CityScapes International Realty Group of Longboat Key, LLC v. CCS-Bel Mare, LLC, et al

Filing 22

ORDER: Defendants' Motion to Dismiss Plaintiffs' Amended Complaint 20 is GRANTED to the extent stated herein. Plaintiffs shall amend their complaint within 14 days. Signed by Judge James S. Moody, Jr on 7/7/2011. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

CITYSCAPES INTERNATIONAL
REALTY GROUP OF LONGBOAT KEY,
LLC, n/k/a ELITE REAL ESTATE
PROPERTIES, LLC, and DAVID
MCLAUGHLIN,
Plaintiffs,
v.

Case No. 8:11-cv-876-T-30TGW

CCS-BEL MARE, LLC, PETER A. WELLS,
MARCEL ARSENAULT, REAL CAPITAL
SOLUTIONS, LLC, and CONDO CAPITAL
SOLUTIONS, LLC,
Defendants.
_____________________________________/

ORDER
THIS CAUSE comes before the Court upon Defendants’ Motion to Dismiss Plaintiffs’
Amended Complaint (Dkt. 20) and Plaintiffs’ Memorandum in opposition (Dkt. 21). The
Court, having reviewed the motion, response, and being otherwise advised in the premises,
concludes that the motion should be granted to the extent that a more definite statement of
Plaintiffs’ claims is necessary.

BACKGROUND1
At its essence, this case is about a real estate commission to which Plaintiffs believe
they are entitled based on their alleged procurement of the “Bel-Mare Project.” From late
2008 through 2009, Plaintiffs assisted “Defendants” and individual J.H. Massirman and his
companies Rivergate Companies, LLC and Rivergate Residential (Massirman/Rivergate),
with the purchase of distressed condominium projects. The original developer of the BelMare Project (also referred to as the “Subject Property”) was in default under its loan
obligations and the foreclosure process had begun. During this period of time, Plaintiffs and
Defendants agreed that Plaintiffs would receive a real estate commission if Defendants or
Massirman/Rivergate (who are not parties to this action) purchased any of the projects
brought to them by Plaintiffs.
At some point during this “working relationship,” Plaintiffs forwarded an Exclusive
Buyer Broker Agreement to Rivergate Residential and Defendant Condo Capital Solutions,
LLC dated April 4, 2009. The agreement was never executed by any Defendant. In July and
in September 2009, Letters of Intent to purchase projects brought by Plaintiffs were
submitted by Rivergate Companies, LLC (which is not a party to this action) and ArsenaultFlorida, LLC, joint venture (which is not a party to this action). These Letters of Intent
named Plaintiffs as the broker to be paid by the buyer.

1

The following facts are taken exclusively from Plaintiffs’ amended complaint (Dkt. 15).
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During the third quarter of 2009, the price of the Subject Property was reduced to an
amount that began to make business and financial sense to “Defendants” and
Massirman/Rivergate. Accordingly, Massirman/Rivergate informed Plaintiffs that they
would need to bring in the “money guys” to also review the Subject Property and to give
their approval to make an offer. Subsequently, Plaintiffs were put in direct contact with
Defendants Peter A. Wells, Marcel Arsenault, Real Capital Solutions, LLC, and Condo
Capital Solutions, LLC. Plaintiffs sometimes refer to these Defendants as “Buyers.”
Thereafter, in 2009, Plaintiffs began direct discussions with the Buyers, including
coordinating meetings, inspections, and site visits to the Subject Property. Plaintiffs also
provided the Buyers with all of the information necessary to evaluate the Subject Property.
Also during this time, Plaintiffs performed their own “due diligence” of the Buyers, which
included a visit to the website of Defendant Condo Capital Solutions, LLC. The website
contained a solicitation for Brokers to bring deals to the “Buyers,” and they will be paid a
real estate commission. Specifically, the solicitation included: “Bring your deals to CCS,
you Expect: To be protected on your commission; To deal with buyers who act quickly and
decisively; Buyers who have over $100 million of their own capital available.”
Subsequent to the meeting between Plaintiffs and the Buyers in November 2009,
Massirman/Rivergate drafted a Letter of Intent to Purchase (“LOI”) and tendered the LOI to
the lender of the Subject Property. Plaintiffs were named as the broker. However,
“unbeknownst to Massirman/Rivergate and to Plaintiffs,” the Buyers had submitted their own

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LOI for the same purchase price with more favorable terms to the lender. The Buyer’s LOI
was accepted by the lender. The Buyers actively concealed the fact that they submitted a
competing LOI.
On December 29, 2009, “Defendant Buyers” purchased the Subject Property by and
through an Assignment of Certificate of Sale. Plaintiffs were not paid a commission and the
following litigation ensued. Plaintiffs’ amended complaint includes claims of procuring
cause, violation of Florida’s false advertising statute, and breach of oral contract.
STANDARD OF REVIEW
A court may require a more definite statement of a pleading where the pleading is “so
vague or ambiguous that the party cannot reasonably prepare a response.” Fed.R.Civ.P.
12(e).
DISCUSSION
As Defendants point out, Plaintiffs’ amended complaint is rife with ambiguity and
confusion as to which Defendant committed which act. At times, Plaintiffs refer to
Defendants as “Defendants,” “Defendant,” “Buyer,” “Buyers,” and “money guys.” Also,
Plaintiffs sometimes reference “Plaintiffs” and then other times state “Plaintiff,” without
identifying which Plaintiff is being discussed. Moreover, the amended complaint references
individuals and entities who are not parties to this action.
With respect to the procuring cause claim, although Plaintiffs have set forth numerous
facts about their involvement with the procuring of the Subject Property, there are no details

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as to each Defendant’s involvement. Plaintiffs allege that they sent an Exclusive Buyer
Broker Agreement to Defendant Condo Capital Solutions, LLC (“CCS”), which was never
executed. It appears that CCS had knowledge of the instrumentality of Plaintiffs in procuring
the sale. However, it is entirely unclear how the other Defendants were involved other than
vague allegations regarding the “money guys” and Plaintiffs’ communications with the
“Buyers” in November and December of 2009. Defendants should not be lumped together
in this manner. Rather, Plaintiffs need to identify each Defendant, individually, and explain
how Plaintiffs brought the individual Defendant and the other relevant parties together.
Plaintiffs also must allege what was discussed with each Defendant about Plaintiffs’
entitlement to the commission.
Here, Plaintiffs state in a conclusory fashion that “it was agreed to by and between
Plaintiffs and Massirman/Rivergate and Defendants that Plaintiffs would receive a real estate
commission should Massirman/Rivergate and/or Defendants purchase any of the projects
brought to them by Plaintiffs.” This is insufficient to establish each Defendant’s liability
under the procuring cause theory. And, as Defendants’ point out, if only Defendant CCS-Bel
Mare, LLC purchased the Subject Property and Plaintiffs’ continuous negotiations were
solely with CCS-Bel Mare, LLC, there is no logical or legal basis for including the four other
named Defendants in this claim.
For these same reasons, Plaintiffs must amend their breach of oral contract claim.
Again, it is entirely unclear how each individual Defendant was a party to the oral contract.

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Finally, Plaintiffs’ claim for violation of Florida’s false advertising statute, Section
817.41, must be dismissed because Plaintiffs fail to allege that Defendants were trying to sell
any property or service to the general public. See Fla. Stat. §817.40(5). While the CCS
website may be of some evidentiary value, the timing of the events as alleged in the amended
complaint demonstrates that Plaintiffs could not have been induced by the website’s
purported “offer” to pay a real estate commission. Plaintiffs allege that they began their
discussions with Defendant CCS in late 2008/early 2009 and sent an Exclusive Buyer Broker
Agreement to Rivergate Residential and Defendant CCS on April 4, 2009, which was before
Plaintiffs alleged they visited CCS’ website. Additionally, it is unclear how the other
Defendants would be liable under section 817.41, because the purported advertisement or
website page was alleged to have been published on CCS’ website.
CONCLUSION
In sum, Plaintiffs’ amended complaint is dismissed without prejudice to Plaintiffs to
amend their claims to provide a more specific statement as to each Defendant’s involvement
and to state a claim as set forth herein.
It is therefore ORDERED AND ADJUDGED that:
1.

Defendants’ Motion to Dismiss Plaintiffs’ Amended Complaint (Dkt. 20) is

GRANTED to the extent stated herein.

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2.

Plaintiffs shall amend their complaint within fourteen (14) days from the date

of this Order.
DONE and ORDERED in Tampa, Florida on July 7, 2011.

Copies furnished to:
Counsel/Parties of Record
S:\Even\2011\11-cv-876.mtdismiss20.frm

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