on the completion of the conditions.” (emphasis added)).
In contrast, the parties’ express, unambiguous language in paragraph (2)(e) conditioned
any future business on Defendant completing all installment payments required by the Agreement.
See ECF No. [21-1] at 3 (“Condition of future business. Full and complete payment of the
Settlement Payment shall be a condition precedent to GE’s considering any future business
relationship with SYMX . . . .” (emphasis added)); see also Fla. Inv. Grp. 100, LLC, 271 So. 3d at
4-5 (“A key principle of contract interpretation is that courts must not read a single term or group
of words in isolation.”); Philip Morris Inc. v. French, 897 So. 2d 480, 488 (Fla. 3d DCA 2004)
(“Courts are required to construe a contract as a whole.”). This language demonstrates the parties’
ability to set certain conditional terms in the Settlement Agreement, and their decision not to do
so in the Duration clause is fatal to Defendant’s argument. See Raban v. Fed. Exp., 13 So. 3d 140,
144 (Fla. 1st DCA 2009) (concluding that a contractual provision was not a condition precedent
where the parties used express language elsewhere in the agreement to explicitly create a condition
precedent but not in the provision at issue).
Accordingly, based on the language of the Settlement Agreement as a whole and that of
the Duration clause, the Court concludes that the Duration clause did not create a condition
precedent to contract formation. Instead, the Agreement became binding upon its complete
execution by both parties.
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D. Material Breach of Contract
“To prevail on a breach of contract claim, a claimant must prove: (1) the existence of an
enforceable contract; (2) a material breach of that contract; and (3) damages resulting directly from
the material breach.” MDS (Can.), Inc. v. Rad Source Techs., Inc., 822 F. Supp. 2d 1263, 1298
(S.D. Fla. 2011) (citing Knowles v. C.I.T. Corp., 346 So. 2d 1042, 1043 (Fla. 1st DCA 1977);
Rollins, Inc. v. Butland, 951 So. 2d 860, 876 (Fla. 2d DCA 2006)), aff’d in part, 720 F.3d 833
(11th Cir. 2013). Further, “[t]o constitute a vital or material breach, a party’s nonperformance must
‘go to the essence of the contract.’ [A party’s] ‘failure to perform some minor part of his
contractual duty cannot be classified as a material or vital breach.’” MDS (Can.) Inc., 720 F.3d at
849 (quoting Beefy Trail, Inc. v. Beefy King Int’l, Inc., 267 So. 2d 853, 857 (Fla. 4th DCA 1972));
see also O’Steen v. Wells Fargo Bank, N.A., No. 6:17-cv-849-Orl-31KRS, 2017 WL 4243564, at
*3 (M.D. Fla. Sept. 25, 2017) (“An essential, or material, term is ‘[a] contractual provision dealing
with a significant issue such as subject matter, price, payment, quantity, quality, duration, or the
work to be done.’” (quoting U.S. Doe, 2017 WL 1929700, at *4)). For purposes of a breach of
contract claim, Florida law requires that a material breach of a settlement agreement—i.e., the
contract—be established by a preponderance of the evidence. See Vega, 564 F.3d at 1272;
Knowles, 346 So. 2d at 1043.
Under Florida law, failure to make a payment on time does not constitute per se a
material breach of contract. Rather, to constitute a material breach, the late payment
must occur where time is of the essence. Sublime, Inc. v. Boardman’s Inc., 849 So.
2d 470, 471 [(Fla. 4th DCA 2003)]. Time is of the essence under Florida law when
(1) the agreement explicitly so specifies; or (2) such may be determined from the
subject matter of the contract; or (3) treating time as non-essential would produce
a hardship; or (4) notice has been given to the defaulting party requesting
performance within a reasonable time. Id.
Centurion Air Cargo, Inc. v. United Parcel Serv. Co., 420 F.3d 1146, 1151 (11th Cir. 2005).
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In this case, the Settlement Agreement explicitly included a time-is-of-the-essence
provision. See ECF No. [21-1] at 2 (“The Parties agree that time is of the essence with respect to
completion of the payment schedule described above, and that the failure under any circumstance
by SYMX to make any of the payments stated above, or by GE to receive the payments, on their
respective due dates shall be deemed a material breach of this Settlement Agreement.”).
Nevertheless, Defendant has repeatedly indicated that it did not make any payment under the
parties’ Settlement Agreement. See, e.g., ECF No. [32] at 11; ECF No. [48] at 2. Having concluded
that no condition precedent to the formation of the Settlement Agreement existed, and that the
parties had a binding Agreement at the point of execution, the Court finds that Defendant
materially breached the Agreement by failing to make any of the installment payments set forth in
paragraph (2)(a). Accordingly, Plaintiff is entitled to the entry of a consent judgment, as set forth
in the Settlement Agreement, for the full amount of the Settlement Payment—i.e., $2,325,594.49.13
E. Defendant’s Request for Sanctions
Finally, Defendant requests that sanctions be imposed against Plaintiff, pursuant to this
Court’s inherent power, for what it describes as Plaintiff’s repeated and “knowingly false
misrepresentations” to this Court that Defendant had made one payment toward the Settlement
Agreement prior to Plaintiff filing its Motion to Enforce. Defendant takes the position that these
purported misrepresentations were intentionally submitted to the Court, despite Plaintiff’s
knowledge that the payment at issue was intended to be applied toward a separate project in the
Cayman Islands involving a different GE entity, in order to establish that the condition precedent
to the parties’ Agreement had been met. Plaintiff, however, argues that sanctions are unwarranted
Although the parties spent significant amounts of time arguing about whether Defendant’s $502,500.00
payment was intended for a project in the Cayman Islands or as a payment under the Settlement Agreement,
the Court sees no need to address the issue, given Defendant’s repeated statements throughout the course
of these proceedings that no installment payment was ever made.
13
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because the request for sanctions arises from disputed issues of fact and law, not from Plaintiff’s
allegedly frivolous or bad faith representations. Moreover, Plaintiff reiterates that, during these
proceedings, it has consistently taken the position that Defendant made a payment to GE, which
Plaintiff later credited to the Settlement Agreement debt. Plaintiff further notes that Defendant
failed to object to that payment application, despite being repeatedly informed of the circumstances
in written correspondence from Plaintiff’s counsel.
Courts have the “inherent power to police those appearing before them.” Purchasing
Power, LLC v. Bluestem Brands, Inc., 851 F.3d 1218, 1223 (11th Cir. 2017) (citing Chambers v.
NASCO, Inc., 501 U.S. 32, 46 (1991)). This power, “not conferred by rule or statute,” allows courts
“to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.”
Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct. 1178, 1186 (2017) (citation and internal
quotation marks omitted). A court may exercise its power “to sanction the willful disobedience of
a court order, and to sanction a party who has acted in bad faith, vexatiously, wantonly, or for
oppressive reasons.” Purchasing Power, LLC, 851 F.3d at 1223 (citation and internal quotation
marks omitted). “In determining whether sanctions should be awarded under the bad faith standard,
‘the inquiry will focus primarily on the conduct and motive of a party, rather than on the validity
of the case.’” Barash v. Kates, 585 F. Supp. 2d 1347, 1362 (S.D. Fla. 2006) (quoting Rothenberg
v. Sec. Mgmt. Co., 736 F.2d 1470, 1472 (11th Cir. 1984)).
Indeed, “[t]he key to unlocking a court’s inherent power is a finding of bad faith.”
Allapattah Servs., Inc. v. Exxon Corp., 372 F. Supp. 2d 1344, 1373 (S.D. Fla. 2005).
Bad faith can be found in several instances. First, bad faith may be found where the
court finds that a fraud has been practiced upon it, or that the very temple of justice
has been defiled. Second, bad faith may be found where a party delays or disrupts
the litigation, or hampers the enforcement of a court order. Third, the Eleventh
Circuit has stated that bad faith may be found where an attorney knowingly or
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recklessly raises a frivolous argument, or argues a meritorious claim for the purpose
of harassing an opponent.
Barash, 585 F. Supp. 2d at 1362 (citations and internal quotation marks omitted).
“In the context of inherent powers, the party moving for sanctions must show subjective
bad faith. This standard can be met either (1) with direct evidence of the attorney’s subjective bad
faith or (2) with evidence of conduct ‘so egregious that it could only be committed in bad faith.’”
Hyde v. Irish, 962 F.3d 1306, 1310 (11th Cir. 2020) (citations omitted). Generally, where there is
a factual dispute on the merits of a particular issue, the imposition of sanctions for a litigant’s
advancement of an “objectively frivolous claim” will typically be inappropriate. See Skypoint
Advisors, LLC v. 3 Amigos Prods. LLC, No. 2:18-cv-356-FtM-29MRM, 2020 WL 533939, at *2
(M.D. Fla. Feb. 3, 2020); see also Mitchell v. Int’l Consol. Cos., No. 11-cv-60403, 2014 WL
6997609, at *5 (S.D. Fla. Dec. 10, 2014) (“Rule 11 sanctions are not appropriate merely because
factual disputes regarding allegations in a pleading exist.”); Cabrera v. Goodyear Tire & Rubber
Co., No. 10-cv-21226, 2011 WL 535103, at *2 (S.D. Fla. Feb. 8, 2011) (“Although the affidavits
by Mr. Flores and Mr. Galeano are probative evidence against the plaintiffs’ claims, the parties’
conflicting accounts of what happened simply demonstrate that there are fact disputes that, if
resolved in favor of the plaintiffs, may allow them to prevail. In any event, the defendants have
not met their relatively high burden of showing the lawsuit is so baseless in law or fact to justify
[] sanctions.”).
Yet, “absent direct evidence of subjective bad faith, this standard can also be met if an
attorney’s conduct is ‘tantamount to bad faith,’ meaning the ‘attorney’s conduct is so egregious
that it could only be committed in bad faith.’” Sutakovic v. CG RYC, LLC, No. 18-cv-20125, 2018
WL 2766206, at *3 (S.D. Fla. June 8, 2018) (quoting Purchasing Power, LLC, 851 F.3d at 122425). “An attorney’s conduct is ‘tantamount to bad faith’ if he ‘recklessly raises a frivolous
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argument.’ ‘Recklessness alone does not satisfy the inherent powers standard,’ but ‘recklessness
plus a frivolous argument suffice.’” Id. (quoting Purchasing Power, LLC, 851 F.3d at 1224-25).
“[B]ad faith conduct must be proven by clear and convincing evidence.” Brieva v. Freezing
Mech., Corp., No. 17-cv-22980, 2018 WL 5098978, at *8 (S.D. Fla. Aug. 9, 2018), report and
recommendation adopted, No. 17-cv-22980, 2018 WL 5098876 (S.D. Fla. Aug. 28, 2018); see
also Barash, 585 F. Supp. 2d at 1365 (holding the movant to a clear and convincing evidence
standard of proof to establish conduct that would warrant the imposition of sanctions pursuant to
the court’s inherent power). Ultimately, a court’s inherent power to impose sanctions “must be
exercised with restraint and discretion” and used “to fashion an appropriate sanction for conduct
which abuses the judicial process.” Chambers, 501 U.S. at 44-45 (citation omitted).
Upon review of the various filings in this case relating to the purported misrepresentations,
along with the evidence and testimony presented on the timeline of events and communications
exchanged between the parties about the $502,500.00 payment, the Court concludes that
Defendant has not adequately demonstrated that Plaintiff’s representations amounted to bad-faith
conduct. Rather, the sequence of events supports the fact that Plaintiff had a good-faith basis for
its developing statements to the Court regarding whether Defendant had made any installment
payments under the Settlement Agreement. At a minimum, the following series of events, when
viewed as a whole, refute any contention that Plaintiff acted in bad faith: (1) A separate GE entity
received a $502,500.00 wire payment from Defendant on May 10, 2018—the same day that the
Settlement Agreement was fully executed—but GE Global Operations was unable to match the
payment to any existing purchase orders;14 (2) Plaintiff’s team did not learn of the existence of
Defendant’s $502,500.00 payment until June 28, 2018,15 after Plaintiff had already filed its first
14
15
See ECF No. [91-58]; ECF No. [91-57]; 2nd Hr’g Tr. 100:3-105:23.
See ECF No. [91-57]; 2nd Hr’g Tr. 100:3-105:23.
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Motion to Reopen the Case on June 19, 2018;16 and (3) Plaintiff then sent Defendant numerous
communications and letters of default for the remaining defaulted installment payments, all of
which noted that it intended to apply the payment to Defendant’s outstanding settlement debt, but
Defendant never responded or attempted to clarify the intended use for the $502,500.00.17
Defendant ultimately informed Plaintiff in October 2018 that the $502,500.00 payment was
intended for an ongoing project in the Cayman Islands. 3rd Hr’g Tr. 21-22:22:10.
The parties’ respective arguments regarding the nature of the $502,500.00 payment, all of
which are closely intertwined with their arguments on whether the Agreement became effective at
the time of execution or upon Defendant’s payment of the first installment payment, highlight the
significant factual disputes at issue in this case. Yet, these factual disputes are clearly insufficient
to satisfy the high burden required for a finding of bad faith. See Skypoint Advisors, LLC, 2020
WL 533939, at *2; Mitchell, 2014 WL 6997609, at *5; Cabrera, 2011 WL 535103, at *2. As such,
the Court declines to exercise its discretion to impose sanctions in this case.
IV. CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. Plaintiff’s Motion to Enforce Settlement Agreement and for Entry of a Consent
Judgment, ECF No. [21], is GRANTED.
2. Within ten (10) days from the date of this Order, Plaintiff shall submit a proposed
consent judgment setting forth the total amount to be recovered, including interest.
3. Within thirty (30) days from the date of this Order, Plaintiff shall submit any
request for an award of attorneys’ fees and costs, along with the appropriate affidavits
and documentation required under Local Rule 7.3.
16
17
See ECF No. [17].
See ECF Nos. [91-33], [91-41], [91-42], & [91-43]; 2nd Hr’g Tr. 113:16-22; 3rd Hr’g Tr. 21:22-22:10.
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4. Defendant’s Cross-Motion to Reopen Case and Set Scheduling Conference, ECF No.
[32], is DENIED. Defendant’s request that Plaintiff be sanctioned is DENIED.
Moreover, Defendant’s request to reopen this case in order to continue litigating the
parties’ claims is DENIED AS MOOT.
5. The Clerk of Court shall ADMINISTRATIVELY CLOSE the case.
DONE AND ORDERED in Chambers at Miami, Florida, on March 3, 2021.
_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of Record
38
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