Cohen v. Cohen

299 So.3d 486

Lewis R. COHEN and Roni Liberman, Appellants,

v.Jeffrey M. COHEN, individually, et al., Appellees.

No. 3D19-583

District Court of Appeal of Florida, Third District.

Opinion filed February 26, 2020.

Nelson Mullins Broad and Cassel, and Beverly A. Pohl and Barbara Viota-Sawisch (Ft. Lauderdale); Harper Meyer Perez Hagen Albert Dribin & DeLuca LLP, and Michael A. Dribin and Roselvin S. Edelman, for appellants.

Law Offices of Keith D. Diamond, P.A., and Keith D. Diamond (Hollywood); Jay M. Levy, P.A., and Jay M. Levy, for appellees.

Before LOGUE, SCALES, and HENDON, JJ.

HENDON, J.

Lewis R. Cohen ("Lewis") and Roni Liberman (collectively, "the Plaintiffs") appeal from a non-final order enforcing the terms of a mediated settlement agreement entered into between the Plaintiffs and Jeffrey M. Cohen ("Jeffrey"), individually, et al. (collectively, "Defendants"), relating to two separate lawsuits. We affirm.¹

Lewis, Roni, and Jeffrey are siblings who equally own two commercial properties as tenants in common, which properties are referred to as the Wynwood Property and the Palmetto Expressway Property. The parties entered into a mediated confidential settlement agreement relating to the two separate lawsuits.² The settlement agreement provides, among other things, that a brokerage agreement to sell both properties will be entered into with a specific broker within ten days for the listing of the properties. The listing agreements for the properties will be for a period of nine months, and if the properties are not sold within that time period, a new listing agreement for a second nine-month period will be entered into with Jeffrey acting as the listing agent. As to each property, the settlement agreement sets forth the listing price and further provides that "any contract for [a specific minimum price] or more, which does not require seller's financing, will be acceptable and will be approved by all parties." (emphasis added). Further, Jeffrey or his entity, Real Estate Enterprises, Inc., will be treated as the buyer's broker for any contract that complies with the settlement agreement and originates from any of Jeffrey's clients. Further, the total commission will be 6% and the buyer's broker will be entitled to half of the commission (3%). Finally, the settlement agreement provides that the agreement does not constitute a waiver of any claims and any defenses involved in the two cases.

Upon the parties' joint motion, the trial court entered an agreed order approving the settlement agreement. Immediately thereafter, Jeffrey tendered a contract for the Palmetto Expressway Property, offering the minimum price set forth in the settlement agreement with a 3% commission to Real Estate Enterprises, Inc. The Plaintiffs refused to execute the contract.

The Defendants filed a revised motion to enforce the mediated settlement agreement, arguing that he had tendered a contract to purchase the Palmetto Expressway Property at the minimum price with terms that must be accepted by the parties pursuant to the mediated settlement agreement. The Defendants asserted that based on the unambiguous language set forth in the settlement agreement, which requires the parties to approve "any contract" for the minimum price that does not require seller financing, the Plaintiffs are required to execute the contract tendered by Jeffrey.

The Plaintiffs filed a response to the Defendants' revised motion to enforce the settlement agreement, asserting that the Defendants' interpretation of the settlement agreement is contrary to the intent of the parties and, if the Defendants' interpretation is adopted, portions of the settlement agreement would be rendered meaningless. As such, the conflicting interpretations of the parties renders those portions of the settlement agreement ambiguous, and an evidentiary hearing is needed to determine the parties' intent. The Plaintiffs requested that the trial court order the Defendants to enter into a brokerage agreement, as required by the mediated settlement agreement, and to nullify the contract tendered by Jeffrey.

The trial conducted a non-evidentiary hearing. At the hearing, the Plaintiffs argued, in part, that the settlement agreement provides that a brokerage agreement must be entered into, and that the purpose of entering into such an agreement is to provide the broker with nine months to obtain the highest and best price, and that the contract does not contemplate that "an insider" could offer the minimum price. In response, the Defendants argued that if the trial court...