Gottlieb & Gottlieb, P.A. v. Crants

Filing 61

ORDER granting 53 Motion for summary judgment; denying as moot 59 Motion in Limine. See Order for details. The Clerk is directed to enter judgment in favor of Gottlieb & Gottlieb as set forth in the Order and, thereafter, CLOSE this case. Signed by Judge Virginia M. Hernandez Covington on 12/2/2015. (DRW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
GOTTLIEB & GOTTLIEB, P.A.,
Plaintiff,
v.

Case No.: 8:14-cv-895-T-33MAP

DOCTOR R. CRANTS,
Defendant.
_____________________________/
ORDER
This matter comes before the Court on Plaintiff Gottlieb
& Gottlieb, P.A.’s Motion for Summary Judgment (Doc. # 53),
filed on August 31, 2015. Defendant Doctor R. Crants filed a
response on September 30, 2015. (Doc. # 54). Gottlieb &
Gottlieb filed a reply on October 14, 2015. (Doc. # 58). The
Motion for Summary Judgment is ripe for review and, for the
reasons stated herein, the Court grants the Motion.
I.

Background
Gottlieb

&

Gottlieb

is

a

Florida

professional

association; Jerry Gottlieb and Richard Gottlieb are the
shareholders of Gottlieb & Gottlieb. (Doc. # 53 at 21, ¶ 2).
Jerry

and

Richard,

non-parties

to

this

action,

are

shareholders and members of the board of directors for LCS
Corrections, a private prison company, also a non-party. (Id.

1 

at ¶¶ 3-4). On August 1, 2011, the board of directors of LCS
Corrections voted to appoint Crants and two of his associates
to LCS Corrections’ board of directors. (Id. at ¶ 8). On
January 27, 2014, LCS Corrections terminated Crants as a
member of the board of directors (Id.).
During

Crants’

tenure

on

LCS

Corrections’

board

of

directors, 20 promissory notes were issued by Crants, as
maker, to Gottlieb & Gottlieb, as payee. (Doc. # 2 at 42-61).
The table below summarizes the promissory notes.

Exhibit

Date

Principal

Interest
Rate
(annual)

B

8/2/2011

$250,000.00

5%

Crants

Gottlieb & Gottlieb

On Demand

C

1/1/2012

$175,000.00

5%

Crants

Gottlieb & Gottlieb

On Demand

D

2/1/2012

$100,000.00

5%

Crants

Gottlieb & Gottlieb

On Demand

E

3/1/2012

$75,000.00

5%

Crants

Gottlieb & Gottlieb

On Demand

F

4/1/2012

$45,000.00

5%

Crants

Gottlieb & Gottlieb

On Demand

G

5/1/2012

$75,000.00

5%

Crants

Gottlieb & Gottlieb

On Demand

H

6/15/2012

$60,000.00

5%

Crants

Gottlieb & Gottlieb

On Demand

I

7/25/2012

$40,000.00

5%

Crants

Gottlieb & Gottlieb

On Demand

J

9/7/2012

$50,000.00

5%

Crants

Gottlieb & Gottlieb

On Demand

K

11/1/2012

$60,000.00

5%

Crants

Gottlieb & Gottlieb

On Demand

L

12/12/2012

$50,000.00

5%

Crants

Gottlieb & Gottlieb

On Demand

M

12/31/2012

$39,995.89

5%

Crants

Gottlieb & Gottlieb

On Demand

N

2/1/2013

$60,000.00

5%

Crants

Gottlieb & Gottlieb

On Demand

O

3/15/2013

$60,000.00

5%

Crants

Gottlieb & Gottlieb

On Demand

P

4/22/2013

$60,000.00

5%

Crants

Gottlieb & Gottlieb

On Demand

Q

6/10/2013

$60,000.00

5%

Crants

Gottlieb & Gottlieb

On Demand

R

8/1/2013

$60,000.00

5%

Crants

Gottlieb & Gottlieb

On Demand

S

9/25/2013

$60,000.00

5%

Crants

Gottlieb & Gottlieb

On Demand

T

10/21/2013

$60,000.00

5%

Crants

Gottlieb & Gottlieb

On Demand

U

12/12/2013

$60,000.00

5%

Crants

Gottlieb & Gottlieb

On Demand

Maker

Payee

Payable

2 

As to every promissory note, Crants admitted the note is
“a true and genuine copy of a promissory note dated [the
particular date evidenced on that note], in the amount of
[the particular amount evidenced on that note], by defendant
[i.e., Crants], as maker, in favor of Gottlieb & Gottlieb .
. ., as payee.” (Doc. # 35-3 at 53-62). Crants further
admitted

that

each

promissory

note

bears

his

signature.

(Id.). In addition, Crants admitted he executed and delivered
the notes in return for his receipt of the value stated on
the respective notes. (Id.). On January 27, 2014, Jerry
Gottlieb, on behalf of Gottlieb & Gottlieb, demanded payment
of the promissory notes. (Doc. ## 2 at 20; 53 at 21, ¶ 9).
The promissory notes are now overdue. (Doc. # 53 at 21, ¶ 9).
Gottlieb & Gottlieb originally filed this action in the
Sixth Judicial Circuit, in and for Pinellas County, Florida,
on March 24, 2014. (Doc. ## 1, 1-1). Crants thereafter removed
to this Court on the basis of diversity jurisdiction. (Doc.
# 1). In Paragraph 6 of the Complaint, Gottlieb & Gottlieb
alleges that “[a]ll conditions precedent to the institution
and maintenance of this action have been performed or have
occurred.”

(Doc.

#

2

at

¶

6).

Paragraph

6

is

then

reincorporated into each count of the Complaint. (Id. at ¶¶

3 

8, 16, 24, 32, 40, 48, 56, 64, 72, 80, 88, 96, 104, 112, 120,
128, 136, 144, 152, 160).
Crants’

Answer

denied

Paragraph

6

by

stating,

“Mr.

Crants denies the allegation contained in Paragraph 6 of the
Complaint.” (Doc. # 12 at ¶ 6). This denial is reincorporated
into each response to each count. (Id. at ¶¶ 8, 16, 24, 32,
40, 48, 56, 64, 72, 80, 88, 96, 104, 112, 120, 128, 136, 144,
152,

160).

Furthermore,

Crants’

Third

Defense

reads,

“Plaintiff’s claims are barred by the nonperformance of a
condition precedent.” (Id. at 20).
Gottlieb & Gottlieb now moves for summary judgment. For
the reasons that follow, the Court grants the Motion.
II.

Legal Standard
Summary judgment is appropriate “if the movant shows

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). A factual dispute alone is not enough to
defeat a properly pled motion for summary judgment; only the
existence of a genuine issue of material fact will preclude
a grant of summary judgment. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986).
An issue is genuine if the evidence is such that a
reasonable jury could return a verdict for the non-moving

4 

party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742
(11th Cir. 1996) (citing Hairston v. Gainesville Sun Publ’g
Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if
it may affect the outcome of the suit under the governing
law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.
1997). The moving party bears the initial burden of showing
the court, by reference to materials on file, that there are
no genuine issues of material fact that should be decided at
trial. Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256,
1260 (11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986)). “When a moving party has discharged
its burden, the non-moving party must then ‘go beyond the
pleadings,’ and by its own affidavits, or by ‘depositions,
answers

to

interrogatories,

and

admissions

on

file,’

designate specific facts showing that there is a genuine issue
for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,
593-94 (11th Cir. 1995) (citing Celotex, 477 U.S. at 324).
If there is a conflict between the parties’ allegations
or evidence, the non-moving party’s evidence is presumed to
be true and all reasonable inferences must be drawn in the
non-moving party’s favor. Shotz v. City of Plantation, Fla.,
344 F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact
finder evaluating the evidence could draw more than one

5 

inference from the facts, and if that inference introduces a
genuine issue of material fact, the court should not grant
summary judgment. Samples ex rel. Samples v. City of Atlanta,
846 F.2d 1328, 1330 (11th Cir. 1988) (citing Augusta Iron &
Steel Works, Inc. v. Emp’rs Ins. of Wausau, 835 F.2d 855, 856
(11th Cir. 1988)).
consists

of

conclusional

However,

nothing

if

“more

allegations,”

the

than

summary

non-movant’s
a

repetition

judgment

is

response
of
not

his
only

proper, but required. Morris v. Ross, 663 F.2d 1032, 1034
(11th Cir. 1981).
III. Discussion
A.

The Pleadings
1.

Denials under Rule 9(c)

“In responding to a pleading, a party must . . . admit
or deny the allegations asserted against it by an opposing
party.” Fed. R. Civ. P. 8(b)(1)(B). If a party states that it
lacks knowledge or information sufficient to form a belief
about the truth of an allegation, such statement is in effect
a denial. Fed. R. Civ. P. 8(b)(5). Furthermore, “when denying
that a condition precedent has occurred or been performed, a
party must do so with particularity.” Fed. R. Civ. P. 9(c).
If a party disagrees as to whether a condition precedent
has been met, “that party may raise the issue with a specific

6 

and

particular

denial.

If

the

party

does

not

deny

the

satisfaction of the condition[] precedent specifically and
with particularity, however, the allegations are assumed
admitted and cannot later be attacked.” Jackson v. Seaboard
Coast Line R.R. Co., 678 F.2d 992, 1009 (11th Cir. 1982).
Admissions in a pleading bind a party. Cooper v. Meridian
Yachts, Ltd., 575 F.3d 1151, 1177-78 (11th Cir. 2009).
Although

Rules

8

and

9

address

issues

related

to

pleading, Associated Mechanical Contractors, Inc. v. Martin
K. Eby Const. Co., Inc., held that a party may raise the
specific denial of performance of conditions precedent in a
motion for summary judgment. 271 F.3d 1309, 1317 (11th Cir.
2001). But, in Keybank National Assocation v. Hamrick, the
court concluded that a party waived an affirmative defense by
raising the defense in response to a motion for summary
judgment, rather than pleading the affirmative defense in an
answer. 576 Fed. Appx. 884, 888 (11th Cir. 2014). So, a party
may

deny

the

occurrence

of

a

condition

precedent

with

particularity in its answer or motion for summary judgment,
but not in response to a motion for summary judgment.
Courts, however, have excused technical noncompliance
with Rule 9(c)’s requirements. See Myers v. Cen. Fla. Invs.,
592 F.3d 1201, 1224-25 (11th Cir 2010). In Myers, a Title VII

7 

case, the complaint alleged “[p]laintiff received her Notice
of Right to Sue letter . . . within 90 days before filing
this

action,

and

has

otherwise

fulfilled

all

conditions

precedent to institution of this action.” 592 F.3d at 1224.
The

defendants’

denial

stated,

“[d]efendants

deny

the

allegations contained in paragraph 9 . . . .” Id. The court
determined this denial to be “as general as a denial can be”
and, therefore, insufficient under Rule 9(c). Id.
The

defendants’

affirmative

defenses

stated,

“[p]laintiff failed to exhaust all administrative remedies
and thus cannot obtain relief pursuant to Title VII or the
Florida Civil Rights Act, Chapter 760 [and] [p]laintiff did
not exercise her right to sue or to file her EEOC Complaint
within the time prescribed by the statute.” Id. According to
the court, even though denials are distinct from affirmative
defenses, the defendants satisfied the requirements of Rule
9(c)

because

the

averments

“state[d]

which

particular

condition precedent they claim[ed] [plaintiff] failed to
fulfill . . . and the reason for the failure . . . .” Id.
In contrast, the court in Shedrick v. District Board of
Trustees of Miami-Dade College found a generally pled denial
and affirmative defense insufficient. 941 F. Supp. 2d 1348,
1363 (S.D. Fla. 2013). The defendant generally denied the

8 

plaintiff’s allegation that all conditions precedent had
occurred, based on defendant’s lack of knowledge. Id. at 1364.
Pleading lack of knowledge “has the effect of a denial.” Fed.
R. Civ. P. 8(b)(5). The defendant also pled an affirmative
defense that stated “[p]laintiffs have failed to comply with
the conditions precedent to the filing of the subject lawsuit,
and as such, their claims are barred.” Id. The court found
defendant’s general denial and “generic” affirmative defense
insufficient under Rule 9(c), because neither discussed the
particulars of the condition precedent at issue. Id. at 1364.
The court ultimately found that no waiver occurred, but that
was because the defendant later raised the specific denial of
performance of a condition precedent in its own motion for
summary judgment. Id.
Here, Crants did not specifically and particularly plead
his denial. Paragraph 6 of the Complaint alleges that “[a]ll
conditions precedent to the institution and maintenance of
this action have been performed or have occurred.” (Doc. # 2
at ¶ 6). Paragraph 6 is reincorporated into each count. (Id.
at ¶¶ 8, 16, 24, 32, 40, 48, 56, 64, 72, 80, 88, 96, 104,
112, 120, 128, 136, 144, 152, 160). This general allegation
is sufficient under Rule 9(c).

9 

As to Crants’ Answer, Paragraph 6 is where Crants denies
Gottlieb & Gottlieb’s allegation as to condition precedents.
(Doc.

#

12

at

¶

6).

Paragraph

6

of

the

Answer

is

reincorporated into each count. (Id. at ¶¶ 8, 16, 24, 32, 40,
48, 56, 64, 72, 80, 88, 96, 104, 112, 120, 128, 136, 144,
152, 160). Paragraph 6 of the Answer reads: “Mr. Crants denies
the allegations contained in Paragraph 6 of the Complaint.”
(Id. at ¶ 6). This denial is substantively the same as the
denial

in

Myers,

which

read:

“[d]efendants

deny

the

allegations contained in paragraph 9 of the [p]laintiff’s
[s]econd [a]mended [c]omplaint.” Myers, 592 F.3d at 1224.
Thus, as in Myers, where the court determined the denial to
be “as general as a denial can be” and insufficient under
Rule

9(c),

therefore

Crants’

denial

insufficient

is

as

under

general

Rule

as

9(c)’s

can

be

and

particularity

requirement.
Crants’ Third Defense is also too general to excuse his
noncompliance

with

Rule

9(c).

The

Third

Defense

reads,

“Plaintiff’s claims are barred by the nonperformance of a
condition

precedent.”

(Doc.

#

12

at

20).

Unlike

the

affirmative defenses in Myers, which stated the particular
condition precedent at issue and how it failed to occur,
Crants’ Third Defense does not state the particular condition

10 

precedent Gottlieb & Gottlieb purportedly failed to fulfill
or the reason for the failure. Rather, as in Shedrick, where
the

affirmative

defense

was

found

to

be

“generic”

and

insufficient to excuse the defendant’s noncompliance with
Rule 9(c) because it did not discuss the particulars of the
condition

precedent

at

issue,

Crants’

Third

Defense

is

insufficient to excuse his noncompliance with Rule 9(c). The
Third Defense generally avers some condition precedent failed
to occur; to be sure, Crants has not pled what the condition
precedent is or how it failed to occur. Thus, Crants’ general
denial in Paragraph 6, even when read with the generic Third
Defense, is not sufficiently particular under Rule 9(c).
In

addition,

Crants

did

not

avail

himself

of

Rule

15(a)(2) or Rule 16(b)(4), despite having almost a year and
five months to amend his pleading before Gottlieb & Gottlieb
served its motion for summary judgment. Furthermore, Crants
did not plead his denial of the performance of conditions
precedent with particularity in a later-filed motion for
summary

judgment.

Therefore,

Associated

Mechanical

Contractors, which held that a party may raise the specific
denial of performance of conditions precedent in a motion for
summary judgment, 271 F.3d at 1317, offers no relief for
Crants. Cf. Keybank Nat’l Ass’n, 576 Fed. Appx. at 888

11 

(holding that party waived affirmative defense by raising it
in response to a motion for summary judgment, rather than
pleading it in an answer).
In sum, Crants’ denial in Paragraph 6 does not meet the
particularity requirements of Rule 9(c). Further, Crants’
Third Defense does not state the particulars of——or even
which——condition precedent is at issue such that Crants’
noncompliance with Rule 9(c) might be excused. In addition,
Crants did not raise his denial with particularity in a laterfiled motion for summary judgment, nor did Crants seek to
amend his Answer despite having well over a year to do so.
Therefore, under Jackson, Crants is deemed to have admitted
Gottlieb & Gottlieb’s allegation as to condition precedents
and cannot now attack such admission.
2.

Conditional Delivery

Even assuming for the sake of argument that Crants’
archetypally

generic

denial

was

sufficient

under

the

heightened pleading requirements of Rule 9(c), which applies
to denials of conditions precedent, the Court still finds
that summary judgment should be granted in favor of Gottlieb
& Gottlieb.
In diversity actions, a district court looks to state
law to determine whether a certain defense is an affirmative

12 

defense under Rule 8(c). Gen. S. Indus., Inc. v. Shub, 300
Fed. Appx. 723, 728 (11th Cir. 2008) (citing Proctor v. Fluor
Enters., Inc., 494 F.3d 1337, 1350 (11th Cir. 2007)). Florida
law

specifically

recognizes

conditional

delivery

as

an

affirmative defense. Fla. Stat. § 673.1051(2); Cockrell v.
Taylor, 165 So. 887, 889-90 (Fla. 1936); Felkel v. Abernethy,
150 So. 631, 632 (Fla. 1933) (stating “[t]his court has held
that a conditional delivery of a promissory note may be
pleaded in defense of an action on the note”); Kehle v.
Modansky, 696 So. 2d 493, 494 (Fla. 4th DCA 1997) (stating
“conditional delivery [is] affirmative defense[] which must
be raised in the pleadings”); Ketchian v. Concannon, 435 So.
2d 394 (Fla. 5th DCA 1983).
The affirmative defense of conditional delivery goes to
whether a contract was even formed in the first place.
Cockrell, 165 So. at 889-90; Ketchian, 435 So. 2d at 395.
Thus, a party pleading this affirmative defense may avail
itself of an exception to the parole evidence rule that allows
for the admission of oral proof regarding the conditional
delivery. Ketchian, 435 So. 2d at 395.
“An affirmative defense not pleaded in the defendant’s
answer is waived.” Gen. S. Indus., 300 Fed. Appx. at 728
(quoting Troxler v. Ownes-Ill., Inc., 717 F.2d 530, 532 (11th

13 

Cir. 1983)); see also Keybank Nat’l Ass’n, 576 Fed. Appx. at
888 (holding party waived affirmative defense by raising such
defense in response to motion for summary judgment); Latimer
v. Roaring Toyz, Inc., 601 F.3d 1224, 1239 (11th Cir. 2010)
(stating “[f]ailure to plead an affirmative defense generally
results in a waiver of that defense). Conditional delivery is
a defense required to be pled under Rule 8(c). See Mesa
Petroleum Co. v. Coniglio, 629 F.2d 1022, 1028 n.3 (5th Cir.
1980) (citing Fed. R. Civ. P. 8(c));1 cf. Proctor, 494 F.3d
at 1351 (stating “wavier becomes less clear when a party fails
to assert affirmatively some ‘other matter’ that pre-existing
federal case law has not clearly construed as ‘constituting
an avoidance or affirmative defense’ under Rule 8(c)”).
A review of the filings reveals that the parties disagree
as to the nature of Crants’ affirmative defense. Crants argues
Gottlieb & Gottlieb contends that he “failed to plead his
affirmative

defense

of

non-performance

of

a

condition

precedent.” (Doc. # 54 at 5). Gottlieb & Gottlieb argues what
it “contended in its Motion was that defendant failed to

1

In Bonner v. City of Prichard, the Eleventh Circuit adopted
as binding precedent all decisions rendered by the former
Fifth Circuit before the close of business on September 30,
1981. 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).

14 

assert as an affirmative defense the alleged conditional
delivery of the promissory notes at issue.” (Doc. # 58 at 4).
Although Crants pled the defense of nonperformance of a
condition precedent, he did not plead the affirmative defense
of conditional delivery. In addition, as with his general
denial in Paragraph 6, Crants did not raise the affirmative
defense of conditional delivery in a motion for summary
judgment, nor did he seek to amend his Answer. Accordingly,
Crants

waived

the

affirmative

defense

of

conditional

delivery. See Am. Home Assurance Co. v. RAP Trucking, Inc.,
No. 09-80020-CIV, 2010 WL 547479, at *6 (S.D. Fla. Feb. 9,
2010)

(finding

specifically

party

pleading

waived

affirmative

it

a

in

responsive

defense

by

not

pleading,

nor

amending pleading to cure defect).
B.

Promissory Notes

The Court now turns to whether Gottlieb & Gottlieb is
entitled to summary judgment on all 20 Counts, one for each
promissory note, brought in its Complaint. A promissory note
is a negotiable instrument. Snyder v. JP Morgan Bank, Nat’l
Ass’n, 169 So. 3d 1270, 1273 (Fla. 4th DCA 2015) (citing
Mazine v. M & I Bank, 67 So. 3d 1129, 1131 (Fla. 1st DCA
2011)). The holder of a negotiable instrument is entitled to
enforce said instrument. Fla. Stat. § 673.3011(1).

15 

As to each promissory note, Crants admitted the note is
“a true and genuine copy of a promissory note dated [the
particular date evidenced on that note], in the amount of
[the particular amount evidenced on that note], by defendant
[i.e., Crants], as maker, in favor of Gottlieb & Gottlieb .
. ., as payee.” (Doc. # 35-3 at 53-62). Crants further
admitted

that

each

promissory

note

bears

his

signature.

(Id.). In addition, Crants admitted he executed and delivered
the notes in return for his receipt of the value stated on
the respective notes. (Id.). On January 27, 2014, Jerry
Gottlieb, on behalf of Gottlieb & Gottlieb, demanded payment
of the promissory notes. (Doc. ## 2 at 20; 53 at 21, ¶ 9).
The promissory notes are now overdue. (Doc. # 53 at 21, ¶ 9).
In his response to Gottlieb & Gottlieb’s Motion for
Summary Judgment, Crants argues he did not waive the defense
of failure of a condition precedent and that evidence relating
to an oral condition precedent is admissible at trial. (Doc.
# 54). However, as explained, this Court determines Crants is
deemed to have admitted Paragraph 6 of Gottlieb & Gottlieb’s
Complaint and waived the affirmative defense of conditional
delivery. Given that Crants’ response raises no argument
outside the context of the defense of nonperformance of a
condition

precedent,

no

genuine

16 

issue

of

material

fact

exists. Therefore, the Court grants summary judgment in favor
of Gottlieb & Gottlieb.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Gottlieb & Gottlieb, P.A’s Motion for Summary Judgment
(Doc. # 53) is GRANTED.

(2)

Gottlieb & Gottlieb, P.A.’s Motion in limine (Doc. # 59)
is DENIED AS MOOT.

(3)

The Court awards Gottlieb & Gottlieb, P.A. $1,499,995.89
plus the accrued interest on each of the 20 underlying
promissory notes as of the date of the entry of judgment.

(4)

The Clerk is directed to enter judgment in favor of
Gottlieb & Gottlieb, P.A. and thereafter CLOSE this
case.
DONE and ORDERED in Chambers in Tampa, Florida, this 2nd

day of December, 2015.

17