Cadence Bank, N.A. v. 6503 U.S. Highway 301, LLC et al

Filing 195

ORDER: Third-Party Cross-Claim Defendant Morris Esquenazi's Motion to Dismiss Anwar Hassan's Third-Party Cross-Claim 181 is DENIED. Third-Party Counter-Claim Defendant A. Alami Binani's Motion to Dismiss Anwar Hassan's Counter-C laim 188 is DENIED. Morris Esquenazi and A. Alami Binani have until June 27, 2014, to file an Answer to Anwar Hassan's Third-Party Cross-Claim and Counter-Claim, as applicable. Signed by Judge Virginia M. Hernandez Covington on 6/16/2014. (KNC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CADENCE BANK, N.A.,
Plaintiff,
v.

Case No. 8:13-cv-840-T-33TGW

6503 U.S. HIGHWAY 301, LLC,
a Florida Limited Liability
Company, et al.,
Defendants.
_____________________________/

ORDER
This matter comes before the Court pursuant to ThirdParty Cross-Claim Defendant Morris Esquenazi’s Motion to
Dismiss Anwar Hassan’s Third-Party Cross-Claim (Doc. # 181),
filed on May 5, 2014, and Third-Party Counter-Claim Defendant
A. Alami Binani’s Motion to Dismiss Anwar Hassan’s CounterClaim (Doc. # 188), filed on May 15, 2014. Pro se Third-Party
Cross-Claim

Plaintiff

and

Counter-Claim

Plaintiff

Anwar

Hassan filed a response in opposition to these Motions on May
20, 2014 (Doc. # 192), and June 3, 2014 (Doc. # 193),
respectively. For the reasons stated below, the Motions are
denied.
I.

Background

On August 12, 2011, Binani and Amanda Shihada entered
into a Purchase and Sale Agreement (“Agreement”). (Doc. # 174
at 6).

Hassan was a broker associated with the Agreement,

and according to Hassan, he – as a third party beneficiary of
the Agreement - was entitled to a broker’s fee as a result of
procurement of the Agreement, whether or not the closing
contemplated by the Agreement occurred due to a default of
the buyer or the seller. (Id. at 7).
Hassan

submits

that

the

closing

anticipated

by

the

Agreement did not occur (Id. at 15); however, “[i]t is unclear
as to whether it was a buyer breach or a seller breach that
caused the closing to fail.” (Id.). Thus, according to Hassan,
by failing to effectuate the closing, Binani, Shihada, and
Esquenazi breached the Agreement. (Id.).
Hassan filed his Third-Party Counter-Claim and CrossClaims on April 14, 2014, against Esquenazi, Binani, and
Shihada, setting forth the following counts: Declaratory
Judgment (Count I) and Breach of Contract (Count II). (Doc.
# 174). Thereafter, Esquenazi filed his Motion to Dismiss on
May 5, 2014 (Doc. # 181), and Binani filed his Motion to
Dismiss on May 15, 2014 (Doc. # 188). Hassan filed a response
in opposition to each Motion on May 20, 2014 (Doc. # 192),
and June 3, 2014 (Doc. # 193), respectively. This Court has

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reviewed the Motions, and the responses thereto, and is
otherwise fully advised in the premises.
III. Legal Standard
On a motion to dismiss, this Court accepts as true all
of the factual allegations in the complaint and construes
them in the light most favorable to the plaintiff. Jackson v.
Bellsouth Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004).
Further, this Court favors the plaintiff with all reasonable
inferences from the allegations in the complaint. Stephens v.
Dep’t of Health & Human Servs., 901 F.2d 1571, 1573 (11th
Cir. 1990)(“On a motion to dismiss, the facts stated in [the]
complaint and all reasonable inferences therefrom are taken
as true.”). However, the Supreme Court explains that:
While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide
the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action
will not do. Factual allegations must be enough to
raise a right to relief above the speculative
level.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
citations omitted). Further, courts are not “bound to accept
as true a legal conclusion couched as a factual allegation.”
Papasan v. Allain, 478 U.S. 265, 286 (1986).

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In

accordance

with

Twombly,

Federal

Rule

of

Civil

Procedure 8(a) calls “for sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (quoting
Twombly, 550 U.S. at 570). A plausible claim for relief must
include “factual content [that] allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id.
A. Esquenazi’s Motion to Dismiss
Esquenazi contends that Hassan’s Third-Party Cross-Claim
fails to state a claim upon which relief can be granted. (Doc.
# 181 at 2). Specifically, Esquenazi argues that it is unclear
as to what allegations pertain to which Third-Party CrossDefendant

or

Third-Party

Counter-Defendant.

(Id.

at

3).

Furthermore, Esquenazi submits that a conflict exists between
the allegations set forth in the Third-Party Cross-Claim and
an accompanying Exhibit. (Id.).
According to Esquenazi, Hassan’s claims are based upon
the Agreement, attached to the Third-Party Cross-Claim as
Exhibit A, which evidences that it was made by and between
Shihada and Binani, and the only page that purports to have
Esquenazi’s initials and signature is on page 24, “which by
the facsimile marks on the document, was clearly inserted

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into the document.” (Id.). Therefore, Esquenazi asserts that
a conflict exists between the allegations set forth in the
Third-Party Cross-Claim and Exhibit A, and as a result, the
information contained in Exhibit A prevails: the Agreement
was

made

between

Shihada

and

Binani,

not

Esquenazi.

(Id.)(citing Int’l Star Registry of Ill. v. Omnipoint Mktg.,
LLC, 510 F. Supp. 2d 1015 (S.D. Fla. 2007)(“where there is a
conflict between the bare allegations of the complaint and
any

exhibit

attached

to

the

complaint,

the

exhibit

prevails.”)). Thus, Esquenazi posits that Hassan has failed
to state a claim against Esquenazi upon which relief can be
granted.
Upon review of the Third-Party Cross-Claim and taking
all the allegations contained therein as true, this Court
finds that the Third-Party Cross-Claim adequately describes
what claim is asserted against Esquenazi, and a conflict does
not exist between the Third-Party Cross Claim and Exhibit A,
as suggested by Esquenazi. First, paragraph 20 of the ThirdParty

Cross-Claim

specifically

identifies

Esquenazi,

therefore suggesting that count II is asserted against him.
(Doc. # 174 at ¶ 20). Furthermore, the Court finds that a
conflict does not exist between the Third-Party Cross-Claim
and Exhibit A. As indicated by Esquenazi, Exhibit A contains

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Esquenazi’s signature. (Doc. # 181 at 3).

At this juncture,

Esquenazi is requesting this Court to determine the validity
of the signature, when it was inserted into the Agreement,
and its impact on the Agreement to determine that a conflict
exists.

This Court will not engage in such factual analysis

at this stage in the proceedings. Therefore, for the reasons
stated above, Esquenazi’s Motion is denied.
B. Binani’s Motion to Dismiss
Binani

contends

that

Hassan

is

not

a

third-party

beneficiary to the Agreement and is thus not entitled to
damages. (Doc. # 188 at 3). Under Florida law, a cause of
action
consists

for

breach

of

the

of

third-party

following

beneficiary

elements:

(1)

contract

existence

of

a

contract; (2) the clear or manifest intent of the contracting
parties that the contract primarily and directly benefit the
third party; (3) breach of the contract by a contracting
party; and (4) damages to the third party resulting from the
breach. Biscayne Inv. Group, Ltd. v. Guarantee Mgmt. Servs.,
Inc., 903 So. 2d 251 (Fla. 3d DCA 2005). A third party is
considered

a

beneficiary

to

the

contract

only

if

the

contracting parties intend to primarily and directly benefit
the third party. Cigna Fire Underwriters Ins. Co. v. Leonard,
645 So. 2d 28 (Fla. 4th DCA 1994).

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Binani’s argument rests on the contention that “Hassan
does not allege, nor does the contract specifically state
that the parties to the contract, Mr. Binani and Amanda
Shihada, clearly intended for Mr. Hassan to be the primary
and direct beneficiary of the contract. Mr. Hassan alleges,
as the contract states, that any benefit he would derive from
the contract is merely incidental or consequential.” (Doc. #
188 at 3). Therefore, the Court will limit its inquiry to
addressing this issue.
Upon

review

of

the

Third-Party

Counter-Claim,

and

liberally construing the allegations to account for Hassan’s
pro se status, the Court finds that Hassan has sufficiently
established a claim against Binani to survive a 12(b)(6)
motion to dismiss. In the Third-Party Counter-Claim, Hassan
states “Hassan was a third party beneficiary of the contract,
entitled

to

a

broker’s

commission

as

a

result

of

the

procurement of the Agreement.” (Doc. # 174 at 8)(emphasis
added). Although the allegation does not explicitly state
that Binani and Shihada had “clear or manifest intent” that
the Agreement directly benefit Hassan, it does not need to.
It must only provide “sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its
face,’” and give notice to Binani of the alleged claim against

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him, which this Court finds that Hassan has done. Further
inquiry into the intent of the parties is improper at this
stage

of

the

proceedings.

Therefore,

Binani’s

Motion

is

denied.
Accordingly, it is hereby
ORDERED, ADJUDGED, and DECREED:
(1)

Third-Party

Cross-Claim

Defendant

Morris

Esquenazi’s

Motion to Dismiss Anwar Hassan’s Third-Party Cross-Claim
(Doc. # 181) is DENIED.
(2)

Third-Party Counter-Claim Defendant A. Alami Binani’s
Motion to Dismiss Anwar Hassan’s Counter-Claim (Doc. #
188) is DENIED.

(3)

Morris Esquenazi and A. Alami Binani have until June 27,
2014, to file an Answer to Anwar Hassan’s Third-Party
Cross-Claim and Counter-Claim, as applicable.
DONE and ORDERED in Chambers in Tampa, Florida, this

16th day of June, 2014.

Copies: All Counsel and Parties of Record

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