## Facts

- Emma Posik (a nurse) and Dr. Nancy L.R. Layton (a physician) were in a same-sex intimate relationship and lived together.
- Layton planned to relocate her medical practice and sought to induce Posik to leave her job, sell her home, move with Layton, and live with her for the rest of Posik’s life while maintaining and caring for the home.
- The parties executed a written “support agreement,” drafted by an attorney and properly witnessed, that required Layton to provide essentially all support for both of them.
- Layton promised to (1) make a will leaving her entire estate to Posik and (2) place non-probate assets in Posik’s name up to 100% of Layton’s non-probate assets.
- Posik promised to move in and reside with Layton, maintain and care for the home for the rest of her life, and loan Layton $20,000 (evidenced by a note).
- The agreement contained a liquidated-damages clause requiring Layton to pay $2,500 per month for the remainder of Posik’s life if specified events occurred permitting Posik to stop residing with Layton, including Layton’s failure to support, Layton’s written request that Posik leave, Layton bringing a third person into the home for more than four weeks without Posik’s consent, or conduct making residence intolerable.
- After about four years, Layton announced she wanted to move another woman into the house; after Posik objected, Layton moved out to live with the other woman and served Posik with a three-day eviction notice.
- Posik moved out and sued to enforce the support agreement and collect on the $20,000 note; Layton denied enforceability, alleged Posik breached first, and sought declaratory relief that the liquidated-damages clause was an unenforceable penalty.

## Issues

1. Whether a written support agreement between unmarried cohabitants is enforceable when the parties anticipated an intimate relationship.
2. Whether Posik waived enforcement by acquiescing in Layton’s nonperformance of estate-planning obligations during the relationship.
3. Whether Posik or Layton committed the first material breach, affecting the other party’s duty to perform.
4. Whether the $2,500-per-month lifetime liquidated-damages provision was an enforceable estimate of damages or an unenforceable penalty.

## Decision

- The District Court of Appeal reversed the judgment for Layton and remanded.
- The court held the support agreement was valid and enforceable because it was not inextricably based on illicit consideration of sexual services.
- The court held the record did not support waiver; Posik did not intentionally relinquish her contractual rights.
- The court held Layton was the first breaching party, excusing Posik from further performance.
- The court held the liquidated-damages clause was enforceable because damages were not readily ascertainable at contracting and the stipulated amount was reasonable rather than punitive.

## Legal Principles

- A support agreement between two unmarried adults is enforceable unless it is inextricably based upon illicit consideration of sexual services.
- Waiver requires an intentional relinquishment of a known right; continued requests for performance and an ongoing relationship may negate an inference of acquiescence.
- A party who materially breaches first cannot rely on the other party’s subsequent nonperformance and may excuse the other party from continued performance.
- A liquidated-damages clause is enforceable when, at the time of contracting, actual damages are not readily ascertainable and the stipulated amount is a reasonable forecast rather than a penalty.
- Courts generally enforce voluntarily executed contracts between competent parties absent fraud, duress, or overreaching, even if the bargain heavily favors one side.

## Conclusion

The appellate court enforced a written cohabitation support contract and its lifetime liquidated-damages remedy, rejecting findings of waiver and penalty and concluding that Layton’s breach excused Posik’s further performance and entitled Posik to contract remedies on remand.


Posik v. Layton, 695 So. 2d 759 (Fla. Dist. Ct. App. 1997)