Jurisdiction: Florida Fourth District Court of Appeal
Case No.: 4D2024-0940, 4D2024-1057, 4D2024-1167
Lower Tribunal Case No.: CACE17-012896
Date: December 17, 2025
Lower Court: Circuit Court for the Seventeenth Judicial Circuit, Broward County, Judge Jack B. Tuter, Jr.

Case Summary: Herman v. Ewers

This appeal came out of a business deal between experienced operators inside a regulated home medical equipment company. Two executives (Herman and Cooper) sued OxyLife and its owners for (1) unpaid compensation/profit-share under employment agreements and (2) failure to transfer 50% ownership under a later Letter of Intent (LOI) once certain financial “trigger” conditions were met.

The jury largely sided with the plaintiffs on both claims:

• $418,574.07 for unpaid amounts tied to the Consignment Nebulizer Program (CNP) during May–Nov 2017; and
• $2.75 million for the LOI claim (implying a company value of about $5.5M if 50% = $2.75M).

Post-trial, the trial court:

• left the $418,574.07 award in place, but
• entered JNOV wiping out the $2.75M LOI award, ruling the plaintiffs failed to present competent evidence of company value at the breach date (2017).

The Fourth DCA:

• affirmed the judgment on the employment contract claim (and found the plaintiffs waived several arguments by raising them only in a reply brief), but
• reversed the JNOV on the LOI claim because the owner’s testimony was competent, substantial evidence from which a jury could infer value (at least the purchase price).

However, because the jury’s LOI damages exceeded what the competent valuation evidence supported, the appellate court said the right remedy was remittitur or a new trial on damages, not a complete wipeout via JNOV.

What Happened

The employment agreements

• Plaintiffs were hired on identical contracts: no salary, compensation via profit share distributions and potential ownership interests tied to the CNP (a business unit within OxyLife).
• The agreements contained survival clauses stating profit share payments and CNP ownership interests would “survive” termination.

The Letter of Intent (LOI)

• In 2016, the parties signed an LOI allowing the plaintiffs to acquire 50% of OxyLife once a “Trigger Date” occurred (three consecutive months meeting cash flow positivity, current with-suppliers, and current with liabilities conditions).

The fallout

• Plaintiffs claimed that just as vesting was about to occur, the owners locked them out, manipulated books to show CNP unprofitable, and terminated them.
• Their accountant calculated $418,574.07 owed for unpaid amounts tied to CNP from May–Nov 2017.

The Appellate Outcomes

1) Employment agreement damages: affirmed

The plaintiffs tried to expand damages beyond what the trial court allowed, arguing the survival clause meant they should keep receiving profit share after termination.

The Fourth DCA did not reach the merits of most of those arguments because:

• their initial brief didn’t properly challenge key rulings, and
• they raised new issues for the first time in the reply brief, which is treated as waived/abandoned under Florida appellate rules.

So the $418,574.07 judgment stood.

2) LOI damages: JNOV reversed, but damages must be reduced or retried

The key issue: business valuation evidence at the breach date

Florida contract damages are generally measured as of the date of breach (here, the 2017 ouster/repudiation timeframe).

The trial court said: no competent evidence of 2017 value → therefore no damages → therefore JNOV.

The Fourth DCA disagreed.

Why the owner’s testimony counted

The defendant owner (Ewers) testified:

• he purchased OxyLife for $3.5M in 2008, and
• it was still worth $3.5M in 2016, and
• profitability improved by mid-2017 and the company made “significant strides” under plaintiffs’ leadership.

Even though he didn’t state “the value in 2017 was exactly $X,” the Fourth DCA held a jury could reasonably infer:

• if it held $3.5M value in 2016 (despite financial troubles), and
• performance improved by 2017,
• then it was worth at least $3.5M at breach.

Florida law has a long-standing rule: an owner may testify to the value of their property as lay testimony.

Why the plaintiffs’ officer testimony was rejected

Plaintiff Cooper tried to value OxyLife using an industry multiplier (e.g., DME businesses sell for 2× annual revenue). The court held that crosses into expert valuation a specialized formula so it was not proper lay opinion.

The proper remedy: remittitur or new trial on damages

The jury awarded $2.75M for a 50% interest, implying $5.5M company value. But the competent evidence supported, at most, an inference of $3.5M value (or at least $3.5M).

So the Fourth DCA said:

• JNOV was too extreme because there was some competent damages proof.
• The fix should have been:
  • remittitur to the supported amount (50% of $3.5M = $1.75M), or
  • a new trial on damages if a party objects.

Why This Case Matters

1. Owners can establish valuation without a valuation expert if they speak from ownership knowledge (purchase price, performance, retention of value).
2. “Industry multiplier” valuations by a lay witness can be excluded as disguised expert testimony.
3. JNOV is for “no evidence” situations if there’s competent evidence supporting some damages, courts should usually use remittitur/new trial instead.
4. On appeal, waiver kills arguments fast: if it’s not properly raised in the initial brief, it may be dead on arrival.

Today’s Insight

“It is not enough to have a good mind; the main thing is to use it well.”
— René Descartes