CHRISTIAN TENNANT CUSTOM HOMES OF FLORIDA INC v. EBSCO GULF COAST DEVELOPMENT INC et al

Filing 49

ORDER granting in part and denying in part 33 Motion for Summary Judgment and granting in part and denying in part 46 Motion to Strike. Signed by CHIEF JUDGE M CASEY RODGERS on September 15, 2017. (aow)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
CHRISTIAN TENNANT CUSTOM
HOMES OF FLORIDA, INC.,
Plaintiff,
v.

Case No. 3:15-cv-585-MCR-CJK

EBSCO GULF COAST
DEVELOPMENT, INC. and
JAMES COMER,
Defendants.
_______________________________/
ORDER
Plaintiff Christian Tennant Custom Homes of Florida, Inc. (“CTCHFL”) has
sued Defendant James Comer (“Comer”) and Defendant EBSCO Gulf Coast
Development, Inc. (“EBSCO”) for tortious interference with a business relationship
and additionally EBSCO for breach of contract, breach of an implied contract, and
promissory estoppel. 1 ECF No. 25. Pending before the Court is Defendants’ Motion
for Summary Judgment, together with a Motion to Strike paragraphs 13, 19, 20, and
24 of Christian Tennant’s Declaration, ECF Nos. 33, 46.

1

Having carefully

Previously, the Court dismissed with prejudice CTCHFL’s negligence claims and an
additional tortious interference with a business relationship claim against Comer and EBSCO.
ECF No. 28.

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considered the motions, the Court finds that both motions are due to be granted in
part and denied in part. 2
BACKGROUND 3
Plaintiff CTCHFL is Florida Corporation with offices in Walton County,
Florida. ECF No. 47-1 at 1-2. Christian Tennant (“Tennant”) is the President of
CTCHFL. Tennant has 26 years of experience in homebuilding.4 ECF No. 37-1 at
3 (Dep. At 7); ECF No. 47-1 at 1. Defendant EBSCO is the developer of Alys Beach,
a private residential community in Walton County that is governed by a Declaration
of Covenants, Conditions and Restrictions (“Declaration of Covenants”). The

2

Defendants argue in their Reply Memorandum Regarding Motion for Summary Judgment
that the Court may accept Defendants’ factual statements in their Motion for Summary Judgment
as undisputed because Plaintiff has failed to explicitly respond to them as required by Local Rule
56.1(c). While this is true, Plaintiff has disputed many of the factual statements in its Memorandum
of Law in Opposition to Defendants’ Motion for Summary Judgment. In addition, the Court has
discretion under Rule 56(e) of the Federal Rules of Civil Procedure to (1) give CTCHFL an
opportunity to properly support or address a fact, (2) consider facts undisputed for purposes of the
motion, (3) grant summary judgment, or (4) issue any other appropriate order. To the extent
Plaintiff has disputed on the record the material factual statements in Defendants’ Motion for
Summary Judgment, the Court will consider those facts disputed.
3

For the limited purposes of this summary judgment proceeding, the Court views “the
evidence and all reasonable inferences drawn from it in the light most favorable to the nonmoving
party.” Martin v. Brevard Cty. Pub. Sch., 543 F.3d 1261, 1265 (11th Cir. 2008) (internal marks
omitted).
4

For purposes of this order, Christian Tennant’s knowledge of the facts is imputed to
CTCHFL because he is the President of CTCHFL. Similarly, Jason Comer’s knowledge of the
facts is imputed to EBSCO because he served as the Vice President of EBSCO during the years
relevant to this case. See In re Spear & Jackson Securities Litigation, 399 F. Supp. 2d 1350, 1361
(S.D. Fla. 2005) (“knowledge of individuals who exercise substantial control over a corporation's
affairs is properly imputable to the corporation”) (citing American Standard Credit, Inc. v.
National Cement Co., 643 F.2d 248, 270-271 (5th Cir .1981)).

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Declaration of Covenants is intended to govern the rights and obligations between
EBSCO and lot owners in Alys Beach. ECF No. 37-3 at 58. Under the terms of the
Declaration of Covenants, only certain approved builders may be hired by lot owners
to construct homes within the community. Id. at 65. Defendant Jason Comer was
the Vice President of EBSCO from 2005 until October 1, 2012 and remains a
member of EBSCO’s board. ECF No. 34-1 at 2. In 2005, CTCHFL was placed on
the list of approved builders for Alys Beach. Id. at 6; ECF No. 36-2 at 21 (Ex. 6).
EBSCO sent a letter to CTCHFL on October 14, 2005 welcoming CTCHFL to the
approved builders list and including a copy of the Alys Beach Design Code. ECF
36-2 at 21 (Ex. 6). On November 16, 2006, EBSCO sent another letter to CTCHFL
requesting $75 to cover the cost of creating a portfolio binder to display CTCHFL’s
work to prospective clients. ECF 36-2 at 22 (Ex. 7).
According to the Declaration of Tennant, CTCHFL understood that as a
condition of being on the approved builders list, it “was obligated to advertise,
promote and offer residential construction services in Alys Beach in exchange for
its right to remain on the approved builder [list] subject to removal only for cause
related to poor construction performance.” ECF No. 47-1 at 2. By deposition,
Tennant testified that CTCHFL’s inclusion on the approved builders list implied that
it was obligated to provide residential construction services in Alys Beach. ECF 371 at 26 (Dep. at 97). However, the record reflects that neither the October 14, 2005

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nor November 16, 2006 letter from EBSCO to CTCHFL, which welcomed CTCHFL
to the approved builders list, explicitly obligated it to offer residential construction
services in Alys Beach. See ECF 36-2 at 21-22 (Exs. 6, 7).
Tennant further testified that the Declaration of Covenants implies that
CTCHFL would remain on the approved builders list indefinitely. ECF No. 37-1 at
20 (Dep. at 74-76). Although the Declaration of Covenants does not contain
language obligating CTCHFL to “advertise, promote, and offer residential
construction services in Alys Beach”, see ECF No. 37-3, Ex. 44, at the time
CTCHFL was approved, the Declaration of Covenants did contain standards of
approval stating that a builder could be removed from the list for failing to comply
with Alys Beach’s rules. However, Tennant admitted that no representative of
EBSCO promised that CTCHFL would remain on the approved builders list forever
and acknowledged that CTCHFL could also “remove itself from the Approved
Builder List at any time and for any reason.” ECF No. 33 at 4; ECF No. 37-1 at 22,
26 (Dep. at 82, 98).
In December 2010, CTCHFL entered into negotiations with Elton and Leslie
Stephens (collectively, “the Stephenses”) for the construction of a single-family
beach home to be built near Alys Beach (“Stephens’s Home”), but outside the

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technical boundaries of the development.”5 ECF No. 37-2 at 36-37 (Dep. at 253254); ECF No. 37-3, Ex. 38.

Plaintiff’s preliminary communications with Elton

Stephens (“Stephens”) were via email. ECF No. 37-3, Exs. 38, 39. In June 2011,
Stephens informed Comer that he had decided to use CTCHFL as his builder. ECF
No. 35-1 at 3-4.6 On June 16, 2011, Stephens sent an email to Tennant with the
subject “TEAM MEETING” requesting Tennant to attend a meeting at Stephens’s
house on July 12, 2011. ECF No. 37-3, Ex. 40. Gary Justiss, Stephens’s architect,
Alys Protzman, Stephens’s interior designer, and Leslie Stephens, his wife, were
copied on the email and attended the meeting with Tennant. Id.; ECF 37-2 at 39
(Dep. at 263).

On July 13, 2011, Tennant emailed Stephens a contract for

CTCHFL’s construction services. ECF No. 37-2 at 41 (Dep. at 271); ECF No. 37-3,
Exs. 41, 43. Stephens notified Tennant on July 14, 2011 that he would not be able
to review the contract until after August 3rd because he was traveling but hoped
“WE GET THE DAMN PERMIT.” ECF No. 37-3, Ex. 41. As of August 16, 2011,
the Stephenses had not signed the contract, ECF 37-2 at 41 (Dep. at 271), but
nonetheless on that date CTCHFL was involved in preliminary discussions with the
engineers and architects regarding permitting and surveying via email. ECF 37-2 at

5

Elton Stephens is Jason Comer’s uncle.

6

Stephens also states that “Although I was seriously considering hiring Mr. Tennant’s
company to build the beach house, no such final decision had been reached by August 2011. I
did not intend to make any such decision until much later in the process, probably during 2012.”
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37 (Dep. at 256); ECF No. 37-3, Ex. 42. Stephens was copied on the August 16,
2011 email between Tennant, Steve Neace, an engineer at Anderson Engineers P.A.,
Gary Justiss, and Rebecca Lussier regarding timing for DEP processes, construction
drawings, and whether CTCHFL could assist in the process. ECF No. 37-3, Ex. 42.
Comer “was aware during the summer of 2011 that Mr. Stephens was in
discussions with [CTCHFL] to construct his beach house” and that Stephens was
interested in working with a builder that was approved to build in Alys Beach. ECF
No. 34-1 at 8. Around the same time, relationships between EBSCO and Tennant
were strained. ECF 37-1 at 51. Previously, but during the time of CTCHFL’s tenure
on the approved builders list, the town architects at Alys Beach had accused Tennant
and CTCHFL of sharing a vendor’s bids with other vendors, a practice the town
architects considered unethical. Id. at 52. Tennant claims these practices were “bythe-book” and that all he and CTCHFL were doing was “purchasing aggressively.”
Id. at 53. Additionally, during this same period of time, Tennant made statements
criticizing Alys Beach Construction, an affiliate of EBSCO, and its work on a project
in Alys Beach. ECF No. 34-1 at 3, 6; ECF No. 35-1 at 2; ECF No. 37-2 at 22 (Dep.
at 197).
On or around August 24, 2011, CTCHFL was removed from the Alys Beach
approved builders list. ECF No. 37-3, Ex. 17. Prior to informing CTCHFL about its
removal from the list, Comer told Stephens that CTCHFL had been removed. ECF

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No. 34-1 at 8-9. Either that same day or soon thereafter, Stephens notified CTCHFL
that it was no longer his builder “based upon [its] removal from the approved
builders list at Alys Beach.” ECF No. 34-1 at 9; ECF No. 35-1 at 5; ECF No. 37-2
at 41 (Dep. at 273). This was Tennant’s first knowledge that CTCHFL had been
removed from the approved builders list. ECF No. 34-1 at 9; ECF No. 35-1 at 5;
ECF No. 47-1 at 5. Tennant later received a letter from Comer dated August 24,
2011 via email informing him that CTCHFL has been removed from the approved
builders list. ECF No. 37-3, Ex. 17. According to the letter, CTCHFL was removed
for a number of reasons, including “the manner in which [CTCHFL] was competing
for Alys Beach business” and Tennant’s “false comments regarding [EBSCO’s]
business practices and the overall management of the community.” ECF 34-1 at 6.
Generally, Tennant’s fee arrangement for his Alys Beach projects was cost
plus a percentage. ECF No. 37-1 at 12 (Dep. at 41). In Tennant’s experience, the
industry standard markup for a project similar to Stephens’s Home is 15-percent,
comprised of 10-percent overhead and 5-percent profit. ECF No. 37-1 at 16 (Dep.
at 57-58). CTCHFL typically charges 15-percent for similar projects. ECF No. 372 at 43 (Dep. at 278). Tennant is “familiar with the size, design, and level of finishes
that the Stephens were seeking in their preconstruction planning.” ECF No. 47-1 at
5. Tennant is “familiar with the conceptual construction budget that the Stephens
were planning for their project” and “familiar with the costs of construction in and

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around the time frame of the Stephens project, for similar beach house residences in
the general geographic vicinity of the Stephens project.” Id. CTCHFL estimated
Stephens’s Home at 5,000 square feet and a cost of at least $2,000,000. ECF No.
36-2 at 14 (Ex. 4). The draft contract Tennant sent to Stephens on July 13, 2011
contained a cost plus a 14-percent contractor fee method of pricing. ECF No. 47-1
at 9. CTCHFL calculated its lost profits on Stephens’s Home by multiplying a 15percent markup by the minimum $2,000,000 estimated cost of the project, for a total
of $300,000. ECF No. 36-2 at 19 (Ex. 4).
MOTION TO STRIKE
Defendants argue that portions of the Declaration of Christian Tennant
(“Tennant’s Declaration”), ECF No. 43-1, which was filed by CTCHFL in support
of its opposition to Defendants’ Motion for Summary Judgment, ECF No. 33,
contain (1) inadmissible hearsay, (2) statements that contradict Tennant’s deposition
and CTCHFL’s answers to interrogatories, and (3) speculates on matters outside
Tennant’s knowledge.7 ECF No. 46. CTCHFL maintains that the Declaration
should not be stricken because (1) the statements are admissible under various
exclusions and exceptions to the rules against hearsay, (2) there are no

7

Defendants argue that Tennant’s Declaration should be stricken because the original copy,
filed on October 24, 2016, was unsigned. ECF 43-1. Defendants’ argument is moot because
Plaintiff filed a signed copy of Tennant's Declaration with its Memorandum of Law in Opposition
to Defendants’ Motion to Strike on November 14, 2016. ECF 47-1. Therefore, Defendant's motion
to strike Tennant's Declaration as unverified is due to be denied.

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inconsistencies in Tennant’s statements, and (3) Tennant has personal knowledge of
the statements contained in his declaration. ECF No. 47.
I.

Hearsay Objections
Defendants argue that paragraphs 13, 19, and 20 of Tennant’s Declaration in

ruling on Defendants’ Motion for Summary Judgment as the paragraphs contain
inadmissible hearsay and thus the Court should not consider them. ECF No. 46.
Generally, affidavits and deposition testimony used to support or oppose summary
judgment motions must “be made on personal knowledge, [and] shall set forth such
facts as would be admissible in evidence.” Macuba v. Deboer, 193 F.3d 1316, 13221323 (11th Cir. 1999). Inadmissible hearsay “cannot be considered on a motion for
summary judgment” unless the contents of the statements could be “reduced to
admissible evidence at trial.” Id. A statement containing hearsay is “reduced to
admissible evidence at trial” if it falls within a hearsay exception or exclusion under
the Federal Rules of Evidence. 8 Id. at 1323-1324.
Paragraph 13 of Tennant’s Declaration states, “[t]he Stephenses told me that
they had selected CTCHFL as their builder and that all that remained was finalizing
the written memorialization agreement.” ECF 47-1 at 3. This statement constitutes
hearsay as it is Stephens’s out-of-court statement offered to prove that he had

8

Unless otherwise indicated, all references to “Rule” are to the Federal Rules of Evidence.

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selected CTCHFL as the builder for his new home. ECF No. 43. Paragraph 19 of
Tennant’s Declaration states, “Elton Stephens informed me during a telephone call
that as a result of a communication he received from Jason Comer, Elton and his
wife would not honor the agreement to build a new beach house with CTCHFL.”
Id. at 4. This statement also constitutes hearsay as it is Stephens’s out-of-court
statement offered to prove that he decided not to use CTCHFL as a builder after a
discussion with Comer. 9 ECF No. 43 at 10. Paragraph 20 of Tennant’s Declaration
states, “Elton Stephens told me that the communication consisted of Jason Comer
informing him that CTCHFL had been removed from the Alys Beach approved
builders list, and he further indicated that Jason Comer had persuaded him to not go
forward with CTCHFL.” ECF No. 47-1 at 4. Although Comer’s statements to
Stephens do not constitute hearsay, Stephens’s statement to Tennant constitutes
hearsay to the extent it is offered to prove that Comer persuaded Stephens to not use
CTCHFL as a builder. 10

9

However, Stephens states in his declaration, “I made the decision that I did not want to
proceed any further in discussions with Mr. Tennant regarding my beach house because, quite
simply, I had previously decided that I wanted to use a builder that would be approved to build
homes in Alys Beach.”
10 The statements qualify as an opposing party’s statement under Rule 801(d)(2)(A) and
Rule 801(d)(2)(C) because Comer is a defendant in an individual capacity and was also the Vice
President of EBSCO at the time the statement was made. ECF 34-1; ECF 37-2 at 273. Therefore,
his statements to Stephens do not constitute hearsay.

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Under Rule 803(3), statements otherwise inadmissible as hearsay are
admissible to prove “the declarant’s then-existing state of mind (such as motive,
intent, or plan).” Fed. R. Evid. 803(3). However, before a statement can be admitted
under Rule 803(3), a declarant’s state of mind must be at issue. T. Harris Young &
Assocs., Inc. v. Marquette Elec., Inc., 931 F.2d 816, 828 (11th Cir. 1991); see also
U.S. v. Samaniego, 345 F.3d 1280, 1282 (11th Cir. 2003) (“the purpose of the
exclusion from Rule 803(3) admissibility is ‘to narrowly limit those admissible
statements to declarations of condition-‘I'm scared’-and not belief-‘I'm scared
because [someone] threatened me.’’”) (citations omitted). Here, Stephens’s intent
to enter into a contract with CTCHFL is at issue. Paragraph 13 offers evidence that
Stephens intended to hire CTCHFL prior to its removal from the approved builders
list and is admissible for that purpose. See KW Plastics v. U.S. Can Co., 130 F.
Supp. 2d 1297, 1299 (M.D. Ala. 2001) (in an action for tortious interference with a
business relationship, court found that customer’s statements to plaintiff that it
would receive a contract reflected customer’s intent to enter into contract and also
supported the argument that the customer was induced to act differently) (cited in
Metropolitan Life Ins. Co. v. Carter, No. 3:04-CV-668-J32HTS, 2005 WL 2810699,
at n.40 (M.D. Fla. Oct. 27, 2005) (“admitting in tortious interference with business
relationship case, under Rule 803(3), statement by employee that another company’s
official told her that it planned to award her employer a particular contract”)).

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However, paragraphs 19 and 20 of Tennant’s Declaration do not evidence
Stephens’s intent to enter into a contract with CTCHFL. Therefore, paragraphs 19
and 20 are not admissible and will not be considered in ruling on Defendants’ Motion
for Summary Judgment.
II.

Contradictory Statements
Defendants also claim that paragraph 20 of Tennant’s Declaration should be

stricken because it contradicts Tennant’s deposition testimony. As discussed above,
paragraph 20 contains inadmissible hearsay. Therefore, the Court need not decide
whether it contradicts Tennant’s deposition testimony.
III.

Speculative Statements
Defendants seek to strike a portion of Paragraph 24 of Tennant’s Declaration.

Paragraph 24 states, “[n]onetheless, CTCHFL was unable to revive its business
relationship with the Stephens, presumably because of the pressures placed on the
Stephens by Defendants.” Defendants argue that the italicized portion of paragraph
24 is inadmissible because it consists of speculative statements made without
personal knowledge. ECF No. 43-1 at 5 (emphasis added). Plaintiff argues that
personal knowledge may include inferences, and that Tennant’s opinion was based
on his own observations. ECF No. 47 at 11. Alternatively, Plaintiff argues that only
a portion of the statement should be stricken. Id.

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Affidavits and deposition testimony used to support or oppose summary
judgment motions must “be made on personal knowledge, [and] shall set forth such
facts as would be admissible in evidence.” Macuba, 193 F.3d at 1322. Under Rule
602, “[a] witness may testify to a matter only if evidence is introduced sufficient to
support a finding that the witness has personal knowledge on the matter. Evidence
to prove personal knowledge may consist of the witness’s own testimony.” Fed. R.
Evid. 602. The Advisory Committee Notes to Rule 602 state, “personal knowledge
is not an absolute but may consist of what the witness thinks he knows from personal
perception.” 11 Fed. R. Evid. 602 advisory committee’s note to 1972 proposed rule.
In this case, Tennant was not a party to the conversation between Comer and
Stephens. Tennant’s personal knowledge regarding the conversation and alleged
pressure placed on Stephens by Defendants is limited to Stephens’s statements to
Tennant. As discussed above, Stephens’s statements to Tennant are admitted for the
limited purpose of establishing Stephens’s state of mind but are not admitted for the
truth of the statement. Therefore, Tennant lacks the requisite personal knowledge
11

Federal district courts in Florida consider the Advisory Committee Notes accompanying
the Federal Rules of Evidence when interpreting and applying the Rules. See U.S. v. Cooper, No.
15-CR-20042-JLK, 2015 WL 3819566, at *1 (S.D. Fla. June 18, 2015) (looking to the Advisory
Committee Notes to identify the standard to determine the appropriateness of expert testimony);
Regions Bank v. Commonwealth Land Title Ins. Co., No. 11-23257-Civ., 2013 WL 3279939, at *1
(S.D. Fla. June 27, 2013) (notifying parties that parties experts “should be prepared to support any
opinion with the proper foundation as set forth in the advisory committee’s notes to the Federal
Rules of Evidence”); see also Browers v. Norfolk Southern Corp., 300 F. App’x. 700, 701 (11th
Cir. 2008) (not an abuse of discretion for a Federal District Court in Georgia to consider factors
enumerated in the Advisory Committee Notes to the Federal Rules of Evidence).

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regarding any alleged pressures placed by Defendants on Stephens. Therefore, the
portion of paragraph 24 of Tennant’s Declaration which states, “[p]resumably
because of the pressures placed on the Stephens by Defendants” is stricken.
Defendants’ Motion to Strike as to paragraph 24 will be granted and the Court will
not considered the statements in ruling on the Motion for Summary Judgment.
MOTION FOR SUMMARY JUDGMENT
Legal Standard
Summary judgment is proper “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 fact is “material” if, “under the applicable substantive
law, it might affect the outcome of case.” Hickson Corp., v. N. Crossarm Co., 357
F.3d 1256, 1259-60 (11th Cir. 2004) (internal citations omitted). A material dispute
of fact is “genuine” if “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986).
The moving party bears the initial burden of informing the court of the basis
for its motion and identifying the portions of the record which support its position.
Celotex Corp. v. Cartrett, 477 U.S. 317, 323 (1986). The movant can meet this
burden by presenting evidence showing that no genuine disputes of material fact
exist or by demonstrating that the nonmoving party has failed to present evidence in

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support of an essential element of its case on which it bears the ultimate burden of
proof. Id. at 322-23. Once the movant has met its burden, the nonmoving party is
then required “to go beyond the pleadings” and identify competent record evidence
which shows the existence of a genuine, material factual dispute for trial. Id. at 324;
see also Johnson v. Gestamp Ala., LLC, 946 F. Supp. 2d 1180, 1192 (N.D. Ala.
2013) (noting that “[o]nly evidence that is admissible on its face or that can be
reduced to admissible form and that complies with Federal Rule of Civil Procedure
56(e) will be considered in deciding a motion for summary judgment”). In doing so,
and to avoid summary judgment, the non-movant “must do more than simply show
that there is some metaphysical doubt as to the material facts.” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “A mere ‘scintilla’ of
evidence supporting the opposing party's position will not suffice; there must be
enough of a showing that [a] jury could reasonably find for that party.” Walker v.
Darby, 911 F.2d 1573, 1577 (11th Cir.1990).
The parties must support their assertions “that a fact cannot be or is genuinely
disputed” by “citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or declarations,
stipulations [], admissions, interrogatory answers, or other materials” or by
“showing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to

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support the fact.” Fed. R. Civ. P. 56(c)(1)(A) & (B). If the non-movant “fails to
properly address another party’s assertion of fact” as required by Rule 56(c) of the
Federal Rules of Civil Procedure, then the court may “consider the fact undisputed
for purposes of the motion” and “grant summary judgment if the motion and the
supporting materials—including the facts considered undisputed—show that the
movant is entitled to it.” Fed. R. Civ. P. 56(e)(2)&(3).
In determining whether to grant summary judgment, a court must be cognizant
that “[c]redibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of a judge.”
Anderson, 477 U.S. at 255. Accordingly, if there is a conflict between the parties’
allegations or evidence, the nonmoving party’s evidence is presumed to be true. Id.
at 255. The court should “resolve all reasonable doubts about the facts in favor of
the non-movant,” Browning v. Peyton, 918 F.2d 1516, 1520 (11th Cir. 1990), and
draw “all justifiable inferences” in that party’s favor, Everett v. Napper, 833 F.2d
1507, 1510 (11th Cir. 1987). However, “facts must be viewed in the light most
favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those
facts.” Scott v. Harris, 550 U.S. 372, 380 (2007). “When opposing parties tell two
different stories, one of which is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt that version of the facts for
purposes of ruling on a motion for summary judgment.” Id. “The purpose of

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summary judgment is to determine, on the basis of evidence that must be
forthcoming, whether there is any dispute as to an issue of material fact, as
distinguished from a party’s mere allegations.” Morris v. Ross, 663 F.2d 1032, 1034
(11th Cir. 1981), cert. denied, 456 U.S. 1010 (1982). If the nonmoving party’s
claims consist of nothing “more than a repetition of [her] conclusional allegations,”
summary judgment is “not only proper[,] but required.” Id.
I.

Tortious Interference with a Business Relationship (Counts I and II)
In order to establish a prima facie case of tortious interference with a business

relationship, a plaintiff must establish (1) the existence of a business relationship,
(2) knowledge of the business relationship on the part of the defendant, (3) an
intentional and unjustified interference with the relationship by the defendant, and
(4) damage to the plaintiff as a result of the breach of the relationship. Ethan Allen,
Inc. v. Georgetown Manor, Inc., 647 So. 2d 812, 814 (Fla. 1994).
In their Motion for Summary Judgment, Defendants argue they are entitled to
summary judgment on Plaintiff’s tortious interference with a business relationship
claims against EBSCO and Comer on the grounds that (1) there is no evidence of a
business relationship between CTCHFL and Stephens, (2) there is no evidence that
CTCHFL’s removal from the approved builders list caused Stephens to sever his
business relationship with Plaintiff, (3) there is no evidence of an improper purpose,
(4) Plaintiff cannot establish his damages, and (5) the affirmative defenses under the

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economic privilege and economic loss doctrines are applicable. For the reasons
discussed below, Defendants’ Motion for Summary Judgment as to Counts I and II
fail.
A.

Business Relationship

In order to establish a business relationship, the plaintiff must show “an actual
and identifiable understanding or agreement which in all probability would have
been completed if the defendant had not interfered.” Ethan Allen, at 815. Although
an enforceable contract is not required to establish a business relationship, the
business relationship “must afford the plaintiff existing or prospective legal or
contractual rights.” Ethan Allen, at 814 (quoting Register v. Pierce, 530 So. 2d 990,
993 (Fla. 1st DCA 1988)); see Waste Servs. Inc. v. Waste Mgmt., Inc., 283 F. App’x.
702, 707-708 (11th Cir. 2008) (affirming district court’s decision to grant defendantappellees motion for summary judgment where parties’ discussions “never moved
beyond the discussion stage” and “proposed financing agreement was too inchoate
to ever vest [plaintiff-appellant] … with prospective legal or contractual rights”).
“A mere offer to sell, however, does not, by itself, give rise to sufficient legal rights
to support a claim of intentional interference with a business relationship.” Landry
v. Hornstein, 462 So. 2d 844, 846 (Fla. 1985) (quoting Lake Gateway Motor Inn,
Inc. v. Matt’s Sunshine Gift Shops, Inc., 361 So. 2d 769 (Fla. 4th DCA 1978)).

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Defendants argue there is no evidence in the record establishing that CTCHFL
had an understanding with Stephens “which in all probability would have been
completed had the alleged interference not occurred” and that CTCHFL’s
conversations with Stephens “never moved beyond the discussion stage.” ECF No.
33 at 12-13. The Court disagrees.
Viewing the evidence in the light most favorable to CTCHFL, the record
shows that CTCHFL’s discussions with Stephens began in or around December
2010. ECF No. 37-2 at 41-42 (Dep. at 273-274); ECF No. 37-3, Ex. 38. CTCHFL’s
initial contact with Stephens was via email. ECF No. 37-3, Ex. 38. The email
introduced Tennant, indicated that he was interested in working with Stephens in
building his new home, and provided a portfolio of CTCHFL’s work. Id. Stephens
responded on January 4, 2011 stating that he “would welcome the opportunity to
talk to you. I have admired the houses you have done in Seagrove … we can get
together in Feb [sic] or Mar. [sic].” Id. On June 11, 2011, Stephens emailed Tennant
requesting CTCHFL’s references. ECF No. 37-3, Ex. 39. In June 2011, Stephens
told Comer that he had decided to use CTCHFL as his builder. 12 ECF No. 35-1 at

12

In his declaration, Stephens qualifies his statement that he had selected CTCHFL as his
builder by claiming he “did not mean that any final decision had been reached.” ECF 35-1 at 4.
“Instead, I meant to convey that [he] had decided [he] definitely would not use Alys Beach
Construction because [he] did not want to get involved in the process with my family. [He] wanted
to avoid any further discussions with my nephew and others regarding whether [he] would use
Alys Beach Construction for the project.” Id. There are issues of credibility regarding Stephens’s
statements given Stephens’s prior role as Director of an affiliate of EBSCO and his familial
relationship with Comer. It is not the Court’s role to weigh conflicting evidence or to make
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3-4. Additionally, on June 16, 2011, Stephens sent an email to Tennant with the
subject “TEAM MEETING” requesting Tennant to attend a meeting at Stephens’s
house in Birmingham, Alabama on July 12, 2011. ECF No. 37-2 at 37 (Dep. at 255);
ECF No. 37-3, Ex. 40.

Gary Justiss, Stephens’s architect, Alys Protzman,

Stephens’s interior designer, and Leslie Stephens, Stephens’s wife, were copied on
this email. ECF No. 37-2 at 39 (Dep. at 262-263); ECF No. 37-3, Exs. 40, 43.
Tennant attended the “team meeting” in July 2011. ECF No. 37-2 at 39 (Dep. at 263264). During the meeting, Stephens discussed the drawings in detail with the team
members. ECF 37-2 at 37 (Dep. at 255). Stephens also pointed out the features he
liked about his home in Alabama. Id. On July 13, 2011, Tennant emailed Stephens
a contract. ECF No. 37-3, Ex. 41. The following day, Stephens notified Tennant
that he would not be able to review the contract until after August 3rd because he
was traveling and also stated “I JUST HOPE WE GET THE DAMN PERMIT.
THANKS FOR FOLLOWING UP WITH TERRY ANDERSON.” Id. As of August
16, 2011, CTCHFL was involved in preliminary discussions with engineers and
architects regarding permitting and surveying. ECF No. 37-3, Ex. 42.
Approximately one week later, on August 24, 2011, Stephens notified CTCHFL that
CTCHFL was no longer his builder “based upon [its] removal from the approved
credibility determinations for purposes of deciding a motion for summary judgment and all
inferences drawn from the evidence must be viewed in the light most favorable to the non-moving
party. Mize v. Jefferson City Bd. Of Educ., 93 F.3d 739, 742 (11th Cir. 1996).

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builders list at Alys Beach.” ECF No. 35-1 at 5; ECF No. 37-2 at 41 (Dep. at 273).
Viewed in the light most favorable to the Plaintiff, these facts raise a genuine and
material issue regarding whether a business relationship existed between Plaintiff
and Stephens.
B.

Knowledge

Defendants admit knowledge of the discussions between CTCHFL, Tennant,
and Stephens in their Motion for Summary Judgment. “I was aware during the
summer of 2011 that Mr. Stephens was in discussions with [CTCHFL] to construct
his beach house.” ECF No. 34-1 at 8; see also ECF No. 33 at 6-7. Therefore, there
is sufficient evidence in the record to support Defendants’ knowledge of the business
relationship between CTCHFL and Stephens.
C.

Intentional and Unjustified Interference

Defendants argue summary judgment is appropriate because CTCHFL cannot
establish that Defendants acted with an improper purpose. ECF No. 33 at 16.
Defendants claim that their decision to remove CTCHFL from the approved builders
list was for legitimate business reasons related to Alys Beach. Id. Defendants also
claim that they only provided truthful information to Stephens, i.e. that Plaintiff was
removed from the approved builder list, which cannot support a malicious purpose.
Id. at 17.

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To establish an intentional and unjustified interference with a business
relationship, a plaintiff must show that “the defendant acted without justification
…[;] [t]his is a fact-intensive inquiry that requires ‘an examination of the defendant’s
conduct, its motive, and the interests it sought to advance.’” Duty Free Ams., Inc. v.
Estee Lauder Cos., Inc., 797 F.3d 1248, 1280 (2015) (citation omitted). Actions
taken to protect one’s financial and business interests are not actionable so long as
improper means are not employed. Ethyl Corp. v. Batler, 386 So. 2d 1220, 1225
(Fla. 3d DCA 1980). Actions do not constitute an intentional and unjustified
interference if they were taken in lawful protection of a legitimate interest and not
solely out of malice. Id. at 1226. Merely providing truthful information to a third
party does not amount to an intentional and unjustified interference with a business
relationship. Cherestal v. Sears Roebuck & Co., No. 6:12-cv-1681-Orl-28TBS,
2014 WL 644727, at *4 (M.D. Fla. Feb. 19, 2014). “Without direct evidence of
malicious intent, malice can only be shown ‘by proving a series of acts which, in
their context or in light of the totality of the circumstances, are inconsistent with the
premise of a reasonable man pursuing a lawful objective, but rather indicate a plan
or course of conduct motivated by spite, ill-will, or other bad motive.’” Id. (citation
omitted).
In this case, the Stephenses wanted to construct a single-family beach home
on a plot of land located outside the physical boundaries of Alys Beach. ECF No.

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35-1 at 2; ECF No. 47-1 at 3. Neither party has argued that Alys Beach’s approved
builders list was binding or recorded on property located outside the boundaries of
Alys Beach. Comer knew that Stephens was interested in working with a builder
approved to build in Alys Beach. ECF No. 34-1 at 8. Relationships between EBSCO
and Tennant were strained. ECF 37-1 at 51. At some point during CTCHFL’s
inclusion on the approved builders list, the town architects at Alys Beach accused
Tennant and CTCHFL of unethical bidding practices. Id. at 52. Tennant claims
these practices were “by-the-book” and all they were doing is “purchasing
aggressively.” Id. at 53. During this time, Tennant made statements criticizing Alys
Beach Construction, a subsidiary or affiliate of EBSCO, and its work on a project in
Alys Beach. ECF No. 34-1 at 3; ECF No. 35-1 at 2; ECF 37-2 at 22 (Dep. at 197).
On or about August 24, 2011, Comer contacted Stephens to notify him that
EBSCO had removed CTCHFL from the approved builders list. ECF No. 33 at 8;
ECF No. 35-1 at 5. Tennant first learned that CTCHFL was removed from the
approved builders list from Stephens, not Comer or EBSCO. ECF No. 34-1 at 9;
ECF No. 35-1 at 5; ECF No. 47-1 at 4. It is undisputed that Stephens’s decision to
end discussions regarding using CTCHFL as a builder was based upon the removal
of CTCHFL from the approved builders list at Alys Beach. ECF No. 35-1 at 5.
Tennant received a letter from Comer dated August 24, 2011 via email informing
him that CTCHFL had been removed from the approved builders list due to its

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“professional relationship with Alys Beach. … I had hoped that you would change
your tune and be a positive voice for Alys Beach. But instead, things have become
quite bad.” ECF No. 37-3, Ex. 17.
In totality, these facts raise a genuine and material dispute regarding Comer’s
intent when he made the call to Stephens on or about August 24, 2011 to inform him
that CTCHFL had been removed from the approved builders list. Although the
information regarding CTCHFL’s removal from the approved builders list was true,
there is a material question regarding Comer’s purpose in notifying Stephens. A
jury could imply a malicious purpose from the fact that Comer notified Stephens
before he notified CTCHFL. There is no evidence in the record suggesting that the
approved builders list controlled construction on property located outside of Alys
Beach. Comer knew that Stephens wanted a builder who was approved in Alys
Beach and it is not unreasonable to infer that he wanted to contact Stephens before
Stephens finalized any commitment with CTCHFL.

Further, the relationship

between EBSCO and CTCHFL was clearly strained by August 2011 and a jury could
also infer that Comer’s communication to Stephens was motivated by malice, i.e. in
retaliation for CTCHFL’s criticisms of Alys Beach Construction.

Also, the

Declaration of Covenants in effect at the time of CTCHFL’s removal from the
approved builders list stated that failure to comply with constructing regulations
could result in the revocation of the right to build in Alys Beach. ECF No. 37-3 at

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65. Comer states in his declaration that EBSCO’s decision to remove CTCHFL from
the approved builders list was for a number of reasons including the manner in which
CTCHFL was competing for Alys Beach business and Tennant’s persistently
negative and false comments regarding EBSCO’s business practices and the overall
management of the community. ECF 34-1 at 6. These reasons do not appear to
relate to Alys Beach construction regulation compliance.
In addition, there is a genuine issue of material fact as to the discussions
Comer had with Stephens on or around August 24, 2011. In Cherestal, plaintiff
worked at Luxottica, an optical store located within Sears Roebuck & Co.’s store.
2014 WL 644727, at *1. A Sears loss prevention employee observed plaintiff
shopping while she was clocked in at Luxottica. Id. After she purchased items from
Sears and walked out of the store, the loss prevention employee stopped the plaintiff
and examined the items in her possession and compared them to the items listed on
her receipt. Id. He determined that the plaintiff had an extra shirt that was not
accounted for on the receipt and brought her to the loss prevention office. Id. After
the plaintiff’s behavior was investigated, the loss prevention employee told the
plaintiff’s manager that “he would prefer that [plaintiff] no longer worked in that
store.” Id. at *2. Plaintiff sued Sears on the grounds that it tortiously interfered with
her business relationship with Luxottica. Id. at *1. On Sears’ motion for summary
judgment, the court found that although the loss prevention employee’s

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actions of providing Luxottica with truthful information
were justified, his statement that he would prefer that
[plaintiff] not work at the store is another matter. By
giving such an opinion, he was not simply reporting
truthful information. A jury could reasonably determine
that this statement and any other similar statements that
Mr. Cabrera made were unjustified. An issue of material
fact remains regarding justifiability.
Id. at *5. Here, the strained relationship between Comer, EBSCO and Tennant, the
timing of Comer’s conversation with Stephens, and the fact that Stephens’s Home
was located outside Alys Beach are all facts on which a jury reasonably could rely
in finding that Comer’s conversation with Stephens was motivated by an improper
purpose. Therefore, a genuine issue of material fact exists regarding whether
Defendants’ conduct amounted to an intentional and unjustified interference with a
business relationship.
D.

Damages

Defendants argue that Plaintiff’s claims for tortious interference with a
business relationship fail because he cannot establish his damages with a reasonable
degree of certainty. ECF No. 33 at 20-21. Plaintiff claims $300,000 in lost profits
with respect to the Stephens contract, $1,500,000 in lost profits attributable to other
potential customers, $5,000,000 in general lost business and good will, and $100,000
in marketing and other out of pocket expenses. ECF No. 36-2 at 19 (Ex. 4). In
responding to Defendants’ Motion for Summary Judgment, Plaintiff has only offered

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evidence of a business relationship with Stephens. Therefore, only Plaintiff’s lost
profits on the Stephens contract are considered in this Order.
Defendants are correct in nothing that in Florida, “[t]he general rule is that
anticipated profits of a commercial business are too speculative and dependent upon
changing circumstances to warrant a judgment for their loss.” ECF No. 33 at 19
(quoting Levitt-ANSCA Towne Park P’ship v. Smith & Co., Inc., 873 So. 2d 392, 396
(Fla. 4th DCA 2004). However, as long as the damages are substantial, as opposed
to merely nominal, and are not “based on mere speculation or conjecture,” lost
profits suffered as a result of the wrong will not prevent recovery because of
difficulty in proving them or uncertainty as to their amount. James Crystal Licenses,
LLC v. Infinity Radio, Inc., 43 So. 3d 68, 73 (Fla. 4th DCA 2010) (internal marks
omitted). In order to establish lost profits, a plaintiff must point to “some standard,
such as regular market values, or other established data, by reference to which may
be satisfactorily ascertained.” Massey-Ferguson, Inc. v. Santa Rosa Tractor Co.,
Inc., 415 So. 2d 865, 867 (Fla. 1st DCA 1982) (court noted there was not a total
absence of evidence to support lost profits where parties submitted projected sales
figures and financial statements disclosing operating costs of business and profits);
see also Conner v. Atlas Aircraft Corp., 310 So. 2d 352, 354 (Fla. 3d DCA 1975)
(“[i]nability to give the exact or precise amount of damages does not preclude
recovery so long as there is a reasonable basis in the evidence …”).

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Although Defendant is correct that Plaintiff does not have expert testimony
on the issue of damages, Tennant’s lay witness testimony concerning his experience
in the construction industry and lost profits on the Stephens project creates a genuine
issue of material fact regarding damages.13 ECF No. 33 at 20. Tennant has 26 years
experience in homebuilding. ECF No. 37-1 at 3 (Dep. at 7). Tennant’s fee
arrangement for his Alys Beach projects was cost plus a percentage. Id. at 12 (Dep.
at 41). Tennant testified during his deposition that the industry standard markup is
15-percent, comprised of 10-percent overhead and 5-percent profit, and that is his
typical fee for projects similar to Stephens’s build. ECF No. 37-1 at 16 (Dep. at 5758); ECF No. 37-2 at 43 (Dep. at 278). Tennant is “familiar with the size, design,
and level of finishes that the Stephenses were seeking in their preconstruction
planning.” ECF No. 47-1 at 5. Tennant is “familiar with the conceptual construction
budget that the Stephens were planning for their project” and “familiar with the costs
for construction in and around the time frame of the Stephens project, for similar
beach house residences in the general geographic vicinity of the Stephens project.”

13

Under Rule 701, lay witnesses are permitted to testify in the form of an opinion if the
witness’s testimony is (1) based upon his perception, (2) helpful to understanding the witness’s
testimony or in determining a fact in issue, and (3) not based on scientific, technical, or other
specialized knowledge …”. See Geter v. Galardi South Enterprises, Inc., No. 14-21896-CIV, 2015
WL 2155721, at *4 (S.D. Fla. May 7, 2015) (CPA who performed basic arithmetic that did not
require any scientific, technical, or other specialized expertise permitted to testify as a lay witness
as to his computations of damages) Mortgage Now, Inc. v. Bryan Stone, 3:09-CV-80-MCR-CJK,
2014 WL 4478950, at *10 (N.D. Fla. Sept. 20, 2012) (lay witness permitted to testify based on his
experience in the industry regarding damages).

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Id. In its response to Defendants’ interrogatories, CTCHFL states that Stephens’s
Home was estimated at 5,000 square feet, and a cost of at least $2,000,000. ECF No.
36-2 at 2, 14. The draft contract Tennant sent to Stephens on July 13, 2011 contained
a cost plus 14-percent contractor fee method of pricing. ECF No. 47-1 at 9.
CTCHFL calculated its lost profits by multiplying the 15-percent markup by the
minimum $2,000,000 estimated cost, for a total of $300,000. 14 ECF No. 36-2 at 19.
Given Tennant’s experience in the construction industry and his knowledge of
CTCHFL’s manner of profit making, he is able to testify to CTCHFL’s lost profits
on this single contract. Accordingly, Defendants’ request for summary judgment on
damages will be denied.
E.

Economic Privilege Doctrine

Defendants argue that CTCHFL does not have a valid claim for tortious
interference because EBSCO’s decision to remove it from the approved builders list
was done to protect its own economic interest. ECF No. 33 at 21-22. As mentioned
above, actions taken to protect one’s financial and business interests are not
actionable so long as improper means are not employed. Ethyl Corp., 386 So. 2d at

14

The Court notes that Plaintiff’s responses to Defendants’ Interrogatories differ from the
contract sent to Stephens on July 13, 2011, as the markup listed in the contract is 14-percent,
compared to the 15-percent stated in Plaintiff’s responses to Defendants’ Interrogatories. Tennant
acknowledged this discrepancy during his deposition: “Q Your interrogatory answer references a
15 percent markup. Why did you chose the number 15 percent? A That’s my – projects of this size,
that’s my most typical fee. Q That wasn’t the fee set forth in your draft agreement, was it? A I just
noticed that myself. It says 14 percent in there.” ECF No. 37-2 at 43 (Dep. at 278).

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1225. Although removing CTCHFL from the approved builders list is likely within
Defendants’ purview and covered by the economic privilege doctrine,
communicating this decision to Stephens, whose project was outside Alys Beach, in
retaliation for CTCHFL’s criticisms of Alys Beach Construction is not privileged
conduct. As CTCHFL argues, “Defendants have put forth no evidence that would
show how Comer’s telephone call to Stephens protected EBSCO’s financial
interests.” ECF No. 43 at 21. The Court agrees and thus summary judgment on this
ground will be denied as well.
F.

Economic Loss Doctrine

Defendants claim that Counts I and II are barred by the economic loss rule.
As the Court previously found, the economic loss rule is limited to the products
liability context in Florida and does not apply to the relationship between CTCHFL
and Stephens. ECF No. 28 at 8-9 (Order on Mot. to Dismiss). To a large extent,
Defendants have merely copied and pasted their economic loss argument from their
Motion to Dismiss. ECF No. 26 at 8-9; ECF No. 33 at 22-23.
Based on the discussion above, there is a genuine issue of material fact as to
Plaintiff’s claims of intentional interference with a business relationship against
Defendants Comer and EBSCO. Therefore, Defendants’ Motion for Summary
Judgment on Counts I and II will be DENIED.

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II.

Breach of Contract (Count IV)
Plaintiff’s claim for breach of contract against EBSCO fails as a matter of law

because there is no consideration supporting CTCHFL’s alleged contract with
EBSCO. CTCHFL claims that it entered into a contract with EBSCO related to
building outside Alys Beach. ECF No. 43 at 23; ECF No. 47-1 at 2. “Pursuant to
that agreement, CTCHFL was obligated to advertise, promote, and offer residential
construction services in Alys Beach on condition of, and in exchange for, CTCHFL’s
right to be removed from the approved builder list only for cause.” Id. Defendants
argue that CTCHFL’s action for breach of contract fails because (1) there was no
contract, (2) EBSCO did not breach any contract, (3) Plaintiff cannot establish its
damages, and (4) the statute of frauds bars enforcement of the agreement, to the
extent there was an agreement. ECF No. 33 at 25-28.
In order to establish a prima facie case of breach of contract, a plaintiff must
establish (1) offer, (2) acceptance, (3) consideration, and (4) sufficient specification
of the essential terms. St. Joe Corp. v. Mclver, 875 So. 2d 375, 381 (Fla. 2004); W.R.
Townsend Contracting, Inc. v. Jensen Civil Const., Inc., 728 So. 2d 297, 302 (Fla.
1st DCA 1999). “The consideration required to support a contract need not be
money or anything having monetary value, but may consist of either a benefit to the
promisor or a detriment to the promise. It is not necessary that a benefit should
accrue to the person making the promise. It is sufficient that something of value

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flows from the person to whom it is made, or that he suffers some prejudice or
inconvenience and that the promise is the inducement to the transaction.” Lake
Sarasota, Inc. v. Pan. Am. Sur. Co., 140 So. 2d 139, 142 (Fla. 2d DCA 1962).
In this case, EBSCO received no consideration in exchange for allowing
CTCHFL to be included on the approved builders list. Plaintiff states that “pursuant
to the agreement, CTCHFL was obligated to advertise, promote and offer residential
construction services in Alys Beach on condition of, and in exchange for, CTCHFL’s
right to be removed from the approved builder list only for cause.” ECF No. 43 at
23; ECF No. 47-1 at 2. Besides Tennant’s own declaration and deposition testimony,
the record contains no evidence supporting this claim and in fact the record suggests
otherwise.
Tennant claims CTCHFL’s contract with EBSCO was both written and verbal
and that the written contract consisted of letters from EBSCO to CTCHFL dated
October 14, 2005 and November 16, 2006. ECF No. 36-2 at 21-22 (Exs. 6, 7); ECF
No. 37-1 at 24 (Dep. at 91). However, neither of these documents purport to obligate
CTCHFL to do anything besides comply with Alys Beach’s construction
management rules. See ECF No. 36-2 at 21-22 (Exs. 6, 7). The October 14, 2005
letter simply welcomes CTCHFL to the Approved Builders list and includes a copy
of Alys Beach Design Code and the Construction Management Guidelines and
Agreement. See ECF No. 36-2 at 21 (Ex. 6). The Construction Management

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Guidelines and Agreement only contain Alys Beach’s rules for construction and do
not obligate CTCHFL to “advertise, promote, and offer residential construction
services in Alys Beach.” The November 16, 2006 requested $75 from CTCHFL to
cover administrative expenses pertaining to creating a portfolio to display its work
to potential Alys Beach property owners and notifying CTCHFL that it would make
the portfolio available to prospective buyers. See ECF No. 36-2 at 22 (Ex. 7).
Besides the two letters, CTCHFL points to no record evidence in support of its
statement that CTCHFL was obligated to “advertise, promote, and offer residential
construction services in Alys Beach.”
Indeed Tennant is speculating when he claims CTCHFL was obligated to offer
residential construction services in Alys Beach:
Q If you look at paragraph 60, the second amended
complaint, it references a contract entered into, under
which [CTCHFL] was obligated to advertise, promote and
offer residential construction services. Do you see that
allegation in paragraph 60?
A Yes.
…
Q Was this a written or a verbal contract?
A Both.15

15

Tennant testified that he was verbally told by Scott Henson that he was obligated to
“advertise, promote, and offer residential construction services in Alys Beach” during a meeting
he had with Mr. Henson in 2005. ECF No. 37-1 at 24, 25 (Dep. at 90-91, 93).
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Q Where is the written contract? What is the written
contract?
A Well, part of it would be Exhibit 7.
Q Okay. Anything else, other than Exhibit 7?
A Exhibit 6
Q Anything else?
A There may be various emails discussing our approval,
welcoming us to the community.
…
Q What emails?
A It’s just an assumption at the time that there’d be
correspondence with the town architects or whomever
about being approved.
Q When did those e-mails occur? Or let me just ask you
this: Are you juts assuming there were emails, or do you
know there were?
A I’m assuming.
Q Are you able to identify any particular emails as you sit
here today?
A No.
Q Where in Exhibit 6 does it say that [CTCHFL] is
obligated to offer residential construction services in Alys
Beach?
A: It’s – to me, it’s implied in the approval.
…

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Q: Do you contend that Tennant Florida was obligated to
pursue projects within Alys Beach until all new
construction was completed at some point in time in the
future?
A: I suppose a builder could ask to be removed from the
builders’ list, but yes, as long as you’re on the list, I believe
you have an obligation.
Q: An obligation to do what?
A: Perform construction Services.
ECF No. 37-1 at 24, 26 (Dep. at 97) (emphasis added). Exhibits 6 and 7 do not
contain terms obligating CTCHFL to “advertise, promote, and offer residential
construction services in Alys Beach.”

These documents contradict Tennant’s

testimony and demonstrate that his opinion about CTCHFL’s obligation to offer
construction services in Alys Beach is based on mere speculation. 16
Where a party submits only an affidavit in opposition to a motion for summary
judgment and the affidavit is a recital of unsupported allegations and is conclusory
in nature, courts have found that it cannot create a genuine issue of material fact.
See Curl v. International Business Machines Corp., 517 F.2d 212 (5th Cir. 1975)
(court found that where the plaintiff’s affidavits were conclusory in nature and her
16

(“Q: Under what circumstance could Tennant Florida decide it didn’t want to be part of
the list anymore? A If we decided to close operations, if we decided to retire, if we decided we
wanted to – were too busy in other communities. … Q: If Tennant Florida decided it just didn’t
want to do any more business with the Alys Beach community, it could simply ask to be removed
from the approve list, correct? A: I would think so, but I can’t speak for them.”) ECF No. 37-1

at 26 (Dep. at 97-98).

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“proof” was the thinnest circumstantial evidence in contrast to defendant’s
voluminous proof, plaintiff failed to overcome defendant’s motion for summary
judgment); 17 U.S. v. $705,270.00 in U.S. Currency, 820 F. Supp. 1398 (S.D. Fla.
1993) (defendant failed to meet his burden on summary judgment where his affidavit
was conclusory and contradicted by the record); Discovery Sun P’ship, Ltd. V.
Kapsomenakis, No. 95-1068-CIV, 2000 WL 1881203 (S.D. Fla. June 21, 2000)
(where witness testified that he observed defendant let himself fall down a flight a
stairs, defendant’s self-serving affidavit stating that his injuries were not a result of
his own willful misconduct was insufficient to defeat a motion for summary
judgment).

As Tennant’s deposition testimony demonstrates, his self-serving

statements that CTCHFL was obligated to “advertise, promote, and offer residential
construction services in Alys Beach” are conclusory and based on assumptions and
speculation.
The record also shows that CTCHFL could “remove itself from the Approved
Builder List at any time and for any reason.” ECF No. 33 at 4.CTCHFL has not
pointed to any section in the Declaration of Covenants that contains the requirement
that approved builders must “advertise, promote, and offer residential construction
services in Alys Beach.” ECF No. 37-3 at 57 (Ex. 44). CTCHFL has put forward

17

In the Eleventh Circuit, Fifth Circuit cases decide before October 1, 1981 are binding
precedent. Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1213 (11th Cir. 1981).
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no independent evidence that the multiple contracts that it entered into with Alys
Beach property owners benefited anyone besides CTCHFL, Tennant, and the
respective Alys Beach property owners.
In totality, these facts demonstrate that there is no genuine issue that EBSCO
received no consideration in exchange for placing CTCHFL on the approved
builders. In order to avoid summary judgment, CTCHFL “must do more than simply
show that there is some metaphysical doubt as to the material facts.” Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “A mere ‘scintilla’
of evidence supporting the opposing party's position will not suffice; there must be
enough of a showing that [a] jury could reasonably find for that party.” Walker v.
Darby, 911 F.2d 1573, 1577 (11th Cir.1990). The Court notes that the section of
CTCHFL’s memorandum of law arguing that EBSCO breached a contract with
CTCHFL only contains record cites to Tennant’s Declaration and no other evidence.
See ECF No. 43 at 23-25. Therefore, Plaintiff has failed to establish a prima facie
case of breach of contract and Defendant EBSCO’s Motion for Summary Judgment
as to Count IV will be granted.

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III.

Breach of Implied Contract (Count VII)

CTCHFL’s claim for breach of an implied contract, or quantum meruit 18, also
fails for the same reasons its claim for breach of contract fails. To establish breach
of an implied contract, a plaintiff must show that (1) the plaintiff has conferred a
benefit on the defendant, (2) the defendant has knowledge of the benefit, (3) the
defendant has accepted or retained the conferred benefit, and (4) the circumstances
are such that it would be inequitable for the defendant to retain the benefit without
paying fair value for it. Commerce P’ship 8098 Ltd. P’ship v. Equity Contracting
Co., Inc., 695 So. 2d 383, 386 (Fla. 4th DCA 1997). As discussed above, CTCHFL
conferred no benefit to EBSCO as a result of being approved to build in Alys Beach.
Defendant EBSCO states correctly, “[i]f anything, [EBSCO] conferred a benefit on
Plaintiff by permitting it to build in Alys Beach.” ECF No. 33 at 30. Therefore,
Plaintiff has failed to establish a cause of action for breach of an implied contract
and Defendant’s Motion for Summary Judgment as to Count VII will be granted.
IV.

Promissory Estoppel (Count VIII)

CTCHFL argues it has a claim for promissory estoppel because EBSCO
allegedly breached its promise that CTCHFL would remain on the approved

18

“Florida courts have … used [the] terms – ‘quasi contract,’ ‘unjust enrichment,’
‘restitution,’ ‘constructive contract,’ and ‘quantum meruit’” synonymously. See Commerce P’ship
8098 Ltd. P’ship v. Equity Contracting Co., Inc., 695 So. 2d 383, 386 (Fla. 4th DCA 1997)
(citations omitted).

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builder’s list so long as it undertook certain actions and met certain conditions. ECF
No. 43 at 29. To establish a cause of action for promissory estoppel, a plaintiff must
show that (1) the plaintiff detrimentally relied on a promise made by the defendant,
(2) the defendant reasonably should have expected the promise to induce reliance in
the form of action or forbearance on the part of the plaintiff, and (3) injustice can be
avoided only by enforcement of the promise against the defendant. W.R. Townsend
Contracting, 728 So. 2d at 302.
Here, CTCHFL points only to the Declaration of Covenants to argue that
Defendant promised that it would remain on the approved builder’s list. Tennant
testified to the following at his deposition:
Q: Is your testimony that a representative of [EBSCO]
promised you that [CTCHFL] would remain on the
approved builders’ list for a certain period of time?
A: I would say indefinitely, unless there was a problem.
Q: When was that promise made?
A: When they delivered us the – I would say when they
recorded the declarations and covenants.
Q: … Is your contention that the only place where a
promise exists is within the declaration regarding how
long you would remain an approved builder?
A: I would say yes, and also as far as an industry and
national and all reasonable business practices that exist.
…

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Q: So do you contend the Founder made any promises to
you that you would remain on the approved builders’ list
indefinitely?
A: I contend it was implied, given, law as we said in the
covenants.
…
Q: Did any representative of the Founder ever promise you
that Tennant Florida would remain on the approved
builders’ list indefinitely?
A: Yes
Q: Who?
A: They wrote it down in the declarations.
Q: Is there any promise, other than what’s in the
declaration?
A: I guess I’m not a lawyer. To me, like I said, it’s a given.
Did they have to make a special promise? By omission, to
me, that’s a promise that they did not say refer to
timeliness.
…
Q: Was there ever any conversation you had with any
representatives of [EBSCO] where that representative
stated that [CTCHFL] would remain on the approved
builders’ list for any particular period of time?
A: Nobody promised to mention that it would be forever.
ECF No. 37-1 at 20 (Dep. at 74-76). The Declaration of Covenants for the properties
at Alys Beach is intended to govern the rights and obligations between EBSCO and

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lot owners in Alys Beach.19 ECF No. 37-3 at 58. CTCHFL has not claimed that it
owned property in Alys Beach. According to the Declaration of Covenants in the
record,
“Builders. Builders must be approved by the Founder
before building in the Neighborhood. Approval shall be
based on willingness to build in accordance with approved
plans and specifications, quality of past work, client
satisfaction and financial history. Builders must agree to
comply with construction regulations, to dispose of
construction debris properly and to build in accordance
with the approved plans and specifications. Builders may
be required to post a deposit for compliance and damages.
Failure to comply may result in fines, forfeiture of the
deposit and revocation of the right to build in the
Neighborhood.”
ECF No. 37-3 at 65.
Considering the purpose of the Declaration of Covenants, the intent for it to
be “binding upon all owners of property within this Neighborhood”, and Tennant’s
deposition testimony, the Court finds there is no genuine issue of material fact over
whether a promise was made to CTCHFL regarding the duration that it would remain
on the approved builders list. ECF No. 37-3 at 58. Therefore, Plaintiff has failed to

19

The Declaration states, “6.3 Duration. The covenants and restrictions contained in this
Declaration shall run with and bind the Neighborhood and shall inure to the benefit of and be
enforceable by the Founder, the Neighborhood Association and its Board, and all Owners of
property within the Neighborhood, their respective legal representatives, heirs, successors or
assigns for twenty years …”. ECF 37-3 at 70.

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establish a cause of action for promissory estoppel and Defendant EBSCO’s Motion
for Summary Judgment as to Count VIII will be granted.
V.

Injunctive Relief

Plaintiff argues that it is entitled to injunctive relief because EBSCO’s breach
of its promise that CTCHFL would remain an approved builder constitutes a
violation of Plaintiff’s right to enter building contracts within Alys Beach. This
argument fails because Plaintiff had no right to enter into contracts within Alys
Beach.
In order to obtain a permanent injunction, a party must show (1) that he has
prevailed in establishing the violation of a right asserted in his complaint, (2) there
is no adequate remedy at law, and (3) irreparable harm will result if the court does
not order injunctive relief. Thomas v. Bryant, 614 F.3d 1288, 1317 (11th Cir. 2010).
Here, Defendant, as the founder and conveyer of the properties in Alys Beach, has
the right to establish real covenants, including a covenant concerning who is
permitted to build within Alys Beach.20 The Declaration of Covenants states, “[t]he
covenants and restrictions … shall inure to the benefit of and be enforceable by the

20

“A real covenant ‘concerns the property conveyed and the occupation and enjoyment
thereof. … If the performance of the covenant must touch and involve the land or some right or
easement annexed and appurtenant thereto, and tends necessarily to enhance the value of the
property or renders it more convenient and beneficial to the owner, it is a covenant running with
the land’” PGA North II of Fla, LLC v. Division of Admin., State of Fla. Dept. of Transp., 126 So.
3d 1150, 1152 (Fla. 4th DCA 2012) (citations omitted) (emphasis added).

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Founder, the Neighborhood Association and its Board, and all Owners of property
within the Neighborhood …”. ECF No. 37-3 at 70. Plaintiff has neither argued that
it owns property in Alys Beach nor pointed to any authority establishing its right to
build in Alys Beach. Therefore, CTCHFL has no rights under the Declaration of
Covenants.21 CTCHFL has failed to establish the requisite elements for a permanent
injunction and as a result Defendant EBSCO’s Motion for Summary Judgment as to
Plaintiff’s request for injunctive relief will be granted.
Accordingly:
1. Defendants’ Motion to Strike, ECF No. 46, is GRANTED IN PART,
DENIED IN PART.
2. Defendants’ Motion for Summary Judgment, ECF No. 33, is GRANTED IN
PART, DENIED IN PART, as follows:

21

In fact, the Declaration of Covenants does not provide rights to builders but rather
restricts parties contracting rights by limiting who is permitted to build in Alys Beach. “Unless a
person is a party to a contract, that person may not sue … for breach of that contract where the
non-party has received only an incidental or consequential benefit of the contract.” Morgan
Stanley DW Inc. v. Halliday, 873 So. 2d 400, 403 (Fla. 4th DCA 2004) (footnote omitted). Even
assuming Defendant EBSCO breached its promise to retain approved builders unless removed for
cause, Plaintiff has no right to sue for breach of contract relating to the Declaration of Covenants
because it is a party whose benefits, i.e. being permitted to build within Alys Beach, stemming
from the Declaration of Covenants are merely incidental. The purpose of the Declaration of
Covenants is to provide notice to owners, and not the builders, of rules and requirements of Alys
Beach. In fact, the record shows that when CTCHFL was added to the Approved Builder’s list on
October 14, 2005, EBSCO included a “Construction Management Guidelines and Agreement”
document and not the Declaration of Covenants. ECF 36-2, Ex. 6.

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a. DENIED as to Counts I and II (Tortious Interference with a Business
Relationship).
b. GRANTED as to Count IV (Breach of Contract as to EBSCO).
c. GRANTED as to COUNT VII (Breach of an Implied Contract as to
EBSCO).
d. GRANTED as to COUNT VIII (Promissory Estoppel as to EBSCO).
e. GRANTED as to the request for Injunctive Relief.
3. Trial will be scheduled by separate order. Additionally, the parties will be
referred to the magistrate judge for a final settlement conference.
DONE AND ORDERED this 15th day of September, 2017.

M. Casey Rodgers
M. CASEY RODGERS
CHIEF UNITED STATES DISTRICT JUDGE

Case No: 3:15-cv-585-MCR-CJK