Berlinger et al v. Wells Fargo, N.A. as Successor to Wachovia Bank, N.A.
Filing
342
OPINION AND ORDER denying as moot 327 Motion for Leave to File Reply; granting 260 Motion to dismiss and Count I is dismissed without prejudice; granting 261 Motion to Dismiss and Count II of the Amended Counterclaim is dismissed without prej udice; granting 275 Motion to dismiss and Count I is dismissed without prejudice; granting 305 Motion for leave to amend to the extent that Sue Casselberry may file a Second amended Counterclaim and/or Cross Clim within 21 days of this Opinion and Order. Signed by Judge John E. Steele on 12/15/2014. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
STACEY SUE BERLINGER, as
Beneficiaries to the Rosa B.
Schweiker Trust and all of
its
related
trusts
aka
Stacey Berlinger O’Connor,
BRIAN BRUCE BERLINGER aka
Stacey Berlinger O’Connor,
and HEATHER ANNE BERLINGER,
as Beneficiaries to the Rosa
B. Schweiker Trust and all
of its related trusts aka
Stacey Berlinger O’Connor,
Plaintiffs,
v.
Case No: 2:11-cv-459-FtM-29CM
WELLS
FARGO,
N.A.
AS
SUCCESSOR TO WACHOVIA BANK,
N.A., as Corporate Trustee
to the Rosa B. Schweiker
Trust,
and
all
of
its
related trusts,
Defendant/Third
Party Plaintiff
BRUCE D. BERLINGER and SUE
CASSELBERRY,
Third Party Defendants.
OPINION AND ORDER
This matter comes before the Court on review of the following
five motions:
(1) Plaintiffs' Motion to Dismiss Third-Party
Defendant Sue Casselberry's Amended Counterclaim (Doc. #260); (2)
Third Party Defendant/Cross Defendant Bruce D. Berlinger’s Motion
to Dismiss (Doc. #261); (3) Sue Casselberry’s Cross-Motion for
Leave
to
Amend
(Doc.
#308);
(4)
Third
Party
Defendant/Cross
Defendant Bruce D. Berlinger Motion for Leave to File a Reply to
Sue Casselberry’s Response (Doc. #327); and (5) Wells Fargo Bank,
N.A.’s Motion to Dismiss Third-Party Defendant Sue Casselberry's
Amended Counterclaim (Doc. #275). Responses have been filed (Docs.
#305, 308, 328, 332), and the Court finds no need for a Reply from
defendant Bruce D. Berlinger.
I.
The current litigation involves three family Trusts: the Rosa
B. Schweiker Family Trust, the Frederick W. Berlinger Family Trust,
and the Rose S. Berlinger Family Trust (collectively the Trusts).
(Doc. #253, ¶ 14.)
Wells Fargo N.A. (Wells Fargo) served as
corporate Co-Trustee of these three Trusts.
(Id.)
Third Party
Defendant Bruce D. Berlinger served as the other Co-Trustee, and
was
the
primary
Plaintiffs
Stacey
beneficiary
Sue
of
Berlinger,
these
Brian
Trusts.
Bruce
(Id.
¶
Berlinger,
15.)
and
Heather Anne Berlinger (plaintiffs), are the children of Bruce D.
Berlinger (Bruce) and Sue Casselberry (Sue), and are beneficiaries
of the Trusts.
(Doc. #60, p. 3.)
Bruce and Sue were divorced in 2007 pursuant to a final
judgment which incorporated a Marital Settlement Agreement signed
by each on November 15, 2007.
Marital Settlement Agreement.
Wells Fargo was not a party to the
Among other things, the Marital
2
Settlement Agreement required Bruce to pay Sue $2 million for the
equitable distribution of marital assets, and $16,000 monthly for
alimony and support payments.
In
their
Second
Amended
Complaint
(Doc.
#93)
plaintiffs
assert claims of breach of trust, breach of fiduciary duty and
civil theft against Wells Fargo.
Plaintiffs assert that Wells
Fargo improperly paid or distributed $2 million from the Trusts on
behalf of their father, Bruce, to their mother, Sue, and improperly
paid
or
distributed
payments.
the
$16,000
monthly
alimony
and
support
Plaintiffs seek to recover these distributions from
Wells Fargo, as well as treble damages on the civil theft count.
Wells Fargo has filed a Third Party Complaint (Doc. #60)
against Bruce and Sue.
and
unjust
Wells Fargo asserts claims of contribution
enrichment
against
Bruce,
and
a
claim
of
unjust
enrichment against Sue.
Sue, in turn, has now filed an Amended Counterclaim (Doc.
#253)
against
contract
Wells
(Count
I)
Fargo
and
an
and
plaintiffs
Amended
alleging
Cross-Claim
breach
against
of
Bruce
alleging unjust enrichment (Count II). Plaintiffs’ and Wells Fargo
seek to dismiss Count I of the Amended Counterclaim (Docs. ## 260,
375), and Bruce seeks to dismiss Count II of the Amended CrossClaim (Doc. #261), for failure to state a claim.
3
II.
Under Federal Rule of Civil Procedure 8(a)(2), a Complaint
must contain a “short and plain statement of the claim showing
that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2).
This obligation “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not
do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(citation
omitted).
To survive dismissal, the factual allegations must be
“plausible” and “must be enough to raise a right to relief above
the speculative level.”
Id. at 555.
See also Edwards v. Prime
Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).
than
an
unadorned,
accusation.”
Ashcroft
This requires “more
the-defendant-unlawfully-harmed-me
v.
Iqbal,
556
U.S.
662,
678
(2009)
(citations omitted).
In deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and take
them in the light most favorable to plaintiff, Erickson v. Pardus,
551 U.S. 89 (2007), but “[l]egal conclusions without adequate
factual support are entitled to no assumption of truth,”
v.
Berzain,
omitted).
654
F.3d
1148,
1153
(11th
Cir.
Mamani
2011)(citations
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678.
consistent
with
a
“Factual allegations that are merely
defendant’s
liability
4
fall
short
of
being
facially plausible.”
1337
(11th
omitted).
Cir.
Chaparro v. Carnival Corp., 693 F.3d 1333,
2012)(internal
quotation
marks
and
citations
Thus, the Court engages in a two-step approach: “When
there are well-pleaded factual allegations, a court should assume
their veracity and then determine whether they plausibly give rise
to an entitlement to relief.”
Iqbal, 556 U.S. at 679. 1
III.
A. Breach of Contract Claim (Count I)
Plaintiffs and Wells Fargo assert that Sue has failed to
sufficiently plead a claim for breach of contract, and thus Count
I of the Amended Counterclaim should be dismissed.
Sue argues to
the contrary.
There are two sets of contracts which must be distinguished.
The Marital Settlement Agreement is between Bruce and Sue only,
and is not the contract under which Sue seeks damages in Count I.
As noted earlier, the Marital Settlement Agreement requires, among
other
things,
Bruce
to
pay
Sue
1Sue
$2
million
as
an
equitable
is incorrect in her assertion that courts will read into
claims any theory on which plaintiff can recover and will not
dismiss unless it appears beyond doubt plaintiff cannot provide a
set of facts in support of the claim. (Doc. #308, p. 4.) That
former rule--that “[a] complaint should be dismissed only if it
appears beyond doubt that the plaintiffs can prove no set of facts
which would entitle them to relief,” La Grasta v. First Union Sec.,
Inc., 358 F.3d 840, 845 (11th Cir. 2004)--has been retired by
Twombly.
James River Ins. Co. v. Ground Down Eng’g, Inc., 540
F.3d 1270, 1274 (11th Cir. 2008).
5
distribution of marital assets, and to pay alimony and support in
the amount of $16,000 monthly.
The Marital Settlement Agreement
also addresses a breach of fiduciary duty suit Sue had filed
against Wells Fargo’s predecessor (Wachovia Bank), a non-party to
the
Marital
Settlement
Agreement.
The
Marital
Settlement
Agreement provided that attorney’s fees and costs incurred by
Wachovia Bank in that lawsuit would be paid from the Sue C.
Berlinger Trust; that Bruce and Sue agreed that Sue would receive
up to $250,000 from the remainder of the funds in the Sue C.
Berlinger Trust (which would then terminate); and that Bruce would
participate in getting their three adult children to approve of
and sign a release for this amount.
Each
“Receipt,
individual
Release,
plaintiff
Refunding
did
indeed
Agreement
sign
Waiver
an
of
identical
Audit
and
Indemnification” (Receipt Agreement). In the Receipt Agreements,
each plaintiff agreed to payment of Wachovia Bank’s attorney fees
and costs arising from Sue’s breach of fiduciary action in the
manner
set
forth
in
the
Marital
Settlement
Agreement.
The
individual plaintiffs further agreed that these attorney fees and
costs would be paid from the Sue C. Berlinger Trust; agreed to
release the funds to Sue in accordance with the Marital Settlement
Agreement; and agreed “[t]o the extent necessary . . . to execute
any
documents
and
join
in
any
and
all
actions
necessary
to
accomplish the terms of the Martial Settlement Agreement between
6
Sue C. Berlinger and Bruce D. Berlinger.”
None of the Receipt
Agreements were signed by Wells Fargo or anyone other than the
individual plaintiffs.
Count I asserts that plaintiffs had a contractual obligation
[pursuant to the Receipt Agreements] to take such actions necessary
to accomplish the provisions of the Marital Settlement Agreement.
(Id. at ¶31.)
It is further alleged that the Receipt Agreements
imposed a duty on Wells Fargo to enforce plaintiffs’ obligations
under the Receipt Agreements.
(Id. at ¶ 32.)
Sue alleges she is
a third party beneficiary of those agreements (Doc. #253, ¶ 33),
and that plaintiffs and Wells Fargo breached their contractual
duties under the agreements “by taking action to undermine the
accomplishment of the terms of the Marital Settlement Agreement
and/or failing to take action to accomplish the terms of the
Marital Settlement Agreement, which included Bruce’s payment of
alimony to Sue.”
(Id. at ¶ 34.)
As a result of the breaches, Sue
asserts she has suffered damages (Id. at ¶ 35.)
A person who is not a party to a contract may not enforce its
terms
even
where
that
person
receives
consequential benefit from the contract.
an
incidental
or
Esposito v. True Color
Enters. Constr., Inc., 45 So. 3d 554, 555 (Fla. 4th DCA 2010).
An
intended third party beneficiary may, however, enforce a contract.
The pleading requirements for a breach of contract claim by an
intended third party beneficiary are well established.
7
A cause of action for breach of contract brought by a
third party beneficiary must include the following
allegations: 1) the existence of a contract, 2) the clear
or manifest intent of the contracting parties that the
contract primarily and directly benefit the third party,
3) breach of the contract by a contracting party, and 4)
damages to the third-party resulting from the breach. [
] A non-party is the specifically intended beneficiary
only if the contract clearly expresses an intent to
primarily and directly benefit the third party or a class
of persons to which that party belongs. [ ] To find
the requisite intent, it must be established that the
parties to the contract actually and expressly intended
to benefit the third party; it is not sufficient to show
only that one of the contracting parties unilaterally
intended some benefit to the third party.
Biscayne Inv. Grp., Ltd. v. Guar. Mgmt. Servs., Inc., 903 So. 2d
251, 254 (Fla. 3d DCA 2005) (internal citations omitted).
Plaintiffs’ allege that in order for Count I of the Amended
Counterclaim to state a claim for relief, it must allege that Wells
Fargo had an obligation to make distributions of alimony to Sue
and/or an obligation to purchase Sue’s interest in the marital
home.
(Doc #260, ¶ 7.)
Sue responds that she is not alleging a
breach of the Marital Settlement Agreement, but rather is alleging
a breach of the Receipt Agreements in which plaintiffs’ agreed to
accomplish the terms of the Marital Settlement Agreement.
#308, pp. 6-7; Docs. ##253-6, 253-7, 253-8.)
(Doc.
Sue argues that the
plaintiffs’ lawsuit against Wells Fargo alleges Wells Fargo made
improper distributions to Bruce, so that he could make alimony
payments to Sue, in order to fulfill the terms of the Marital
8
Settlement Agreement.
(Doc. #308, p. 6.)
According to Sue,
because the plaintiffs interfered with distributions owed to her
under the terms of the Marital Settlement Agreement, they have
breached the contractual obligation to accomplish the terms of the
Marital Settlement Agreement.
Assuming that the Receipt Agreements are indeed contracts, an
issue
not
raised
in
the
motions,
the
Court
finds
that
the
allegations are not sufficient to allege a breach of contract claim
against plaintiffs.
Count I only alleges in a conclusory fashion
what breaches occurred.
While Sue may be correct in her Response
as to what evidence could constitute a breach, Count I sets forth
no factual allegations as to what plaintiffs did or did not do
which constituted a breach of their obligations under the Receipt
Agreements.
Therefore, there is no basis to find that a plausible
cause of action is asserted against plaintiffs.
The motion to
dismiss Count I as to plaintiffs is granted without prejudice and
with leave to amend.
Wells Fargo asserts that it was not a party to the alleged
contracts, and therefore Sue’s claim for breach of contract against
it must be dismissed.
While the Amended Counterclaim specifically
alleges that plaintiffs entered into a “contract” with Wells Fargo
(Doc. #253, ¶ 26), the Release Agreements do not indicate that
Wells Fargo is a party to the contract, and Wells Fargo is not a
signatory to any of the documents (Docs. ##253-6, 253-7, 253-8).
9
When a party attaches exhibits to the complaint those exhibits
become part of the pleading and the court will review those
exhibits accordingly. Fed. R. Civ. P. 10(c). If attached exhibits
contradict the allegations of a pleading, the exhibits govern.
Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1205–06 (11th Cir.
2007).
There is no plausible basis to find that the Receipt
Agreements, if they are contracts, were contract to which Wells
Fargo or its predecessor was a party.
Therefore the motion to
dismiss is granted without prejudice and with leave to amend.
B.
Unjust Enrichment (Count II)
Bruce alleges the unjust enrichment claim in Count II of the
Amended Cross Claim should be dismissed because Sue cannot recover
under a quasi-contract claim when her allegations are based on an
express contract.
(Doc. #261, ¶¶ 13-14.)
Specifically, Bruce
asserts Sue’s unjust enrichment allegations are based on terms
expressly addressed in the Martial Settlement Agreement.
(Id.)
Sue responds that the Martial Settlement Agreement merely lies in
the “background” and does not prevent her bringing a claim for
unjust enrichment against Bruce.
(Doc. #305, p. 6.)
Count II alleges that, assuming Wells Fargo’s Third Party
Complaint
claim
against
“benefit” upon Bruce.
Sue
is
correct,
Sue
has
conferred
a
Count II asserts that Bruce had knowledge
of the benefit, voluntarily accepted and retained it, and if Wells
10
Fargo prevails, his retention of the benefit would be inequitable
unless he pays the value of the benefit.
In Florida, “[t]he essential elements of a claim for unjust
enrichment are: (1) a benefit conferred upon a defendant by the
plaintiff, (2) the defendant's appreciation of the benefit, and
(3) the defendant's acceptance and retention of the benefit under
circumstances that make it inequitable for him to retain it without
paying the value thereof.”
Vega v. T-Mobile USA, Inc., 564 F.3d
1256, 1274 (11th Cir. 2009) (citations omitted).
See also Porsche
Cars N. Am., Inc. v. Diamond, 140 So. 3d 1090, 1100 (Fla. 3rd DCA
2014).
“Unjust enrichment cannot apply where an express contract
exists which allows the recovery.”
Atlantis Estate Acquisitions,
Inc. v. DePierro, 125 So. 3d 889, 893 (Fla. 4th DCA 2013) (citing
Diamond “S” Dev. Corp. v. Mercantile Bank, 989 So. 2d 696, 697
(Fla. 1st DCA 2008) (“Florida courts have held that a plaintiff
cannot pursue a quasi-contract claim for unjust enrichment if an
express contract exists concerning the same subject matter.”);
Moynet v. Courtois, 8 So. 3d 377, 379 (Fla. 3d DCA 2009) (same)).
Sue is not pursuing relief under the Marital Settlement
Agreement, and does not assert that there has been any violation
of that contract.
Nothing in that contract will allow recovery if
Wells Fargo prevails in its Third Party Complaint against Sue.
Therefore, the Court finds that the unjust enrichment claim against
Bruce is plausibly stated, and the motion is denied.
11
Accordingly, it is now
ORDERED:
1.
Plaintiffs' Motion to Dismiss Third-Party Defendant Sue
Casselberry's Amended Counterclaim (Doc. #260) is GRANTED, and
Count I is dismissed without prejudice.
2.
Wells Fargo Bank, N.A.’s Motion to Dismiss Third-Party
Defendant Sue Casselberry's Amended Counterclaim (Doc. #275) is
GRANTED, and Count I is dismissed without prejudice.
3.
Third
Party
Defendant/Cross
Defendant
Bruce
D.
Berlinger’s Motion to Dismiss (Doc. #261) is GRANTED and Count II
of the Amended Counterclaim is dismissed without prejudice.
4.
Third
Party
Defendant/Cross
Defendant
Bruce
D.
Berlinger’s Motion for Leave to File Reply (Doc. #327) is DENIED
as MOOT.
5.
Sue Casselberry’s Motion for Leave to Amend (Doc. #305)
is GRANTED to the extent that she may file a Second Amended
Counterclaim and/or Cross Claim within twenty-one (21) days of the
entry of this Opinion and Order.
DONE AND ORDERED at Fort Myers, Florida, this
December, 2014.
Copies: Counsel of record
12
15th
day of
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