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IN THE DISTRICT COURT OF APPEAL

OF FLORIDA
SECOND DISTRICT

H&R BLOCK BANK,

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Appellant,
v.
DENISE H. PERRY,
Appellee.

Case No. 2D15-1351


2D15-1624
CONSOLIDATED

APPEAL FROM THE TWELFTH JUDICIAL CIRCUIT COURT IN AND FOR


SARASOTA COUNTY, FLORIDA

APPELLEES MOTION FOR REHEARING EN BANC


Appellee, Denise H. Perry, moves for rehearing en banc of the Courts opinion
rendered on September 9, 2016 in favor of the Appellant, H&R Block, pursuant to
Florida Rule of Appellate Procedure 9.331

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because such consideration is necessary to maintain uniformity in the courts


decisions and because the issue of whether the settlement by a party precludes an
appeal of a final judgment entered in open court upon the consent of the litigants
involved in this case is of exceptional importance requiring en banc rehearing. In
support of this motion, Appellee states:
The panel overlooked and misapprehended the record and crucial facts in this
case and relied on these incorrect determinations in rendering its order reversing the
Final Judgment and Order granting attorneys fees in this case. The Panel
overlooked and failed to address the facts established in the record that on February
26, 2015, in open court, the Appellant agreed and consented to the entry of the Final
Judgment for Attorneys Fees and Costs and confirmed that consent when pursuant
to agreement of the parties, Appellee filed a motion to amend that Final Judgment.
The record also establishes that the Appellant agreed to the entry by the trial court of
the Amended Final Judgment for Attorneys Fees.
The Appellants consent and agreement to the terms of the final judgment and
to the final judgment being entered by the trial court is also evident by the fact that
Appellant did not contest the verified motion to amend the final judgment that was
filed by counsel for Appellee on March 15, 2015 wherein counsel advised the trial
court on behalf of the Appellee that the parties jointly agreed to the entry of the
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Amended Final Judgment for Attorneys Fees and Costs which final judgment the
Panel now overturns. The verified motion confirms that:
a. Counsel for Appellee contacted the attorney for Appellant,
Jacqueline Brown, Esq. of Van Ness Law Firm and that Ms. Brown had
agreed to submission of the Amended Final Judgment for the Courts
approval and signature;
b. that at the commencement of the February 26, 2015 hearing on
Appellees motion to determine attorneys fees and costs against Appellant
that the parties reached an agreement as to the terms of the final judgment
awarding fees and costs to Appellees counsel;
c. that the terms of the agreement between the Appellant and the
Appellee were set forth in the final judgment entered on February 26, 2015,
with the exception of the due date for payment of the attorneys fees by the
Appellant, and
d. that the parties agree and move the Court to enter the proposed
order to add the language stating that the payment to Gulfcoast Legal
Services, Inc. and the payment to April Charney, Esq. are both to be made on
or before April 14, 2015.
The trial court thereafter entered the Amended Final Judgment for Attorneys
Fees and Costs that the parties stipulated to and which is the subject of this appeal.
The fact that the final judgment being appealed was an agreed to judgment
consented to by the parties through counsel in open court (as amended also by
stipulation) is set out in the Appellees answer brief to this court, but apparently
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these important facts were overlooked by the Panel in its decision to reverse the
stipulated Amended Final Judgment.
In her answer brief, Appellee stated: At the start of the February 26, 2015
hearing, the parties reached a settlement in open court and agreed to the entry of an
order setting the amount of attorneys fees and costs to be awarded to Appellee
which agreement was memorialized by order of the court. [V 3 547- 549] The
parties thereafter sought and received an amended final judgment for attorneys fees
and costs to Appellee on March 18, 2015 which specified a date of payment of the
fees awarded in the February 26, 2015 consent order. [V 3 547-549, 550-551]
This motion for rehearing raises issues of exceptional importance considering
the direct impact that this courts decision has on the Appellee and on litigants
throughout the state who expect to be able to rely on the finality and enforceability
of a settlement that results in the entry of a final judgment by consent given in open
court. In reversing the March 18, 2015 Amended Final Judgment, the Panel allows
one party to a settlement to avoid the consequence of its agreement which in this
case includes a forfeit and waiver of the right to appeal a judgment entered by
consent. The Panels decision in this case incorrectly allows one party to a case to
back out of its contract of compromise and settlement of a claim despite that partys
clear expression and declaration of consent and settlement given in open court.

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The decision of the Panel in this case conflicts with the rule of law concerning
the sanctity of settlements contained in the decisions of the Florida Supreme Court
and other appellate courts of this state. The panel decision overlooked the
significance of the settlement of the parties which was the basis in the record upon
which the trial court entered the Final Judgment and the Amended Final Judgment.
The Panel overlooked these matters which were also raised and addressed by
Appellee in her answer brief and in her motion to strike this appeal. As this case
was decided without benefit of oral argument, it appears that it was not pointed out
to the Panel that Appellant consented and stipulated in open court to the entry of the
Final Judgment. The Panel did not understand that the Appellants settlement
directly conflicts with this courts determination that the judgment stem(med) from
H&R Block's untimely filing of a certification of settlement authority in connection
with a court-ordered mediation.
The Panels decision in this case conflicts with the general rule in Florida that
grants litigants broad discretion in fashioning the terms of a settlement agreement
announced in Aboumahboub v. Honig, No. 4D15-1763 (Fla. 4th DCA December 9,
2015). The Panel decision also conflicts with the rulings of other appellate courts of
the state that hold that settlement agreements are governed by the rules for
interpretation of contracts. Federal Home Loan Mortgage Corporation v. Molko,
602 So.2d 983 (Fla. 3d DCA 1992) citing Robbie v. City of Miami, 469 So.2d 1384,
1385 (Fla. 1985). The Panel decision conflicts with the decision of the Florida
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Supreme Court in Pafford v. Standard Life Ins. Co., 52 So.2d 910 (Fla. 1951) which
affirms that the clear expression of the agreement and consent of litigants to a
settlement should be interpreted in accordance with the law governing contract and
should not be modified by the court. This rule of law is followed in BMW of N.
Am., Inc. v. Krathen, 471 So.2d 585, 587 (Fla. 4th DCA 1985), review denied, 484
So.2d 7 (Fla. 1986), Avery Dev. Co. v. Bast, 582 So.2d 150, 151 (Fla. 4th DCA
1991) and in Hartford v. Puig, ___need cite (Fla. 3d DCA 1999).
The Panel should have enforced the agreement of the parties in this case by
upholding the Amended Final Judgment and dismissing this appeal. Otherwise, a
precedent will be set that affords litigants in this state the right to appeal an order
that is entered in open court by mutual consent and agreement. It is important to the
rights of litigants who appear in Florida courts to know that when a settlement is
reached and judgment rendered by consent, that the parties give up their right to
challenge the consented order.
CONCLUSION
The panels decision is of exceptional importance and rehearing en banc is
necessary to maintain uniformity in the courts decisions that concern the sanctity of
settlement and compromise of rights by parties through contract and consent and
because the decision of the Panel conflicts with decisions of the Florida Supreme
Court.
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WHEREFORE, Appellee respectfully requests the Court grant this Motion


for Rehearing en banc and issue an opinion that affirms the Amended Final
Judgment in this case.
Respectfully submitted,
_/s/ Robin L. Stover____________
Robin L. Stover, Esq.
robins@gulfcoastlegal.org
Florida Bar No. 0064494
GULFCOAST LEGAL SERVICES, INC.
1750 17th Street, Unit I
Sarasota, FL 34234
Telephone: 941.366.1746
Fax: 941.366.2314
April Carrie Charney, Esq.
Aprilcarriecharney@gmail.com
P.O. Box 576
Venice, FL 34285
Attorneys for Appellee
STATEMENT PURSUANT TO FLORIDA RULE OF APPELLATE
PROCEDURE 9.331(d)(2)
We express a belief, based on a reasoned and studied professional judgment, that the
panel decision is of exceptional importance and, based on reasoned and studied
professional judgment, that the panel decision is contrary to the decision of the Florida
Supreme Court referenced and identified hereinabove and that a consideration by the full
court is necessary to maintain uniformity of decisions in this court with the decisions of
the Florida Supreme Court.

_/s/ Robin L. Stover_


Robin L. Stover, Esq.
/s/April Charney__
April Charney
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CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that the font used in this brief is Times New Roman
14-point font and that the brief complies with the font requirements of Rule 9.210(a)
(2), Florida Rules of Appellate Procedure.
/s/ Robin L. Stover_
Robin L. Stover
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
electronically submitted to the Second District Court of Appeals e-Portal and
further certify that a true and correct copy of the foregoing was furnished by email
to Nancy M. Wallace, Esq. Akerman LLP, 106 East College Avenue, Suite 1200,
Tallahassee, FL 32301 (nancy.wallace@akerman.com; elisa.miller@akerman.com;
Michele.rowe@akerman.com); William P. Heller, Esq. Akerman LLP, Las Olas
Centre II, Suite 1600, 350 East Las Olas Boulevard, Fort Lauderdale, FL 33301
(william.heller@akerman.com; Lorraine.corsaro@akerman.com; Eric M. Levine,
Akerman LLP, 777 So. Flagler Dr., Suite 1100 West Tower, West Palm Beach, FL
33401 (eric.levine@akerman.com; elisa.waites@akerman.com); John A. Van Ness,
Esq., Van Ness Law Firm, PLC, 1239 E. Newport Center Dr., Ste. 110, Deerfield
Beach, FL 33442 (pleadings@vanlawfl.com) (Trial attorney for Plaintiff) on this
____ day of September, 2016.
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/s/ Robin L. Stover____


Robin L. Stover

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