Equity Lifestyle Properties, Inc. v. Florida Mowing and Landscape Service, Inc.

Filing 132

OPINION AND ORDER granting 105 Motion to dismiss; denying as moot 115 Motion for clarification; denying as moot 119 Motion for summary judgment; denying as moot 120 Motion for Partial Summary Judgment. Signed by Judge John E. Steele on 10/20/2006. (BAM, )

Equity Lifestyle Properties, Inc. v. Florida Mowing and Landscape Service, Inc.

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Case 2:05-cv-00165-JES-SPC

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION EQUITY LIFESTYLE PROPERTIES, INC., Plaintiff, vs. Case No. 2:05-cv-165-FtM-29SPC

FLORIDA MOWING & LANDSCAPE SERVICE, INC., Defendant. ______________________________________ FLORIDA MOWING & LANDSCAPE SERVICE, INC., Plaintiff, vs. Case No. 2:05-cv-187-FtM-29SPC

EQUITY LIFESTYLE PROPERTIES, INC., f/k/a MANUFACTURED HOME COMMUNITIES, INC., Defendant. ________________________________ OPINION AND ORDER This matter comes before the Court on Florida Mowing and Landscape Service Inc.'s ("Florida Mowing") Motion to Dismiss Third Amended Complaint (Doc. #105) filed on June 23, 2006. Equity

Lifestyle Properties, Inc. ("Equity Lifestyle") filed its Response (Doc. #108) on July 10, 2006. The Court will also address Equity

Lifestyle's Motion for Clarification (Doc. #115), Florida Mowing and Landscape Service, Inc's Renewed Verified Motion for Final

Dockets.Justia.com

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Summary Judgment (Doc. #119), and Equity Lifestyle Properties, Inc.'s. Motion for Partial Summary Judgment (Doc. #120). I. On the third day of a jury trial, the Court engaged in an extended discussion with counsel as to the scope of the breach of contract claim by Equity Lifestyles. (Doc. #111, pp. 558-603).

Based upon counsel's representations, the Court summarized Equity Lifestyle's newly-articulated breach of contract theory as being that Florida Mowing "breached the contract by billing for a number of days that he did not work, by billing for a number of units that he did not work, by billing for street sweeper services that were not properly billed under the contract, by billing for dump fees that were not properly billed under the contract, and by stealing the trash aluminum, for whatever value that had." 581-582.) (Doc. #111, pp.

After a recess, Equity Lifestyles' counsel moved for a

mistrial because its expert's report did not disclose information regarding such factual assertions. The Court reluctantly granted

the mistrial, but directed that a third amended complaint be filed specifically identifying the claimed breaches of the contract: The Court is going to require you to file a third amended complaint setting forth, in detail, as you've done here, today, the precise breaches of contracts that you've articulated. When this case is retried, if you do not prove your case, the Court will impose sanctions on you, personally, as well as your client, if the Rule 11 standard is satisfied. I want you to allege whatever it is you want to allege; but if you don't' prove it, you're on notice. I don't' see it, myself, so far. And I will impose the full cost of this trial, as a sanction, under
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Rule 11, if that turns out to be the situation, that you do not prove your case. (Doc. #111, pp.599-600.) The Court further instructed that Equity

Lifestyle may include its other counts which had previously been dismissed, and while the Court would again dismiss those counts there would be a clean record of all theories Equity Lifestyle wished to pursue. (Doc. #111, p. 601. The Court issued a written

Order on May 25, 2006 declaring a mistrial and stating that {i]f Equity Lifestyle Properties, Inc. wishes to pursue its causes of actions, it shall file a Third Amended Complaint. The Third Amended Complaint shall include all the claims it wishes to pursue, including the "price gouging" portion of Count I . . . If Equity Lifestyle includes a breach of contract claim, the claim shall specifically identify the breaches it alleges, consistent with those articulated to the Court during trial on May 25, 2006. (Doc. #88, p.2.) Equity Lifestyle's Third Amended Complaint was filed on June 12, 2006, and sets forth the following seven counts: (1) breach of

contract; (2) accounting; (3) fraud; (4) violation of Florida's Unfair and Deceptive Trade Practices Act ("FDUTPA"); (5) Fraud in the inducement; (6) Recission; and (7) Unjust Enrichment

(respectively). be dismissed.

For the reasons set forth below, all counts will

II. A. Breach of Contract In Count I, the breach of contract count, Equity Lifestyle has blatantly refused to comply with the instructions of the Court as
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to the claimed breaches of the contract. alleged breaches as follows:

Count I states the

Florida Mowing breached the terms of

the contract by: "(i) charging Equity for costs that were not properly chargeable under the Contract; (ii) charging Equity for alleged costs that were not actual costs incurred by Florida Mowing necessary to perform its services under the Contract; (iii)

charging Equity, not for Florida Mowing's actual costs, but based upon mere estimates." Lifestyles alleged (Doc. #99, ¶32.) Florida Mowing Additionally, Equity further breached the

that

Contract by: "(i) grossly overstating and overcharging for its actual costs; (ii) grossly overcharging for items that were

reasonably available at a significant discount; and (iii) failing to have or maintain proper records to substantiate the fees it (Id. at ¶33.) Nowhere in the

charged Equity for its services."

Third Amended Complaint has Equity Lifestyles alleged the specific breaches of contract as discussed at trial and as ordered by the Court. The Court allowed the filing of another amended complaint

with the specific instructions that Equity Lifestyles make such specific allegations; the initial failure to include such specific allegations led to the need for the mistrial in the first place. Finding no possible excuse for ignoring the Court's order, the Court will dismiss Count I with prejudice.

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B.

Equitable Accounting Count II seeks an equitable accounting. This is an entirely

new claim and is not within the scope of the Court's leave to file a third amended complaint. Additionally, Florida Mowing correctly

asserts that such claim cannot stand because Equity Lifestyle failed to show a fiduciary relationship, or to establish any reason that its remedy at law is not full, adequate or expeditious. Under Florida law, "there can be grounds for an equitable accounting where the contract demands between litigants involve extensive or complicated accounts and it is not clear that the remedy at law is as full, adequate and expeditious as it is in equity." Chiron c. Isram Wholesale Tours and Travel Ltd., 519

So.2d 1102, 1103 (Fla. 3rd DCA, 1988) (citing F.A. Chastain Constr. Inc. V. Pratt, 146 So.2d 910, 913 (Fla. 3d DCA 1962). Lifestyle did assert that the proper While Equity under the

calculations

contract are complicated, it did not and cannot allege that its remedy at law is not full, adequate or expeditious. Even with the

dismissal of Count I, the amount owing under the contract will be determined by the jury in conjunction with Florida Mowing's case. Therefore, Equity Lifestyle did not anc cannot assert a claim for an equitable accounting, and Count II will be dismissed with prejudice.

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C.

Fraud In Count III, Equity Lifestyle claims that Florida Mowing

submitted false invoices that "grossly overstated and overcharged for its actual costs, grossly overcharged for items that were reasonably available at a significant discount; and failed to have and/or maintain proper records to substantiate the fees charged." (Doc. #99, ¶47.) This claim is also beyond the scope of the Additionally, a

Court's leave to file a third amended complaint.

fraud claim must satisfy the more specific pleading requirements of Fed. R. Civ. P. 9(b). Rule 9(b) provides:

In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally. Rule 9(b) does not abrogate the concept of notice pleading, but is satisfied by a complaint which sets forth (1) precisely what statements or omissions were made in what documents or oral

representations or what omissions were made, (2) the time and place of each such statement and the person responsible for making (or, in the case of omissions, not making) them, (3) the content of such statements and the manner in which they misled the plaintiff, and (4) what the defendants obtained as a consequence of the fraud. Ziemba v. Cascade Int'l, Inc., 256 F.3d 1194, 1202 (11th Cir. 2001) (citation omitted). "Failure to satisfy Rule 9(b) is a ground for Corsello v. Lincare, Inc., 28 F.3d These allegations in Count III do not
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dismissal of a complaint." 1008, 1012 (11th Cir. 2005).

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meet the heightened pleading standard for fraud, and will therefore be dismissed. D. Florida Unfair and Deceptive Trade Practices Act Equity Lifestyle's claim for violation of Florida's Unfair and Deceptive Trade Practices Act is essentially a reiteration of its price gauging claim. This claim was previously dismissed, and as

stated during the trial the Court will again dismiss this as failing to state a private cause of action. (Doc. #111, pp. 601602.) D. Fraudulent Inducement

In Count V Equity Lifestyle claims that it was fraudulently induced into entering the contract with Florida Mowing. "The

elements necessary to state a cause of action for fraud in the inducement are 1) a false statement concerning a material fact, 2) knowledge by the is person false, 3) making intent the by statement the person that making the the

representation

statement that the representation will induce another to act upon it, and 4) reliance on the representation to the injury of the other party." 254 (Fla. 2d Mettler, Inc. v. Ellen Tracy, Inc., 648 So.2d 253, DCA So.2d 1994). 1053, Accord 1055 Hillcrest 4th Pacific 1999). Corp. V.

Yamamura,727

(Fla.

DCA

Equity

Lifestyles asserts that Florida Mowing misrepresented the amount of profit it intended to make from its performance of the contract. Contemporaneously, Equity Lifestyle asserts that

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[t]he final cost of the project as contracted for by the parties was unknown at the outset because neither party knew what would be involved in completing the project or how long the project would take . . .Florida Mowing's inability to know what its exact costs would be was exacerbated by the fact that it did not know how long the project would last and further did not know what the costs of labor, supplies, fuel and equipment would be during the post-hurricane period." (Doc. #99, ¶¶ 11 and 17.) The Court agrees with Florida Mowing

that Equity Lifestyle's claim for fraud in the inducement directly conflicts with its factual allegations and fails to state a claim. In light of Equity Lifestyle's allegations that Florida mowing did not know the cost of completing the project or the time necessary to do so, the Court finds it impossible for Equity Lifestyle to claim that Florida Mowing knowingly made a material misstatement with the intent that Equity Lifestyle rely upon that

misrepresentation to enter into the subject contract.

The nature

of the subject contract, as a cost-plus contract1 accounts for the uncertainties and unknowns involved in hurricane clean-up.

Therefore, Count V will be dismissed. E. Recission

In Count VI, Equity Lifestyles seeks rescission of the subject contract. This is a new claim which does not fall within the scope The Court

of the Court's leave to file a third amended complaint.

also agrees that there can be no claim for rescission in this case

By prior Order the Court has found, as a matter of law that the contract is a cost-plus contract. (Doc. #67, p.4.)
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where Equity Lifestyles has received the full benefit of Florida Mowing's performance of the contract and the only issue is the amount of compensation for the work. F. Count VII Count VI will be dismissed.

In Count VII, Equity Lifestyle asserts a claim for unjust enrichment against Florida Mowing. Florida Mowing correctly points out that where an express contract exists, a claim for unjust enrichment cannot stand. See Williams v. Bear Stearns and Company, 725 So.2d 397, 400 (Fla. 5th DCA 1998). As the Court has clearly

and unequivocally found the existence of a cost-plus contract, Count VII is due to be dismissed. III. Equity Lifestyle's Motion for Clarification (Doc. #115) is denied as moot in light of the Court's Order (Doc. #129). Florida

Mowing and Landscape Service, Inc's Renewed Verified Motion for Final Summary Judgment (Doc. #119) and Equity Lifestyle

Properties, Inc.'s. Motion for Partial Summary Judgment (Doc. #120) are denied as moot in light of the dismissal of the Third Amended Complaint. Accordingly, it is now ORDERED: 1. Florida Mowing and Landscape Service Inc.'s Motion to

Dismiss Third Amended Complaint (Doc. #105) is GRANTED, and Equity Lifestyles' Third Amended Complaint is DISMISSED.

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2.

Equity Lifestyle's Motion for Clarification (Doc. #115)

is DENIED as moot. 3. Florida Mowing and Landscape Service, Inc's Renewed

Verified Motion for Final Summary Judgment (Doc. #119) is DENIED as moot. 4. Equity Lifestyle Properties, Inc.'s. Motion for Partial

Summary Judgment (Doc. #120) is DENIED as moot. DONE AND ORDERED at Fort Myers, Florida, this October, 2006. 20th day of

Copies: Counsel of record

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