        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                               FOURTH DISTRICT

                  FLORIDA POWER & LIGHT COMPANY,
                             Appellant,

                                       v.

                         SAMUEL J. MCROBERTS,
                               Appellee.

                                No. 4D17-2399

                              [October 10, 2018]

   Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Martin H. Colin and David E. French, Judges; L.T. Case
No. 50-2014-CA-012762-XXXX-MB.

  Charles L. Schlumberger, Senior Litigation Counsel, and Robert
Sendler, Juno Beach, for appellant.

   Alan B. Rose, L. Louis Mrachek, Gregory S. Weiss, and Michael W.
Kranz of Mrachek, Fitzgerald, Rose, Konopka, Thomas & Weiss, P.A., West
Palm Beach, for appellee.

KUNTZ, J.

    An agent must have authority to bind its principal. The issue presented
in this appeal is whether the alleged agent had authority to bind FPL, the
principal, while tailgating outside a football game. We conclude the
appellee failed to establish the individual at the tailgate party had actual
or apparent authority to enter into a brokerage contract on FPL’s behalf.
Thus, we reverse and remand for entry of a directed verdict in favor of FPL.

                                Background 1

  Samuel McRoberts attended a tailgate party before the Florida State
Seminoles played the Virginia Tech Hokies in Tallahassee. Jorge “Buck”



1 We present the facts in the light most favorable to McRoberts. See State, Dep’t
of Children & Family Servs. v. Amora, 944 So. 2d 431, 435 (Fla. 4th DCA 2006).
Martinez also attended. McRoberts knew from either reading the paper or
online that Martinez was FPL’s “senior project director of development.”

   McRoberts “couldn’t wait to talk to him” because FPL was “the biggest
company in the state of Florida and the biggest land owner.” Before the
game started, he talked to Martinez for “right around 30 minutes.” During
the conversation, he asked Martinez about FPL’s process for purchasing
land and “kind of hammer[ed] him a little bit” about whether FPL was
looking to make any acquisitions. Martinez “was really ramped up on
talking about clean energy” and the “incredible tax incentives . . . for clean
energy development.” Martinez told him that FPL was looking to acquire
property for clean energy projects but that for FPL to take advantage of
federal tax incentives, it would have to be a joint venture. This excited
McRoberts, who “wanted to sell him some land.” 2

    As Martinez walked into the stadium, McRoberts approached him and
they spoke for “two or three minutes.” McRoberts “went up and [ ] said [to
Martinez], you realize I make my living off real estate commissions, right?”
Martinez responded in the affirmative. McRoberts asked Martinez if he
would pay him “a reasonable real estate commission, a fair real estate fee
for introducing you to the ultimate property that you would be able to put
your power plant on and integrate your 300 megawatts of commercial
solar?” Martinez responded, “okay,” and they “shook on it. I mean, we
shook hands. It was a solid handshake.”

   During this conversation, McRoberts divulged the property’s location.
But, according to McRoberts, Martinez explained that FPL could not
immediately enter into a transaction unless it was a joint venture. In
response, McRoberts asked if Martinez would “protect” him “for a
reasonable finder’s fee if I can pinpoint for you who the main joint venture
investor would be?” Martinez responded with “an emphatic yes.” A
specific commission was not discussed—only that Martinez would protect
McRoberts. Still, McRoberts gave Martinez the investor’s name. 3



2Martinez denies that FPL has ever entered into a joint venture on renewable
energy projects.
3According to Martinez, FPL learned about the property through the friend and
professional acquaintance of a colleague at FPL. The FPL colleague and the friend
met while the friend was serving as the executive director of a large governmental
entity in South Florida. The two also served on boards together. Martinez, his
FPL colleague, and the friend all testified that the friend approached the FPL
colleague to introduce an investor related to the property FPL ultimately acquired.

                                        2
    When the discussion concluded, Martinez instructed: “Don’t call me on
my office number and don’t call me on my cell number. I want to give you
a cell number. You can reach me on that cell number, but don’t call me
next week, because I’m not going to be available next week, but call me
the following week.” McRoberts thought it was “the weirdest thing ever”
that Martinez “didn’t want me to call him on his cell phone” or at the office;
it “seemed strange.” But “strange” or not, McRoberts complied.

   Although McRoberts asked for a business card, Martinez did not give
him one. Instead, Martinez wrote a phone number on the back of one of
McRoberts’s business cards. When McRoberts called the number, a man
named Christopher answered. Christopher testified at trial that he has
never had any contracts with FPL. He and Martinez both testified that the
only time they met each other before trial was at Christopher’s deposition.

   Martinez had “no clue who [Christopher] was” and had never
communicated with him. But McRoberts testified that he called the
number listed on the business card on more than one occasion and after
each call, Martinez returned his call from a different phone number.
McRoberts assumed Martinez was not calling directly because Martinez
“wanted to keep the deal quiet with him.”

   Yet McRoberts called FPL’s general residential customer service phone
number more than twenty-one times over an extended period, purportedly
trying to reach Martinez. He first called the general customer service
number on Christmas Day and left a message for Martinez “because [he]
wanted to remember that [he] tried to” reach him.

   He also called Martinez’s cell phone. McRoberts testified that he spoke
to Martinez when he called his cell phone, but felt as though Martinez was
“pushing [him] off.” After a few calls, they stopped communicating, and
McRoberts made no efforts to memorialize or follow through with the
agreement.

   FPL eventually purchased the property that McRoberts purportedly told
Martinez about at the tailgate party—3,127 acres for $40 million in June
2011 and another 4,667 acres for $35 million in May 2013. FPL did not
pay McRoberts a commission, so he sued FPL for breach of contract and
unjust enrichment. The circuit court denied FPL’s motion for summary
judgment on the breach of contract claim, but granted FPL summary
judgment on the unjust enrichment claim.

   As a result, the only claim remaining for trial was the breach of contract
claim. McRoberts alleged FPL breached the contract formed at the tailgate

                                      3
party. FPL argued that McRoberts had nothing to do with the deal and did
not provide the lead or contact that led to FPL’s purchase of the property.
McRoberts prevailed at trial, and the jury awarded him $1.5 million in
damages.

                                  Analysis

   FPL argues the court erred when it denied FPL’s summary judgment
motion and later its motion for directed verdict on Martinez’s authority to
enter into a contract on FPL’s behalf. We agree.

    It is a plaintiff’s burden to establish the authority of an agent to act on
the principal’s behalf. Lee v. Melvin, 40 So. 2d 837, 838 (Fla. 1949) (“When
plaintiff in a civil action seeks to recover upon a contract alleged by him to
have been made with the defendant through the latter’s agent, the burden
of proof is upon plaintiff to show the authority of the agent for making the
contract.” (internal citation omitted)).

   An agent’s authority can be actual or apparent. Actual authority “exists
when a principal delegates authority to an agent by expressly authorizing
the agent to do a delegable act.” Richard A. Lord, 12 Williston on Contracts
§ 35:10 (4th ed.); see also Restatement (Third) of Agency § 2.01 (Am. Law
Inst. 2006). To establish actual authority, a plaintiff must prove: “(1)
acknowledgment by the principal that the agent will act for him, (2) the
agent’s acceptance of the undertaking, and (3) control by the principal over
the actions of the agent.” Goldschmidt v. Holman, 571 So. 2d 422, 424 n.5
(Fla. 1990) (citing Restatement (Second) of Agency § 1 (Am. Law. Inst.
1957)).

   Apparent authority is defined as the authority that “the principal
knowingly permits the agent to assume or which he holds the agent out as
possessing.” H. S. A., Inc. v. Harris-In-Hollywood, Inc., 285 So. 2d 690,
692–93 (Fla. 4th DCA 1973) (quoting Fidelity & Cas. Co. v. D.N. Morrison
Constr. Co., 156 So. 385, 387 (Fla. 1934)). To establish apparent
authority, a plaintiff must prove: “(1) a representation by the purported
principal; (2) reliance on that representation by a third party; and (3) a
change in position by the third party relying on the representation.” Lensa
Corp. v. Poinciana Gardens Ass’n, Inc., 765 So. 2d 296, 298 (Fla. 4th DCA
2000) (citing Ideal Foods, Inc. v. Action Leasing Corp., 413 So. 2d 416, 418
(Fla. 5th DCA 1982)).




                                      4
   Simply put, McRoberts failed to establish the first element of both
actual and apparent authority. 4 That is, it was not reasonable to assume
Martinez had the authority to bind FPL, and the circumstances
surrounding the purported agreement lend no credibility to the
reasonableness of assuming his authority.

    In Lensa, we explained that a third party’s reliance on the apparent
authority of an agent must be reasonable. 765 So. 2d at 298 (citing
Rushing v. Garrett, 375 So. 2d 903, 906 (Fla. 1st DCA 1979)). The fact
that the transaction did not occur in the ordinary course of business
influenced our conclusion in Lensa. See id.

   Here, it was not reasonable for McRoberts to conclude that Martinez
had the authority to act on FPL’s behalf at a tailgate party—FPL is a
company that McRoberts described as “the biggest company in the state
of Florida and the biggest land owner.” McRoberts testified that he knew
of Martinez’s position “from reading it in the paper,” that he “might have
seen it online somewhere,” and that he “knew [Martinez] had a very high
position in development.” That, however, does not establish that FPL held
out Martinez as having the authority to enter into the contract.

    This transaction was not in the ordinary course of business—it
allegedly occurred outside a Florida State University football game. It is
unreasonable to assume that an employee of the company McRoberts
described as “the biggest company in the state of Florida” would have the
authority to bind his employer to a multi-million dollar obligation at a
tailgate party. Nor is it reasonable to assume that a highly regulated utility
would conduct business in this manner.

   Similarly, the actual conversation does not support Martinez’s
authority to bind FPL. According to McRoberts, Martinez told McRoberts
not to call him at the office or on his cell phone. McRoberts himself
testified that this instruction was “strange” and described it as “the
weirdest thing ever.” Martinez also declined McRoberts’s request for a
business card, opting instead to write down a phone number for an
unknown person on the back of McRoberts’s own card. Based on the
instructions not to call Martinez at the office or on his cell phone,
McRoberts tried to communicate with him by leaving messages on FPL’s
general customer service line. This evidence could not reasonably show
that Martinez had the authority to bind FPL.


4  The parties use the terms apparent authority and apparent agency
interchangeably.

                                      5
   Finally, FPL never ratified Martinez’s authority to bind it. In Perper v.
Sonnabend, 221 F.2d 142 (5th Cir. 1955), the Fifth Circuit applied Florida
law and found that a plaintiff failed to establish that a hotel manager had
actual or apparent authority to enter into a real estate sales contract. Id.
at 144. In that case, the hotel manager explicitly informed the broker that
he had authority to enter the contract. Id. at 143. But, an agent cannot
bind a principal solely through her own actions. See id. at 144. Instead,
the principal must ratify the agent or the authority of the agent to act. Id.
at 145; see also Pan-Am. Constr. Co. v. Searcy, 84 So. 2d 540, 542–43 (Fla.
1955). In Perper, the principal did not ratify the act of the agent. 221 F.2d
at 145. As a result, the agent did not bind the principal. Id. So too here.

   FPL undertook no action after the purported agreement to ratify the
agreement or Martinez’s authority to act on its behalf. “There was no
formal act by” FPL, or even an informal act by FPL, “which would denote
the holding out of [Martinez] as possessing the authority to act on its
behalf.” See Lensa, 765 So. 2d at 299 (Gross, J., concurring) (internal
quotation omitted).

                                Conclusion

   The court erred in denying the motion for directed verdict, as the
evidence at trial was insufficient for a jury reasonably to conclude that
Martinez had actual or apparent authority to act as FPL’s agent. Thus,
FPL is entitled to the entry of a directed verdict in its favor.

   Reversed and remanded.

MAY, J., concurs.
CIKLIN, J., dissents with opinion.


CIKLIN, J., dissenting.

   I respectfully disagree with the majority’s decision to divest the
empaneled jury of its fact-finding responsibility to determine whether
authority existed in the fact situation before us. This case presents a
classic “he said – he said” factual dispute where the parties’ testimony and
evidence were diametrically opposed. McRoberts presented sufficient
evidence to support a positive conclusion. Therefore, I must respectfully
dissent from the majority’s conclusion that the factual determination
should have been taken out of the jury’s hands.


                                     6
   There existed a jury question as to actual or apparent authority; i.e.,
whether Martinez was acting within the scope of his employment with FPL
or reasonably appeared to be doing so.

          Three elements are needed to establish an apparent
      agency: (1) a representation by the purported principal; (2)
      reliance on that representation by a third party; and (3) a
      change in position by the third party in reliance upon such
      representation. See Ideal Foods, Inc. v. Action Leasing Corp.,
      413 So. 2d 416, 418 (Fla. 5th DCA 1982). The reliance of a
      third party on the apparent authority of a principal’s agent
      must be reasonable and rest in the actions of or appearances
      created by the principal, see Rushing v. Garrett, 375 So. 2d
      903, 906 (Fla. 1st DCA 1979), and “not by agents who often
      ingeniously create an appearance of authority by their own
      acts.” Taco Bell of California v. Zappone, 324 So. 2d 121, 124
      (Fla. 2d DCA 1975).

Lensa Corp., 765 So. 2d at 298. “The question of whether acts are within
the scope of an agent’s apparent authority is a question of fact, the
resolution of which will not be set aside unless clearly erroneous.” Hobbs
Const. & Dev., Inc. v. Colonial Concrete Co., 461 So. 2d 255, 259 (Fla. 1st
DCA 1984) (emphasis added).

    As I see it, only the first element was meaningfully disputed by FPL on
appeal. However, McRoberts’s testimony clearly supported this element.
It is crucial to keep in mind that “[a]n agent’s authority may be implied or
apparent; it need not be conferred in express terms.” Sugarland Real Estate,
Inc. v. Beardsley, 502 So. 2d 44, 45 (Fla. 2d DCA 1987) (emphasis added).
McRoberts testified that he knew that Martinez was “the Senior Project
Director of Development for Florida Power and Light” because he read it in
the paper and saw it on FPL’s website. By listing on its website that
Martinez held the position of Senior Director of Development for FPL for
the entire state, and by publishing his position in the newspaper, FPL’s
own actions reasonably represented that Martinez had authority to
contract for land for new projects. Or at a minimum, this was sufficient
evidence from which a jury could reasonably infer that Martinez had
authority to bind FPL to a land deal. If not the Senior Project Director of
Development, then who?

    Further, Martinez told McRoberts that FPL purchases land way ahead
of time and holds it for future use, and that FPL was seeking to place any
new power plants as close to the main power grid as possible. While not
a direct assertion from FPL, this knowledge of FPL’s plans with respect to

                                     7
acquisition of property boosted the reasonableness of McRoberts’s belief
in Martinez’s authority.

   As the majority points out, this deal occurred at a tailgate party and
not in the ordinary course of business. However, this fact does not make
McRoberts’s reliance unreasonable; rather, it merely prevents application
of a presumption of authority. See Lensa Corp., 765 So. 2d at 298 (“As to
acts in the ordinary course of business, courts have consistently
recognized that a presumption of authority exists in the case of acts made
or done by presidents.”). Furthermore, the jury may very well have
determined that it was not unreasonable for parties to enter into a
business deal at a sporting event. It is certainly not unheard of for
businesses to enter into deals at golf courses, in restaurants, or in other
traditionally social settings. Indeed, many major companies purchase
boxes or suites at sports stadiums and arenas for the purpose of furthering
their business.

   The majority also points out that there was no ratification of FPL’s
actions, but ratification is not a necessary element of apparent or implied
authority.

    “A motion for directed verdict should be granted only when the evidence
viewed in the light most favorable to the non-moving party shows that a
jury could not reasonably differ as to the existence of a material fact . . . .”
State, Dep’t of Children & Family Servs. v. Amora, 944 So. 2d 431, 435 (Fla.
4th DCA 2006) (emphasis added). “If there is any evidence to support a
possible verdict for the non-moving party, a directed verdict is improper.”
Stringer v. Katzell, 674 So. 2d 193, 195 (Fla. 4th DCA 1996) (emphasis
added). The credibility of the witnesses and weight of the competing
evidence are concerns for the jury, not the jurist. See id. (finding “trial
court violated these principles by viewing the evidence in a light favorable
to the moving parties”).

    McRoberts’s testimony constituted evidence from which a jury could
reasonably find apparent authority. Contrary to the majority’s conclusion,
the trial court did not err in denying the motion for directed verdict and
allowing the jury to do its job by reconciling conflicting testimony.

   I would affirm.

                             *         *         *

   Not final until disposition of timely filed motion for rehearing.


                                       8
