Kahama VI, LLC v. HJH, LLC et al

Filing 135

ORDER: Defendant Howard S. Marks' Motion to Dismiss Complaint 93 is granted in part and denied in part. Defendant Old Republic National Title Insurance Company's Motion to Dismiss 95 is granted. Counts IV, VI, VII, VIII, and IX of Pl aintiff's Second Amended Complaint 72 are dismissed as to Howard S. Marks and Old Republic National Title Insurance Company without prejudice to Kahama to amend the Second Amended Complaint to allege sufficient facts. Kahama may amend the Second Amended Complaint within 14 days. Signed by Judge James S. Moody, Jr on 9/12/2013. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

KAHAMA VI, LLC,
Plaintiff,
v.

Case No: 8:11-cv-2029-T-30TBM

HJH, LLC, ROBERT E.W. MCMILLAN,
III , WILLIAM R. RIVEIRO, JOHN
BAHNG, HOWARD S. MARKS and
OLD REPUBLIC NATIONAL TITLE
INSURANCE COMPANY,
Defendants.

ORDER
THIS CAUSE comes before the Court upon Defendant Howard S. Marks’ Motion
and Memorandum of Law to Dismiss Complaint (Dkt. #93) and Defendant Old Republic
National Title Insurance Company’s Motion to Dismiss Counts IV and VI through IX of
Plaintiff’s Second Amended Complaint and Incorporated Memorandum of Law (Dkt.
#95), Plaintiff’s Response in Opposition (Dkt. #126) and Plaintiff’s Response to Motion
to Dismiss of Old Republic (Dkt. #127) and Defendant Howard S. Marks’ Objection to
Plaintiff’s Request for Judicial Notice (Dkt # 129). The Court, having considered the
parties’ arguments and being otherwise advised in the premises, concludes that Defendant
Howard S. Marks’ Motion should be granted in part and denied in part and Defendant
Old Republic National Title Insurance Company’s Motion should be granted.

Background
Plaintiff, Kahama VI, LLC (“Kahama”) filed an action to enforce a promissory
note against the borrower, HJH, LLC (“HJH”) and four individual guarantors; Robert E.
W. McMillan, III, John Bahng, William Riveiro, and Kirsten L. Riveiro.1 Kahama filed
for foreclosure against HJH in the case styled Kahama VI, LLC v. HJH, LLC, M.D. Fla.
Case No.:6:12-cv-01922-T30-TBM which the Court consolidated with this action. The
property at issue in the foreclosure action is undeveloped beachfront property located in
New Smyrna Beach, Florida (the “Property”).
In its Second Amended Complaint, Kahama added Howard S. Marks (“Marks”)
and Old Republic National Title Insurance Company (“Old Republic”) as defendants,
alleging causes of action for abuse of process, fraudulent transfer, slander of title, unjust
enrichment, breach of contract/good faith and fair dealing, and breach of fiduciary duty.
Marks served as counsel for HJH in the foreclosure action and other proceedings related
to the Property. His prior firm also acted as the title insurance agent for the title insurance
policies issued to HJH (the “Owner’s Title Policy”) and Kahama (the “Lender’s Title
Policy”). The policies are attached to the complaint as Exhibit 7 and 8, respectively. Old
Republic was the underwriter for these policies.
HJH became involved in a dispute with the City of New Smyrna Beach (the
“City”) and Volusia County (the “County”) regarding an alleged easement on the east
150 feet of the Property. The City would not authorize HJH to build beachfront

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Plaintiff voluntarily dismissed Kirsten L. Riveiro from the case (Dkt. #60).

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condominiums because of the easement. HJH made a claim on its Owner’s Title Policy;
in response Old Republic filed a complaint against the City and County in the case styled
HJH, LLC v. Volusia County, Florida, et. al., Volusia County Circuit Court Case No.
2008-20156-CINS-02 (the “Quiet Title Action”).

Old Republic retained Marks as

counsel for HJH in the Quiet Title Action. The City paid HJH $100,000 to settle the
claim. The County did not join in the settlement, and the Quiet Title Action is currently
set for trial.
Kahama’s claims against Marks are primarily based on his actions as counsel for
HJH in the Quiet Title Action, and as a member of the law firm that acted as title
insurance agent for the title policies issued by Old Republic. Kahama’s claims against
Old Republic are primarily based on the title policy issued to Kahama’s predecessors in
interest, and its involvement with the Quiet Title Action. Generally, Kahama claims that
Marks and Old Republic pursued an invalid title claim, and have used the Quiet Title
Action for the fraudulent purpose of delaying the foreclosure action and thwarting
Kahama’s collection efforts against HJH and the guarantors.
Discussion
I.

Standard for Motion to Dismiss

To warrant dismissal of a complaint under Rule 12(b)(6) of the Federal Rules of
Civil Procedure, it must be “clear that no relief could be granted under any set of facts
that could be proved consistent with the allegations.” Blackston v. State of Alabama, 30
F.3d 117, 120 (11th Cir. 1994) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73
(1984)). “When considering a motion to dismiss, all facts set forth in the plaintiff's
complaint are to be accepted as true and the court limits its consideration to the pleadings
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and exhibits attached thereto.” Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231
(11th Cir. 2000) (internal citations and quotations omitted).
“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement
of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant
fair notice of what the ... claim is and the grounds upon which it rests.’ ” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007) (quoting
Fed.R.Civ.P. 8; Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, “a plaintiff's
obligation to provide the ‘grounds' of his ‘entitle[ment] to relief’ requires more than
labels and conclusions, and a formulaic recitation of the elements of a cause of action will
not do.” Twombly, 127 S.Ct. at 1964–65. “[T]he tenet that a court must accept a
complaint's allegations as true is inapplicable to threadbare recitals of a cause of action's
elements, supported by mere conclusory statements.” Ashcroft v. Iqbal, 129 S.Ct. 1937,
1949, 173 L.Ed.2d 868 (2009). “Factual allegations must be enough to raise a right to
relief above the speculative level ... on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).” Twombly, 127 S.Ct. at 1965. Absent the
necessary factual allegations, “ the-defendant-unlawfully-harmed-me accusation[s]” will
not suffice. Ashcroft, 129 S.Ct. at 1949.
Further, exhibits are part of a pleading “for all purposes.” Fed.R.Civ.P. 10(c); see
Solis-Ramirez v. U.S. Dep't of Justice, 758 F.2d 1426, 1430 (11th Cir. 1985) (per curiam)
(“Under Rule 10(c) Federal Rules of Civil Procedure, such attachments are considered
part of the pleadings for all purposes, including a Rule 12(b)(6) motion.”). See also
Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1205-06 (11th Cir. 2007). Therefore,

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Kahama’s requests that the Court take judicial notice of the exhibits attached to the
Second Amended Complaint is denied as unnecessary.
II.

Dismissal as to Counts IV, V, VI, VII, VIII, and IX
a. Count IV - Abuse of Process

A cause of action for abuse of process requires proof that: (1) the defendant made
an illegal, improper, or perverted use of process; (2) the defendant had an ulterior motive
or purpose in exercising the illegal, improper, or perverted process; and (3) the plaintiff
was injured as a result of defendant's action.” Hardick v. Homol, 795 So. 2d 1107, 1111
n. 2 (Fla. 5th DCA 2001) (citing Thomson McKinnon Securities, Inc. v. Light, 534 So. 2d
757, 760 (Fla. 3d DCA 1988); Della–Donna v. Nova Univ., Inc., 512 So. 2d 1051 (Fla.
4th DCA 1987)).
Courts in Florida have made it clear, however, that an abuse of process claim
requires more than the issuance of process for an improper motive. See McMurray v. U–
Haul Co., Inc., 425 So. 2d 1208, 1209–10 (Fla. 4th DCA 1983); Blue v. Weinstein, 381
So. 2d 308, 310 (Fla. 3d DCA 1980). Instead, a claimant must allege “an act which
constituted misuse of the process after it was issued.” McMurray, 425 So. 2d at 1209.
“Ulterior motive alone is insufficient; there is no abuse of process where it is confined to
its regular and legitimate function in relation to the cause of action in the complaint.” Id.
See also Scozari v. Barone, 546 So. 2d 750, 751 (Fla. 3d DCA 1989) (“There is no abuse
of process, however, when the process is used to accomplish the result for which it was
created, regardless of an incidental or concurrent motive of spite or ulterior purpose.”).
In this case Kahama essentially alleges that Marks and Old Republic engaged in
an abuse of process by: (1) filing the Quiet Title Action for the purpose of interfering
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with Kahama’s right to enforce its mortgage and promissory note against HJH and (2)
receiving and concealing the settlement funds on behalf of HJH. The act of filing the
Quiet Title Action on its own is not enough; the alleged act that constitutes “abuse” must
occur after the filing of the complaint. See McMurray, 425 So. 2d at 1209. Kahama also
points to the counterclaim filed by Marks on behalf of HJH in the foreclosure action as
further evidence of abuse. Kahama does not point to any legal or factual basis as to why
Marks or Old Republic should have revealed to Kahama, a non-party to the action, that
HJH received funds pursuant to a settlement agreement.
Assuming all of Kahama’s well pled allegations are true, Kahama does not state a
cause of action for abuse of process because it fails to allege sufficient facts to show
illegal, improper or perverted process. The allegations amount to only a claim of
improper or ulterior motive for filing the Quiet Title Action, which is not sufficient to
sustain this cause of action. See McMurray, 425 So. 2d at 1209.
Kahama also fails to state a claim against Old Republic for abuse of process
because Old Republic is not a party to the Quiet Title Action; and unlike Marks, has not
appeared in that action. Kahama’s claim of abuse of process against Old Republic is too
attenuated. There are not sufficient facts alleged from which the Court can draw any
reasonable inferences to allow this claim to stand. Accordingly, this claim is dismissed
without prejudice to Kahama to amend the Second Amended Complaint to include
sufficient allegations.

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b. Count V Fraudulent Transfer2
To plead a cause of action for violation of the Florida Uniform Fraudulent
Transfer Act (“FUFTA”) under § 726.105, Florida Statutes plaintiffs must allege: (1)
they were creditors who were defrauded, (2) that defendant intended to commit the fraud,
and (3) that the fraud involved a conveyance of property that could have been applicable
to the payment of the debt due. See Dillon v. Axxsys Int'l, Inc., 185 Fed. Appx. 823, 828–
29 (11th Cir. 2006) (citing Nationsbank, N.A. v. Coastal Utils. Inc., 814 So. 2d 1227,
1229 (Fla. 4th DCA 2002)).
Alternatively, under § 726.106, Florida Statutes, a transfer is fraudulent if: (1) the
creditor's claim arose before the transfer was made; (2) the debtor did not receive a
reasonably equivalent value in exchange for the transfer; and (3) the debtor was insolvent
at that time or the debtor became insolvent as a result of the transfer or obligation.
Count V alleges sufficient facts to state a claim for fraudulent transfer against
Marks. It alleges that Kahama is the creditor of HJH pursuant to the promissory note, that
HJH intended to commit fraud, and that the fraud involved the transfer of the settlement
funds which could have been used to pay the promissory note. See Fla. Stat. § 726.105.
Kahama also alleges that the action for foreclosure and enforcement of the promissory
note arose prior to Marks’ receipt of the settlement funds; Marks did not provide
“equivalent value” for the transfer and that HJH was “presumed insolvent” at the time of
transfer. See Id. § 726.106. Therefore Count V of the Second Amended Complaint

2

Old Republic did not include this count in its Motion to Dismiss.

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adequately states a cause of action for fraudulent transfer against Marks under either §
726.105 or § 726.105, Florida Statutes.
Marks’ argument that Kahama essentially alleges a cause of action for aiding and
abetting a fraudulent transfer is incorrect. The Eleventh Circuit has held that an attorney
can be liable under a fraudulent transfer claim based on facts substantially similar to this
case. See In re Harwell, 628 F.3d 1312 (11th Cir. 2010). In In re Harwell, the attorney
received settlement funds from a judgment-debtor in bankruptcy which he placed into his
trust account. He subsequently disbursed the settlement funds to himself and others with
knowledge of the judgment debt and at the direction of the judgment-debtor. The court
held that the attorney was an “initial transferee” for fraudulent transfer purposes. Id. at
1323. Therefore, under the statute authorizing the bankruptcy trustee to recover the value
of avoided fraudulent transfers from initial transferees, the attorney could be held liable
for $500,000 in settlement funds. See 11 U.S.C. § 550(a)(1).
This case is distinguishable from Feldkamp v. Long Bay Partners, LLC, 2011 WL
693576 (M.D. Fla. Feb.18, 2011) upon which Marks relies in his opposition. In Feldkamp
the court dismissed the fraudulent transfers cause of action because the allegations were
“verbose and confusing,” contained “extended argument,” and failed to name the
“insiders” to whom defendants fraudulently transferred assets. Although the allegations
are verbose and confusing, Plaintiff names the insider to whom HJH transferred the
funds. Specifically Kahama alleges that Marks’ law firm received the settlement funds
into its trust account on behalf of HJH, a portion of which Marks subsequently disbursed
“to himself, the HJH Defendants and/or Old Republic.”

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c. Count VI Slander of Title
In an action for disparagement of title, “the plaintiff must allege and prove the
following elements: (1) A falsehood (2) has been published, or communicated to a third
person (3) when the defendant-publisher knows or reasonably should know that it will
likely result in inducing others not to deal with the plaintiff and (4) in fact, the falsehood
does play a material and substantial part in inducing others not to deal with the plaintiff;
and (5) special damages are proximately caused as a result of the published falsehood.”
McAllister v. Breakers Seville Ass'n, Inc., 981 So. 2d 566, 573 (Fla. 4th DCA 2008).
Marks and Old Republic contend that Kahama may not bring a slander of title
action because it does not hold title to the Property, only a lien interest through the
mortgage. Generally, a plaintiff bringing a slander of title claim should have title to the
property at issue. See e.g. Procacci v. Zacco, 402 So. 2d 425, 426 (Fla. 4th DCA 1981)
(“Slander of title … arises out of injurious falsehood, such as malicious statements
concerning title to one’s property.”) (Emphasis added). The Court sees no reason to
depart from this general proposition. Kahama’s reliance on Maass v. Christensen, 414 So.
2d 255 (Fla. 4th DCA 1982) is unpersuasive. In Maass, the court held that a slander of
title action could be brought against persons who claimed an adverse interest in a
condominium parking space. See id. at 258. However, unlike Kahama, Maas was the title
owner of the condominium unit and parking space at issue. Id.
Kahama has not alleged that it has title to the Property, merely a mortgage interest.
“Under Florida law a mortgage does not convey title or create any interest in real
property.” Southern Colonial Mortg. Co., Inc. v. Medeiros, 347 So. 2d 736, 738 (Fla. 4th
DCA 1977); see also § 697.02, Fla. Stat. (“A mortgage shall be held to be a specific lien
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on the property therein described, and not a conveyance of the legal title or of the right of
possession.”). See also Wertkin v. Wertkin, 763 So. 2d 461, 464 (Fla. 4th DCA 2000)
(“[A] mortgage in Florida does not transfer title, possession, or any other interest other
than a naked lien....”) (internal quotations and citations omitted).
Kahama does not offer any facts to support its allegation that the Quiet Title
Action is false or fraudulent. On the contrary, it attaches the City’s Answer to the Quiet
Title Action which contradicts this allegation. The City’s first affirmative defense states
that “[HJH] does not have title to that portion of the soft sand beach eastward of the 150’
deep lot which would include littoral rights as an incident of ownership.” Further, the
settlement agreement between the City and HJH, also attached to the Second Amended
Complaint states that a “dispute arose as to the development of the Property, whereby the
City claims that [HJH] does not own a portion of the Property….” Therefore, Kahama
failed to meet its obligation to sufficiently plead a claim for slander of title as to Marks
and Old Republic. See Griffin Indus., Inc., 496 F.3d at 1205-06 (“Indeed, when the
exhibits contradict the general and conclusory allegations of the pleading, the exhibits
govern.”).
Kahama admits in its response to the motion that “these facts could be pled more
precisely,” with which the Court agrees. Accordingly, this claim is dismissed without
prejudice to Kahama to amend the Second Amended Complaint to include sufficient
allegations.
d. Count VII Unjust Enrichment
Under Florida law, the elements of a cause of action for unjust enrichment are: (1)
the plaintiff has conferred a benefit on the defendant, who has knowledge thereof; (2) the
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defendant voluntarily accepts and retains the benefit conferred; and (3) the circumstances
are such that it would be inequitable for the defendant to retain the benefit without paying
for it. See Hillman Constr. Corp. v. Wainer, 636 So. 2d 576, 577 (Fla. 4th DCA1994);
Peoples Nat'l Bank of Commerce v. First Union Nat'l Bank of Fla., N.A., 667 So. 2d 876
(Fla. 3d DCA 1996).
Kahama fails to state a cause of action for unjust enrichment in claiming that
Marks and Old Republic were unjustly enriched by the settlement proceeds. The
complaint does not allege that Kahama conferred the benefit to Marks or Old Republic. It
is undisputed that the settlement proceeds came from the City, through its insurer. Since
Kahama did not confer the benefit, it cannot sustain the unjust enrichment claim. See Fito
v. Attorney’s Title Insurance Fund, Inc., 83 So. 3d 755 (Fla. 3d DCA 2011) (Insurers
failed to establish that it conferred a benefit on individuals and entities that received
funds from a lender in a fraudulent mortgage action and therefore could not sustain an
unjust enrichment claim against them).
Further, Kahama did not state a claim for unjust enrichment as to the payment of
the past due taxes on the Property. Assuming that Kahama paid the past due taxes as
alleged in the Second Amended Complaint “at Marks’ personal request,” the benefit was
conferred onto HJH, not Marks or Old Republic. Accordingly, this claim is dismissed
without prejudice to Kahama to amend the Second Amended Complaint to include
sufficient allegations.
e. Count VIII Breach of Contract/Good Faith and Fair Dealing
The elements of a breach of contract action are (1) a valid contract; (2) a material
breach; and (3) damages. Beck v. Lazard Freres & Co., LLC, 175 F.3d 913, 914 (11th
11

Cir. 1999) (citing Abruzzo v. Haller, 603 So. 2d 1338, 1340 (Fla. 1st DCA 1992)).
Further, “[a] breach of the implied covenant of good faith and fair dealing is not an
independent cause of action, but attaches to a specific contractual obligation.” Centurion
Air Cargo, Inc. v. United Parcel Serv. Co., 420 F.3d 1146, 1151 (11th Cir. 2005).
Kahama alleges the following in its Second Amended Complaint:
139. Old Republic breached the insurance policy contact [sic]
by approving HJH’s claim, contrary to the owner’s policy,
resulting in the funding of the quiet title case, which was
abused to create the alleged title dispute with the City and
County to interfere with the enforcement of the Instruments
by Plaintiff and its predecessors, also violating the covenant
of good faith and fair dealing.
140. Old Republic also breached the insurance contract by
wrongfully rejecting and/or failing to investigate Plaintiff’s
claim or HJH’s insurance claim, continuing to fund the
abused, meritless quiet title case in its own self-interest and
concealing the settlement from Plaintiff, also violating the
covenant of good faith and fair dealing.
141. Defendants Old Republic and Marks also breached the
contract because they failed to procure insurance coverage in
Plaintiff’s insurance policy, which they wrote and/or issued as
to the alleged 1917 easement, which was omitted from
Plaintiff’s policy.
Kahama does not state sufficient facts to allege a breach of contract claim against
Marks or Old Republic. The Second Amended Complaint states that the insurance policy
issued by Old Republic “encompasses Defendant Marks, its agent.” It does not properly
allege that Marks is a party to the policy, nor does it allege that Marks issued the title
policy. The Lender’s Title Policy attached to the Second Amended Complaint shows that
Marks’ prior firm, the office of Graham, Builder, Jones, Pratt & Marks, LLP issued the

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title policy. Marks is not a signatory to the insurance policy, nor does he appear as the
insurer or the insured.
Further, Kahama does not identify an express provision of the insurance policy
that Old Republic allegedly breached. Even when taken as true, the allegations are
unclear, inconsistent and contradictory. Kahama alleges that Old Republic’s authorization
of the filing of the Quiet Title Action constituted breach of the Lender’s Title Policy.
However, it states in the general allegations of the complaint, incorporated by reference,
that “[t]he only cure for the policy omission was defeating the claims of the City and
County to the Property in a quiet title action.”
Additionally, Kahama’s generalized assertions that Old Republic should “provide
insurance coverage to Plaintiff” and “promptly resolve any title issues” are not sufficient
to plead a cause of action for breach of good faith and fair dealing. QBE Ins. Corp. v.
Chalfonte Condo. Apartment Ass'n, Inc., 94 So. 3d 541, 548 (Fla. 2012) (“A duty of good
faith must relate to the performance of an express term of the contract and is not an
abstract and independent term of a contract.”). Therefore, Kahama fails to state a cause of
action for breach of contract/good faith and fair dealing as to Marks and Old Republic.
Accordingly, this claim is dismissed without prejudice to Kahama to amend the Second
Amended Complaint to include sufficient allegations.
f. Count IX Breach of Fiduciary Duty
The elements of a claim for breach of fiduciary duty are: (1) the existence of a
fiduciary duty; (2) the breach of that duty; and (3) damage proximately caused by that
breach. Minotty v. Baudo, 42 So. 3d 824, 836 (Fla. 4th DCA 2010) (citing Gracey v.
Eaker, 837 So. 2d 348, 353 (Fla. 2002)).
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The complaint makes conclusory allegations that a confidential relationship
existed between Kahama’s predecessors and Old Republic as its insurer and Marks, as
Old Republic’s agent. No facts in the complaint support the conclusion that Marks had a
fiduciary duty to Kahama or its predecessors. Marks was engaged in an arms-length
transaction when his firm acted as the title insurance agent for Kahama’s predecessors.
Therefore, “there was no duty imposed on either party to act for the benefit or protection
of the other party.” See Schwab v. Hites, 896 F. Supp. 2d 1124, 1134 (M.D. Fla. 2012)
(citing Metcalf v. Leedy, Wheeler & Co., 191 So. 690 (Fla. 1939).
As to Old Republic, there is no fiduciary relationship between an insurer and an
insured under Florida law. See Time Ins. Co., Inc. v. Burger, 712 So. 2d 389, 391 (Fla.
1998) (“[U]nlike the fiduciary relationship existent in a third-party claim, the relationship
between the [insured and insurer] is that of debtor and creditor.”). Therefore, even if
Kahama’s allegations are taken as true, they fail to state a cause of action for breach of
fiduciary duty by Marks or Old Republic. Accordingly, this claim is dismissed without
prejudice, to Kahama to amend the Second Amended Complaint to include sufficient
allegations.
III.

Statute of Limitations

Although the statute of limitations is generally considered an affirmative defense
that the defendant must plead and prove, the Eleventh Circuit has held that the court can
dismiss a complaint under Rule 12(b)(6) for failure to state a claim if it is apparent from
the face of the complaint that the claim is time-barred. See Tello v. Dean Witter Reynolds,
Inc., 410 F.3d 1275, 1288 (11th Cir. 2005). The court does not reach Marks’ argument

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that Kahama’s claims in Counts IV, VI, VII, VIII, and IX are time barred since they
failed to state a claim as a matter of law.
IV.

Marks’ Litigation Privilege Defense

Marks argues that he is entitled to absolute immunity on all of the counts based on
litigation privilege. Generally, litigation privilege is as an affirmative defense against a
claim. See Am. Nat. Title & Escrow of Florida, Inc. v. Guarantee Title & Trust Co., 810
So. 2d 996, 998 (Fla. 4th DCA 2002). However, Florida courts have “made it abundantly
clear that any affirmative defense, including the litigation privilege, may be considered in
resolving a motion to dismiss when ‘the complaint affirmatively and clearly shows the
conclusive applicability of the defense to bar the action.’” Reisman v. Gen. Motors Corp.,
845 F.2d 289, 291 (11th Cir. 1988) (quoting Evans v. Parker, 440 So. 2d 640, 641 (Fla.
1st DCA 1983)). The Court does not reach this issue as to Counts IV, VI, VII, VIII, and
IX since they failed to state a claim as a matter of law. However, as to Count V for
fraudulent transfer, the Court concludes that the Second Amended Complaint does not
“affirmatively and clearly” show the applicability of the litigation privilege as a bar to the
action. However, this conclusion does not preclude Marks from raising this defense at
summary judgment or trial.
Conclusion
Kahama’s Second Amended Complaint does not state a cause of action for abuse
of process, slander of title, unjust enrichment, breach of contract/good faith and fair
dealing, and breach of fiduciary duty against Marks and Old Republic.

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It is therefore ORDERED AND ADJUDGED that:
1.

Defendant Howard S. Marks’ Motion and Memorandum of Law to Dismiss

Complaint (Dkt. #93) is granted in part and denied in part.
2.

Defendant Old Republic National Title Insurance Company’s Motion to

Dismiss (Dkt. # 95) is granted.
3.

Counts IV, VI, VII, VIII, and IX of Plaintiff’s Second Amended Complaint

(Dkt. #72) are hereby dismissed as to Howard S. Marks and Old Republic National Title
Insurance Company without prejudice to Kahama to amend the Second Amended
Complaint to allege sufficient facts.
4.

Kahama may amend the Second Amended Complaint within fourteen (14)

days from the date of this Order.
DONE and ORDERED in Tampa, Florida, this 12th day of September, 2013.

Copies furnished to:
Counsel/Parties of Record
S:\Odd\2011\11-cv-2029 mtd 93.docx

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