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Renny v. Bertoloti

Florida Court of Appeals, Fourth District

July 25, 2018

GUSTAV RENNY, Appellant,
v.
ERIKAH BERTOLOTI, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Meenu Sasser, Judge; L.T. Case No. 502015CA014492XXXXMB.

          Bryan J. Yarnell of Bryan J. Yarnell, PLLC, North Palm Beach, for appellant.

          Alexandra Sierra-De Varona of De Varona Law, Boca Raton, for appellee.

          TAYLOR, J.

         Gustav Renny appeals two orders: (1) an order denying his motion to enforce a settlement agreement with Appellee Erikah Bertoloti that was reached pursuant to the offer of judgment statute; and (2) an order dismissing Bertoloti from the lawsuit pursuant to a separate settlement agreement between appellant and other parties to the lawsuit. For the reasons that follow, we reverse both orders.

         In 2015, appellant sued Ilia Mogilevsky and a multitude of other defendants. Appellant later filed an Amended Complaint adding Appellee Erikah Bertoloti as a defendant in the lawsuit. Appellant eventually filed the operative Third Amended Complaint, which contains one count relevant to Bertoloti.

         In the relevant count, appellant brought a claim against Mogilevsky and Bertoloti for violating 18 U.S.C. § 2510, et seq., by unlawfully intercepting appellant's oral communications. Specifically, appellant alleged that he and Mogilevsky shared an office, Mogilevsky employed Bertoloti as a secretary, Mogilevsky influenced Bertoloti "to secretly record [appellant's] conversations," and both Bertoloti and Mogilevsky were liable for causing appellant's oral communications to be recorded without appellant's knowledge or consent.

         On November 4, 2016, Bertoloti served a proposal for settlement on appellant in the amount of $13, 350. The proposal required appellant to sign a general release and to execute a Notice of Voluntary Dismissal as to Bertoloti. The release also contained the following covenant: "[Appellant] hereby additionally covenants not to sue [Bertoloti] or to file any complaint of any kind whatsoever with any federal, state, or local governmental body, agency, or instrumentality arising out of or in any way relating to any of the Released Matters."

         On November 29, 2016, before accepting Bertoloti's proposal for settlement, appellant and related parties (collectively the "Renny Parties") executed a Confidential Settlement Agreement ("CSA") with Mogilevsky and related parties (collectively the "Mogilevsky Parties") to resolve both the instant lawsuit and a separate lawsuit brought by the Mogilevsky Parties.

         The CSA also identified certain Secondary Parties, i.e., an entity called LendingOne and its counsel, "who are not parties to this Settlement Agreement but are or may be impacted hereby." The Secondary Parties were parties to the separate Mogilevsky lawsuit.

         Bertoloti was not a party to the CSA, nor was she a Secondary Party to the CSA. Notably, there were 55 parties identified in the CSA as Mogilevsky Parties, and Bertoloti was not among them.

         Paragraph 3 of the CSA required appellant to dismiss all claims he had "against all parties in the lawsuits with prejudice" in the event the Mogilevsky Parties entered into a settlement with either of the Secondary Parties.

         Paragraph 7 of the CSA provided that the parties "shall not disclose the existence of this Settlement Agreement to any other parties to the Renny or Mogilevsky Actions" until a final settlement with the Secondary Parties had been reached or ...


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