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Sousa v. Zuni Transportation, Inc.

Florida Court of Appeals, Third District

October 2, 2019

William P. Sousa, et al., Appellants,
v.
Zuni Transportation, Inc., etc., Appellee.

         Not final until disposition of timely filed motion for rehearing.

          An Appeal from the Circuit Court for Miami-Dade County Lower Tribunal No. 16-8291, John Schlesinger, Judge.

          Law Offices of Paul Morris, P.A., and Paul Morris; Cofiño Trial Law, and Pedro A. Cofiño, for appellants.

          Katz Barron, and Keith T. Grumer (Fort Lauderdale), for appellee.

          Before SALTER, MILLER and GORDO, JJ.

          GORDO, J.

         William 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.

         FACTUAL AND PROCEDURAL BACKGROUND

         Jorge 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.

         In 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]."

         Sousa 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 Assignment.

         STANDARD OF REVIEW

         "We 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 (Fla. 2000).

         LEGAL ...


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