First Mutual Group, LP v. Ward

Filing 19

ORDER granting in part and denying in part 17 Defendant's Motion to Dismiss. The motion is GRANTED in that Count 3 is DISMISSED without prejudice. The motion is DENIED in all other respects. Signed by Judge Sheri Polster Chappell on 5/29/2015. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
FIRST MUTUAL GROUP, LP,
Plaintiff,
v.

Case No: 2:14-cv-673-FtM-38DNF

DONALD R. WARD, JR.,
Defendant.
/
ORDER1
This matter comes before the Court on Defendant's Motion to Dismiss (Doc. #17)
filed on May 14, 2015. Plaintiff filed a response in opposition on May 26, 2015. (Doc. #18).
This matter is ripe for review.
Background
Plaintiff First Mutual Group, LP initiated this diversity jurisdiction action against
Defendant Donald R. Ward, Jr. on November 19, 2014. (Doc. #1). According to the
Complaint, Ward appraised a specific Cape Coral real property. (Doc. #1, at 3). Ward
appraised the value of the property to be about $234,000 but at the time the actual value
of the property was in between $170,000 and $190,000. (Doc. #1, at 3). Ward at the time
knew his appraisal was grossly inaccurate and knew that Mortgage Bankers Financial
Group (“Lender”) was relying on his appraisal to approve and provide funding for a loan

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on the real property. (Doc. #1, at 3). If the appraisal was performed accurately, then the
Lender would not have approved or funded the loan. (Doc. #1, at 3). The Lender was
damaged in the amount of $127,992.54, the balance of the amount due and owing from
the loan, even after the property was foreclosed. (Doc. #1, at 3).
Since then the Lender assigned all rights regarding the action of the appraiser to
First Mutual Group. (Doc. #1, at 3-4). As such, First Mutual Group is now the holder of
the underlying obligation related to the appraisal issue. (Doc. #1, at 4). First Mutual Group
discovered the appraisal issue during an initial quality control review performed on May
28, 2014. (Doc. #1, at 4). First Mutual Group alleges Ward failed to comply with the
Uniform Standards of Professional Appraisal Practice (“USPAP”). (Doc. #1, at 4-7).
There are three counts in the Complaint: Breach of Contract (Count 1); Negligence
(Count 2); and Gross Negligence (Count 3). These counts have additional allegations
specific to the respective counts. It appears that Florida law governs this diversity action.2
Standard
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a court to dismiss an
action pursuant to the failure to state a claim upon which relief can be granted. 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 the plaintiff. Bedasee v.
Fremont Inv. & Loan, 2:09-CV-111-FTM29SPC, 2010 WL 98996, at *1 (M.D. Fla. Jan. 6,
2010) (citing Erickson v. Pardus, 551 U.S. 89 (2007); Christopher v. Harbury, 536 U.S.
403, 406 (2002)). “To survive dismissal, the complaint's allegations must plausibly

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The Court does not have the benefit of reviewing the underlying contract to see if there is a choice of law
provision. Since the real property at issue is located in Florida and Ward asserts Florida law applies, it
appears to the Court that Florida law governs this diversity action.

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suggest that the [plaintiff] has a right to relief, raising that possibility above a speculative
level; if they do not, the plaintiff's complaint should be dismissed.” James River Ins. Co.
v. Ground Down Eng’g, Inc., 540 F.3d 1270, 1274 (11th Cir.2008) (citing Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). 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.”
Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009). Dismissal is warranted under Rule 12(b)(6)
if, assuming the truth of the factual allegations of the plaintiff's complaint, there is a
dispositive legal issue which precludes relief. Bedasee, 2010 WL 98996, at *1 (citing
Neitzke v. Williams, 490 U.S. 319, 326 (1989); Brown v. Crawford Cnty, 960 F.2d 1002,
1009-10 (11th Cir.1992)).
Discussion
I.

Count I – Breach of Contract
Ward argues the Complaint does not allege there was a contract between Lender

and Ward or that there was an agreement between Lender and First Mutual Group. Ward
argues First Mutual Group’s assertion that it acquired Lender’s rights to the appraisal at
issue is insufficient. As such, Ward argues First Mutual Group has failed to allege the
necessary elements of a cause of action for breach of contract.
Upon consideration, the Court disagrees. In order to properly allege a breach of
contract claim in Florida, a party must allege the existence of a contract, the breach of the
contract, and the damages resulting from the breach. Degutis v. Fin. Freedom, LLC, 978
F. Supp. 2d 1243, 1258 (M.D. Fla. 2013) (citing Rollins, Inc. v. Butland, 951 So.2d 860,
876 (Fla. 2d DCA 2006)). Here, First Mutual Group alleges all necessary elements. First

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Mutual Group asserts there was a contract between Ward and Lender, the contract was
materially breached, and First Mutual Group was damaged as result of the breach. (See
Doc. #1, at 8). Additionally, First Mutual Group alleges it acquired all rights from the
contract between Ward and Lender. (Doc. #1, at 8). As a result, the Court finds First
Mutual Group has sufficiently alleged a breach of contract claim. A more definite
statement is not needed. Ward’s motion is due to be denied on this issue.
II.

Count II – Negligence
Ward argues First Mutual Group fails to allege how Ward owed it any duty and fails

to allege that the appraisal was prepared for lender. First Mutual Group also asserts, a
mortgage loan appraiser cannot be liable to a third party for a negligent
misrepresentation. See Cooper v. Brakora & Assocs., Inc., 838 So.2d 679 (Fla. 2d DCA
2003). In addition, Ward argues First Mutual Group fails to allege a claim of negligence
because it introduces intentional language. (See, e.g., Doc. #1, at 10). Ward argues this
intentional language in essence taints First Mutual Group’s negligence claim and
therefore the negligence claim should be dismissed.
Upon consideration, the Court disagrees. In order to properly allege a negligent
claim in Florida, a party must allege duty, breach, causation, and damages. Williams v
Nat’l Freight, Inc., 455 F. Supp. 2d 1335, 1337 (M.D. Fla. 2006) (citing Superior Garlic
Intern. v. E & A Corp., 913 So.2d 645, 648 (Fla. 3d DCA 2005)). Here, First Mutual Group
alleges all necessary elements. First Mutual Group alleges Ward had an “obligation” and
acted negligently with regard to the “obligation” by failing to comply with industry
standards and relevant statutes. (See Doc. #1, at 9-10). First Mutual Group also alleges
Ward’s actions caused it to be damaged. (See Doc. #1, at 10).

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The Court finds Ward’s third party argument to be unpersuasive. Unlike the facts
in Cooper, First Mutual Group is not a third party beneficiary to the mortgage loan
transaction. Rather, First Mutual Group acquired Lender’s rights as they relate to the
appraisal. Thus, according to the allegations, First Mutual Group now stands in Lender’s
position as if it was the original lender relying on Ward’s appraisal. Furthermore, although
the Court finds First Mutual Group’s intentional language to be contradictory, the
language as used here does not negate the overall negligence claim. The Court finds
First Mutual Group has sufficiently alleged a negligence claim. A more definite statement
is not needed. Ward’s motion is due to be denied on this issue.
III.

Count III – Gross Negligence
Ward adopts his same negligence claim arguments as to why the gross negligence

claim should be dismissed.
Upon consideration, the Court disagrees with Ward’s arguments, but finds the
gross negligence claim should be dismissed for a separate reason. In order to properly
allege a gross negligent claim in Florida, a party must allege circumstances that
demonstrate an imminent danger amounting to more than the normal and usual peril,
knowledge or awareness of the imminent danger, and an act of omission occurring in a
manner which evinces a conscious disregard of the consequences. Deutsche Bank Nat.
Trust Co. v. Foxx, 971 F. Supp. 2d 1106, 1117 (M.D. Fla. 2013) (citing Tran v. Waste
Mgmt., Inc., 290 F. Supp. 2d 1286, 1294 (M.D. Fla. 2003)). Here, First Mutual Group’s
gross negligence claim is identical to its negligence claim. (Cf. Doc. #1, at 9-10; Doc. #1,
at 10-11). Here, the allegations do not demonstrate an imminent danger, knowledge of
such imminent danger, or a conscious disregard of the consequences. As a result, the

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Court finds First Mutual Group has failed to sufficiently allege a gross negligence claim.
Ward’s motion is due to be granted on this issue but not pursuant to Ward’s arguments.
Accordingly, it is now
ORDERED:
Defendant's Motion to Dismiss (Doc. #17) is GRANTED in part and DENIED in
part. The motion is GRANTED in that Count 3 is DISMISSED without prejudice. The
motion is DENIED in all other respects.
DONE and ORDERED in Fort Myers, Florida this 29th day of May, 2015.

Copies: All Parties of Record

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