CMR Construction & Roofing LLC v. The Orchards Condominium Association, Inc.
ORDER granting in part and denying in part 36 Motion to Dismiss for Failure to State a Claim. The Orchards' negligence counterclaim is dismissed without prejudice. The motion is otherwise denied. See Order for details. Signed by Judge John E. Steele on 2/16/2021. (FWH)
Case 2:20-cv-00422-JES-MRM Document 47 Filed 02/16/21 Page 1 of 12 PageID 948
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
CMR CONSTRUCTION & ROOFING
EMPIRE INDEMNITY INSURANCE
COMPANY and CMR CONSTRUCTION
& ROOFING LLC,
CMR CONSTRUCTION & ROOFING,
OPINION AND ORDER
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Some background is necessary to understand the consolidated
three cases currently before the Court and the pending motions.
The Orchards Condominium Association, Inc. (The Orchards) is
a residential condominium association in Naples, Florida.
Orchards was issued an insurance policy (the Policy) by Empire
Indemnity Insurance Company (Empire) providing insurance coverage
on thirty-one buildings. In September 2017, The Orchards sustained
significant roof and exterior damage caused by wind and rain from
In April 2018, The Orchards entered into a Contract for
Services (the Contract) with CMR Construction and Roofing, LLC
(CMR) to provide roofing repairs.
The Orchards also provided CMR
with an Assignment of Benefits (the Assignment) which assigned to
CMR all of The Orchards’ rights to the Empire insurance benefits
relating to the roof repairs. Both the Contract and the Assignment
were signed by The Orchards’ president, Mark Johnson (Johnson).
So far, a total of four lawsuits have followed these events.
In September 2018, CMR filed a one-count breach of contract
complaint against Empire in state court, which was removed to
See CMR Constr. & Roofing, LLC v. Empire Indem.
Ins. Co., Case No. 2:18-cv-779.
CMR, as The Orchards’ assignee,
asserted that Empire breached the Policy by underestimating the
costs necessary to make all repairs and failing to acknowledge
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coverage for all the damages sustained by The Orchards.
2020, the district court entered summary judgment in favor of
Empire, which has recently been affirmed on appeal by the Eleventh
Circuit Court of Appeals.
CMR Constr. & Roofing, LLC v. Empire
Indem. Ins. Co., 2021 WL 246201 (11th Cir. Jan. 26, 2021).
In May 2020, over two years after executing the Assignment,
The Orchards notified CMR that it was revoking the Assignment and
ordered CMR to cease all negotiations and work on the property.
The Orchards asserted that the Assignment was invalid because The
Two lawsuits concerning the Assignment have followed.
CMR filed suit in June 2020 in CMR Construction and Roofing,
LLC v. The Orchards Condominium Association, Inc. and Mark Johnson,
individually, Case No. 2:20-cv-422.
The operative pleading is an
Amended Complaint filed on September 8, 2020. (Doc. #16.)
ten-count Amended Complaint contains the following claims: (1)
declaratory judgment (against The Orchards) with regard to the
Assignment; (2) declaratory judgment (against The Orchards) with
regard to the Contract; (3) breach of the Contract (against The
Orchards); (4) fraud in the inducement (against The Orchards) with
regard to the Assignment; (5) fraud in the inducement (against
Assignment; (7) fraudulent misrepresentation (against Johnson)
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with regard to the Assignment; (8) negligent misrepresentation
(against The Orchards) with regard to the Assignment; (9) negligent
misrepresentation (against Johnson) with regard to the Assignment;
and (10) unjust enrichment (against The Orchards).
(Doc. #16, pp.
The Court denied The Orchards’ motion to dismiss three of the
Affirmative Defenses, and Counterclaims. (Doc. #32.) The Orchards
asserted nine affirmative defenses and a single Counterclaim for
negligence in connection with work performed at The Orchards.
Johnson filed an Answer and Affirmative Defenses. (Doc. #35.) 1
On July 6, 2020, The Orchards filed suit against Empire and
CMR in state court, which was removed to federal court on August
See The Orchards Condo. Ass’n, Inc. v. Empire Indem.
Ins. Co. & CMR Constr. & Roofing, LLC, Case No. 2:20-cv-564.
relating to the validity and revocation of the Assignment, and one
breach of contract count against Empire for failing to pay the
While the document says it contains affirmative defenses,
it does not.
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defenses, and Empire filed an Answer and Additional Defenses (Doc.
#41) containing ten additional defenses.
Finally, on November 19, 2020, CMR filed suit against Empire
in CMR Construction and Roofing, LLC v. Empire Indemnity Insurance
Company, Case No. 2:20-cv-917.
This Complaint contains a single
breach of contract count, alleging Empire breached the Policy by
not tendering payment in response to an updated estimate submitted
by CMR after the previous summary judgment.
Empire recently filed
a motion to dismiss the Complaint, which remains pending.
Defenses and Counterclaims (Doc. #32) filed in response to the
Counterclaim, Motion to Strike The Orchards’ Ninth Affirmative
Defense, and Incorporated Memorandum of Law (Doc. #36) was filed
Opposition (Doc. #40) on November 30, 2020.
A. Motion to Dismiss
CMR argues the negligence Counterclaim should be dismissed
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure
for failing to state a claim.
(Id. p. 1.)
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
Fed. R. Civ. P. 8(a)(2).
This obligation “requires
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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).
survive dismissal, the factual allegations must be “plausible” and
“must be enough to raise a right to relief above the speculative
Id. at 555; see also Edwards v. Prime Inc., 602 F.3d 1276,
1291 (11th Cir. 2010).
This requires “more than an unadorned,
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 the plaintiff, Erickson v.
Pardus, 551 U.S. 89, 94 (2007), but “[l]egal conclusions without
adequate factual support are entitled to no assumption of truth,”
Mamani v. Berzain, 654 F.3d 1148, 1153 (11th Cir. 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.
Factual allegations that are merely
Chaparro v. Carnival Corp., 693 F.3d 1333,
1337 (11th Cir. 2012) (citations omitted). Thus, the Court engages
in a two-step approach: “When there are well-pleaded factual
Case 2:20-cv-00422-JES-MRM Document 47 Filed 02/16/21 Page 7 of 12 PageID 954
determine whether they plausibly give rise to an entitlement to
Iqbal, 556 U.S. at 679.
The negligence Counterclaim alleges The Orchards “hired CMR
to complete roofing repairs,” including “emergency services of
tarping the roofs to prevent water intrusion” and “temporarily
fixing leaks on the roofs until full roof replacements” occurred.
(Doc. #32, p. 44.)
The Counterclaim alleges CMR, “[a]s a general
contractor hired to perform repair work,” owed The Orchards “a
duty to exercise due care and reasonable skill in the performance
of all emergency services and repair work.”
the Counterclaim, CMR breached this duty “by failing to properly
install the tarps on the roof, allowing for ventilation, and by
failing to fix the leak on one” of the roofs, causing damage to
(Id. p. 45.)
CMR argues the negligence Counterclaim should be dismissed
because it is barred by Florida’s independent tort doctrine. (Doc.
#36, pp. 2-3.)
CMR argues that because the duty the Counterclaim
alleges CMR owed to The Orchards is premised upon the Assignment
and Contract, the negligence claim does not have an independent
(Id., p. 3, 11.)
“Where a contract exists, a tort action will lie for either
intentional or negligent acts considered to be independent from
acts that breached the contract.”
HTP, Ltd. v. Lineas Aereas
Costarricenses, S.A., 685 So. 2d 1238, 1239 (Fla. 1996).
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Florida’s independent tort doctrine, ‘it is well settled that a
plaintiff may not recast causes of action that are otherwise
breach-of-contract claims as tort claims.’”
Assocs., P.A. v. Greenway Health, LLC, 2020 WL 5350303, *5 (M.D.
Fla. Sept. 4, 2020) (quoting Spears v. SHK Consulting & Dev., Inc.,
338 F. Supp. 3d 1272, 1279 (M.D. Fla. 2018)).
favorable to The Orchards as the non-moving party, the Court finds
the negligent acts attributed to CMR are not independent of those
acts which breached the contract, but are instead premised upon a
duty that arises from the agreements between CMR and The Orchards.
See Mills v. Krauss, 114 So. 2d 817, 820 (Fla. 2d DCA 1959) (“The
general contractor, having undertaken to repair the premises of
another, . . . is under a duty to the owner of the premises by
virtue of a relationship created by the general contract to see to
it that due care is used in repairing the premises.”); 2 see also
Kelly v. Lee Cty. RV Sales Co., 819 Fed. App’x 713, 718 (11th Cir.
2020) (“Under Florida law, no cause of action in tort can arise
from a breach of a duty existing by virtue of contract.” (marks
The Court’s conclusion that the negligence claim is based
upon a contractual duty on the part of CMR moots the need to decide
whether both the Assignment and Contract are invalid. (Doc. #40,
If those agreements are in fact invalid, as The
Orchards asserts, then the negligence claim fails to allege a basis
for a legal duty CMR owed to The Orchards, and therefore fails to
state a claim under Rule 12(b)(6).
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and citation omitted); Capten Trading Ltd. v. Banco Santander
Int’l, 2018 WL 1558272, *5 (S.D. Fla. Mar. 29, 2018) (“With respect
to both of these [negligence and breach of fiduciary duty] claims,
Capten has failed to establish a recognized duty existing outside
of the parties’ contractual relationship.
Instead, both claims
fall squarely within the fundamental contract principles that bar
a tort claim where a defendant has not committed a breach of duty
Accordingly, the negligence Counterclaim is barred
and will be dismissed without prejudice.
B. Motion to Strike
Counterclaim, CMR requests the Court to strike The Orchards’ ninth
(Doc. #36, pp. 13-15.)
This defense asserts
that three of CMR’s tort claims are barred by the independent tort
doctrine and that the claims impermissibly seek the same damages
as the Amended Complaint’s breach of contract claim.
CMR argues the defense should be stricken because it
is invalid as a matter of law.
(Doc. #36, p. 15.)
Given this determination, the Court also finds it
unnecessary to address CMR’s alternative argument that the
Counterclaim is barred for failing to comply with Florida’s presuit notice requirements. (Doc. #36, p. 12.)
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An affirmative defense “is one that admits to the complaint,
but avoids liability, wholly or partly, by new allegations of
excuse, justification, or other negating matters.”
& Devs., LLLP v. Seneca Specialty Ins. Co., 645 Fed. App’x 912,
916 (11th Cir. 2016) (citation omitted).
A court “may strike from
a pleading an insufficient defense,” Fed. R. Civ. P. 12(f), and
“[a]n affirmative defense will be held insufficient as a matter of
law only if it appears that the defendant cannot succeed under any
set of facts which it could prove.”
Andrade v. Redrock Travel
Grp., LLC, 2019 WL 2214808, *1 (M.D. Fla. Apr. 29, 2019) (citation
“If a defense puts into issue relevant and substantial
legal and factual questions, it is ‘sufficient’ and may survive a
prejudice to the movant.”
Id. (marks and citation omitted).
application of the Independent Tort Doctrine to Counts IV, VI, and
VIII of the Amended Complaint is patently insufficient as a matter
of law as it presents no substantial questions of law, which is
clearly apparent from this Court’s own Opinion and Order.”
#36, p. 15.)
As noted, the Court previously denied The Orchards’
motion to dismiss three counts of the Amended Complaint, which had
However, the Court’s prior Opinion and
Order (Doc. #30) did not determine the legal sufficiency of the
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independent tort doctrine as a defense; rather, the Court, viewing
favorable to CMR, found the doctrine did not bar the three tort
claims at the pleadings stage.
See Rosada v. John Wieland Homes
& Neighborhoods, Inc., 2010 WL 1249841, *3 (M.D. Fla. Mar. 25,
2010) (“Defendants’ sixth affirmative defense asserts Plaintiffs’
claims for fraud and negligent misrepresentation are barred by the
economic loss rule.
Plaintiffs believe this defense should be
dismiss, the Court stated Plaintiffs’ claims were not barred by
the economic loss rule. . . .
The Order denying the motion to
dismiss did not determine the economic loss rule was not a valid
Rather, it determined at the pleadings stage, it was not
enough to bar Plaintiffs’ claims.
As such, this defense is still
proper and need not be stricken.”).
Since the Court cannot say at this stage of the proceedings
that there is no set of facts under which The Orchards could
affirmative defense is not appropriate.
See Wesolek v. Wesolek,
2020 WL 7587255, *7 (M.D. Fla. Dec. 22, 2020) (noting that a motion
to strike is “a drastic remedy . . . disfavored by the courts”).
Accordingly, it is now
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Plaintiff CMR Construction and Roofing, LLC’s Motion to
Affirmative Defense, and Incorporated Memorandum of Law (Doc. #36)
is GRANTED in part and DENIED in part.
The Orchards’ negligence
DONE AND ORDERED at Fort Myers, Florida, this
Parties of record
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