       Third District Court of Appeal
                               State of Florida

                          Opinion filed August 16, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D16-1958
                          Lower Tribunal No. 14-8459
                             ________________


                   Platinum Luxury Auctions, LLC,
                  Trayor Lesnock, and Kevin Vaughn,
                                   Appellants,

                                        vs.

                        Concierge Auctions, LLC,
                                    Appellee.


    An Appeal from the Circuit Court for Miami-Dade County, William
Thomas, Judge.

      Tripp Scott, P.A., and Ryan H. Lehrer and Paul O. Lopez (Fort Lauderdale),
for appellants.

      Carey Rodriguez Milian Gonya, LLP, and Patrick E. Gonya, Jr., for
appellee.


Before LAGOA, SALTER, and FERNANDEZ, JJ.

      LAGOA, J.
      The appellants, Platinum Luxury Auctions, LLC (“PLA”), Trayor Lesnock

(“Lesnock”), and Kevin Vaughn (“Vaughn”) (collectively, the “Appellants”),

appeal the trial court’s order granting appellee, Concierge Auctions, LLC’s

(“Concierge”), motion to enforce settlement agreement. Because the trial court

erred in finding that Appellants violated the Non-Disparagement provision of the

parties’ Confidential Settlement Agreement, we reverse.

I.    FACTUAL AND PROCEDURAL HISTORY

      PLA and Concierge are acknowledged rivals in the auction business. On

April 1, 2014, Concierge filed suit against PLA, Lesnock, and Vaughn alleging

claims for, among other things, defamation, violation of the Florida Unfair and

Deceptive Trade Practices Act, tortious interference with business relationships,

and conspiracy.   Concierge alleged that Lesnock, using a pseudonym, posted

negative comments about Concierge in the comments section of a January 22,

2014, online magazine article about Concierge’s unsuccessful auction of a home in

Highland Park, Illinois. Lesnock admitted in his deposition testimony that he was

the author of the negative comments, which were posted on or about January 27,

2014 (the “January 27 blog post”).

      On September 5, 2014, Concierge, PLA, Lesnock, and Vaughn executed a

Confidential Settlement Agreement (the “Settlement Agreement”). The Settlement

Agreement set forth in detail the contents of Lesnock’s January 27 blog post.



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Under the terms of the Settlement Agreement, the Appellants agreed to publish,

within fifteen days from the execution of the Settlement Agreement, a retraction of

the January 27 blog post. In accordance with these terms, on September 14, 2014,

the Appellants published a retraction of the January 27 blog post on the relevant

magazine’s website.

       The Settlement Agreement also contained a provision (the “Non-

Disparagement Provision”) in which the Appellants agreed not to make any

defamatory, disparaging, or critical statements, written or verbal, about Concierge

after execution of the Settlement Agreement. The Non-Disparagement Provision

states,1 in pertinent part:

                      3. Non-Disparagement.
                      a. Defendants acknowledge and agree that the
              professional, business and personal reputations of
              Plaintiff and its employees, directors, and officers are
              important and should not be impaired by Defendants
              after this Agreement is executed. Therefore, Defendants
              agree not to make any statements, written or verbal, or
              cause or encourage others to make any statements,
              written or verbal, that defame, disparage or in any way
              criticize the personal or business reputation, practices, or
              conduct of Plaintiff, its employees, directors, and officers
              ....

(emphasis added).

1 Although the trial court entered an agreed order sealing the Settlement Agreement
as confidential pursuant to Florida Rule of Judicial Administration 2.420(c)(9), we
quote this portion of the Non-Disparagement Provision as it is central to the issue
on appeal and consists of contractual language that does not reveal confidential
information.

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      Shortly thereafter, the Appellants and Concierge filed a joint stipulation of

dismissal with prejudice. On March 30, 2016, the trial court entered an Agreed

Order Approving Joint Stipulation of Dismissal with Prejudice dismissing the case

with prejudice and specifically retaining jurisdiction “to enforce the terms of the

confidential settlement agreement executed between the parties dated September 5,

2014.”

      On April 21, 2016, Concierge filed a Motion to Enforce Settlement

Agreement, claiming that PLA and Lesnock were in violation of the Non-

Disparagement Provision because a January 2014 online article (the “January 2014

online article”) was “available online and accessible” on two websites operated and

controlled by PLA and Lesnock. Concierge claimed that the January 2014 online

article criticized and disparaged Concierge’s involvement in the same auction at

issue in the January 27 blog post. Concierge argued that the January 2014 online

article “indisputably violates the Non-Disparagement Provision,” and sought an

order directing PLA and Lesnock to “take down” the January 2014 online article

from their websites.

      In their Response to the Motion to Enforce Settlement Agreement, PLA and

Lesnock argued that the Non-Disparagement Provision does not require the

retraction of statements made prior to the time the parties entered into the

Settlement Agreement. PLA and Lesnock relied on the fact that the January 2014


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online article was written and posted nine months before the parties executed the

Settlement Agreement on September 5, 2014, and that it was not included in the

terms of the Settlement Agreement.

      PLA and Lesnock also asserted that Concierge knew about the January 2014

online article at the time the parties executed the Settlement Agreement, but chose

to not include the article as part of the settlement terms, which only required the

retraction of the January 27 blog post. PLA and Lesnock supported their Response

with Lesnock’s affidavit in which Lesnock attested that the January 2014 online

article “was one of the topics raised by [Concierge’s] counsel during my deposition

in this case prior to the signing of the settlement agreement.”2 Indeed, as conceded

in its Answer Brief to this Court, Concierge does not dispute that it was aware of

the January 2014 online article at the time it executed the Settlement Agreement

with the Appellants.

      After a hearing on the matter, the trial court entered its order granting the

Motion to Enforce. The trial court found that the January 2014 online article

disparages Concierge and that the Appellants’ refusal to remove it from their

websites violates the Non-Disparagement Provision contained in the Settlement

Agreement. The trial court directed the Appellants to remove the January 2014

online article from their websites within seven days of the date of the order.

2Lesnock also attested that the contents of the January 2014 online article had not
been modified.

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       This appeal followed.

II.    STANDARD OF REVIEW

       “[A] trial court’s decision construing a contract presents an issue of law that

is subject to the de novo standard of review.” Tropical Glass & Constr. Co. v.

Gitlin, 13 So. 3d 156, 158 (Fla. 3d DCA 2009).           A settlement agreement is

contractual in nature and therefore interpreted and governed by contract law. See

Muñoz Hnos, S.A. v. Editorial Televisa Int’l, S.A., 121 So. 3d 100, 103 (Fla. 3d

DCA 2013). We therefore review de novo the trial court’s order interpreting the

Settlement Agreement. See Pinnacle Three Corp. v. EVS Invs., Inc., 193 So. 3d

973, 975-76 (Fla. 3d DCA 2016) (“In the present case, we review the trial court's

ruling de novo, as it depends on the interpretation of paragraph 7 of the settlement

agreement.”); see also Commercial Capital Res., LLC v. Giovannetti, 955 So. 2d

1151, 1153 (Fla. 3d DCA 2007) (applying de novo standard of review to trial

court’s order enforcing settlement agreement).

III.   ANALYSIS

       When a trial court approves a settlement agreement by order and retains

jurisdiction to enforce its terms, the trial court has the jurisdiction to enforce the

terms of the settlement agreement. See Paulucci v. Gen. Dynamics Corp., 842 So.

2d 797, 803 (Fla. 2003); Sarhan v. H & H Inv’rs, Inc., 88 So. 3d 219, 220 (Fla. 3d

DCA 2011).      It is well-established, however, that “the extent of the court’s



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continuing jurisdiction to enforce the terms of the settlement agreement is

circumscribed by the terms of that agreement.” Paulucci, 842 So. 2d at 803; see

also Sarhan, 88 So. 3d at 220; Olen Props. Corp. v. Wren, 109 So. 3d 263, 265

(Fla. 4th DCA 2013); Rocha v. Mendonca, 35 So. 3d 973, 976 (Fla. 3d DCA

2010); W.C. Riviera Partners, LC. v. W.C.R.P., LC., 912 So. 2d 587, 589 (Fla. 2d

DCA 2005). For that reason, a trial court exceeds the jurisdiction it reserved for

itself when it grants to a party seeking enforcement relief that is beyond the

obligations set forth in the parties’ settlement agreement. See Pinnacle Three

Corp., 193 So. 3d at 976 (stating that trial court properly concluded that relief

sought in motion to enforce settlement agreement went beyond obligations detailed

in settlement agreement and was thus beyond the jurisdiction retained by the trial

court); Sarhan, 88 So. 3d at 220 (finding that trial court exceeded the jurisdiction it

reserved for itself when it summarily entered a final judgment of foreclosure and

that remedy was not authorized in stipulation of settlement).

      A settlement agreement is governed by contract law. See Muñoz, 121 So.

3d at 103; see also Spiegel v. H. Allen Holmes, Inc., 834 So. 2d 295, 297 (Fla. 4th

DCA 2002) (stating that settlement agreements “are interpreted and governed by

the law of contracts”). A trial court is not free to re-write the terms of a settlement

agreement, and “[w]here the contractual language is clear and unambiguous,

‘courts may not indulge in construction or modification and the express terms of



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the settlement agreement control.’” Commercial Capital Res., LLC, 955 So. 2d at

1153 (quoting Sec. Ins. Co. of Hartford v. Puig, 728 So. 2d 292, 294 (Fla. 3d DCA

1999)). “An order enforcing a settlement agreement must conform with the terms

of the agreement and may not impose terms that were not included in the

agreement.” Johnson v. Bezner, 910 So. 2d 398, 401 (Fla. 4th DCA 2005).

      Here, the trial court retained jurisdiction “to enforce the terms of the

confidential settlement agreement executed between the parties dated September 5,

2016.”   The express terms of the parties’ Settlement Agreement, therefore,

delineate the trial court’s enforcement power. See Paulucci, 842 So. 2d at 803.

Under the clear terms of the Settlement Agreement, the Non-Disparagement

Provision applies to any written or verbal statements made after the agreement was

executed—September 5, 2014. The online article at issue was posted in January of

2014, well before the parties entered into the Settlement Agreement, and the record

evidence establishes that Concierge knew about the January 2014 online article at

the time it entered into the Settlement Agreement. The Settlement Agreement only

required the retraction of the January 27 blog post, and did not address the January

2014 online article in any way or otherwise require its retraction or removal. Had

Concierge wanted the Appellants to remove the January 2014 online article from

their websites, Concierge could have negotiated that term into the Settlement

Agreement. Concierge did not do so.



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      Under the guise of enforcing the Settlement Agreement, the trial court

impermissibly re-wrote the Settlement Agreement. Specifically, the trial court

construed the Settlement Agreement’s express language limiting the Non-

Disparagement Provision to statements made after September 5, 2014, to apply to

the January 2014 online article—an article published before September 5, 2014,

and one that the parties knew about prior to entering into the Settlement Agreement

but which they chose not to include within its terms. Cf. Rocha, 35 So. 3d at 976

(reversing trial court’s order enforcing settlement agreement and finding that

“[a]lthough a trial court may be motivated to do what it considers to be fair and

equitable, it retains no jurisdiction to rewrite the terms of a . . . settlement

agreement.    Under the guise of enforcing the agreement, the trial court here

impermissibly modified it.”). Accordingly, we find that the trial court’s order

requiring the removal of the January 2014 online article exceeded the jurisdiction

the trial court reserved for itself to enforce the terms of the Settlement Agreement.

IV.   CONCLUSION

      Because the Settlement Agreement did not require the Appellants to remove

the January 2014 online article from their websites and the January 2014 online

article was not a statement made after the date of execution of the Settlement

Agreement, the trial court impermissibly exceeded its jurisdiction in finding the

Appellants in violation of the Settlement Agreement.          The order on appeal



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enforcing the Settlement Agreement and ordering the removal of the January 2014

online article is therefore reversed.

      Reversed.




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