Kosterlitz v. The S/V Knotta KLU et al
Filing
74
ORDER denying 18 Motion for Judgment on the Pleadings. Signed by Judge John E. Steele on 11/20/2018. (FWH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MICHAEL KOSTERLITZ,
Plaintiff,
v.
Case No:
2:18-cv-482-FtM-29MRM
THE S/V KNOTTA KLU, her
engines, tackle, apparel,
equipment and appurtenances,
in rem and ROBERT E. LIBBEY,
JR.,
Defendants.
OPINION AND ORDER
This matter comes before the Court on the plaintiff’s Motion
for Judgment on the Pleadings or Alternatively Summary Judgment
(Doc. #18) filed on April 9, 2018.
Defendant filed a Response
(Doc. #27) on May 9, 2018 and Plaintiff filed a Reply to the
Response (Doc. #30) on May 19, 2018.
below,
plaintiff’s
Motion
for
For the reasons set forth
Judgment
on
the
Pleadings
or
Alternatively Summary Judgment is denied.
I.
The central issue in this case is who owns the Knotta Klu, a
40-foot catamaran.
Plaintiff Michael Kosterlitz claims he is the
sole owner of the vessel and initiated this action on March 9,
2018.
(Doc. #1.)
Kosterlitz alleges that he was the registered
owner of the Knotta Klu in June 2015 when he and defendant Robert
Libbey, Jr. began negotiating the purchase and sale of the vessel.
(Id.
¶ 8, 10.)
Because the two men were friends and intended to
come to terms on an agreement, Kosterlitz gave possession of the
Knotta Klu to Libbey in August of 2015 even though they were still
negotiating.
(Id. ¶ 11.)
Libbey in turn gave possession of his
trimaran to Kosterlitz, which Libbey was offering as a trade. (Id.
¶ 10, 12.)
According to Kosterlitz, the negotiations continued
until January 2018, but were hardly smooth sailing.
(Id. ¶ 10.)
The men disagreed as to the Knotta Klu’s purchase price and the
value of Libbey’s trimaran.
(Id. ¶ 13.)
Despite never coming to
an agreement, Libbey made approximately $35,000 in payments to
Kosterlitz
from
August
2015
through
June
2017,
and
informed
Kosterlitz in October 2017 that he had executed a bill of sale and
had legal title to the Knotta Klu.
told
Kosterlitz
that
he
would
(Id. ¶¶ 15, 18.)
satisfy
Libbey also
Kosterlitz’
unsecured
promissory note for the vessel, which at the time had a balance
due in excess of $100,000.
(Id. ¶ 18.)
After a failed attempted
to repossess the Knotta Klu, 1 Kosterlitz initiated this action and
1
Per the complaint, Kosterlitz went to Libbey’s Fort Myers
residence in December 2017 and began sailing the Knotta Klu north
to Kosterlitz’ home in Saint Petersburg.
(Doc. #1, ¶ 19.)
However, Libbey filed a report with the Sherriff of Lee County and
Kosterlitz was charged with one count of grand larceny. (Id. ¶¶
20-22.) The charge was subsequently dropped after the Lee County
State Attorney determined there was insufficient evidence to
prosecute. (Id. ¶ 22.) The Knotta Klu remains birthed at Libbey’s
residence. (Id. ¶ 4.)
2
asserted a petitory and possessory action in admiralty, as well as
claims for malicious prosecution, civil theft, conversion, and
false arrest.
(Id. ¶¶ 24-58.)
Attached to Kosterlitz’ Complaint are a “Sells Agreement” for
the sale of the Knotta Klu and a State of Florida bill of sale.
(Id. pp. 17, 19.)
According to Kosterlitz, the documents (which
purportedly convey the Knotta Klu from Kosterlitz to Libbey and
are signed by Kosterlitz) are “false documents, manufactured by
Libbey in an attempt to falsely claim title.”
(Id. ¶ 32.)
The
“Sells Agreement” lists the Knotta Klu’s sale price as $10,000,
while the bill of sale lists the selling price as “TRADE FOR F27
TRIMARAN.”
(Id. pp. 17, 19.)
In response to Kosterlitz’ Complaint, Libbey filed an Answer
and
Counter-Complaint
events.
(Doc. #15.)
which
presents
a
different
version
of
Libbey claims that he is the true owner of
the Knotta Klu because he and Kosterlitz entered into an agreement
for the vessel in August 2015.
(Id. pp. 7-9.)
Libbey alleges
that the agreement conveyed ownership of the Knotta Klu from
Kosterlitz to Libbey in exchange for (1) Libbey assuming the
monthly
payment
of
an
unsecured
note
owed
to
non-party
Ned
Christensen, (2) Libbey conveying possession and title of his
trimaran to Kosterlitz, and (3) Libbey assuming the balloon payment
of
the
Christensen
Accordingly,
note
Kosterlitz
when
took
it
became
possession
3
due.
and
(Id.
p.
7.)
control
of
the
trimaran, Libbey entered into an agreement with Christensen “to
assume
the
monthly
debt
and
the
balloon
payment
due
on
the
unsecured note to complete the purchase of the subject vessel free
and clear of any claim,” and Libby made an initial $5,000 payment
to Kosterlitz.
(Id. pp. 7-8.)
Libbey claims he has paid nearly
$41,000 to or on behalf of Kosterlitz and has otherwise complied
with the terms of the agreement.
(Id. p. 8.)
Based on these
allegations, Libbey asserts a petitory and possessory action, as
well as counterclaims for conversion and unjust enrichment.
pp. 8-11.)
(Id.
He also raises two affirmative defenses based on
Kosterlitz conveying title of the Knotta Klu and accepting Libbey’s
cash, the trimaran, and assumption of the promissory note.
(Id.
p. 5.)
Attached to Libbey’s Answer and Counterclaim are (1) the State
of Florida bill of sale, (2) an unsigned promissory note between
Libbey and Christensen dated December 1, 2017 and purporting to
replace
the
prior
promissory
note
between
Kosterlitz
and
Christensen, and (3) a State of Florida certificate of title dated
September 21, 2017 and listing Libbey as the registered owner of
the Knotta Klu.
(Id. pp. 13-15.)
Kosterlitz filed an Answer to Libbey’s Counter-Complaint,
denying many of Libbey’s factual allegations.
34.)
(Doc. #17, ¶¶ 1-
Kosterlitz also asserts several affirmative defenses based
4
on fraud, estoppel, lack of contract, and breach of contract. (Id.
¶¶ 35-40.)
On April 9, 2018, Kosterlitz filed his Motion for Judgment on
the Pleadings or Alternatively Summary Judgment seeking judgment
as to both petitory and possessory actions (Count One of the
Complaint and Count One of the Counter-Complaint) and Libbey’s
conversion claim (Count Two of the Counter-Complaint).
p. 1.)
(Doc. #18,
Based on the verified pleadings, Kosterlitz claims he “is
entitled to judgment on the pleadings on the issue of the right to
ownership and possession of the sailing vessel Knotta Klu.”
(Id.)
II.
A. Judgment on the Pleadings Legal Standard
The Federal Rules of Civil Procedure provide that “[a]fter
the pleadings are closed-but early enough not to delay trial-a
party may move for judgment on the pleadings.”
12(c).
no
Fed. R. Civ. P.
“Judgment on the pleadings is appropriate when there are
material
facts
by considering the
in
dispute,
substance
any judicially noticed facts.”
and
of
judgment
the
may
be
rendered
pleadings
and
Hawthorne v. Mac Adjustment, Inc.,
140 F.3d 1367, 1370 (11th Cir. 1998) (citations omitted).
When
reviewing a motion for judgment on the pleadings, the court must
view the facts in a light most favorable to the nonmoving party.
Id. at 1370.
A judgment on the pleadings can be granted only if
the nonmoving party can prove no set of facts which would allow it
5
to prevail.
Palmer & Cay, Inc. v. Marsh & McLennan Cos., Inc.,
404 F.3d 1297, 1303 (11th Cir. 2005) (citations omitted).
B. Summary Judgment Legal Standard
Summary
judgment
is
appropriate
only
when
the
Court
is
satisfied that “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
“An issue of fact is ‘genuine’ if the
record taken as a whole could lead a rational trier of fact to
find for the nonmoving party.”
Hickson Corp. v. N. Crossarm Co.,
Inc., 357 F.3d 1256, 1260 (11th Cir. 2004) (citation omitted).
A
fact is “material” if it may affect the outcome of the suit under
governing law.
248 (1986).
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
“A court must decide ‘whether the evidence presents
a sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a matter
of law.’”
Hickson, 357 F.3d at 1260 (quoting Anderson, 477 U.S.
at 251).
In ruling on a motion for summary judgment, the Court views
all evidence and draws all reasonable inferences in favor of the
nonmoving party.
2010).
However,
Tana v. Dantanna’s, 611 F.3d 767, 772 (11th Cir.
“[i]f
reasonable
minds
might
differ
on
the
inferences arising from undisputed facts, then the court should
deny summary judgment.”
St. Charles Foods, Inc. v. America’s
Favorite Chicken Co., 198 F.3d 815, 819 (11th Cir. 1999) (quoting
6
Warrior Tombigbee Transp. Co. v. M/V Nan Fung, 695 F.2d 1294, 129697 (11th Cir. 1983)).
“If a reasonable fact finder evaluating the
evidence could draw more than one inference from the facts, and if
that inference introduces a genuine issue of material fact, then
the court should not grant summary judgment.”
Allen v. Bd. of
Pub. Educ. for Bibb Cty., 495 F.3d 1306, 1315 (11th Cir. 2007).
III.
As noted, Kosterlitz claims he is entitled to judgment on the
pleadings as to the petitory and possessory claims, as well as
Libbey’s conversion claim. Both a petitory and a possessory action
require an assertion of a legal title to the vessel, Gulf Coast
Shell & Aggregate LP v. Newlin, 623 F.3d 235, 239 (5th Cir. 2010),
while a conversion requires an act of dominion wrongfully asserted
over another’s property inconsistent with his ownership therein,
Joe Hand Promotions, Inc. v. Creative Entm’t, LLC, 978 F. Supp. 2d
1236, 1241 (M.D. Fla. 2013). Kosterlitz asserts his right to title
and possession of the Knotta Klu because (1) Libbey’s certificate
of title from the State of Florida is of no legal validity and (2)
Libbey’s
affirmative
pleadings
enforceable contract was entered.
establish
that
no
legally
(Doc. #18, pp. 4-9.)
A. State of Florida Certificate of Title
Kosterlitz’ Complaint alleged that the Knotta Klu “was and
still is” a United States Documented Vessel and, prior to June
2015, Kosterlitz was the registered owner in the United States
7
Department of Homeland Security, United States Coast Guard, and
National Vessel Documentation Center.
(Doc. #1, ¶¶ 2, 7-8.)
In
his Answer, Libbey admitted these allegations but denied that the
Knotta Klu “is documented.”
(Doc. #15, p. 1.)
In his Counter-
Complaint in admiralty, Libbey claimed the Knotta Klu is subject
to a State of Florida certificate of title, which was attached to
the pleading.
(Id. pp. 6, 15.)
In his motion, Kosterlitz challenges the legal validity of
Libbey’s State of Florida certificate of title.
6.)
(Doc. #18, pp. 4-
Section 328.01, Florida Statutes, provides the process by
which a vessel owner applies for a certificate of title.
If the
vessel was previously registered with the federal government,
additional steps are required:
(f) In making application for the titling of a vessel
previously documented by the Federal Government, the
current owner shall establish proof of ownership by
submitting with the application a copy of the canceled
documentation papers or a properly executed releasefrom-documentation certificate provided by the United
States Coast Guard.
In the event such documentation
papers or certification are in the name of a person other
than the current owner, the current owner shall provide
the original copy of all subsequently executed bills of
sale applicable to the vessel.
§ 328.01(f), Fla. Stat.
The Code of Federal Regulations provides
that a certificate of documentation becomes invalid when the
ownership of a vessel changes.
46 C.F.R. § 67.167(b)(1).
8
When
that occurs, the owner must send or deliver the certificate to the
National Vessel Documentation Center.
Kosterlitz
registered
asserts
vessel
documentation.”
and
that
only
the
he
Knotta
“can
(Doc. #18, p. 6.)
Id. § 67.167(a).
Klu
delete
is
the
a
federally
vessel
from
He argues that because he has
not deleted the vessel from federal registration, the State of
Florida certificate of title Libbey has obtained is fraudulent and
“of no legal validity.”
(Id.)
The Court finds this argument is
insufficient to demonstrate an entitlement to judgment on the
pleadings.
Libbey’s pleadings assert that he is the true owner of
the Knotta Klu, that the vessel is not federally documented, and
that he has obtained a certificate of title from the State of
Florida.
As section 328.01(f) would have required proof that the
federal documentation had been cancelled, the Court can infer
Libbey obtained such proof in order to obtain the State of Florida
certificate of title.
See Garner v. Ford Motor Co., 2015 WL
12841007, *2 (M.D. Fla. Mar. 9, 2015) (noting that in deciding a
Rule 12(c) motion, the court draws all inferences in favor of the
nonmoving
party).
Therefore,
despite
Kosterlitz’
argument
otherwise, the pleadings do not demonstrate Libbey’s certificate
of title is legally invalid.
Even if the Court did not infer Libbey obtained proof of
cancellation of the federal registration, Libbey has now presented
such proof.
See Fed. R. Civ. P. 12(d) (“If, on a motion under
9
Rule 12(b)(6) or 12(c), matters outside the pleadings are presented
to and not excluded by the court, the motion must be treated as
one for summary judgment under Rule 56.”); Szabo v. Fed. Ins. Co.,
2011 WL 3875421, *3 (M.D. Fla. Aug. 31, 2011) (“The Court has broad
discretion to choose whether to covert the motion for judgment on
the pleadings to a motion for summary judgment under Rule 56.”).
In
his
response
to
Kosterlitz’
motion,
Libbey
states
that
a
certificate of deletion was in fact submitted with the application
for Florida title.
(Doc. #27, ¶ 5.)
Attached to the response is
(1) Libbey’s affidavit stating he was required to show “evidence
of deletion of documentation” in order to obtain the Florida title
and received such evidence on or about September 21, 2017, and (2)
a letter dated July 20, 2017 from the United States Coast Guard
National Vessel Documentation Center indicating the Knotta Klu’s
documentation was deleted on December 2, 2016.
10, 14.)
(Doc. #27-1, pp.
The letter lists the last owner of record as Kosterlitz
and the reason for deletion as a failure to renew.
(Id. p. 14.)
These documents would be sufficient to create a genuine issue of
material fact regarding Libbey’s title, and therefore require
denying Kosterlitz’ motion. 2
2
In response to the documents Libbey submitted, Kosterlitz
argues, inter alia, that the fact that Libbey obtained deletion
documentation from the U.S. Coast Guard and a Florida title is
irrelevant to the issue of whether the men had an enforceable
contract.
(Doc. #30, p. 5.)
Even if the Court agreed, the
documents would still be relevant (and contradictory) to
10
B. Libbey’s Affirmative Pleadings
Kosterlitz also argues he is entitled to judgment because
Libbey’s pleadings “establish that the communications between the
parties were nothing other than a legally unenforceable agreement
to agree.”
(Doc. #18, p. 6.)
Kosterlitz argues that Libbey’s
pleadings are silent as to key elements of the sale, such as the
purchase price and the trimaran’s trade value, and inconsistent
with
the
documents
Complaint. 3
attached
(Id. pp. 6-9.)
to
Libbey’s
Answer
and
Counter-
Each of these arguments will be
addressed in turn.
1) Sufficiency of the Pleadings
Kosterlitz argues that because Libbey’s Answer and CounterComplaint do not state the Knotta Klu’s purchase price or the
trimaran’s
actual
trade
value,
enforceable contract was entered.
the
pleadings
(Id. p. 6.)
establish
no
Viewing the facts
in a light most favorable to Libbey, the Court disagrees. Libbey’s
pleadings allege that he and Kosterlitz entered into an agreement
Kosterlitz’ claim that the State of Florida certificate of title
is not legally valid because the Knotta Klu was never deleted from
federal registration. (Doc. #18, p. 6.)
3
Kosterlitz also argues that the promissory note Libbey
attached to his Answer and Counter-Complaint is unenforceable
because it is unexecuted and violates Florida’s Statute of Frauds.
(Doc. #18, p. 7.) However, whether the promissory note between
Libbey and Christensen is valid is separate from whether Kosterlitz
and Libbey entered into an agreement to convey ownership and
possession of the Knotta Klu.
11
in August 2015 for the purchase and sale of the Knotta Klu.
#15, p. 7.)
(Doc.
Pursuant to that agreement, Libbey gave Kosterlitz
the trimaran and assumed the monthly payment and balloon payment
of the Christensen note.
(Id.)
Libbey also made an initial
payment to Kosterlitz of $5,000 and has paid nearly $41,000 to or
on behalf of Kosterlitz.
(Id. p. 8.)
While Libbey’s pleadings do
not state the Knotta Klu’s purchase price or the trimaran’s trade
value, Libbey has made sufficient factual allegations to create a
disputed issue as to whether a contract was formed.
See Barbara
Berry, S.A. de C.V. v. Ken M. Spooner Farms, Inc., 254 Fed. App’x
646, 647 (9th Cir. 2007) (“[T]here exist genuine issues of material
fact as to when a contract was formed between Barbara Berry and
Spooner Farms, what terms were included in the contract, and
whether those terms were later varied.”); Scholar Intelligent
Sols., Inc. v. N.J. Eye Ctr., P.A., 2016 WL 5745112, *3 (D.N.J.
Sept. 30, 2016) (“Here, there are genuine issues of material fact
as to whether a contract was entered into, and if so, what the
terms of that contract were.”)
As this issue is material to
determining who owns the Knotta Klu, judgment on the pleadings is
inappropriate.
2) Inconsistencies between Pleadings and Exhibits
Kosterlitz
also
argues
that
Libbey’s
inconsistent with the exhibits he has attached.
pleadings
are
(Doc. #18, p. 6-
7.) For example, attached to Libbey’s Answer and Counter-Complaint
12
is a State of Florida bill of sale listing the selling price for
the Knotta Klu only as “TRADE FOR F27 TRIMARAN.”
13.)
(Doc. #15, p.
As noted above, Libbey states in his Answer and Counter-
Complaint that in addition to trading the trimaran, he also agreed
to
assume
the
monthly
Christensen note.
to
be
an
payment
(Id. p. 7.)
inconsistency,
and
balloon
payment
of
the
Even if the Court considered this
Kosterlitz
would
nonetheless
not
be
entitled to a judgment on the issue of ownership and possession of
the Knotta Klu.
Regardless of whether Libbey failed to accurately
report the selling price of the Knotta Klu to the State of Florida,
the bill of sale, which is purportedly signed by Kosterlitz,
supports Libbey’s allegation that the two men entered into an
agreement to transfer ownership of the vessel. 4
Because the Court
cannot say there is no set of facts which would allow Libbey to
prevail, Palmer, 404 F.3d at 1303, Kosterlitz has not demonstrated
he is entitled to judgment as a matter of law.
Accordingly, it is now
ORDERED:
Plaintiff’s
Motion
for
Judgment
on
the
Pleadings
or
Alternatively Summary Judgment (Doc. #18) is DENIED.
4
Kosterlitz’ claim that the document is fraudulent only
further demonstrates there are material facts in dispute.
13
DONE AND ORDERED at Fort Myers, Florida, this
November, 2018.
Copies: Counsel of record
14
20th
day of
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