The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
REINIE ANN BENOIT,
Plaintiff,
v. Case No: 2:23-cv-1070-JES-NPM
MARK SILVERIO, SILVERIO &
HALL, P.A., CYNTHIA HALL,
and KELLY CARRIER-GONCZ,
Defendants.
OPINION AND ORDER
This matter comes before the Court on defendants Mark
Silverio, Silverio & Hall, P.A. and Cynthia Hall’s Motion to Strike
Plaintiff's Jury Trial Demand (Doc. #46) filed on March 11, 2024.
Plaintiff filed a Response in Opposition to Defendants’ Motion to
Strike Jury Trial Demand (Doc. #48) on March 22, 2024. For the
reasons set forth below, the motion is granted. The Motion for
Leave to File a Reply (Doc. #50) is denied as moot.
I.
The operative pleading in this case is the eight-count Third
Amended Complaint. (Doc. #39.) The introductory two paragraphs
of the Third Amended Complaint provide an overview of the case
from Plaintiff’s perspective:
This case has been brought because Mark
Silverio, Cynthia Hall, and Silverio & Hall
undertook to represent Plaintiff in a divorce
action involving a prenuptial agreement and a
marital estate worth over eighteen million
dollars, but failed to exercise the degree of
skill and knowledge required. Silverio & Hall
was unfamiliar with the applicable rules of
practice and the well-settled principles of
law governing the litigation prenuptial
agreements. Silverio & Hall also violated
several ethical principles in an attempt to
convince Plaintiff, their client, to continue
the pursuit of her case, when they knew or
should have known that she had no chance of
success because of the manner in which they
pled the case. As a result of Mark Silverio,
Cynthia Hall, and Silverio & Hall’s actions,
Plaintiff was unable to recover a significant
portion of a marital estate, and instead was
awarded less than what she would have received
had she simply not been represented at all.
Mark Silverio, Cynthia Hall, and Silverio &
Hall also colluded with Defendant Kelly
Carrier Goncz (“Goncz”) to steer Plaintiff
away from her prior attorney and into a
situation where Silverio & Hall and Goncz
overbilled and underserved Plaintiff.
Defendants excessively billed Plaintiff over
four hundred thousand dollars in attorney’s
and expert’s fees for work that had no
possibility of bringing about a positive
outcome for Plaintiff.
(Id. at pp. 1-2.) Count I alleges a claim of legal malpractice
against defendant Mark Silverio; Count II alleges a claim of legal
malpractice against defendant Cynthis Hall; Count III alleges a
claim of legal malpractice against the firm of Silverio & Hall,
P.A.; Count IV alleges a claim of breach of a written contract
against the firm of Silverio & Hall, P.A.; Count V alleges a breach
of contract claim against Kelly Carrier-Goncz based on a written
contract with Plaintiff to provide forensic accounting services in
the divorce case; Count VI alleges a civil conspiracy by all four
defendants; Count VII alleges a claim of fraud in the inducement
against Silverio and Goncz; and Count VIII alleges a second claim
of fraud in the inducement against Silverio and Goncz. Plaintiff
requested a jury trial as to the claims made in the Third Amended
Complaint. (Id. at ¶ 278.)1
II.
It is well settled “that the right to a jury trial in the
federal courts is to be determined as a matter of federal law in
diversity as well as other actions.” Simler v. Conner, 372 U.S.
221, 222 (1963). See also Columbus Mills, Inc. v. Freeland, 918
F.2d 1575, 1577 (11th Cir. 1990) (citing Simler). “A party may
validly waive its Seventh Amendment right to a jury trial so long
as the waiver is knowing and voluntary.” Bakrac, Inc. v. Villager
Franchise Sys., Inc., 164 F. App’x 820, 823 (11th Cir. 2006)
(citing Brookhart v. Janis, 384 U.S. 1, 4–5 (1966)). “The question
of whether the right has been waived is likewise governed by
federal law.” Allyn v. W. United Life Assur. Co., 347 F. Supp.
2d 1246, 1251 (M.D. Fla. 2004). In reviewing an alleged waiver
1 On April 1, 2024, a Joint Notice of Resolution Between
Plaintiff Reinie Ann Benoit and Defendant Kelly Carrier-Goncz
(Doc. #49) was filed. Therefore, the jury demand by Goncz is not
at issue.
contained in a written document, “courts consider the
conspicuousness of the waiver provision, the parties’ relative
bargaining power, the sophistication of the party challenging the
waiver, and whether the terms of the contract were negotiable.”
Bakrac, Inc. 164 F. App’x at 824. “No single factor is
determinative; instead, enforceability is based on a totality of
circumstances and hinges on whether the Court deems the waiver
unconscionable, contrary to public policy, or simply unfair.”
Aponte v. Brown & Brown of Fla., Inc., No. 6:18-CV-161-ORL-22GJK,
2019 WL 12536008, at *5 (M.D. Fla. Feb. 21, 2019) (citation
omitted), aff'd, 806 F. App'x 824, 827 (11th Cir. 2020) (finding
a jury-trial waiver was knowing and voluntary where the waiver
provision in the employment agreement was written in bold and all-
capital letters, was set apart in a paragraph labeled ‘WAIVER OF
JURY TRIAL,’ consisted of straightforward language, and there was
no dispute plaintiff signed the agreement and plaintiff raised no
contract defenses such as fraud, duress, or unconscionability.)
Applying the relevant factors, the Court finds that Plaintiff
knowingly and voluntarily waived her right to a jury trial.
(1) Conspicuousness of Waiver Provision
Defendants rely on language in the Authority to Represent and
Fee Agreement (Doc. #46, Exh. 2) (the Agreement) between Silverio
& Hall, P.A. and Plaintiff to strike the jury demand. The
Agreement contains the following language on page two of a three-
page document in a separate paragraph which is in bold font and
capital letters:
THE CLIENT EXPRESSLY WAIVES THE RIGHT TO TRIAL
BY JURY REGARDING ANY DISPUTE ARISING FROM THE
SUBJECT MATTER OF THIS AGREEMENT.
(Id. at p. 54.) Plaintiff initialed all three pages. “In
evaluating the first factor concerning the conspicuousness of the
waiver, a provision is conspicuous when it is present in a separate
paragraph, printed in a font that is the same size as the rest of
the document, located in the last paragraph of a relatively short
document, and worded in clear and unambiguous language.” Collins
v. Countrywide Home Loans, Inc., 680 F. Supp. 2d 1287, 1295 (M.D.
Fla. 2010) (citing Belin v. Litton Loan Servicing, L.P., No. 8:06–
CV760–T–24–EAJ, 2006 WL 2061340 (M.D. Fla. July 17, 2006)). The
Court finds the waiver is conspicuous.
(2) Bargaining Power
“As to the relative bargaining power between the two parties,
the question is not whether there was unequal bargaining power but
whether there was a gross disparity in bargaining position.”
Magwood v. RaceTrac Petroleum, Inc., No. 1:20-CV-01439-ELR-JCF,
2021 WL 4820706, at *3 (N.D. Ga. May 10, 2021), report and
recommendation adopted, No. 1:20-CV-01439-ELR, 2021 WL 4820707
(N.D. Ga. July 7, 2021) (citation omitted and alterations
accepted). “A ‘gross disparity in bargaining power only exists
when a party is forced to accept the terms of an agreement as
written’—in other words, when ‘the party is unable to simply walk
away if the terms are unacceptable.’” Kenison v. Schellman & Co.,
LLC, No. 8:20-CV-1139-MSS-JSS, 2020 WL 10354995, at *4 (M.D. Fla.
Nov. 20, 2020) (quoting Bank of Am., N.A. v. Fla. Glass of Tampa
Bay, Inc., No. 8:16-CV-02104-27AAS, 2017 WL 11017883, at *6 (M.D.
Fla. Aug. 18, 2017)).
Here, Plaintiff was already represented by counsel in the
divorce case. Plaintiff represents that she filed suit against
her then-husband for divorce and was represented by attorney Cary
Cliff. (Doc. #39, ¶¶ 41-42.) Cliff advised Plaintiff she needed
a forensic accountant, and Plaintiff hired Goncz. (Id. at ¶ 43.)
Goncz encouraged Plaintiff to dismiss Cliff, her lawyer of about
eighteen months, and hire Silverio. (Id. at ¶¶ 46, 54.) Silverio
also told Plaintiff that Cliff was not qualified to handle her
case. (Id. at ¶¶ 241-48.) Plaintiff eventually took this advice
and switched attorneys. (Id. at ¶¶ 48-54.) Plaintiff could
clearly have simply walked away from the advice to change lawyers.
While plaintiff may have been in a lesser bargaining position,
there was no gross disparity such that she could not have elected
to get another opinion or stay with the attorney she had.
(3) Plaintiff’s Sophistication
Other than having retained an attorney before, the parties
have provided no facts on the background of Plaintiff which would
allow the Court to determine Plaintiff’s level of sophistication
in relevant matters. As in Collins, there is no argument that
plaintiff is “particularly sophisticated or unsophisticated, so
these facts do not cut in favor of either party.” Collins v.
Countrywide Home Loans, Inc., 680 F. Supp. 2d 1287, 1295 (M.D.
Fla. 2010). This factor is neutral.
(4) Negotiation of Waiver Provision
The Third Amended Complaint sets forth in some detail the
process by which Plaintiff came to change attorneys in her divorce
case, but there is no discussion of negotiations as to any portion
of the representation Agreement. “Simply because a party did not
negotiate the language of a jury trial waiver does not mean that
the waiver or other terms in the agreement were non-negotiable.”
Oglesbee v. IndyMac Fin. Servs., Inc., 675 F. Supp. 2d 1155, 1158
(S.D. Fla. 2009). As in this case, “Plaintiff[] do[es] not explain
why [she] could not have negotiated the clause at that time, or
why [she] could not have simply walked away from the deal if [she]
found the terms of the agreement unreasonable.” Collins, 680 F.
Supp. 2d at 1295. There is no evidence that the jury trial waiver
was non-negotiable, or that it was even discussed.
(5) Public Policy
Plaintiff argues that it is against public policy to enforce
a waiver of jury trial provision, particularly in a case involving
claims of legal malpractice. “With some exceptions, parties can
agree to almost anything via contract. ‘But unless some law or
readily identifiable public policy removes an area from freedom of
contract's realm, courts will enforce an agreement between
parties.’” Walker v. Life Ins. Co. of N. Am., 59 F.4th 1176, 1195
(11th Cir. 2023) (internal footnote and citation omitted). But
if the waiver is knowing and voluntary, plaintiff has not
identified any recognized public policy which precludes a jury
trial waiver. As a Florida appellate court recently stated,
Florida courts, however, will enforce the
terms of contracts that are knowingly and
voluntarily executed because Floridians have
a right to secure their own destiny and a right
to expect that their lawfully enacted
contracts will be enforced. Here, the retainer
agreement expressly stated that any
controversy or claim arising out of the
agreement or the Firm's representation of [the
client] was subject to arbitration. Those
terms were clear. Public policy is certainly
not violated by the trial court's ruling that
the contractual arrangement reached between
the parties be enforced.
Mavroleon v. Orrego, 351 So. 3d 102, 106 (Fla. 3d DCA
2022)(citations omitted). The Court finds that the plain language
of the jury waiver is valid and enforceable as to Silverio, Hall,
and Silverio & Hall, P.A.
(6) Scope of Waiver Provision
The final issue is whether the waiver provision covers the
claims set forth in the Third Amended Complaint. The term “arising
out of” or “arising from” is broad, but it is not all encompassing.
The focus is on “whether the tort or breach in question was an
immediate, foreseeable result of the performance of contractual
duties.” Telecom Italia, SpA v. Wholesale Telecom Corp., 248 F.3d
1109, 1116 (11th Cir. 2001). This requires the existence of some
direct relationship between the dispute and the performance of
duties specified by the contract. Id.; Doe v. Princess Cruise
Lines, Ltd., 657 F.3d 1204, 1218–19 (11th Cir. 2011). Here, all
counts of the Third Amended Complaint clearly “arise from” either
the Authority to Represent and Fee Agreement or the resulting
attorney-client relationship. Therefore, the waiver of jury trial
provision applies to all claims against these three defendants.
Accordingly, it is hereby
ORDERED:
1. Defendants' Motion to Strike Plaintiff's Jury Trial Demand
(Doc. #48) is GRANTED as to Silverio, Hall, and Silverio &
Hall, P.A.. The Clerk shall correct the case to reflect
that it iS a non-jury case and reset the jury trial to
reflect a bench trial.
2. Defendants’ Motion for Leave to File a Reply (Doc. #50) is
DENIED as moot.
DONE and ORDERED at Fort Myers, Florida, this 12th day
of April 2024.
—_— ~ (2. _ f
AA) Pe,
JGHH E. STEELE
SHNIOR UNITED STATES DISTRICT JUDGE
Copies:
Counsel of Record