BCJJ, LLC v. LeFevre et al, No. 8:2009cv00551 - Document 247 (M.D. Fla. 2011)
Court Description: ORDER granting 186 Motion for summary judgment; denying 195 Motion for summary judgment. The Clerk of Court shall enter a final judgment in favor of Defendant Bayonne, LLC and against Plaintiff BCJJ, LLC. Signed by Judge Elizabeth A. Kovachevich on 6/30/2011. (Attachments: # 1 Main Document, # 2 Main Document) (JM)
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BCJJ, LLC v. LeFevre et al Case No. Doc. 247 Att. 2 8:09-CV-551-T-17EAJ the evidence is unequivocal. In this case, the provisions of the Unit Upgrade Agreement exclude the possibility that Defendant Thomas J. LeFevre was acting as agent of Defendant Bayonne, Plaintiff BCJJ, J. LeFevre, LLC could not have understood the Seller, to be acting as agent for Defendant Bayonne, LLC. Thomas LLC in negotiating the subject transaction. The Court further notes that the Operating Agreement of Bayonne, LLC was provided to Jason Turkish and to Christopher Sullivan prior to the closing on March 27, 2007. The terms of the Operating Agreement further support the absence of an agency relationship between Defendant Thomas LeFevre and Defendant Bayonne, LLC as to the subject transaction. two managers, Where an entity has and its decisions must be made by a majority of the managers holding "managerial units", then both managers must participate in the decision for the decision bind the entity. the event of a deadlock (one for and one against), Nadolski who had the right to break the deadlock, Thomas In it was Leonard not Defendant LeFevre. The pre-contract negotiations and the documents executed at closing establish that Defendant Thomas LeFevre did not have the authority to bind Defendant Bayonne, transaction, and that Plaintiff BCJJ, LLC as to the proposed LLC knew that Defendant LeFevre did not have the authority to bind Defendant Bayonne, LLC. b) Apparent Agent It is undisputed that Defendant Thomas LeFevre executed 41 Dockets.Justia.com Case No. 8:09-CV-551-T-17EAJ other documents on behalf of Defendant Bayonne, permit application and the Cubellis contract. such as a LLC, Defendant Bayonne, LLC argues that there is no record evidence that establishes that Plaintiff BCJJ, LLC knev; of the permit application or Cubellis contract prior to or during March, documents. The Court has examined the evidence that Plaintiff BCJJ, relied on them, 2007, and relied on those record and can find no LLC knev; of those documents, and during the relevant time. Apparent agency arises from representations of the principal, and not from the subjective understanding of the party dealing with the purported agent, the purported agent. 187 Izouierdo v. Hialeah Hosp., (Fla. 3d DCA 1998). testified that or from appearances created by Leonard In his deposition, Nadolski never told Inc., 709 So.2d William Turkish him that Defendant Thomas J. LeFevre had the authority to bind and act for Defendant. Bayonne, LLC. Plaintiff BCJJ, (Dkt. 199-1, pp. 134-135). The Court finds that LLC cannot establish that Plaintiff BCJJ, U £ reasonably relied on the representations and conduct of Defendant Thomas LeFevre as the apparent agent of Defendant Bayonne, March, LLC in 2007. After consideration, LLC cannot establish that the Court finds that Plaintiff BCJJ, Defendant Thomas LeFevre agent or apparent agent of Defendant Bayonne, acted as the LLC as to the subject transaction. 2) Joint Venture Relationship Plaintiff BCJJ, LLC argues that there was a joint venture 42 Case No. 8:09-CV-551-T-17EAJ relationship between Defendant Bayonne, Investments, LLC. Plaintiff BCJJ, Development Agreement relationship. ("JDA") LLC and Defendant Bayonne LLC identifies only the Joint as the source of the joint venture Plaintiff BCJJ, LLC relies on paragraphs 18, 19 and 35 on the JDA to establish the right to share profits and the duty to share losses. The JDA includes an express statement of its purpose and scope (Dkt. 148-11, p. 8). The purpose/scope paragraph includes no statement establishing the right to share profits and duty to share losses as to development and subsequent sale or other disposition of both parcels which comprise the "Total Property." Paragraph 18 provides: 18. Construction Timeframes. It is anticipated that the Waterfront Project may preceed, (sic) or be developed concurrently with the Commercial Project and therefore the Parties agree that it is in their respective best interests to designate Bayonne as the Party who will have the right to plan, design, implement, and develop the Shared Utilities, Access and other Improvements. Accordingly, Bayonne shall have the right to plan, design, implement, construct and develop the Shared Utilities, Access and other Improvements. Recognizing that this function will take considerable time, and will provide a considerable benefit to the Commercial Project, any party subsequently purchasing the Commercial Property for development from Bayonne Investments shall pay to Bayonne a project management fee equal to ten percent (10 %) of the gross amount(s) expended to plan, develop and construct the Access, Shared Utilities, and other Improvements payable within thirty days 43 Case No. 8:09-CV-551-T-17EAJ following completion. However, to the extent that the Waterfront project is developed concurrently with the Commercial Project and Bayonne Investments retains title to the Commercial Property, or the construction project to be developed on the Commercial Property precedes the Waterfront Project, the Parties agree that Bayonne shall have the right, but not the obligation, to permit Bayonne Investments, its successors and or assigns, to construct the Access, Improvements and/or Shared Utilities, provided, in such instance, (a) Bayonne shall retain the right to plan and design the Access, Shared Utilities, and other Improvements, and each shall be constructed by Bayonne Investments or its successor in interest in strict accordance with plans designed by, or otherwise approved by Bayonne, in Bayonne's sole discretion; and (b) no management fee will be due either Party. If construction of the Waterfront Property precedes the construction of the Commercial Property, no management fee will be due either Party.... The above provision provides for the payment of a management: fee by a subsequent owner of the Commercial Property, in the event that a subsequent owner develops the Commercial Property before 3ayonne, LLC develops the Waterfront Property. event that Bayonne, LLC develops the Waterfront Property before or while Bayonne Investments, Property, In the LLC develops the Commercial no management fee is due to either party. The above provision does not establish the right to share profits or the duty to share losses that are generated within the scope of the business conducted by Bayonne, LLC and Bayonne Investments, 44 LLC. Case No. 8:09-CV-551-T-17EAJ Paragraph 19 provides: 19. Viacom Signage. For as long as any leases, licenses, or other agreements exist with regard to the location of billboards or comparable signage on the Commercial Property by third parties, and such leases, licenses, or other agreements permit or otherwise reserve unto the landlord/property owner thereunder, the right to utilize any portion of such signage, the Parties agree that Bayonne, or its successors and/or assigns shall have the right to use one-half of any portion of the signage so reserved. Bayonne shall have the right to designate which portions it wishes to use, and shall have the right to design any signage which might be used exclusively by Bayonne or shared by the Parties. This provision shall not apply to signage used by occupants of the Commercial Project itself. Once the period of free rent offered by Viacom has expired, which is anticipated to be three months, all revenue from the signage leases, licenses or other agreements shall belong exclusively to Bayonne Investments. The above contract provision provides that Bayonne, LLC shall have the right to use one half of any signage on the Commercial Property reserved to the landlord under a contract with a third party, and Bayonne Investments, right to use one half of any such signage. agreement with Viacom, involves no revenue) LLC shall have the Under an existing after a period of free rent (which all revenue from that agreement belongs only to Bayonne Investments. The above provision establishes only the right to share reserved signage, Bayonne's right to design the signage, and that the revenue from Viacom signage agreements on the Commercial 45 Case No. 8:09-CV-551-T-17EAJ Property belongs only to Bayonne Investments, LLC. Paragraph 35 provides: 35. General. Any and all impact fee credits realized as a result of the planning, development, construction, installation, use and/or dedication of the Improvements, Shared Utilities, and/or Access shall be apportioned between the two projects in proportion to the formulae governing the apportionment of the initial cost thereof. Any other planning, development and/or construction related activities that benefit both parcels, but have not been specifically apportioned hereinabove, shall be split equally between the Parties. An impact fee is a cost of development which is imposed by local government, and which is intended to pay for the construction or expansion of off-site capital improvements necessitated by, and which benefit, the new development. "impact fee credit" is a reduction of that cost. Any The above paragraph establishes how any such credit shall be apportioned. The above paragraph further provides for the equal split of any other planning, development and construction related "activities" that benefit both parcels. Since the primary purpose of the JDA is to establish the parties' agreement as to sharing the cost of utilities, access and other improvements, the- Court finds that paragraph 35 includes the equal sharing of the cost of any required activity that benefits both parcels and which was not specifically identified in the JDA. The above paragraphs of the JDA do not establish the sharing 46 Case No. 8:09-CV-551-T-17EAJ of profits and losses for the business conducted by Bayonne, and Bayonne Development, LLC. The JDA is silent as to the right to share profits and the duty to share losses by Bayonne, Bayonne Investments, entity. LLC LLC and LLC as to the business carried on by each Each entity purchased a parcel of unimproved real property with the intent to install the necessary utilities, construct condominiums or other structures, and then sell or otherwise dispose of the units constructed. The Waterfront Property was to be residential development, and the Commercial Property was to be a mixed use development, The JDA's reference to the development of each parcel pursuant to a master plan of development for the "Total Property" does not establish the intent of Bayonne, LLC and Bayonne Investments, LLC to share profits from the development of the "Total Property" and the duty to share losses from the development of the "Total Property," after considering all provisions of the JDA, including the intent of the parties to the Agreement. The JDA specifies that its primary purpose is to document the agreement of Bayonne, LLC and Bayonne Investments, LLC as to the apportionment of the costs of shared infrastructure, including utilities, access and other improvements. The JDA expressly contemplates that the development of each parcel may proceed separately, JDA, as well as concurrently. Notwithstanding the there is overwhelming record evideace that Bayonne, Bayonne Investments, LLC were established as separate entities and remained separate entities. that Bayonne, Undisputed record establishes LLC and Bayonne Investments, parcels of property, entity were separate, LLC and LLC owned separate that the financial obligations of each and that the plans for development of each 47 Case No. 8:09-CV-551-T-17EAJ parcel were separate. Each entity had separate bank accounts. A separate Operating Agreement controlled each entity. After consideration, BCJJ, the Court concludes LLC cannot establish a joint venture relationship that would render Defendant Bayonne, acts of Bayonne Investments, 3) that Plaintiff LLC vicariously liable for the LLC. Unit 441 Inextricably Intertwined With Purchase Transaction Plaintiff BCJJ, LLC argues that Defendant Bayonne, in direct privity with Plaintiff BCJJ, the investment transaction. LLC was LLC as part and parcel of Plaintiff BCJJ, LLC argues that the contemplated purchase of Unit 441 of the Residences in Grande Bay was plainly and inextricably intertwined in Plaintiff's investment, just as Defendant Bayonne, Bayonne Investment, LLC's and Defendant LLC's joint development of the two parcels were intertwined as part of the entities' joint venture, and Thomas LeFevre was Bayonne's managing member and agent. The Court has found that Plaintiff BCJJ, LLC recognized Defendant Thomas J. LeFevre did not have the authority to act on behalf of Defendant Bayonne, LLC. Plaintiff BCJJ, LLC did not require Defendant LeFevre to execute the Purchase Agreement Unit 441 on behalf of Defendant Bayonne, LLC. for Plaintiff's proposed Purchase Agreement for Unit 441 included a signature line for Leonard A. Nadolski on behalf of Defendant Bayonne, not Defendant Thomas LeFevre. Plaintiff BCJJ, LLC included a signature line on its proposed Unit Upgrade Agreement for Defendant Thomas LeFevre to sign the Agreement as Manager for -IS LLC, Case No. 8:09-CV-551-T-17EAJ Defendant Bayonne, LLC, but after negotiation the terms of Plaintiff's proposed Unit Upgrade Agreement were amended, and the signature line for Defendant LeFevre to sign in his capacity as Manager of Defendant Bayonne, LLC (then Bayonne Development, was deleted from the Unit Upgrade Agreement. LLC) Plaintiff BCJJ, LLC decided to proceed with the transaction and execute the Unit Upgrade Agreement in the form negotiated between the parties, which was executed by Plaintiff BCJJ, LLC and "Seller" Thomas J. LeFevre only as Trustee of Thomas J. LeFevre Living Trust. Privity is the connection or relationship which exists between two or more contracting parties. Sumitumo Corn, America v. M/V Saint Venture, 1361, 1988). Plaintiff BCJJ, 683 F.Supp. 1369 LLC and Defendant Bayonne, of (M.D. Fla. LLC did not enter into an Agreement to Purchase Unit 441. In his deposition, William Turkish testified that the upgrade to Unit 441 was an incentive for Plaintiff to enter into the subject transaction. transaction, Prior to the closing of the the parties expressly considered the possibility that the Agreement to Purchase Unit 441 would not be consummated, and provided that the obligation of Defendant LeFevre to repay $400,000 would arise if Defendant LeFevre was unwilling or unable to deliver the Unit 441 Purchase Agreement to Plaintiff, or it the Purchase Agreement was unable to be consummated through no fault of Plaintiff. (Dkt. 148-5, p. 2). The Unit Upgrade Agreement further provided that Defendant LeFevre's contingent obligations were secured by Defendant's ownership interests in GLRS, LLC and TT, LLC. 49 Case No. 8:09-CV-551-T-17EAJ The Court has further found that Plaintiff BCJJ, LLC cannot establish the presence o£ a joint venture relationship between Defendant Bayonne, LLC and Defendant Bayonne Investments, Defendant Bayonne, BCJJ, LLC, LLC was not in privity with Plaint. as Defendant Bayonne, LLC did not execute any of documents which comprise the subject transaction, BCJJ, LLC. the and Plaintiff LLC knew that Defendant LeFevre could not bind Defendant Bayonne, LLC in signing a Contract for Purchase and Sale of Unit The only security referred to in the Unit Upgrade Agreement 441. was Defendant Thomas LeFevre's ownership interest in TT, GLRS, LLC and LLC. After consideration, the Court finds that Plaintiff BCJJ, LLC cannot establish that the Agreement to purchase Unit 441 was inextricably intertwined with Plaintiff's purchase of investment units in Defendant Bayonne Investments, 4. Evan Berlin as Agent for Bayonne, LLC. LLC The undisputed record evidence shows that Defendant Thomas LeFevre approached Plaintiff seeking an investment in Defendant Bayonne Investments, LLC, Bayonne Investments, LLC's mortgage on the Commercial Proper/. Plaintiff BCJJ, to avert the foreclosure of Defendant LLC was represented by counsel in negotiating the transaction between March 15, 2007 and March 23, 2007. Defendant Bayonne Investments, counsel, Defendant Evan Berlin, LLC was represented by for the proposed transaction. Defendant Berlin testified that he represented Defendant Bayonne 50 Case No. 8:09-CV-551-T-17EAJ Investments, LLC as to the subject transaction. Defendant Evan Berlin testified that he represented Defendant Bayonne, LLC on other matters in the past. The subject transaction was for the benefit of Bayonne Investments, LLC; the transaction. Defendant Bayonne, As LLC received no benefit from the Court discussed above, the documents executed at closing reflect William Turkish's knowledge that Defendant Thomas LeFevre could not act on behalf of Bayonne, and that Bayonne, LLC, LLC was not a party to the transaction. Plaintiff BCJJ, LLC has not provided any evidence that Defendant Berlin was carrying out the business of Defendant Bayonne, LLC as to the subject transaction. The Court finds that the preparation of the transaction documents does not establish that Evan Berlin was acting as the agent of Defendant Bayonne, LLC during the relevant time. B. Defendant Bayonne, 1. Count 1-15 U.S.C. Sec. 1703(a)(2) Interstate Land Sales Full Disclosure Act Defendant Bayonne, on Count I. LLC's Motion for Summary Judgment ("ILSFDA' LLC moves for entry of summary judgment Plaintiff BCJJ, LLC moves for entry of summary judgment on Count I. In Count I, Plaintiff BCJJ, LLC seeks a judgment for compensatory damages against Defendant Bayonne, Defendants, LLC and other rescission of the agreement to invest in Defendant Bayonne Investments, LLC, punitive damages, 51 pre-judgment and Case No. 8:09-CV-551-T-17EAJ post-judgment interest, and attorney's fees and costs. Count I is based on the alleged violation of the anti-fraud provisions of 15 U.S.C. Sec. 1703(a)(2), which: agent from employing a device, 1) prohibit a developer or scheme or artifice to defraud with respect to a sale or lease, or offer to sell or lease, not exempt under Sec. any lot 1702; 2) prohibit a developer or agent from obtaining money or property by means of an untrue statement of a material fact, or omission to state a material fact which wculd make the statements made not misleading... with respect to any information pertinent to the lot or subdivision; and 3) prohibit a developer or agent from engaging in any transaction, or course of business which operates or would operate as a fraud on a purchaser. Title 15 U.S.C. 1709 provides: A purchaser or lessee may bring an action at law or in equity against a developer or agent if the sale or section 1703(a) lease was of this made title. in violation In a of suit authorized by this subsection, the court may order damages, specific performance, or such other relief as the court deems fair, just, and equitable. In determining such relief the court may take into account, but not be limited to, the following factors: the contract price of the lot or leasehold; the amount the purchaser or lessee actually paid; the cost of any improvements to the lot; the fair market value of the lot or leasehold at the time relief is determined; and the fair market value of the lot or leasehold at the time such lot was purchased or leased. The ISLFDA is an anti-fraud statute that is directed to advertising and marketing activities in connection with the sale 52 Case No. 8:09-CV-551-T-17EAJ of real property or an offer to sell real property. Federal law governs the interpretation of the ISLFDA; the Court looks tc state law as to relevant contract issues, but state law does not control the interpretation of the ISLFDA. The ISLFDA is designed to protect land buyers by requir developers to disclose material information; specific disclosure requirements, | in addition to the the Act includes a general anti-fraud provision that makes it illegal to obtain money or property in connection with a development by means of a material false statement, or any omission of a material fact necessary to make the statements made not misleading. It is undisputed that Plaintiff BCJJ, LLC entered into a contract to purchase Unit 241 of the Residences of Grande Bay from Defendant Bayonne, LLC) (Dkt. 148-1, LLC (then known as Bayonne Development, Exhibit A). That contract includes disclosures required by the ILSFDA and expressly notifies Plaintiff BCJJ, LLC of its remedies. (Dkt. contract was executed by Defendant Bayonne, Nadolski, 148-1, LLC, p. 19). by Leonard P. in his capacity as President of Len's S Corp., of Bayonne Development, as the Purchaser, LLC, the Seller, for Plaintiff BJCC, The Manager and by William Turkish, LLC. That contract expressly disclaims reliance on oral representations made b\ agent for the Seller. That contract includes a clause which. controls the construction of the contract (Dkt. 148-1, par. 23) and includes an integration clause (Dkt. par. in p. 13, 148-1, p. 14, 24). It is undisputed that William Turkish, 53 as managing member o! Case No. 8:09-CV-551-T-17EAJ Plaintiff BCJJ, Agreement as LLC, executed a Release and Cancellation to the Contract for Purchase and Sale of Unit 241, and the earnest money deposit of $59,940.00 was returned to Plaintiff BCJJ, LLC. Plaintiff BJCC, LLC did not enter into a Contract for Purchase and Sale of Unit BCJJ, 441. On March 27, 2007, LLC signed the "Unit Upgrade Agreement" (Dkt. Plaintiff 148-5) in connection with the "Purchase Agreement for Membership Interest." (Dkt. 148-2). LeFevre, In the Unit Upgrade Agreement, Seller, Thomas J. as Trustee of Thomas J. LeFevre Living Trust Dated October 8, 2001, its successors and assigns, Seller's best efforts to cause Bayonne, purchase agreement with Buyer, BJCC, promised to use LLC to enter into a LLC, for Unit 441, Residences of Grande Bay. Plaintiff BJCC, LLC seeks rescission of Plaintiff's "Purchase Agreement for Membership Interest" and damages based oi. the alleged fraud of Defendant 3ayonne, by Defendant Bayonne, Evan LLC which was carried out LLC's alleged agents, Thomas J. LeFevre and Berlin. Plaintiff alleges that Defendant Bayonne, in the offer to sell Unit 441 to Plaintiff, LLC participated and the offer to sell was part of the scheme to induce Plaintiff to invest $400,000 in Defendant Bayonne Investments, LLC, because the offer to sell Unit 441 was presented to Plaintiff as security and in consideration for Plaintiff's investment. (Dkt. 148, par. Plaintiff further alleges that the Berlin Law Firm acted as agent for Defendant Bayonne, LLC (and other entities) 54 with 53). the Case No. 8:09-CV-551-T-17EAJ respect to the offer to sell Unit 441 to Plaintiff, in particular by preparing the documents relating to Plaintiff's investment, including the offer to sell and conducting the closing at its office. (Dkt. 148, Bayonne, par. 54.) Plaintiff alleges that Defendant LLC used the means and instruments of transportation ana communication in interstate commerce, U.S. Mails. (Dkt. 148, Plaintiff BCJJ, par. electronic mail 55). LLC identifies the alleged intentional misrepresentations of Defendant Bayonne, the offer to sell and the Unit LLC in connection with 441: 1. The misrepresentation that Thomas J. LeFevre and Thomas J. LeFevre Living Trust were authorized to pledge membership units in GLRS and TT, when they were not. (Dkt. 148, par. 56.); 2. Falsified balance sheet for Bayonne Investments, LLC presented to Plaintiff to induce Plaintiff to invest (Dkt. 148, par. 57) ; 3. Inflated appraisal for property owned by Bayonne Investments, LLC presented to Plaintiff to induce Plaintiff to invest 14 8, par. Plaintiff BCJJ, (Dkt. 57); LLC alleges that Plaintiff reasonably relied on the above intentional misrepresentations, which proximately caused Plaintiff's damages. The Court notes that the Purchase Agreement Interest contains the following provision: 55 for Membership Case No. 8:09-CV-551-T-17EAJ Section 8.4 Entire Agreement. This Agreement (including all Exhibits hereto) contains the entire agreement among the Parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral or written, with respect to such matters. (Dkt. 148-2, p. 6). Section The Agreement also includes Section 8.6 8.6 Parties in Interest. This Agreement shall insure (sic) to the benefit of and be binding upon rhe Parties hereto and their respective heirs, beneficiaries, legatees, legal representatives, successors and permitted assigns. Nothing in this Agreement, express or implied, is intended to confer upon any Person other than Purchaser or the Seller, or their respective heirs, beneficiaries, legatees, legal representatives, successors or permitted assigns, any rights or remedies under or by reason of this Agreement. a. 15 U.S.C. Connection Sec. With 1703(a)(2)(A) Offer to - Scheme to Defraud in Sell The Court notes that 15 U.S.C. including developer, agent, includes "any inducement, 1701 defines purchaser and offer. solicitation, selling or leasing, in a subdivision; terms, An "offer" or attempt to encourage a person to acquire a lot in a subdivision." person who represents, relevant An "agent" "means any acts for or on behalf of, a developer in or offering to sell or lease any lot or but shall not include an attorney at lots law whose representation of another person consists solely of rendering legal services." The Court further notes that 56 reasonable reliance is an Case No. 8:09-CV-551-T-17EAJ element of fraud claims brought under 15 U.S.C. Sec. 1703(a)(2). Taplett v. T.R.G. Oasis (Tower Two), Ltd., L.P., 755 F.5upp.2d 1197 Where there is a complete omission of a (M.D. Fla. material fact, Stoneridae Inv. 2009). a rebuttable presumption of reliance arises. Partners, LLC v. Scientific-Atlanta, 552 U.S. 148 (2008) . The Court understands Plaintiff BCJJ, LLC to contend that, because there was a common promotional plan as to the Commercial Property and the Waterfront Property, and because Defendant Thomas LeFevre had an ownership interest in Defendant Bayonne, LLC, every act, and every representation, or omission of Defendant Thomas J. LeFevre was also the act, omission of Defendant Bayonne, Plaintiff BCJJ, LLC. (Dkt. representation or 148-1, par. 52). LLC's claim is directed to alleged misrepresentations made prior to the closing of March 27, 2007, which Plaintiff alleges were intended to fraudulently induce Plaintiff to enter into In general terms, the transaction. the subject transaction came about because Defendant Bayonne Investments, LLC needed funds to refinance the mortgage on the Commercial Property, and Plaintiff BCJJ, wanted to upgrade the condominium unit Plaintiff BCJJ, contracted to purchase, LLC LLC had as well as to secure the return of Plaintiff's investment of $400,000. Plaintiff BCJJ, LLC declined to proceed with the initial investment proposal, until the parties reached an agreement as to the upgrade of Unit 241 to Unit 441, and an agreement as to security for the return of investment of $400,000. 57 Plaintiff's Case No. 8:09-CV-551-T-17EAJ The Court considers the documents which comprise the transaction which closed on March 27, expression of the parties' intentions. 2007 to be the final (Dkt. 148-2-148-8). of those documents are signed by Defendant Bayonne, LLC, Contract for Purchase and Sale of Unit 241 was signed. None as the The Unit Upgrade Agreement reflects that Defendant Thomas J. LeFevre, as Trustee of Thomas J. LeFevre Living Trust Dated October 8, 2001, the "Seller," promised to use his best efforts to cause Defendant Bayonne, LLC to enter into a purchase agreement for Unit 44 1 by May 1, 2007 (Dkt. Plaintiff BCJJ, 148-5, pp. 2-3). Defendant Bayonne, LLC never entered into a Contract and Sale of Unit 441 LLC and for Purchase like the Contract entered into by the parties as to Unit 241. In the Purchase Agreement for Membership Interest, reference to "Bayonne" means "Bayonne Investments, 148-2, p. 2). LLC." the (Dkt. The Court notes that the Purchase Agreement for Membership Interest includes the following provision: Section 5.2 Investment Acquisition of Units for Purchaser is not acquiring the Acquired Interest with any present intention of distributing or selling such Units in violation of federal, state or other securities laws. Purchaser agrees that it will not sell or otherwise dispose of the Units in violation of any federal, state or other securities laws, or otherwise in contravention of the terms of the Operating Agreement. Purchaser recognizes that it is acquiring an interest in Bayonne (Investments, LLC] and as a member of Bayonne each member will be subject to the terms and provisions of the Operating Agreement, which grants to members very limited voting rights, contain significant restrictions on 58 Case No. 8:09-CV-551-T-17EAJ transfers, and provides for very specific mechanisms for the timing and amount of return of (and on) capital (if any), and therefore each Purchaser is strongly urged to consult with an attorney with regard to this Agreement and the terms and provisions of the Operating Agreement, specifically including any rights/responsibilities each member possesses under the Operating Agreement. Each Purchaser acknowledges and agrees that its acquisition of the Acquired Interest is speculative, and that no commitment, promise, guaranty, or warranty, express or implied, has been made or is made by Bayonne [Investments, LLC] or any Affiliate with regard to any expected or anticipated return on the Purchase Price and/or the Units, and to the extent Purchaser has received and/or reviewed any materials, prospectuses, brochures, literature, or marketing materials about Bayonne [Investments, LLC](the "Written Materials"), or to the extent that any Person, Affiliate or the Company has made any statements, comments or promises that could be characterized as representations/commitments, Purchaser hereby acknowledges and agrees that this Agreement and the disclaimers set forth herein supercedes any such representation, comment, promise, commitment, or the terms and provisions of the Written Material (which terms and provisions of the Written Materials are also subject to change by Bayonne with or without (Dkt. 148-2, notice). p. 5) . Where a Purchase Agreement expressly disclaims reliance on prior oral representations, reliance as Ltd, L.P., a matter of other courts have found no reasonable law. 755 F.Supp.2d 1197, Taolett 1203 59 v. (M.D. TRG Oasis Fla. (Tower Two), 2009). Case No. 8:09-CV-551-T-17EAJ In considering Plaintiff's Cross-Motion for Summary Judgment, the Court concluded that Plaintiff BCJJ, LLC could not establish that Defendant LeFevre was acting as an agent or apparent agent of Bayonne, Bayonne, LLC, that the relationship between LLC and Bayonne Investments, LLC was a joint venture, that the purchase of Unit 441 was inextricably intertwined with Plaintiff's purchase of investment units, Berlin acted as and that Defendant Evan the agent of Defendant Bayonne, LLC as to the transaction. Plaintiff BCJJ, LLC has not shown any active participation in the offer to sell Unit 441 to Plaintiff by Leonard A. Nadolski, who v/as a Manager, Defendant Bayonne, LLC. and owned a controlling interest in After consideration, the Court concludes that no reasonable jury could find that, common promotional plan, due to the each act and alleged misrepresentation of Defendant Thomas LeFevre is an act and alleged misrepresentation of Defendant Bayonne, LLC, by virtue of Defendant Thomas LeFevre's ownership interest in Defendant Bayonne, BCJJ, LLC. LLC, Bayonne, Whatever representations were made to Plaint they were not the representations of Defendant LLC. b. 15 U.S.C. Sec. 1703(a) (2)B) - Obtain Money or Property By Means of Misrepresentations or Omissions It is undisputed that all of the funds paid by Plaintiff BCJJ, LLC to close the transaction on March 27, 2007 were transferred to the account of the Berlin Law Firm by Plaintiff's wire transfer, and were thereafter paid to M & I Marshall and Ilsley Bank to avert a default of the mortgage on the Commercial 60 Case No. 8.-09-CV-551-T-17EAJ Property owned by Defendant Bayonne Investments, Plaintiff BCJJ, LLC did not pay any money as an earnest money deposit on Unit 441, Unit 441. LLC. and did not pay the purchase price for All of the funds Defendant Bayonne, LLC held as an earnest money deposit on Unit 241 were returned to Plaintiff BCJJ, LLC. The Court concludes that Defendant Bayonne, obtain any money from the subject transaction, LLC did not and that Defendant Bayonne Investments, LLC's receipt of the funds from Plaintiff BCJJ, LLC does not establish that Defendant Bayonne, LLC received any funds. c. 15 U.S.C. Sec. 1703(a)(2)(C) - Transaction or Course of Business Which Operates As Fraud On Purchaser In considering Plaintiff's Cross-Motion for Summary Judgment, the Court concluded that Plaintiff BCJJ, LLC could not establish that Defendant LeFevre was acting as an agent or apparent agent of Bayonne, LLC, Bayonne, that the relationship between LLC and Bayonne Investments, LLC was a joint venture, that the purchase of Unit 441 was inextricably intertwined with Plaintiff's purchase of investment units, and that Defendant Evert Berlin acted as the agent of Defendant Bayonne, transaction at Therefore, LLC as to the issue. the Court concludes that Defendant Bayonne, did not participate in the subject transaction or course of business. 61 LLC Case No. 8:09-CV-551-T-17EAJ After consideration, the Court grants Defendant Bayonne, LLC's Motion for Summary Judgment as to Count I, and denies Plaintiff BCJJ, 2. Count A II - LLC's Motion for Summary Judgment as to Count I Sec. securities 10b and SEC Rule fraud claim under Section 10(b) includes the following elements: or omission; 2) 1) 5) and Rule 10b-5 a material misrepresentation made with scienter; purchase or sale of a security; 4) or omission; 10-b(5) 3) a connection with the reliance on the misstatement economic loss and 6) a causal connection between the material misrepresentation or omission and the loss....Instituto de Prevision Militar v. Merrill Lynch, 1340, 1352 (11"' Cir. 546 F.3d 2008) . In considering Plaintiff's Cross-Motion for Summary Judgment, the Court found that Plaintiff BCJJ, LLC could not establish that Defendant Thomas LeFevre was acting as an agent or apparent agent of Defendant Bayonne, between Defendant Bayonne, LLC was a joint venture, LLC, that the relationship LLC and Defendant Bayonne Investments, that the purchase of Unit 441 was inextricably intertwined with Plaintiff's purchase of investment units, or that Defendant Evan Berlin acted as agent for Defendant Bayonne, LLC as to the subject transaction. The Court therefore finds that there are no material misrepresentations or omissions that can be attributed to Defendant Bayonne, LLC regarding the subject transaction. 62 Case No. 8:09-CV-551-T-17EAJ After consideration, the Court grants Defendant Bayonne, LLC's Motion for Summary Judgment as to Count II, and denies Plaintiff BCJJ, 3. LLC's Motion for Summary Judgment as to Count II Count III - Ch. In E.F. 517.301, Mutton v. Florida Statutes Rousseff. 537 So.2d 978 (Fla. 1939) the Florida Supreme Court notes that buyer/seller privity is required. In considering Plaintiff's Cross-Motion for Summary Judgment, the Court found that Plaintiff BCJJ, LLC could not establish that Defendant Thomas LeFevre was acting as agent or apparent agent for Defendant Bayonne, between Defendant Bayonne, LLC was a joint venture, LLC, that the relationship LLC and Defendant Bayonne Investments, that the purchase of Unit 441 was inextricably intertwined with Plaintiff's purchase of investment units, and that Defendant Evan Berlin acted as agent for Defendant Bayonne, LLC as to the subject transaction. Plaintiff BCJJ, LLC cannot establish that Defendant Bayonne, LLC was in privity with Plaintiff BJCC, LLC as to the subject transaction. Defendant Bayonne, and Plaintiff BCJJ, LLC did not sign the documents, LLC knew that Defendant Thomas J. not acting as agent for Defendant Bayonne, After consideration, LeFevre was LLC. the Court grants Defendant Bayonne, LLC's Motion for Summary Judgment as to Count III, and denies Plaintiff's Cross-Motion for Summary Judgment as to Count III. 63 Case No. 4. 8:09-CV-551-T-17EAJ Count IV - Fraudulent Inducement To state a claim for fraudulent inducement, allege: 1) a false statement of material fact; Plaintiff must 2) the maker of the statement knew or should have known of the falsity of the statement; 3) the maker intended that the false statement would induce another's reliance; and 4) the other party justifiably relied on the false Security Services. statement Inc., to its detriment. 989 So.2d 1244 (Fla. Rose Is' v. APT DCA 2008). In considering Plaintiff's Cross-Motion for Summary Judgment, the Court found that Plaintiff BCJJ, LLC could not establish that Defendant Thomas LeFevre acted as agent or apparent agent for Defendant Bayonne, between Defendant Bayonne, LLC was a joint venture, LLC, that the relationship LLC and Defendant Bayonne Investments, that the purchase of Unit 441 was inextricably intertwined with Plaintiff's purchase of investrm :." units and that Defendant Evan Berlin acted as agent for Defendant Bayonne, LLC as to the subject transaction. Plaintiff BCJJ, LLC cannot establish that any representations were made by Defendant Bayonne, as to the subject transaction. LLC to Plaintiff Plaintiff denied that Leonard Nadolski made any representations to Plaintiff as to the subject transaction, and Plaintiff knew that Defendant Thomas LeFevre was not acting as agent for Defendant Bayonne, transaction. LLC as to the Whatever representations were made to Plaintiff, they were not the representations of Defendant Bayonne, After consideration, LLC. the Court grants Defendant Bayonne, 64 Case No. 8:09-CV-551-T-17EAJ LLC's Motion for Summary Judgment as to Count IV, and denies Plaintiff's Cross-Motion for Summary Judgment as to Count IV 5. Count V - Negligent Misrepresentation To state a claim for negligent misrepresentation, plaintiff must show: material fact that 1) a the defendant made a misrepresentation of he believed to be true but was in fact false; 2) the defendant was negligent in making the statement because he should have known the misrepresentation was false; 3) the defendant intended to induce the plaintiff to rely on the misrepresentation; and 4) injury resulted to the plaintiff acting in justifiable reliance upon the misrepresentation. Marine and Industrial Supplies, Inc. v. Venus, 2011 Specialty WL 479912 (Fla. 1st DCA 2011) In considering Plaintiff's Cross-Motion for Summary Judgment, the Court found that Plaintiff BCJJ, LLC could not establish that Defendant Thomas LeFevre acted as agent or apparent agent of Defendant Bayonne, between Defendant Bayonne, LLC was a joint venture, LLC, that the relationship LLC and Defendant Bayonne Investments, that the purchase of Unit 441 was inextricably intertwined with Plaintiff's purchase of investment units, or that Defendant Evan Berlin acted as agent for Defendant Bayonne, LLC as to the subject transaction. Plaintiff BJCC, LLC cannot establish that any representations were made by Defendant Bayonne, as to the subject transaction. LLC to Plaintiff Plaintiff denied that Leonard 65 Case No. 8:09-CV-551-T-17EAJ Nadolski made any representations to Plaintiff as to the subject transaction, and Plaintiff knew that Defendant Thomas LeFevre was not acting as agent for Defendant Bayonne, transaction. LLC as to the Whatever representations were made to Plaintiff, they were not the representations of Defendant Bayonne, After consideration, Summary Judgment, LLC. the Court grants Defendant's Motion for and denies Plaintiff's Cross-Motion for Summary Judgment as to Count V. 6. Count XI - Ch. 501.201, Florida Statutes Florida Deceptive and Unfair Trade Practices Act Ch. 501.204, Florida Statutes, declares any unfair or deceptive acts or practices in the conduct of any trade or business to be unlawful. In considering Plaintiff's Cross-Motion for Summary Judgment, the Court found that Plaintiff BCJJ, LLC could not establish that Defendant Thomas LeFevre acted as agent or apparent agent of Defendant Bayonne, between Defendant Bayonne, LLC was a joint venture, LLC, that the relationship LLC and Defendant Bayonne Investments, that the purchase of Unit 441 was inextricably intertwined with Plaintiff's purchase, and that Defendant Evan Berlin acted as agent for Defendant Bayonne, LLC as to the subject transaction. The Court finds that that Defendant Bayonne, Plaintiff BCJJ, LLC cannot establish LLC committed unfair and deceptive acts as to the subject transaction. 66 Case No. 8:09-CV-551-T-17EAJ After consideration, the Court grants Defendant Bayonne, LLC's Motion for Summary Judgment and denies Plaintiff BCJJ, LLC's Cross-Motion for Summary Judgment as to Count VI. 7. Count XII - Equitable Lien In the Second Amended Complaint, Plaintiff seeks the imposition of an equitable lien on the Waterfront Property because the Unit Upgrade Agreement shows that the purchase ci Unit 441 was intended be primary security and consideration for Plaintiff BCJJ, that LLC's investment of $400,000. Plaintiff's investment Defendant Bayonne, as to material was made under Plaintiff alleges circumstances of LLC's fraudulent conduct and misrepresentation facts. In considering Plaintiff's Cross-Motion for Summary Judgment, the Court found that Plaintiff BCJJ, LLC could not establish that Defendant Thomas LeFevre acted as agent or apparent agent for Defendant Bayonne, between Defendant Bayonne, joint venture, LLC, that the relationship LLC and Bayonne Investments, LLC was a that the purchase of Unit 441 was inextricably intertwined with Plaintiff's purchase of investment units, cr that Defendant Evan Berlin acted as agent for Defendant Bayonne, LLC as to the subject transaction. Defendant Bayonne, LLC did not participate in the subject transaction and received no benefit from the subject transaction. Whatever representations were made to Plaintiff: BCJJ, were not the representations of Defendant Bayonne, 67 LLC, LLC. they Plaintiff Case No. 8:09-CV-551-T-17EAJ BCJJ, LLC cannot establish any basis for the imposition of an equitable lien as to the Waterfront Property. After consideration, the Court grants Defendant Bayonne, LLC's Motion for Summary Judgment and denies Plaintiff BCJJ, LLC's Motion for Summary Judgment as to Count XII. The Clerk of Court shall enter a final judgment in Defendant Bayonne, LLC and against Plaintiff BCJJ, Count Count I, Count Count XII. II, III, Count IV, Count V, LLC as Count DONE AND ORDERED in Chambers, 3 o da> Copies to: oarties XI tc and The Court reserves jurisdiction for the award of attorney's fees and costs. All favcr of and counsel of record 68 in Tampa, Florida
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