PWS Environmental Inc. v. All Clear Restoration & Remediation, LLC et al

Filing 60

OPINION AND ORDER denying 26 the Condominium Defendants' Motion to Dismiss for Failure to State a Claim. Signed by Judge John E. Steele on 6/27/2018. (BLW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
PWS ENVIRONMENTAL INC.,
a privately-held Illinois
corporation doing business
as Pressure Washing Systems
Marketing,
Plaintiff,
v.

Case No: 2:18-cv-109-UA-CM

ALL CLEAR RESTORATION &
REMEDIATION, LLC, a Florida
limited liability company,
BAYFRONT PLACE CONDOMINIUM
ASSOCIATION, INC., a
Florida not-for-profit
corporation, THE MIRAGE ON
THE GULF CONDOMINIUM, a
Florida not-for-profit
corporation, BORGHESE AT
HAMMOCK BAY CONDOMINIUM
ASSOCIATION, INC., a
Florida not-for-profit
corporation, VINTAGE BAY
CONDOMINIUM ASSOCIATION,
INC., a Florida not-forprofit corporation, and 400
LA PENINSULA CONDOMINIUM
ASSOCIATION, INC., a
Florida not-for-profit
corporation,
Defendants.

OPINION AND ORDER
This

matter

comes

before

the

Court

on

the

condominium

defendant’s Motion to Dismiss for Failure to State a Claim (Doc.
#26) filed on April 23, 2018.

Plaintiff filed a Response in

Opposition (Doc. #51) on June 6, 2018.

For the reasons set forth

below, the Motion is denied.
I.
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).
“more

than

an

accusation.”

unadorned,

Ashcroft

v.

This requires

the-defendant-unlawfully-harmed-me
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.

2011)

Mamani

(citations

“Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.”

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Iqbal, 556 U.S. at 678.
consistent

with

a

“Factual allegations that are merely

defendant’s

facially plausible.”

liability

fall

short

of

being

Chaparro v. Carnival Corp., 693 F.3d 1333,

1337 (11th Cir. 2012) (internal citations omitted).

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.
II.

This is a breach of contract case in which plaintiff PWS
Environmental, Inc. (“plaintiff” or “PWS”) – a pressure washing
company - alleges that defendants failed to pay for more than
$800,000 of work that plaintiff performed following Hurricane
Irma.

On February 16, 2018, plaintiff filed a six-count Complaint

(Doc. #1) against All Clear Restoration and Remediation, LLC (“All
Clear”) (Count I) for breach of express contract, and against the
condo associations of each of the five buildings that were pressure
washed (the “condo defendants”) (Counts II-VI) for breach of
implied contract.

The condo defendants move to dismiss Counts II

through VI for failure to state a claim.

(Doc. #24.)

The Amended Complaint alleges as follows: On September 16,
2017, All Clear contacted PWS to provide pressure washing services
to several properties in the wake of Hurricane Irma.
23.)

(Doc. #1, ¶

PWS had already been performing services in Texas as part

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of the Hurricane Harvey clean up (Id., ¶ 24), but “was induced not
to accept further jobs in Texas and move their equipment to
Florida” because of the business opportunity presented by All
Clear.

(Id., ¶ 25.)

On September 18, 2017, PWS emailed a “proposal” (Doc. #1-1)
to All Clear to provide services to 14 residential properties,
including the condo defendants’ properties.
#1-1.)

(Doc. #1, ¶ 26; Doc.

In its email, PWS invited All Clear to sign and return the

proposal or “acknowledge acceptance by email.”

(Doc. #1-2.)

The

same day, Jay Lozecki, acting as an agent of All Clear, provided
written acceptance via email, stating: “Thanks.
attachment.

Please proceed.”

I am fine with

(Id.; Doc. #1, ¶ 27.)

PWS alleges

that, at all times relevant, All Clear was acting as an agent of
each of the condo defendants.

(Doc. #1, ¶ 28.)

The terms and

conditions within the agreement provided for a 1.5% per month
interest penalty on unpaid invoices (Id., ¶ 31), and a $15,000 per
property cancellation penalty.

(Id., ¶ 32.)

PWS began pressure washing the condominiums in September and
October of 2017.
paid

any

amount

All invoices were sent to All Clear, who has not
to

PWS

for

its

services

rendered

to

date;

therefore, PWS is seeking damages for the work performed under the
terms and conditions of the contract.

(Doc. #1, ¶ 64.)

In

addition, PWS asserts claims against each of the condo defendants
for breach of implied contract, seeking damages proportional to

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the work performed, mobilization and demobilization, and accrued
interest from past due invoices.
The

condo

defendants’

Motion

to

Dismiss

(Doc.

#26)

and

supporting Memorandum of Law (Doc. #27) argue that dismissal for
failure to state a claim is warranted because the existence of an
express

contract

precludes

recovery

for

implied

contract

and

because plaintiff fails to adequately allege the elements of breach
of implied contract.

PWS responds that the Complaint adequately

asserts alternative claims for breach of express and implied
contract, conceding that it may only recover in implied contract
if the express contract claim fails.

(Doc. #51, pp. 5-6.)

III.
A claim for breach of a contract implied in law is also known
as “unjust enrichment.”

Della Ratta v. Della Ratta, 927 So. 2d

1055, 1059 (Fla. 4th DCA 2008).

“In Florida, a claim for unjust

enrichment is an equitable claim based on a legal fiction which
implies a contract as a matter of law even though the parties to
such an implied contract never indicated by deed or word that an
agreement existed between them.”

14th & Heinberg, LLC v. Terhaar

& Cronley Gen. Contractors, Inc., 43 So. 3d 877, 880 (Fla. 1st DCA
2010).

“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);
v. Brancato, 189 So. 3d 967 (Fla. 4th DCA 2016).

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Fulton

A claim of unjust

enrichment requires PWS to show by at least a preponderance of the
evidence that: (1) PWS conferred a direct benefit on the condo
defendants, (2) the condo defendants had knowledge of the benefit,
(3)

the

condo

defendants

accepted

or

retained

the

conferred

benefit, and (4) the benefit was conferred under circumstances
which make it inequitable for the condo defendants to retain the
benefit without paying its fair value.

Resnick v. AvMed, Inc.,

693 F.3d 1317, 1328 (11th Cir. 2012); CMH Homes, Inc. v. LSFC Co.,
LLC, 118 So. 3d 964, 965 (Fla. 1st DCA 2013); Malamud v. Syprett,
117 So. 3d 434, 437 (Fla. 2d DCA 2013).

Unjust enrichment

“acknowledges an obligation which is imposed by law regardless of
the intent of the parties.”

Circle Fin. Co. v. Peacock, 399 So.

2d 81, 84 (Fla. 1st DCA 1981) (citation omitted).
must directly confer the benefit upon defendant.

A plaintiff
Peoples Nat’l

Bank of Commerce v. First Union Nat’l Bank of Fla., 667 So. 2d
876, 879 (Fla. 3d DCA 1996).
Here, although there is no express contract between All Clear
and the condo defendants, a claim of unjust enrichment may be
presented as an alternative count to the express contract claim
against All Clear.

See Fed. R. Civ. P. 8(d)(2) and (3).

breach

claim

of

contract

and

an

unjust

enrichment

claim

As a
are

alternative claims, the latter may not be barred until an express
enforceable contract between the parties is established.

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See

Williams v. Bear Stearns & Co., 725 So. 2d 397, 400 (Fla. 5th DCA
1998).
Furthermore, PWS has plausibly alleged the elements of an
unjust enrichment claim in order to avoid dismissal.

PWS alleges

that it directly conferred the benefit of its pressure washing
services on each of the condominiums.

(Doc. #1, ¶¶ 34-50.)

PWS

serviced each of the condominiums for multiple days at a time,
while regularly communicating with the condo defendants’ agent,
All

Clear,

about

the

progress.

(Id.)

Plaintiff

does

not

specifically allege that the condo defendants had knowledge of the
benefit, but plaintiff does state that All Clear, as the condo
defendants’ agent, had knowledge of the benefit.

(Id.)

In

Florida, an agent may bind his or her principal based on real or
actual authority.

Hobbs Constr. & Dev., Inc. v. Colonial Concrete

Co., 461 So. 2d 255, 259 (Fla. 1st DCA 1984).

The Court accepts

at this stage in the proceedings the allegations that the condo
defendants had knowledge of the benefit through its agent 1, as well
as a reasonable inference that the condo defendants could have had
personal knowledge based on the allegations that the pressure
washing often went on for days at each property.

1

See Iqbal, 556

The questions of whether an agency relationship exists, and
its scope, are generally reserved for the fact-finder. See Kobold
v. Aetna U.S. Healthcare, Inc., 258 F. Supp. 2d 1317, 1323 (M.D.
Fla. 2003) (citing Wood v. Holiday Inns, Inc., 508 F.2d 167, 173
(5th Cir. 1975)).

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U.S. at 678.

Finally, the condo defendants, by the very nature

of the services conferred upon them, retained the pressure washing
benefits.

These circumstances could result in inequity if the

condominiums were able to retain these benefits without conferring
just compensation upon PWS.
a

recovery

on

quasi

defendant be unjust.”

“The most significant requirement for

contract

is

that

the

enrichment

to

the

Commerce P’ship 8098 Ltd. P’ship v. Equity

Contracting Co., 695 So. 2d 383, 388 (Fla. 4th DCA 1997) (en banc).
For the foregoing reasons, the condo defendants’ Motion to
Dismiss is denied.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
Defendants’ Motion to Dismiss for Failure to State a Claim
(Doc. #26) is DENIED.
DONE and ORDERED at Fort Myers, Florida, this
of June, 2018.

Copies:
Counsel of Record

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27th__ day