695 So. 2d 759 (Fla. Dist. Ct. App. 1997)
Emma Posik and Nancy L.R. Layton were close friends and more.1 Nancy Layton was a doctor practicing at the Halifax Hospital in Volusia County and Emma Posik was a nurse working at the same facility when Dr. Layton decided to remove her practice to Brevard County.2 To induce Posik to give up her job, sell her home in Volusia County, accompany her to Brevard County, and reside with her for the remainder of Posik's life to maintain and care for the home, Layton agreed that she would provide essentially all of the support for the two, would make a will leaving her entire estate to Posik, and would maintain bank accounts and other investments which constitute non-probatable assets in Posik's name to the extent of 100% of her entire non-probatable assets.3
As part of the agreement, Posik agreed to loan Layton $20,000 which was evidenced by a note.4 The agreement provided that Posik could cease residing with Layton if Layton failed to provide adequate support, if she requested in writing that Posik leave for any reason, if she brought a third person into the home for a period greater than four weeks without Posik's consent, or if her abuse, harassment or abnormal behavior made Posik's continued residence intolerable.5 In any such event, Layton agreed to pay as liquidated damages the sum of $2,500 per month for the remainder of Posik's life.6 Posik, fifty-five years old at the time of the agreement, testified that she required the agreement because she feared that Layton might become interested in a younger companion.7
Some four years after the parties moved to Brevard County and without Posik's consent, Layton announced that she wished to move another woman into the house.8 When Posik expressed strong displeasure with this idea, Layton moved out and took up residence with the other woman.9 Layton served a three-day eviction notice on Posik.10 Posik later moved from the home and sued to enforce the terms of the agreement and to collect on the note evidencing the loan made in conjunction with the agreement.11 Layton defended on the basis that Posik first breached the agreement and counterclaimed for a declaratory judgment as to whether the liquidated damages portion of the agreement was enforceable.12
The trial judge found that because Posik's economic losses were reasonably ascertainable as to her employment and relocation costs, the $2,500 a month payment upon breach amounted to a penalty and was therefore unenforceable.13 The court further found that although Layton had materially breached the contract within a year or so of its creation, Posik waived the breach by acquiescence.14 The court also found that Posik breached the agreement by refusing to continue to perform the house work, yard work and cooking for the parties.15 The court determined that Posik's hostile attitude required Layton to move from the house.16 Although the trial court determined that Posik was entitled to quantum meruit, it also determined that those damages were off-set by the benefits Posik received by being permitted to live with Layton.17 The court did award Posik a judgment on the note executed by Layton.18
Whether the support agreement between Emma Posik and Nancy L.R. Layton is enforceable?19
Yes. The written agreement drafted by counsel and signed by the parties recited lifetime support, a will, and non-probate assets in exchange for Posik relocating, selling her home, and providing household care.22 The contract and testimony establish that sexual services were not the primary consideration.23
The support agreement is enforceable.24
Related opinions on this issue
Chief Judge Peterson concurred specially.25 He noted that the case simply involves whether the parties entered into a contract for support which they are legally capable of doing.26
Peterson explained that the agreement constituted a lifetime personal services contract in which Posik managed the household exclusively for Layton in exchange for monetary support and living quarters.27 Every term could have appeared in an agreement between an invalid or elderly married couple seeking household services without any sexual relationship.28
Peterson stressed that the holding recognizes only the constitutional private property and contract rights of competent adults.29 Neither the contract nor the parties' testimony reflects that the reason for the agreement was the delivery and payment for a sexual relationship.30
Whether Emma Posik waived any breach of the agreement by Nancy L.R. Layton?31
A party waives a material breach only by clear and unequivocal conduct demonstrating intent to relinquish the right to enforce the contract.32
No. Posik repeatedly urged Layton to execute the required will and treated the introduction of a third person into the home as a default rather than acquiescing in the earlier breach.33 Her consistent demands and response to the new companion demonstrated no intent to relinquish enforcement rights under the agreement.34
Emma Posik did not waive Nancy L.R. Layton's breach.35
Whether Emma Posik breached the agreement through her conduct regarding household duties and attitude?36
A party who has suffered a prior material breach by the other party is excused from further performance and does not breach by ceasing performance.37
Emma Posik did not breach the agreement.40
Whether the liquidated damages provision requiring $2,500 monthly payments is enforceable?41
A liquidated damages clause is enforceable when the damages were not readily ascertainable at the time of contracting and the stipulated sum is reasonable under the circumstances.42
Yes. At formation Posik's damages included not only lost wages and relocation costs but also the value of lifetime support and reduced future earning capacity in her sixties.43 The monthly sum was less than her prior earnings and less than full performance would have provided, making it reasonable.44
The liquidated damages provision is enforceable.45
Whether the agreement is void as against public policy because of the parties' personal relationship?46
An agreement between unmarried adults is not void as against public policy merely because the parties have a sexual relationship, provided the contract is not inseparably founded on illicit sexual consideration.47
No. The written agreement drafted by counsel and properly witnessed, together with the parties' testimony at trial, demonstrates that Posik and Layton contracted specifically for mutual lifetime support, household management services, and estate planning provisions in exchange for Posik's relocation and ongoing care of the home rather than for any sexual services.48 Florida law recognizes the private contract and property rights of unmarried cohabitants and imposes no prohibition on such support agreements between competent adults.49
The agreement is not void as against public policy.50