        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                           HILTON M. WIENER,
                               Appellant,

                                      v.

              THE COUNTRY CLUB AT WOODFIELD, INC.,
                       a Florida corporation,
                              Appellee.

                               No. 4D17-2120

                            [September 5, 2018]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Edward A. Garrison, Judge; L.T. Case No. 50-2014-CA-
008896-XXXX-MB.

  Daniel A. Hershman of Hershman Law, P.A., West Palm Beach, for
appellant.

  James N. Krivok of Dicker, Krivok & Stoloff, P.A., West Palm Beach, for
appellee.

CONNER, J.

   Hilton M. Wiener (“Wiener”) appeals the final judgment against him in
favor of The Country Club at Woodfield, Inc. (“Woodfield Club”). The issue
we decide is whether the trial court erred in interpreting the pretrial
stipulation in a manner that narrowed the factual issues to be tried
pertaining to liability, resulting in the deprivation of a fair trial. From the
record on appeal, we conclude that the trial court failed to consider the
intent of the parties as evidenced by the statements within the pretrial
stipulation and incorrectly interpreted the stipulation in a manner that
limited the evidence at trial, denying Wiener a fair trial. For those reasons,
we reverse.

                                 Background

   Woodfield Club is a corporation which operates a country club in a
residential community. Wiener was a homeowner in the residential
community, which obligated him and his wife to purchase a club
membership, pursuant to the master declaration of covenants for the
residential community.

   From approximately February 2004 through May 2011, Wiener used
facilities as a club member and paid all dues in accordance with invoices
issued by Woodfield Club. However, starting in June 2011, Weiner
stopped paying dues because he moved out of the home in response to his
wife filing for divorce.

    Article X, Section 18(b) of the master declaration of covenants provides
for the transfer of membership obligations in the event joint homeowners
divorce:

      b. In the event Members are legally separated or divorced,
      title to the Membership, including all rights and benefits given
      to the holder thereof, shall vest in the spouse awarded the
      Membership by judicial determination or settlement, provided
      such spouse fulfills the eligibility requirements for
      Membership in the Club. Both of the divorced or legally
      separated Members shall be required to give written notice to
      the Club designating the person who is entitled to the rights
      and privileges of the Membership within five (5) days after the
      divorce or legal separation is declared final. Until written
      notice has been provided to the Club, both spouses shall
      remain responsible for the payment of all dues, fees, charges
      and assessments associated with the Membership. Upon
      termination of co-habitation, only one Member may use the
      Membership. If both parties fail to designate one person, the
      Membership privileges shall be determined as follows:

            (1) The person resident in the Property shall be deemed
                to be the Member entitled to use the Club Facilities.

   Wiener’s wife was granted exclusive use of the home in January 2013,
while their divorce was pending. The divorce became final in December
2013, at which time Wiener’s interest in the home was awarded to the ex-
wife. In July 2014, Wiener executed a quit claim deed transferring his
interest in the home to his ex-wife. The ex-wife sold the house to a third
party in June 2015, and the club membership for the property was
transferred to the third-party purchaser.

   Woodfield Club sued Wiener in July 2014 for breach of contract.
Wiener filed an answer alleging that the court order awarding his ex-wife
exclusive use and possession of the home and subsequent divorce decree
denied him access to Woodfield Club and its facilities, therefore absolving

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him from any obligations. Upon the case being scheduled for trial, the
parties filed a joint pretrial stipulation.

  Section I of the pretrial stipulation was entitled: “Stipulated Facts
Which Require No Proof at Trial.” Paragraph P of Section II stated:

      Defendant’s obligation to pay dues, assessments and other
      charges due Plaintiff terminated on June 23, 2015.

June 23, 2015 is the date ownership of the house was transferred to the
third-party purchaser, triggering membership requirements for the new
owner.

   Section III of the pretrial stipulation was entitled: “Issues of Law and
Fact to be Determined at Trial.” Paragraphs F, G, H, and I of Section III
stated:

      F. Whether Defendant’s financial obligation to the Club
      pursuant to the Membership Agreement was terminated or
      extinguished by a final judgment of dissolution of Defendant’s
      marriage to his former wife.

      G. Whether the Court Order in Defendant’s dissolution of
      marriage proceeding, which awarded Defendant’s ex-spouse
      exclusive use and possession of the Harrington Way property,
      extinguished or altered Defendant’s right to used Plaintiff’s
      facilities under the Membership Agreement.

      H. Whether the Court Order in Defendant’s dissolution of
      marriage proceeding, which awarded Defendant’s ex-spouse
      exclusive use and possession of the Harrington Way property,
      extinguished or altered Defendant’s obligation to Plaintiff
      under the Membership Agreement.

      I. Whether Defendant was obligated to pay dues,
      assessments and all other club charges accruing on
      Defendant’s membership until Defendant’s full golf
      membership was reissued by the Club to a new member
      pursuant to Plaintiff’s Bylaws.

   The non-jury trial was conducted by a judge who had not handled the
case prior to trial. After the parties made their opening statements and
while Woodfield Club was presenting its first witness, the trial judge
interrupted examination of the witness to question why the case was


                                    3
proceeding to trial, based on stipulated facts the trial judge read in the
pretrial stipulation.    The trial judge interpreted the statement in
Subsection P of the pretrial stipulation to mean that the parties had agreed
that “the defendant’s [Wiener’s] obligation to pay dues, assessments, and
other charges to the plaintiff [Woodfield Club] terminated on June 23,
2015” (the date the membership was transferred to the third-party
purchaser), prompting the trial judge to ask, “What are we doing here?”

    Wiener argued that the stipulation meant that the June 23, 2015 date
was the outside date for liability, and that Subsection P had to be read in
context with the other issues framed in the stipulation. The trial judge
flatly rejected the argument, contending, “That’s not what you stipulated
to.” Additionally, the trial judge asserted it was his understanding that in
the Fourth District, “the pretrial stip controls over the pleadings and
anything else.” After concluding that Wiener’s liability for charges owed
for the membership was “a mathematical calculation,” the trial judge
ended discussion on the timeframe of Wiener’s liability for dues and
instructed Woodfield Club to provide a proposed judgment. The remainder
of the trial was spent calculating the amount due. The trial court entered
final judgment in favor of Woodfield Club. After his motions for rehearing
and new trial were denied, Wiener gave notice of appeal.

                            Appellate Analysis

   Wiener frames two primary issues on appeal, but we determine those
can be consolidated into one issue: Whether the trial court correctly
construed the pretrial stipulation when awarding a judgment in favor of
Woodfield Club. Additionally, Wiener argues the trial court improperly
denied his motions for rehearing and a new trial.

   We conduct a de novo review of a trial court’s interpretation of a written
contract as a question of law “provided that the language is clear and
unambiguous and free of conflicting inferences.” Ciklin Lubitz Martens &
O’Connell v. Casey, 199 So. 3d 309, 310 (Fla. 4th DCA 2016) (quoting
Commercial Capital Res., LLC v. Giovannetti, 955 So. 2d 1151, 1153 (Fla.
3d DCA 2007)). Pretrial stipulations are interpreted using the same
principles for interpreting written contracts. See McGoey v. State, 736 So.
2d 31, 34 (Fla. 3d DCA 1999) (citing contract law and explaining that the
essence of a pretrial stipulation is “an agreement between the parties”
requiring mutual assent).

   Orders denying rehearing are reviewed for abuse of discretion. Allard
v. Al-Nayem Int’l, Inc., 59 So. 3d 198, 201 (Fla. 2d DCA 2011). Appellate
courts also “review orders on motions for new trial for an abuse of


                                     4
discretion.” Cent. Square Tarragon LLC v. Great Divide Ins. Co., 82 So. 3d
911, 913 (Fla. 4th DCA 2011).

      If reasonable men could differ as to the propriety of the action
      taken by the trial court, then the action is not unreasonable
      and there can be no finding of an abuse of discretion. The
      discretionary ruling of the trial judge should be disturbed only
      when his decision fails to satisfy this test of reasonableness.

Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980).

    “Although [an appellate] court typically reviews the denial of motions
for new trial under an abuse of discretion standard, the standard becomes
de novo if, as a matter of law, the trial judge applies the incorrect legal
standard in denying the motion.” Collett v. State, 28 So. 3d 224, 226 (Fla.
2d DCA 2010). Because the motions for rehearing and a new trial in this
case are grounded in the argument that the trial court improperly
interpreted the pretrial stipulation, the appropriate standard of review for
the denial of those motions is de novo.

   “When construing stipulations, a court should attempt to interpret it in
line with the apparent intent of the parties.” Utopia Provider Sys., Inc. v.
Pro-Med Clinical Sys., LLC, 196 So. 3d 557, 561 (Fla. 4th DCA 2016). As
explained in Travelers Insurance Co. v. VES Service Co., 576 So. 2d 1349
(Fla. 1st DCA 1991):

      A stipulation . . . must be carefully examined to determine
      whether the language used actually discloses a clear, positive,
      and definite stipulated fact. The statement should not be
      vague or ambiguous.        Nevertheless, it should receive a
      construction in harmony with the apparent intention of the
      parties. It is not to be construed technically, but rather in
      accordance with its spirit, in furtherance of justice, in the light
      of the circumstances surrounding the parties, and in view of the
      result that they were attempting to accomplish. 2 Fla. Jur. 2d,
      Agreed Case and Stipulations, § 6; see Federal Land Bank of
      Columbia v. Brooks, 139 Fla. 506, 190 So. 737 (Fla. 1939).

Id. at 1350 (alteration in original)(emphasis added).

   Wiener argues that the trial court refused to consider what the parties
intended as to the issues to be tried, as expressed by the pretrial
stipulation, and ignored the disputed facts that were detailed in the
pretrial stipulation. He further argues that the parties understood a
genuine dispute existed as to when his obligation to pay membership

                                      5
charges ended, and the intent of the language interpreted by the trial was
to establish the outside date of the period in dispute.

    Woodfield Club argues that the facts in the stipulation are binding on
the parties, and that Wiener failed to seek relief prior to or at the
commencement of trial from the improper selection of words in the
stipulation. See Eagle FL VI SPE, LLC v. T & A Family P’ship, Ltd., 177 So.
3d 1277, 1280 (Fla. 2d DCA 2015). Thus, Woodfield Club argues that the
trial court did not abuse its discretion.

    However, our review of the record indicates that the trial court did not
interpret the stipulation “in line with the apparent intent of the parties.”
See Utopia, 196 So. 3d at 561. And, contrary to Woodfield Club’s
assertion, Wiener contested the interpretation, and Woodfield Club’s
attorney disingenuously stated he interpreted the stipulation the way the
trial court did after the court announced its interpretation.

   It is also evident that Woodfield Club clearly thought the June 23, 2015
date was the “outside limit” of liability. The stipulation was filed six
months before trial, and Woodfield Club did not move for summary
judgment on a contention that there was no dispute of material fact as to
the period of liability. Further, as the trial court observed, going to trial
made no logical sense, if Woodfield Club believed that Wiener agreed he
was liable for dues until June 23, 2015. Moreover, Woodfield Club’s
assertion of agreement with the trial court’s interpretation of the pretrial
stipulation is belied by several of its own filings acknowledging a dispute
concerning the date Weiner’s obligations ended, as well as its statements
at trial. For example, its response in opposition to Wiener’s motion for
summary judgment stated: “The summary judgment evidence before the
Court establishes that there are material issues of fact as to when
Defendant’s obligation to pay dues actually ended . . . .” (emphasis added).
Additionally, in its trial memorandum, Woodfield Club stated:

      Based upon the foregoing irrefutable facts the evidence at trial
      will be conclusive that Defendant remained obligated to pay
      Club dues until at least July 18, 2014 because defendant was
      a record owner of the Woodfield Residence until that date.

      ...

      Had Defendant notified the Club that the final divorce decree
      awarded the Woodfield Residence and the membership to [his
      ex-wife], the Club would have transferred the Club
      Membership to [his ex-wife] as of the date of the filing of the
      divorce decree (i.e. December 4, 2013) and at that point

                                     6
      Defendant’s obligation to pay dues would have come to an
      end.

(emphasis added).

    Perhaps most tellingly, in its opening statement, Woodfield Club
implicitly indicated that the end date for Wiener’s liability was for the trial
court to determine when it stated that the evidence would show that
Woodfield Club was not notified (1) when Wiener’s divorce became final,
(2) when the house had been awarded to his ex-wife, or (3) that his ex-wife
had filled out an application for membership, suggesting three possible
dates for the termination of Wiener’s liability.

    Furthermore, paragraphs F, G, and H of Section III of the pretrial
stipulation framed questions to be decided in terms of whether Wiener’s
financial obligation to pay for his membership or his right to enjoy the use
of the facilities were “terminated,” “altered,” or “extinguished” by the final
judgment of dissolution of marriage or the court order granting his ex-wife
exclusive use and possession of the residence. Paragraph I framed the
question as whether his obligation to pay for membership continued until
Woodfield Club issued a new membership to the third-party purchaser of
the residence. Those paragraphs within the pretrial stipulation are
completely inconsistent with the notion that Wiener agreed his obligations
continued until the third-party purchaser acquired the property.

    All of these instances in which Woodfield Club acknowledged a dispute
regarding the ending date of Wiener’s obligations lead us to conclude that
the trial court judge did not construe the stipulation “in accordance with
its spirit, in furtherance of justice, in the light of the circumstances
surrounding the parties, and in view of the result that they were
attempting to accomplish.” Travelers, 576 So. 2d at 1350. Because the
trial court did not take into account the intention of the parties, cutting
off all argument regarding the intent of the stipulation, we determine that
Wiener was denied a fair trial. Thus, we reverse the final judgment and
remand the case for a new trial.

   Reversed and remanded for a new trial.

LEVINE and FORST, JJ., concur.

                             *        *         *

   Not final until disposition of timely filed motion for rehearing.



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