Daniel J. Shamy, as Personal Representative of the Estate of Joseph E. Shamy v. Shovel Ready Projects, LLC

D ISTRICT C OURT OF A PPEAL O F T HE STATE OF F LORIDA
FOURTH DISTRICT
DANIEL J. SHAMY, as personal representative of the
ESTATE OF JOSEPH E. SHAMY,
Appellant,
v.
SHOVEL READY PROJECTS, LLC, a Florida limited liability company,
Appellee.
No. 4D2024-2411
[March 25, 2026]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward 	County; 	John 	B. 	Bowman, 	Judge; 	L.T. 	Case 	No.
062017CA010295AXXXCE.
Peter Ronai Goldman of Nelson Mullins Riley & Scarborough LLP, Fort
Lauderdale, and Beverly A. Pohl of Nelson Mullins Riley & Scarborough
LLP, Boca Raton, for appellant.
Michael Jay Ferrin of Ferrin Law, Fernandina Beach, for appellee.
SHEPHERD, J.
This is an appeal from a final judgment entered in favor of appellee
Shovel Ready Projects, LLC (“Shovel Ready”), on one count of breach of
contract and one count of unjust enrichment. We reverse the trial court’s
entry of final judgment on the unjust enrichment count; affirm the trial
court’s ruling for Shovel Ready on the breach of contract count; and
remand for the entry of a new final judgment on the breach of contract
count, including a determination of the amount of damages to award.
Background
The parties’ relationship has a much longer history than is developed
here, but for the purposes of our ruling we begin in 2011. In 2011, Joseph
Shamy, now deceased, entered into a settlement agreement related to a
land 	development 	project 	with 	Avantissimo, 	LLC 	(“Avantissimo”) 	and
Pointgreene Construction & Consulting, Inc. (“Pointgreene”). 	In 2017,
Shovel 	Ready, 	asserting 	it 	was 	the 	assignee 	of 	Avantissimo’s 	and

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Pointgreene’s interests in the settlement agreement, filed a complaint
against Joseph Shamy for breach of the settlement agreement. 	Shovel
Ready later amended its complaint to add counts for rescission and unjust
enrichment. 	The breach of contract count and unjust enrichment count
arose out of the same factual allegations – that as part of the settlement
agreement, Avantissimo and Pointgreene liquidated their membership
interests in Trophy Properties, LLC (“Trophy”), a company of which Joseph
Shamy was the managing member and majority owner, in exchange for
Joseph Shamy’s promise to deliver deeds to lots owned by Trophy to
Avantissimo 	and 	Pointgreene. 	Shovel 	Ready 	sought 	compensatory
damages in both counts for Joseph Shamy’s failure to deliver the deeds as
agreed to in the settlement agreement.
Shovel Ready later withdrew the rescission count, and the trial court
held a non-jury trial on the breach of contract and unjust enrichment
counts. 	At the trial’s conclusion, the trial court directed the parties to
submit proposed findings of fact and conclusions of law in lieu of closing
arguments.
Approximately two months after the non-jury trial concluded, an email
in the record indicates that the trial court’s judicial assistant contacted
counsel for Shovel Ready, informed Shovel Ready’s counsel that the trial
court would rule in Shovel Ready’s favor, and requested that Shovel
Ready’s 	counsel 	prepare 	a 	proposed 	final 	judgment. 	Shovel 	Ready
communicated to the trial court its election of remedy under unjust
enrichment. 	After Shovel Ready submitted its proposed final judgment,
the trial court entered final judgment in Shovel Ready’s favor, stating:
That the Court rules in favor of the Plaintiff, SHOVEL READY
PROJECTS, LLC and against the Defendant, DANIEL SHAMY
as Personal Representative of the ESTATE OF JOSEPH E.
SHAMY on Counts I and III of the Amended Complaint for the
reasons 	stated 	in 	the 	Proposed 	Findings 	of 	Fact 	and
Conclusions of Law submitted by Plaintiff’s counsel. 	As a
recovery on both Counts would be mutually exclusive, the
Court 	has 	requested 	that 	Plaintiff 	elect 	its 	remedy. 	The
Plaintiff has elected the remedy of Unjust Enrichment as
requested in Count III.
On appeal, Daniel Shamy, as personal representative of the estate of
Joseph Shamy (“the Estate”), challenges the final judgment, raising four
issues, including that: (1) the trial court erred in entering judgment for
Shovel 	Ready 	on 	the 	unjust 	enrichment 	count; 	(2) 	the 	trial 	court
incorrectly 	calculated 	damages; 	(3) 	the 	trial 	court 	failed 	to 	exercise

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independent decision-making when it adopted verbatim the proposed final
judgment 	submitted 	by 	Shovel 	Ready; 	and 	(4) 	Shovel 	Ready 	lacked
standing to sue as an assignee of Avantissimo and Pointgreene.
Discussion
We review de novo the trial court’s ruling in Shovel Ready’s favor on the
unjust enrichment count. 	See ALS-RVC, LLC v. Garvin, 201 So. 3d 687,
691 (Fla. 4th DCA 2016) (quoting Acoustic Innovations, Inc. v. Schafer, 976
So. 	2d 	1139, 	1143 	(Fla. 	4th 	DCA 	2008)) 	(“[W]here 	a 	trial 	court’s
conclusions following a non-jury trial are based upon legal error, the
standard of review is de novo.”).
The trial court erred in awarding recovery to Shovel Ready on the unjust
enrichment count. 	A party cannot pursue an implied contract theory,
such as unjust enrichment, if an express contract exists concerning the
same subject matter. 	See Fulton v. Brancato, 189 So. 3d 967, 969 (Fla.
4th DCA 2016) (quoting Ocean Commc’ns, Inc. v. Bubeck, 956 So. 2d 1222,
1225 (Fla. 4th DCA 2007)) (“[A] plaintiff cannot pursue an equitable theory,
such as unjust enrichment or quantum meruit, to prove entitlement to
relief if an express contract exists.”); Scott v. Acuity Real Est. Servs., LLC,
359 So. 3d 881 (Fla. 2d DCA 2023) (“Because [appellee] proved the
existence of a contract with [appellant] for the fee, we reverse to the extent
the trial court also found [appellant] liable on an unjust-enrichment
theory.”); Diamond “S” Dev. Corp. v. Mercantile Bank, 989 So. 2d 696, 697
(Fla. 1st DCA 2008) (“Florida courts have held that a plaintiff cannot
pursue a quasi-contract claim for unjust enrichment if an express contract
exists concerning the same subject matter.”).
While we considered the Estate’s argument that Shovel Ready’s election
was binding, we do not reach the merits of the election of remedies issue
because without the trial court’s error, no election is required.
In ruling in Shovel Ready’s favor on the breach of contract count, the
trial court found that an express contract existed. 	See Rauch, Weaver,
Norfleet, Kurtz & Co., Inc. v. AJP Pine Island Warehouses, Inc., 313 So. 3d
625, 630 (Fla. 4th DCA 2021) (“The three elements of a breach-of-contract
action are: (1) a valid contract; (2) a material breach; and (3) damages.”).
The trial court did not find that the settlement agreement concerned a
different 	subject 	matter 	than 	the 	unjust 	enrichment 	count 	and 	the
evidence admitted at trial would not support such a finding. 	By ruling
that recovery on the breach of contract count and unjust enrichment
count would be mutually exclusive, the trial court recognized that the
counts concerned the same subject matter. Therefore, it was error to enter

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judgment in Shovel Ready’s favor on both counts, and judgment for Shovel
Ready on the unjust enrichment count must be reversed. 	Because the
trial court did not award damages for breach of contract, we remand for
the trial court to determine damages.
Further, because Shamy was not a party to the assignments, the Estate
cannot challenge Shovel Ready’s standing. 	See Bank of N.Y. Mellon v.
Lopez, 408 So. 3d 773, 775-76 (Fla. 4th DCA 2025) (holding that non-
parties to endorsements lacked standing to challenge the endorsements’
validity); see also Citibank, N.A. v. Olsak, 208 So. 3d 227, 230 (Fla. 3d DCA
2016) (“Florida courts have repeatedly held that borrowers cannot defeat
a foreclosure plaintiff’s standing by relying upon trust documents to which
the borrower is not a party.”).
We remand for the trial court to enter a new judgment for Shovel Ready
on breach of contract only, to calculate damages on that count, and to
make its own findings of fact and conclusions of law without wholesale
adoption of either party’s proposed judgment. 	“A trial court’s adoption of
a proposed order verbatim constitutes reversible error where it appears
the court did not exercise independent decision-making.” 	King v. King,
363 So. 3d 1099, 1100 (Fla. 4th DCA 2023); see also Perlow v. Berg-Perlow,
875 So. 2d 383, 389 (Fla. 2004) (“[T]he practice of a trial judge adopting
verbatim a proposed final judgment without making any … comments on
the record prior to entry of the final judgment is frowned upon.”).
Affirmed in part, reversed in part, and remanded for further proceedings
consistent with this opinion.
F ORST and K LINGENSMITH, JJ., concur.
* 	* 	*
Not final until disposition of timely-filed motion for rehearing.