William P. Sousa, et al., Appellants,
Zuni Transportation, Inc., etc., Appellee.
final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County Lower
Tribunal No. 16-8291, John Schlesinger, Judge.
Offices of Paul Morris, P.A., and Paul Morris; Cofiño
Trial Law, and Pedro A. Cofiño, for appellants.
Barron, and Keith T. Grumer (Fort Lauderdale), for appellee.
SALTER, MILLER and GORDO, JJ.
Sousa and Eastern Medical Transportation, LLC appeal the
trial court's dismissal of their lawsuit with prejudice
and grant of summary judgment in favor of Zuni
Transportation, Inc. The trial court found that Sousa lacked
standing to sue. As we conclude that the trial court should
not have dismissed the case on the grounds briefed and argued
and that the alternative grounds for affirmance were not
preserved for appeal, we reverse and remand.
AND PROCEDURAL BACKGROUND
Azor was the owner and operator of Zuni, a non-emergency
transportation company for the elderly and disabled. In 2014,
Alejandro Castro agreed to purchase Zuni's corporate
assets. On April 1, 2015, Zuni and Castro executed an Asset
Purchase Agreement (the "Agreement"). The Agreement
contained an assignment clause, which permitted an assignment
of Castro's rights and obligations to an unaffiliated
entity only upon Zuni's consent.
March of 2016, Castro executed a Transfer of Assets and
Assignment and Assumption Agreement (the
"Assignment"). The Assignment granted Sousa all of
Castro's rights under the Agreement. It is undisputed
that Sousa was not a party to the Agreement and that he was
not affiliated with Castro's operation of Zuni. The
parties also agree that Zuni never consented to the
Assignment to Sousa. Simultaneously with the Assignment,
Castro executed a Bill of Sale. The Bill of Sale specifically
provided that the assets transferred to Sousa included
"[a]ll choses in action [Castro] may be connected to or
in any way involved with Zuni . . . or [Eastern]."
and Eastern filed suit against Zuni based on the Assignment
and Bill of Sale. In their third amended complaint, Sousa and
Eastern allege that they have standing to sue Zuni based on
the Bill of Sale, which assigns Castro's choses in action
to Sousa. Zuni moved to dismiss the third amended complaint
and for summary judgment arguing that Sousa lacked standing
because the contract prohibited assignment to an unaffiliated
entity without Zuni's prior consent. In its Order
Granting Zuni's Motion to Dismiss and Motion for Summary
Judgment on Plaintiffs' Third Amended Complaint, the
trial court granted both motions on the grounds that Sousa
and Eastern had failed to prove that they satisfied a
condition precedent-obtaining Zuni's consent for the
review an order granting a motion to dismiss with prejudice
de novo." Papunen v. Bay Nat'l Title Co.,
271 So.3d 1108, 1111 (Fla. 3d DCA 2019) (citing Williams
Island Ventures, LLC v. de la Mora, 246 So.3d 471, 475
(Fla. 3d DCA 2018)). We also review a trial court's
determinations on summary judgment de novo. Volusia Cty.
v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130