In The Third District Court of Appeal State of Florida 3®° DCA Case No.: 3D14-87 LT Case No: 11-20527 CA 21 Enrique Varona; Petitioner/ Appellant, v. O22 Rd AZNEE AL LTA LOGISTICS, INC., et al, Respondent/ Appellee, On Appeal from the Circuit Court of the 11"* Judicial Cireuit in and for Miami-Dade County, Florida Case No.: 11-20527 CA 21 The Honorable Antonio Arzola Appellant’s Initial Brief Enrique Varona, Pro-se 14823 S.W. 125 Court Miami, Florida 33186 Tel: 305-812-3784 enriquevarona@ymail.comTABLE OF CONTENTS TABLE OF AUTHORITIES ... ISSUE ON APPEAL... STATEMENT OF THE CASE AND OF FACTS .... SUMMARY OF THE ARGUMENT .. 1-THE CONTRACT IS UNLAWFUL. . 2 - THE LIQUIDATED DAMAGES CLAUSE OPERATES AS A PENALTY... CONCLUSION ..... APPENDIX A: Judge Antonio Arzola Final Judgment order... CERTIFICATE OF SERVICE. CERTIFICATE OF COMPLIANCE WITH FONT REQUIREMENT..TABLE OF AUTHORITIES State Cases: Page: Brooks Tropicals, Inc. v. Acosta, 959 So.2d 288, 292 (Fla. 3d DCA 2007)... Barbara G. Banks, P.A. v. Thomas D. Lardin, P.A. 938 So.2d 571, 575 (Fla. 4th DCA 2006)... Hill v. Murphysee also Fiera.com, Inc. v. DigiCast New Media eee Inc. ., 837 So. 2d 451 (Fla. 3d DCA 2002)... Dunkley Stucco, Inc. ve Progressive Am. Ins. Co., 751 So. 2d 723 (Fla. 5 DCA 2000)... Humana Med. Plan, Inc. v. Jacobson, 614 So. 2d 520, 522 (Fla. 3d DCA 1992). Lefemine v. Baron, 573 So. 2d 326, 328 (Fla. 1991)... North Beach Investments, Inc. v. Sheikewitz, 63 So, 2d 498 (Fla. 1953). Secrist-v. Nat'l Serv. Indus., Inc., 395 So. 2d 1280 (Fla. 2d DCA 1981)... T.A.S. Heavy Equip., Inc. v. Delint, Inc., 532 So, 2d 23, 25 (Fla. 4th DCA 1988). Poinsettia Dairy Prods. v. Wessel Co., 166 So. 306 (Fla. 1936)).. Coleman v. B.R. Chamberlain & Sons, Inc., 766 So. 2d 427, 429 (Fla. 5" DCA 2000). -ii-OTHER AUTHORITIES Title 17 U.S.C. § 506(c) prohibits three distinct acts: (1) placing a false notice of copyright on an article; (2) publicly distributing articles which bear a false copyright notice; and (3) importing for public distribution articles which bear a false copyright notice. Any of these acts, if committed “with fraudulent intent," violate 17 U.S.C. § 506(c). Sherman Antitrust Act, 15 U.S.C. §1., A federal anti-monopoly and anti-trust statute, passed in 1890 as 15 U.S.C. §§ 1-7 and amended by the Clayton Act in 1914 (15 US.C. § 12-27), which prohibits activities that restrict interstate commerce and competition in the marketplace. Fla. Stat. §542.18 Every contract, combination, or conspiracy in restraint of trade or commerce in this state is unlawful; Fla, Stat. §542.19 (2) it is unlawful for any person to monopolize, attempt to monopolize, or combine or conspire with any other person or persons to monopolize any part of trade or commerce in this state. RESTAINT OF TRADI employee and employer preventing the seller or employee from having a similar business within the geographical area during a set time period.2, A contract that is illegal by attempting to damage another person's opportunity or ability to carry on in business. Black's Law Dictionay 2” Edition. 1. A contract that is legal between buyer and seller,ISSUE ON APPEAL HERE COMES, Enrique Varona, Petitioner/Appellant; Sui Juris acting Pro-se in this action, (from hereon, Varona) to appeal the final judgment order entered by the honorable Judge Antonio Arzola which awards; LTA LOGISTICS, Inc., ef al., Respondent/Appellee, (from hereon, LTA) $56,300.00. predicated upon a mixed jury decision for treble liquidated damages based on a contractual liquidated damages clause of $15,000.00 per breach, totaling $45,000.00., and an additional $11,300.00., for fees paid to a third party for unknown advertising and management services. Varona will not address constitutional issues or due process violations in this appeal. STATEMENT OF THE CASE AND OF THE FACTS On June 2009, Varona, entered into an employment agreement as an independent contractor with LTA. Varona was to service a portfolio of accounts he had acquired over a period of time. Five months later on November 2009, LTA replaced the original contract agreed to between the parties at the time Varona was hired. * -l-The record shows that Appellee’s testified that they would fire whoever did not sign and that they would not consider doing changes or alterations to the new contract. There are over 25 such contracts issued by LTA at this time. (This practice must end). The parties terminated their business agreement in March 2010. Immediately, Varona entered into an independent contractor relationship with LANDSTAR RANGER, Inc., a national motor carrier were he was to own and operate an independent franchise for his new employer. On June 2011, LTA filed a two count lawsuit for tortoius interference, and defamation /libel against Varona. On May 2013, with the withdraw of LTA’s counsel the new attomeys amended the original complaint to a. -five count lawsuit for: breach of contract, tortoious interference, Injunction for tortoious _ interference, defamation/libel re:LTA, and — defamation/libel__ re:.- LESTER. TRIMINO. On December, 2013, after a four day trial the jury rendered a mixed verdict resulting in the circuit court’s final judgment order now on appeal. Based upon the foregoing facts and case law, the final judgment order in this case should be reversed.SUMMARY OF THE ARGUMENT In their lawsuit, LTA claims Varona breached the employment contract when he allegedly solicited UNIVERSE FREIGHT BROKERS, Inc., (UNIVERSE) a Miami based freight forwarder, one of its former clients, This claim can not be sustained on the following grounds. First, the account in controversy (UNIVERSE) was a longtime customer of Varona prior to his employment with LTA, a fact acknowledged by LTA’s counsel in their response to a motion to produce filed by Varona. Therefore, Varona’s knowledge of this account can not possibly constitute a breach of any restrictive covenant or trade secret. Second, Varona never solicited the account as it was LANDSTAR RANGER, Inc., who assigned the account to him as (UNIVERSE) had been a long time customers of theirs predating their commercial relationship with LTA, Third, the services rendered by Varona to UNIVERSE were for the transport of shipper owned trailers via rail from Indiana to Port Everglades, Florida, LTA operates exclusively as a truck broker and not as a intermodal (rail) broker. Therefore, there are no legitimate business interests of LTA that were affected by Varona that constitute a breach of contract. -3-1- THE CONTRACT IS UNLAWFUL Varona files this appeal for relief from the trial court’s Final Judgment due to the fact that LTA’s contract violate state apd federal public policy such as the Florida Antitrust Act statute . $542.18, analogue to Section §1 of the federal Sherman Antitrust Act, 15 U.S.C, §1. LTA’s contract constitute unreasonable restrictive covenants of trade in violation of Florida Section 542.33(1) which declares that, all restraints of trade are illegal and unenforceable in this state. LTA’s contract obstructs trade as it sought to prevent Varona from having a similar business within the same geographical area during a set time period of two years, and attempts to damage Varona’s opportunity or ability to carry on in business. Under Florida law, to state a cause of action for breach of contract the plaintiff must allege: (1) the existence of a valid contract; (2) a material breach of the contract; and (3) damages. See Brooks Tropicals, Inc. v. Acosta, 959 So.2d 288, 292 (Fla. 3d DCA 2007); Barbara G. Banks, P.A. v. Thomas D. Lardin, P.A., 938 So.2d 571, 575 (Fla. 4th DCA 2006), LTA’s contract aims at excluding competitors from trade or commerce, by claiming some power or right under color of law, to exclude actual or potential -4-competition, their actions prove they have intent and purpose to exercise that power. In this case, the customer in question (UNIVERSE) use the bidding system to award business to its many vendors. LTA’s restrictive covenants, (as they apply it) place unreasonable restrictions on trade and are unlawful under Florida Stat. §542.19 Section 2, which prohibits monopolization, attempted monopolization, and conspiracy to monopolize any part of trade or commerce in this state. 2- THE LIQUIDATED DAMAGES CLAUSE OPERATES AS A PENALTY Notwithstanding, the unlawfulness of the contract argument above, Varona challenges the enforceability of the award in the final judgment order. Varona appeals the liquidated damages award on the following grounds; a) the award per breach was the same regardless of what harm (if any) actually befell the non-breaching party, the non- breaching party is collecting more in liquidated damages than the actual harm suffered. 5+b) this leads to a potential windfall to the non-breaching party; c) a resulting windfall is unacceptable and unenforceable as it constitutes an award that is disproportionate to the actual harm; d) because the actual damages were “readily ascertainable,” the liquidated damages clause constituted a penalty. First, the liquidated damages clause is unenforceable because any damages such as the loss of profit that resulted from a breach of contract were ascertainable at the time the contract was formed. According to industry standards is 10% of the total amount billed for the load. In this case the profits for the load in question were $300.00. “Damages are liquidated when they can be determined by mathematical calculation or the application of definite rules of law.” See Hill v. Murphysee also Fiera.com, Inc. v. DigiCast New Media Group, Inc., 837 So. 2d 451 (Fla, 3d DCA 2002); Dunkley Stucco, Inc. v. Progressive Am. Ins. Co., 751 So. 2d 723 (Fla. s"DCA 2000). Second, the liquidated damages clause as applied here results in nothing more than a penalty and is unenforceable as such clauses may be invalid where their purpose is to deter a breach. See Humana Med. Plan, Inc. v. Jacobson, 614 So. 2d 520, 522 (Fla. 3d DCA 1992). -6-In order to be enforceable, a liquidated damages clause must satisfy two conditions: First, the damages consequent upon a breach must not be readily ascertainable. Second, the sum stipulated to be forfeited must not be so grossly disproportionate to any damages that might reasonably be expected to follow from a breach as to show that the parties could have intended only to induce full performance, rather than to liquidate their damages. Lefemine v, Baron, 573 So. 2d 326, 328 (Fla. 1991). LTA’s liquidated damages clause is unenforceable as it is a penalty and damages must be readily ascertainable in context with the damages suffered. ‘They must compensate for damages resulting from the actual breach. While LTA made a case for the customer (UNIVERSE) having done previous business ‘with them (through Varona) they refused to properly ascertain their actual damages to the jury at trial and never addressed the issue. In North Beach Investments, Inc. v, Sheikewitz, 63 So. 2d 498 (Fla. 1953), the Florida Supreme Court addressed this issue, and stated the following: This Court is committed to the doctrine that when the actual damages contemplated by the parties upon breach are susceptible of ascertainment by some known ruleor pecuniary standard and the stipulated sum is disproportionate thereto, it will be regarded as a penalty. Such being the case, the corollary of the rule should be true, that is, that when the actual damages cannot be susceptible of ascertainment by some known tule or pecuniary standard under reasonable circumstances, the stipulated amount should be regarded as liquidated damages, and the parties should be bound by their covenants and the contract so made. The prime factor in determining whether such sum is a penalty or a forfeiture is_whether the sum named is just_compensation for damages resulting from the breach. Id. at 499 (emphasis added). Instead, the final judgment order awards LTA $15,000.00 per breach, regardless of what the actual harm was. This resembles a penalty. Use of liquidated damages clauses to this end are never allowed. See Secrist v. Nat'l Serv. Indus., Inc., 395 So. 2d 1280 (Fla. 2d DCA 1981) (stating liquidated damage provisions operating as a penalty are improper and not enforceable by courts). Where there is doubt as to whether a provision is a penalty or a proper liquidated damages clause, “the tendency of the courts is to construe a provision for payment of an arbitrary sum a penalty rather than one for liquidated damages.” See T.A.S. Heavy Equip., Inc. v. Delint, Inc., 532 So. 2d 23, 25 (Fla. 4th DCA 1988). -8-‘Additionally, where a court finds that the provision is a penalty, the plaintiff may only recover the actual damages pled and proven at trial. See Secrist, 395 So. 2d at 1282 (citing Poinsettia Dairy Prods. v. Wessel Co., 166 So. 306 (Fla. 1936). Here, the award of $15,000 per breach would be the same regardless of what harm (if any) actually befell the non-breaching party. It is therefore conceivable that the non-breaching party could collect more in liquidated damages than the actual harm suffered. Thus, treble liquidated damages (as awarded) confers a windfall to the non-breaching party. This result is unacceptable and unenforceable as it constitutes an award that is disproportionate to the actual harm. See Coleman v. B.R. Chamberlain & Sons, Inc., 766 So. 2d 427, 429 (Fla. 5" DCA 2000). CONCLUSION Based upon the foregoing facts and case law, the final judgment order in thik case should be reversed. espectfully submitted by, -y DAMA. Enrique Warona, Pro-se etitioher/ Appellant 14823 S.W.-125 Court Miami, Florida 33186 enriquevarona@ymail.comCERTIFICATE OF SERVICE [hereby certify that a copy hereof, has been furnished to WARREN P. GAMMILL, P.A., counsel for Appellant’s via U.S. regular mail, sent to Suite 40), Courthouse Plaza, 28 West Flagler Street, Miami, Florida in This/the 25" Day of January, 2014. win Pro-Se Patitloxer / Appellant 14823 §.W. 125 Court Miami, Florida 33186 enriquevarona@ymail.com CERTIFICATE OF COMPLIANCE WITH Ft REQUIREMENT Icertify that the foregoing Brief complies with Fla. R. App. P. 9.210 and has been typed in Times New Roman, 14 Point. -10-