DEVOLRO INC., AND AMERICAN TECHNOLOGY VENTURES LLC

v.

DANIYAR KUNGEIBAYEV

Third District Court of Appeal State of Florida

Opinion filed April 9, 2025. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D23-2237 Lower Tribunal No. 21-11455 ________________

Devolro Inc., and American Technology Ventures, LLC, Appellants,

vs.

Daniyar Kungeibayev, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, David C. Miller, Judge.

Scott J. Edwards, P.A., and Scott J. Edwards (Boca Raton), for appellant American Technology Ventures, LLC.

Gherman Legal, PLLC, and Sergiu Gherman, for appellee.

Before EMAS, GORDO and BOKOR, JJ.

EMAS, J.

VERDICT

We, the jury, return the following verdict in this matter: Vicarious Liability Preliminary Question: Do you find that Eduard Orlov, when dealing with Plaintiff[] [Daniyar Kungeibayev individually for himself and as assignee of Ali Klyshpayev] was an agent of Devolro Florida and/or American Technology Ventures LLC:

ANSWER YES OR NO

Yes

1 Although ATV and Devolro were represented at trial by the same trial counsel and filed all pertinent motions jointly, American Technology Ventures (ATV) is the only appellant.

X Devolro, Inc. a Florida Corporation X American Technology Ventures LLC The jury verdict further found ATV liable for fraud, civil theft, conversion, and unjust enrichment. On appeal, ATV challenges the trial court’s interlocutory order denying its motion for summary judgment, in which ATV contended that Orlov was not acting as ATV’s agent in its dealings with Klyshpayev and Kungeibayev. In doing so, ATV acknowledges the jury reached a contrary determination on this very issue of agency raised by ATV in its pretrial motion for summary judgment. Indeed, there is caselaw holding that an error in denying summary judgment is rendered harmless or moot where the subsequent jury verdict and judgment “authorizes the verdict (judgment) on that issue.” Strickland v. State Farm Mut. Auto. Ins. Co., 323 So. 3d 783, 785 (Fla. 1st DCA 2021) (“After verdict and judgment, it is too late to review a judgment denying a summary judgment, for that judgment becomes moot when the court reviews the evidence upon the trial of the case. Stated differently, where a motion for summary judgment is overruled on an issue and the case proceeds to trial and the evidence at the trial authorizes the verdict (judgment) on that issue,

2 In 2021, the Florida Supreme Court amended Florida Rule of Civil Procedure 1.510, adopting “the summary judgment standard articulated by the United States Supreme Court in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); and Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).” In re Amends. to Fla. Rule Civ. Proc. 1.510, 309 So. 3d 192, 192 (Fla. 2020).

In re Amends. to Fla. Rule Civ. Proc. 1.510, 309 So. 3d 192, 194 (Fla. 2020) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986)) (emphasis added).³

3 ATV’s position might have merit if its argument was grounded upon an allegedly erroneous application of law by the trial court in denying summary judgment, rather than (as here) an allegedly erroneous determination that a material fact remained in dispute. For example, if a trial court in a negligence claim determined (on undisputed material facts) that defendant owed a duty

Affirmed.

to the plaintiff, a denial of defendant’s summary judgment on this basis would arguably not be mooted or rendered harmless by a subsequent verdict in favor of plaintiff, since the determination of duty is a legal issue for the court, rather than a factual determination for the jury. See, e.g., Fla. Dep't. of Corr. v. Abril, 969 So. 2d 201, 204-05 (Fla. 2007) (“This Court has held that while breach, causation, and damages are ordinarily questions for the jury, ‘duty exists as a matter of law and is not a factual question for the jury to decide.’”) (quoting McCain v. Fla. Power Corp., 593 So. 2d 500, 503 (Fla.1992)); see also Williams v. Davis, 974 So. 2d 1052, 1056 n.2 (Fla. 2007) (“[E]stablishing the existence of a duty under our negligence law is a minimum threshold legal requirement that opens the courthouse doors to the moving party, and is ultimately a question of law for the court rather than a jury.”)