NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
BOULDER VENTURE SOUTH, LLC, a )
Florida limited liability corporation;
)
ROBERT E. SCHMIDT, JR., )
individually; and KELLY C. SCHMIDT, )
individually; KB PARKSIDE, LLC, a )
Florida limited liability corporation,
)
)
Appellants, )
)
v. ) Case No. 2D15-148
) 2D15-4111
JOHN M. SABOW, individually, )
) CONSOLIDATED
Appellee. )
___________________________________ )
Opinion filed November 16, 2016.
Appeal from the Circuit Court for
Pinellas County; Jack Day and Amy M.
Williams, Judges.
Marion Hale, Sharon E. Krick, and
Caitlein J. Jammo of Johnson, Pope,
Bokor, Ruppel & Burns, LLP, Clearwater,
for Appellants.
Samuel J. Heller of Heller Goldberg, P.A.,
St. Petersburg, for Appellee.
PER CURIAM.
After close consideration of the record and with the benefit of oral
argument, we affirm without comment the final judgment and supplemental final
judgment in all respects. For the following reasons, we remand the case to the trial
court for the sole purpose of striking certain language from the written order containing
the findings of fact and conclusions of law supporting the two judgments.
Appellants Robert and Kelly Schmidt contend that the trial court erred in
determining that they guaranteed the obligations of appellant Boulder Venture South,
LLC, under an amended and restated independent contractor agreement between John
Sabow and Boulder Venture. With regard to that assertion of error, we observe that the
final judgment awards declaratory relief "regarding the issues set forth in Count III" of
the amended complaint. Count III is a claim for declaratory relief under the agreement
lodged solely against Boulder Venture—not against the Schmidts—to determine the
amount Boulder Venture was obligated to pay Mr. Sabow pursuant to the independent
contractor agreement, a matter about which the parties were uncertain and in
disagreement. The supplemental final judgment awards monetary relief on Count III
against Boulder Venture—again, not against the Schmidts—pursuant to the declaratory
judgment statute. See § 86.061, Fla. Stat. (2015).
On the face of the judgments, then, the trial court neither determined nor
enforced any obligations the Schmidts might have in their individual capacities to
guarantee Boulder Venture's payment of the sum owed Mr. Sabow under the
agreement. Nor was it necessary for the trial court to do so in order to enter the
judgments it did. The single clause of the trial court's separate order making findings of
fact and conclusions of law that the "agreement . . . was guaranteed by Defendants
Robert and Kelly Schmidt" is therefore surplusage that is unrelated and unnecessary to
the resolution of the single count of the amended complaint upon which the judgments
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appealed from were rendered. See, e.g., Kennedy v. George Cully Real Estate, Inc.,
336 So. 2d 484, 486 (Fla. 3d DCA 1976) (holding that conclusions of law as to equitable
estoppel were surplusage where the trial court stated that it was not resolving the case
on that basis).
Our review of the record reflects substantial questions about what the
scope of the trial court's guaranty finding was, whether a claim that the Schmidts
guaranteed the payment obligation asserted in Count III was pleaded or tried by
consent, and whether the trial evidence would have been sufficient to establish a
guaranty of the payment obligation asserted in Count III had the matter been pleaded or
tried by consent. Because the trial court's finding of a guaranty is irrelevant to whether
its judgments are due to be affirmed or reversed, however, this appeal does not present
occasion to resolve those issues.1 Therefore, we remand the case for the limited
purpose of having the trial court delete from the findings of fact and conclusions of law
the statement that the Schmidts guaranteed the agreement, and we affirm the final
judgment and supplemental final judgment as modified by our instructions on remand.
See, e.g., Coulson v. Herr, 124 So. 736, 736 (Fla. 1929) (affirming final judgment with
directions to eliminate surplusage from the decree); cf. In re the Interest of J.P., 220 So.
1
The Schmidts were named as defendants alongside Boulder Venture in
Count I for breach of contract and Count II for a mandatory injunction. Count I was
resolved in the Schmidts' favor in the final judgment based on a finding that there had
not been a breach, and Count II was voluntarily dismissed by Mr. Sabow. Although the
trial court's resolution of Count I was not based on its guaranty finding, that count might
have put the issue in play because it was brought against the Schmidts individually. Mr.
Sabow has not, however, cross-appealed that aspect of the final judgment. Although
the trial court declined to award monetary relief against the Schmidts in the
supplemental final judgment based at least in part on its belief that their liability was at
issue in the appeal, Mr. Sabow has not cross-appealed that denial of relief either.
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2d 665, 666 (Fla. 3d DCA 1969) (holding that trial court's finding of paternity was
surplusage unnecessary to the entry of order providing for support and affirming that
order with instructions to delete the finding).
Affirmed; remanded with instructions.
VILLANTI, C.J., and KELLY and SALARIO, JJ., Concur.
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