The opinion
UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
Case Number: 22-cv-22171-MARTINEZ
MICHAEL FITZGERALD, and
YELANY DE VARONA,
Plaintiffs,
V.
RONDA MCNAE, and WILLIAM MCNAE,
Defendants.
/
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT RONDA MCNAE’S MOTIONS IN LIMINE
THIS MATTER comes before the Court on Defendant Ronda McNae’s Motions in limine.
(ECF No. 206). This Court has reviewed the Motions in limine, pertinent portions of the record,
and is otherwise fully advised of the premises. After careful consideration, the Motions in limine
are GRANTED in part and DENIED in part for the reasons set forth herein.
A motion in limine is “any motion, whether made before or during trial, to exclude
anticipated prejudicial evidence before the evidence is actually offered.” Luce v. United States,
469 U.S. 38, 40 n.2 (1984); accord Sprint Commc’ns, LLC y. Calabrese, No. 18-60788-CIV, 2022
WL 4767092, at *1 (S.D. Fla. Mar. 31, 2022) (quoting Luce, 469 U.S. at 40 n.2). “Motions in
limine are generally disfavored.” Sprint Comme ’ns, 2022 WL 4767092, at *1 (citing United States
v. Amor, No. 14-20750-CR, 2015 WL 6438479, at *1 (S.D. Fla. Oct. 23, 2015)). But they enable
courts to rule in advance of trial on “the relevance of certain forecasted evidence, as to issues that
are definitely set for trial, without lengthy argument at, or interruption of, the trial.” Mowbray v.
Carnival Corp., No. 08-2093 1-CIV-ALTONAGA/Brown, 2009 WL 10667070, at *2 (S.D. Fla.
Apr. 13, 2009) (quoting Bowden v. Wal-Mart Stores, Inc., No. 99-D-880, 2001 WL 617521, at *1
(M.D. Ala. Feb. 20, 2001)). “[E]ven if nothing unexpected happens at trial, the district judge is
free, in the exercise of sound judicial discretion, to alter a previous in limine ruling.” Luce, 469
USS. at 41-42.
Defendant Ronda McNae moves to exclude certain evidence at trial. This Court shall
address each Motion in imine in turn.
Motion in limine No. 1: Defendant moves to exclude any evidence or testimony related to
Fitzgerald’s claims of non-economic damages, such as reputational harm and emotional distress.
(Mot. at 3-4). “Florida follows the general rule that, to be recoverable, damages for breach of
contract ‘must arise naturally from the breach, or have been in the contemplation of both parties
at the time they made the contract, as the probable result of the breach.’” 7.D.S. Inc. v. Shelby Mut.
Ins. Co., 760 F.2d 1520, 1532 n.11 (11th Cir. 1985) (quoting Hobbley v. Sears, Roebuck & Co.,
450 So. 2d 332, 333 (Fla. Ist DCA 1984)). “Moreover, concerning foreseeability, Florida law does
not require that the parties have contemplated the precise injuries which occurred; rather, damages
are recoverable so long as the actual consequences of breach of the contract could have reasonably
been expected to flow from the breach.” 7.D.S. Inc., 760 F.2d at 1532 n.11 (citing Nat. Kitchen,
Inc. v. Am. Transworld Corp., 449 So. 2d 855, 860 (Fla. 2d DCA 1984)). Therefore, “under Florida
law, consequential damages like reputational harm may be recovered in breach of contract actions.
K3 Enterprises, Inc. v. Sasowski, No. 20-24441-CIV, 2022 WL 17987272, at *2—3 (S.D. Fla. Sept.
8, 2022).
Here, the parties entered into the Settlement Agreement which prohibited Defendants from
contacting Plaintiff's employer SoftwareONE, writing about Plaintiff directly and indirectly, and
disparaging Plaintiff. Defendant Ronda McNae breached the settlement Agreement by, amongst
other ways, disparaging Plaintiff, going to the very heart of the agreement. Plaintiffs reputational
damages could have reasonably been expected to flow from Defendant Ronda McNae’s breach of
the non-disparagement provision of the agreement. This Motion in /imine is therefore DENIED as
to excluding reputational damages.
As to emotional distress, “these damages are not available for a breach of contract claim
under Florida law.” Marchisio v. Carrington Mortg. Servs., LLC, 919 F.3d 1288, 1314 (11th Cir,
2019). “[A]s a general rule, damages for mental distress caused by a breach of contract are not
allowed under Florida law unless the breach amounts to an independent, willful tort.” /d. (citing
to Gellert v. E. Air Lines, Inc., 370 So.2d 802, 805 (Fla. 3d DCA 1979)). Indeed, “where the
gravamen of the proceeding is breach of contract, even if such breach be willful and flagrant, there
can be no recovery for mental pain and anguish resulting from such breach.” Floyd v, Video Barn,
Inc., 538 So.2d 1322, 1325 (Fla. lst DCA 1989). This Court has already dismissed all tort claims
in this case because of the independent tort doctrine. (ECF No. 100 at 9-100; (see also id. at 13)
(dismissing punitive damages claim because “there is no independent tort present here.”).
Accordingly, this Motion in limine is GRANTED as to excluding emotional damages.
Motion in limine No. 2: Defendant moves to exclude any evidence, testimony, or reference
to the DiJulios and their disputes with the McNaes. (Mot. at 4-5). Because such evidence is not
relevant as to determining damages, this Motion in limine is GRANTED.
Motion in limine No. 3: Defendant moves to exclude all evidence concerning her
extramarital affair that occurred years before the issues in this case arose. (Mot. at 5). Because
such evidence is not relevant as to determining damages, this Motion in limine is GRANTED.
Motion in limine No. 4: Defendant moves to exclude any reference to Ronda McNae’s
autoimmune disorders or medical treatment. (Mot. at 6). Because such evidence is not relevant as
to determining damages, this Motion in limine is GRANTED.
Motion in limine No. 5: Defendant moves to exclude any evidence regarding the nature of
the marital relationship between Ronda and William McNae. (Mot. at 6). Because such evidence
is not relevant as to determining damages, this Motion in limine is GRANTED.
Motion in limine No. 6: Defendant moves to exclude any evidence or reference to
allegations concerning her false statements to Fitzgerald that she was pregnant. (Mot. at 7-8).
Because such evidence is not relevant as to determining damages, this Motion in /imine is
GRANTED.
Motion in limine No. 7: Defendant moves to exclude any testimony from Plaintiff Michael
Fitzgerald regarding additional damages he allegedly sustained but did not testify to during his
deposition. (Mot. at 9). Plaintiff Fitzgerald shall be allowed to testify as to ongoing damages he
has sustained due to Defendant Ronda McNae’s breaches of the Settlement Agreement. Therefore,
this Motion in limine is DENIED.
Motion in limine No. 8: Defendant moves to exclude any evidence or argument concerning
punitive damages. (Mot. at 9-10). Although “[t]he general rule is that punitive damages are not
recoverable for breach of contract” in Florida, it may recognize them “where the acts constituting
a breach of contract also amount to a cause of action in tort.” Griffith v. Shamrock Vill., Inc., 94
So.2d 854, 858 (Fla. 1957). In such cases, the underlying tort must be based on “an intentional
wrong, willful or wanton misconduct, or culpable negligence, the extent of which amounts to an
independent tort... .” S. Bell Tel. & Tel. Co. v. Hanft, 436 So.2d 40, 42 (Fla. 1983). Because this
Court has already dismissed Plaintiff's claim for punitive damages, this Motion in /imine is
GRANTED. (See ECF No. 100 at 13) (dismissing punitive damages claim because “there is no
independent tort present here.”).
Motion in limine No. 9: Defendant moves to exclude any evidence or reference to
attorneys’ fees and costs incurred by Plaintiff in litigating this matter. (Mot. at 10). Fitzgerald may
testify that his damages include costs of litigation, therefore, the Motion in limine is DENIED in
this regard. However, attorney’s fees are determined by the Court, not the jury, so the Motion i
limine is GRANTED in this respect.
Motion in limine No. 10: Defendant moves to exclude any evidence regarding Fitzgerald’s
lost business opportunities based on a stipulation. (Mot. at 10-11). According to Fitzgerald, no
stipulation was ever agreed to, and the negotiations were between counsel for Plaintiff and counsel
for William McNae, not Ronda McNae. (Resp. at 13, ECF No. 212). Moreover, Fitzgerald shall
be permitted to testify that he suffered lost business opportunities due to his alleged reputational
harm caused by Defendant’s breach of the Settlement Agreement. Accordingly, this Motion in
limine is DENIED.
For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that Defendant’s
Motions in limine, (ECF No. 206), are GRANTED in part and DENIED in part.
DONE AND ORDERED in Chambers at Miami, Florida, this day of March, 2025.
spt ‘N\ ti
Copies provided to: JOSE MARTINEZ )
All Counsel of Record UNITED STATES DISTRICT JUDGE