CTCW-BERKSHIRE CLUB, LLC
v.
CED CAPITAL HOLDINGS 2000 EB, LLC

Fla. 5th DCA | 2021-11-05
No. 20-2531
Jordan, J., Nardella, J., Wozniak, J., Sasso, J.
Florida District Court of Appeal, Fifth District (2021)

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Holding

The trial court's judgment awarding damages was affirmed because the appellant waived its challenges by failing to contest the trial court's alternative basis for the award, failing to adequately argue the standing and Statute of Frauds issues, and failing to preserve the continuing damages issue through a motion for rehearing.

Headnotes

[1] An appellant waives an issue on appeal by failing to challenge a trial court's alternative basis for its ruling in the initial appellate brief.

[2] An assignment of a contract right is not required to be in writing under the Statute of Frauds.

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Facts & Procedural History

CTCW-Berkshire Club, LLC appealed a circuit court judgment in Orange County awarding damages to CED Capital Holdings 2000 EB, LLC. The appellant chall…

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Topics
Waiver Of Appellate Issues Pretrial Stipulation Assignment Of Contract Claim For Damages

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Opinion of the Court

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

CTCW-BERKSHIRE CLUB, LLC, Appellant, v. Case No. 5D20-2531 LT Case No. 2018-CA-013886-O CED CAPITAL HOLDINGS 2000 EB, LLC, Appellee. ________________________________/ Opinion filed November 5, 2021 Appeal from the Circuit Court for Orange County, John E. Jordan, Judge. Zachary J. Bancroft, of Baker Donelson Bearman Caldwell & Berkowitz, PC, Orlando, Steven F. Griffith, Jr. and Laura E. Carlisle, of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, New Orleans, LA, for Appellant. Tucker H. Byrd, Scottie N. McPherson and Brittany M. Wages, of Byrd Campbell, P.A., Winter Park, for Appellee.

PER CURIAM.

AFFIRMED.

NARDELLA and WOZNIAK, JJ., concur. SASSO, J., concurs specially, with opinion.

2 Case No. 5D20-2531 LT Case No. 2018-CA-013886-O SASSO, J., concurring specially. I agree with this court’s decision to affirm the judgment on appeal and write to explain why I believe we are so constrained. Appellant challenges the trial court’s order awarding damages on several grounds, first arguing that the damages were never pled. On this point though, while the trial court determined the damages were not required to be specifically pled, it alternatively found that any pleading defects were remedied by virtue of the parties’ pretrial stipulation. Appellant does not challenge this alternative basis in its initial brief and therefore has waived the issue. See Brown v. State, 304 So. 3d 243, 267 (Fla. 2020) (failure to challenge circuit court’s alternative and primary bases for denying relief constituted waiver of error); Rosier v. State, 276 So. 3d 403, 406 (Fla. 1st DCA 2019) (issues not raised in the initial brief are considered waived or abandoned). Next, Appellant challenges Appellee’s standing to obtain damages suffered by its parent company, a non-party to this action. Appellant argues that Appellee lacks standing to obtain damages because the purported assignment it received from its parent company violates the Statute of Frauds. Appellant’s sole argument on this point does not support reversal. See Boulevard Nat’l Bank of Miami v. Air Metal Indus., Inc., 176 So. 2d 94,

Footnotes
3 97–98 (Fla. 1965) (holding that a written assignment of a contract is not required); Loper v. Weather Shield Mfg., Inc., 203 So. 3d 898, 906 (Fla. 1st DCA 2015) (“The general rule is that the Statute of Frauds bars enforcement of oral contracts which by their terms are not to be performed within a year. The fact that a contact may not be performed within a year does not bring it within the statute. . . .” (citations omitted)). Thus, Appellant fails to meet its appellate burden on this point. See Rosier, 276 So. 3d at 406 (noting appellate court may not become an advocate by second-guessing counsel and advancing for him theories and defenses which counsel either intentionally or unintentionally has chosen not to mention). Finally, Appellant challenges the issue of continuing damages. On this point, the award of continuing damages appeared for the first time in the final judgment, and Appellant did not file a motion for rehearing directed at this alleged error. Consequently, the issue is unpreserved for our review. See Pensacola Beach Pier, Inc. v. King, 66 So. 3d 321, 324–25 (Fla. 1st DCA 2011) (appellant failed to preserve for appellate review alleged legal error which appeared for the first time on the face of the judgment and appellant did not move for rehearing or otherwise seek post-judgment relief).

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