WALTON CONSTRUCTION COMPANY LLC v. CORUS BANK NA

Filing 31

ORDER re 25 Motion to Dismiss by Defendants: Count I, III and IV - DENIED; Count II - GRANTED. Signed by SENIOR JUDGE STEPHAN P MICKLE on 7/21/2011. (jws)

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
WALTON CONSTRUCTION
COMPANY, LLC,
Plaintiff,
v.

Case No. 4: 10-CV-137-SPM-WCS

CORUS BANK, et al.,
Defendants.
___________________________/
ORDER ON MOTION TO DISMISS
THIS CAUSE comes before the Court on Defendants’ Motion to Dismiss (doc.
25) Plaintiff’s First Amended Complaint (doc. 18) and Plaintiff’s Response to Motion to
Dismiss (doc. 27). Based on the following reasons, this Court will DENY in part and
GRANT in part Defendants’ Motion to Dismiss.

I. BACKGROUND
The allegations of Plaintiff’s Complaint which Defendants now challenge stem
from the construction of a twenty-three story condominium (the Project) in Panama City
Beach, Florida. The allegations establish the facts as follows. On May 6, 2005, Plaintiff,
Walton Construction Company, LLC, entered into a construction contract (the Contract)

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with the condominium developer, Laketown Wharf, LLC (Wharf), to serve as the general
contractor for the Project. In order to finance the Project, Wharf secured funding from
two sources: (1) a senior lender, Corus Bank (Corus), and (2) a mezzanine lender,
Laketown Funding, LLC (Funding). This mezzanine loan was made pursuant to a
separate loan agreement between Funding and Wharf. As part of this loan agreement,
Plaintiff signed a Consent and Agreement (the Consent) which set out certain obligations
and requirements in the event of default by Wharf.
Plaintiff began construction in May 2005, however, the Project soon ran into
some financial difficulties. In January 2008, Wharf defaulted on its loan to Funding. As
a result, Starwood Capital Group Global I, LLC f/k/a Starwood Capital Group Global,
LLC (Starwood Capital) and Starwood Asset Management, LLC (Starwood Asset),1 who
own, operate and control Funding, took control of the Project from Wharf. The Starwood
Defendants, or their representative, participated in meetings concerning the Project, made
key decisions concerning Plaintiff’s construction, directed the particulars of Plaintiff’s
work on the Project, and was the entity responsible for reviewing, evaluating and
approving Plaintiff’s work.
Although Wharf had defaulted to Funding, it wasn’t until April 2008 that Wharf’s
payments to Plaintiff stopped. Plaintiff notified the Starwood Defendants and Funding of
1

Starwood Capital and Starwood Asset are collectively referred to as the “Starwood Defendants.”

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this non-payment. In September 2008, near completion of the Project, Plaintiff again
notified the Starwood Defendants and Funding of Wharf’s default and threatened to stop
work unless the default was cured. Nevertheless, by the end of September 2008, Plaintiff
had substantially completed construction on the Project.
Around this time, while Plaintiff was in the process of final clean up and
demobilization from the Project, Corus, the senior lender, formally declared Wharf in
default, became the full owner of the Project and filed for chapter 11 bankruptcy. At this
filing, Plaintiff was owed approximately $9 million in work performed and an additional
$9 million for change order work that was secured to complete the Project.

II. STANDARD
The Starwood Defendants and Funding bring this challenge to Plaintiff’s
Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) contending that the
Complaint fails to state a claim upon which relief can be granted. When reviewing a
Rule 12(b)(6) motion, this Court looks to the plausibility standard as set forth in
Twombly and Iqbal. See generally Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007); Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). Pursuant to Rule 8(a)(2), Plaintiff is
only required to plead “a short and plain statement of the claim showing that the pleader

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is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The purpose is to “‘give the defendant fair
notice of what the . . . claim is and the grounds upon which it rests.’” Twombly, 550
U.S. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). In order to survive this
Motion to Dismiss, Plaintiff’s allegations must plead facts sufficient to raise a right of
relief above the speculative level and these facts must suggest that Plaintiff’s claims are
true, not merely consistent. Id. at 555 and 557. Therefore, a claim must not just be
possible, but must be plausible. Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at
556). A well-pleaded complaint should continue even if proving the actual facts are
improbable and recovery seems remote. Twombly, 550 U.S. at 556.
Generally, the Court accepts a plaintiff’s allegations as true. Id. Yet, any
allegations which are merely legal conclusions are not entitled to an assumption of truth.
Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (citing Iqbal,
129 S. Ct. at 1950). After an initial identification of factual allegations, the Court
assumes the truth of the well-pleaded factual allegations and determines if those
allegations plausibly give rise to relief. Iqbal, 129 S. Ct. at 1950. A complaint is
adequate if it contains sufficient factual matter to state a claim to relief that is plausible
on its face. Id. Facial plausibility is established when the Court can draw a reasonable
inference from the factual allegations that a defendant is liable for the misconduct

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alleged. Speaker v. U.S. Dep’t of Health and Human Servs. Centers for Disease Control
and Prevention, 623 F.3d 1371, 1380 (11th Cir. 2010) (citing Iqbal, 129 S. Ct. at 1949).

III. DISCUSSION
A. Liability of the Starwood Defendants
As a preliminary matter, Defendants contend that the Starwood Defendants have
no direct legal relationship with Plaintiff. Defendants then argue that as a result of this
absence of a direct legal relationship with Plaintiff, the Starwood Defendants can only be
held liable if Funding’s liability is imputed to them through the doctrine of piercing the
corporate veil. Because Funding is a limited liability company that is incorporated under
the laws of Delaware, this Court applies Delaware law on the question of piercing the
corporate veil. Int’l Ins. Co. v. Johns, 874 F.2d 1447, 1458 n.19 (11th Cir. 1989);
Chatlos Found., Inc. v. D’Arata, 882 So. 2d 1021, 1023 (Fla. 5th DCA 2004).
Plaintiff and Defendants offer two similar but slightly different standards for
when it is proper to pierce the veil of a corporation and impute liability. However, under
either standard, this Court finds that the facts alleged in the Complaint do not support a
finding which warrants piercing the corporate veil and holding the Starwood Defendants
liable for the actions of Funding. Plaintiff asserts the “alter-ego” theory of liability.

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Under this theory, Plaintiff argues that to prevail, it must show that the two corporations
“operated as a single economic entity such that it would be inequitable . . . to uphold a
legal distinction between them.” Fletcher v. Atex, Inc., 68 F.3d 1451, 1458 (2nd Cir.
1995) (internal citations omitted). According to Fletcher, the plaintiff must “demonstrate
an overall element of injustice or unfairness” under an alter ego theory of liability. Id.
Specifically, Delaware state law requires a showing of “fraud or similar injustice,”2 to
justify piercing the corporate veil under the alter ego theory of liability. Wallace ex rel.
Cencom Cable Income Partners II, Inc. v. Wood, 752 A.2d 1175, 1184 (Del. Ch. 1999)
(citing Outokumpu Eng’g Enter., Inc. v. Kvaerner Enviropower, Inc., 685 A.2d 724, 729
(Del. Super. Ct. 1996)). Further, according to Wallace, this Court must find that Funding
was a corporation that existed for no other purpose than as a vehicle for fraud and that the
corporate structure is a sham. Wallace, 752 A.2d at 1184. Indeed, “[i]t is only the
exceptional case where a court will disregard the corporate form” and pierce the
corporate veil. Sears, Roebuck & Co. v. Sears, PLC, 744 F. Supp. 1297, 1305 (D. Del.
1990).

2

Plaintiff argues that according to Fletcher, no showing of fraud or wrongdoing is required to prevail on the
alter-ego theory of liability. However, Fletcher is a decision made by a Federal Court interpreting Delaware
state law. Wallace and Outokumpu, which are Delaware state court decisions, clearly require a showing of
fraud or other similar injustice. To the extent that these decisions conflict, this Court will follow Outokumpu
and Wallace.
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Both Plaintiff and Defendants agree that the factors relevant in considering
whether to pierce the corporate veil include: (1) whether the subsidiary was adequately
capitalized for the undertaking; (2) whether the corporation was solvent; (3) whether
corporate formalities were observed; (4) whether the dominant shareholder siphoned
corporate funds and (5) whether the corporation functioned as a façade for the dominant
shareholder. Winner Acceptance Corp. v. Return on Capital Corp., No. 3088-VCP, 2008
WL 5352063, at *5 (Del. Ch. Dec. 23, 2008); Fletcher, 68 F.3d at 1458. With regards to
these factors, Plaintiff’s allegations only touch on adequate capitalization and the
observance of corporate formalities.
In support of the claim that Funding was not adequately capitalized, Plaintiff
alleges that Funding had only enough funds to make the initial mezzanine loan to Wharf
and that because of delay and change orders, Funding did not have enough money to
cover outstanding payments to Plaintiff. However, adequate capitalization looks to
whether a corporation has been set up for financial failure. See George Hyman Constr.
Co. v. Gateman, 16 F. Supp. 2d 129, 152 (D. Mass. 1998). In this case, the Starwood
Defendants created Funding for the purpose of lending money to Wharf for this project.
Plaintiff’s allegation that Funding had enough capital to make the initial loan undermines

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its assertion that Funding was not adequately capitalized, as making the mezzanine loan
was the purpose of Funding.
Further, Plaintiff alleges that through the Starwood Defendants’ control,
ownership and operation of Funding, and throughout the period when Funding was
directing Plaintiff’s work on the project, the Starwood Defendants failed to adhere to
corporate formalities. Mere dominion and control of a parent over a subsidiary does not
support the alter-ego theory of liability, Outokumpu, 685 A.2d at 729, however, Plaintiff
makes a number of allegations concerning co-mingled communication, employee
identification and the use of Funding employees to perform the Starwood Defendants’
tasks. Yet Plaintiff’s allegations do not rise to the level of showing that lack of corporate
formalities dissolved the legal distinction between the Starwood Defendants and Funding
enough to warrant piercing the corporate veil.
As noted above, Plaintiff does not address the other factors of alter-ego liability.
In reviewing the factual allegations of Plaintiff’s Complaint, this Court “may infer from
the factual allegations in the complaint ‘obvious alternative explanation[s],’ which
suggest lawful conduct rather than the unlawful conduct the plaintiff would ask the court
to infer.” Am. Dental Ass’n, 605 F.3d at 1290 (quoting Iqbal, 129 S. Ct. at 1951-52
(quoting Twombly, 550 U.S. at 567)). In this case, the allegations have an obvious

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alternative explanation that the Starwood Defendants created Funding as a single purpose
entity to fund the Project. Using the Starwood Defendants own employees to perform
typical tasks does not evidence fraud or a similar injustice and the Starwood Defendants’
conduct did not rise to the level of revealing Funding to be solely a vehicle for fraud.
Therefore, without more persuasive factual allegations showing that the Starwood
Defendants created Funding and used the corporate structure for the perpetration of
fraud, or a similar injustice or wrongdoing, piercing the corporate veil of the Starwood
Defendants is not warranted.
However, this determination is not dispositive of the Starwood Defendants’
liability. The Starwood Defendants can still be held responsible for any of its own
actions it took with respect to the Plaintiff. Thus, although the liability of Funding is not
imputed to the Starwood Defendants, the Starwood Defendants are still potentially liable
in their own right. Therefore, as a threshold question, this Court cannot dismiss
Plaintiff’s Complaint against the Starwood Defendants solely by reason of lack of
imputed liability from Funding’s actions.

B. Counts of Complaint
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As an initial matter, this Court will set out the difference between a contract
implied-in-fact and a contract implied-in-law. A contract implied-in-fact is based on a
tacit promise that is inferred in whole or in part from the parties’ conduct. Gem
Broadcasting, Inc. v. Minker, 763 So. 2d 1149, 1150 (Fla. 4th DCA 2000); Baron v.
Osman, 39 So. 3d 449, 451 (Fla. 5th DCA 2010). The only difference between an
express contract and a contract implied-in-fact is “the manner in which the parties’ assent
is manifested or proven.” Baron, 39 So. 3d at 451 (noting that a contract based on the
parties’ words is an express contract, whereas a contract based on the parties’ conduct is
a contract implied-in-fact). When an express contract exists, the law will not recognize a
contract implied-in-fact, however, such a contract may be inferred when an express
contract fails for lack of proof. Id.; see Quayside Assocs., Ltd. v. Triefler, 506 So. 2d 6,
7 (Fla. 3d DCA 1987); Ocean Commc’ns, Inc. v. Bubeck, 956 So. 2d 1222, 1225 (Fla.
4th DCA 2007).
If no express or implied-in-fact contract exists, then a party may recover under a
quasi-contract theory. Baron, 39 So. 3d at 451 (citing Am. Safety Ins. Serv., Inc. v.
Griggs, 959 So. 2d 322, 331 (Fla. 5th DCA 2007)). A contract implied-in-law is not
based on the assent of the parties, but is rather based on whether a party has been unjustly
enriched. Id.; W.R. Townsend Contracting, Inc. v. Jensen Civil Constr., Inc., 728 So. 2d

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297, 305 (Fla. 1st DCA 1999). An implied-in-law contract requires that Defendants have
received some material benefit. Baron, 39 So. 3d at 451; W.R. Townsend Contracting,
728 So. 2d at 305.

Count I – Quantum Meruit
Defendants first seek to dismiss Count I of Plaintiff’s Complaint on the theory
that the existence of an express contract which covers the same subject matter as the
quantum meruit claim renders the quantum meruit claim unavailable. While it is true that
an express or implied-in-fact contract would ultimately bar Plaintiff’s recovery under an
equitable theory of recovery, see Ocean Commc’ns, 956 So. 2d at 1225; Quayside
Assocs., 506 So. 2d at 7, dismissal at this stage of litigation would be inappropriate
because factual issues still exist concerning the Contract and its application to
Defendants. The Federal Rules of Civil Procedure clearly provide for alternative
pleading. See Fed. R. Civ. P. 8(d)(2)-(d)(3). Under Rule 8(d)(2), a party “may set out 2
or more statements of a claim or defense alternatively,” and pursuant to Rule 8(d)(3) a
party “may state as many separate claims as it has, regardless of consistency.” Id.
Thus, “plaintiff is free to plead both claims,” S. Pan Servs. Co. v. S.B. Ballard
Constr. Co., No. 3:07CV592J33TEM, 2008 WL 3200236, at *4 (M.D. Fla. Aug. 6, 2008)

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(citing Wynfield Inns v. Edward LeRoux Group, Inc., 896 F.2d 483, 488 (11th Cir.
1990)), as it is “perfectly permissible under Florida law for a plaintiff to state claims in
the alternative for recovery under a contract theory or a quasi-contract theory.” Id.
(citing Hazen v. Cobb, 117 So. 853, 857-58 (Fla. 1928)). Further, it is not until after
verdict and before judgment that Plaintiff must elect between remedies. Id. (citing
Wynfield Inns, 896 F.2d at 488)). Accordingly, Plaintiff’s quantum meruit claim is not
barred merely by the existence of the Contract.
Substantively, Defendants contend that Plaintiff has failed to allege facts
necessary to meet the elements of a quantum meruit claim. To adequately plead a
quantum meruit claim: (1) the Plaintiff must have conferred a benefit on the Defendants;
(2) the Defendants must have had knowledge of the benefit and either accepted or
received it; and (3) the circumstances must make it unjust for the Defendants to retain the
benefit without compensation. Baron, 39 So. 3d at 451; W.R. Townsend Contracting,
728 So. 2d at 305. Defendants’ main contention is that Plaintiff has only pleaded legal
conclusions and failed to factually allege that either Funding or the Starwood Defendants
received some benefit. 3 However, Plaintiff does allege that Funding and the Starwood
Defendants received increased return on investment and increased financial interest in the
3

Plaintiff argues that receiving a benefit is not an element for an implied-in-fact contract. However, since
an implied-in-fact contract is not a quasi-contract theory, but a theory of contract based on the parties’
conduct, it is more appropriately addressed in the breach of contract section of this Order.

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Project as the value of the Project increased through Plaintiff’s continued construction.
Moreover, because Plaintiff’s allegations include the Starwood Defendants, this
allegation is made against Starwood directly, and not through the theory of imputed
liability. Thus, this Court will not dismiss Plaintiff’s Count I for quantum meruit on the
basis for failure to state a claim against either Funding or the Starwood Defendants.
Defendants’ final argument for dismissing Count I of Plaintiff’s Complaint is that
because the quantum meruit claim is based on an alleged oral promise which is not in
writing, the oral promise is barred by the Florida Statute of Frauds. See Fla. Stat. §
725.01. However, quantum meruit is a common law restitution remedy and the Statute of
Frauds does not apply to it. Harrison v. Pritchett, 682 So. 2d 650, 652 (Fla. 1st DCA
1996).

Count II – Breach of Contract
In Count II of its Complaint, Plaintiff alleges a breach of contract claim against
both Funding and the Starwood Defendants. However, in order to have a breach of
contract, there must first be a contract, Rollins, Inc. v. Butland, 951 So. 2d 860, 876 (Fla.
2d DCA 2006), and it is essential that the contract create legal obligations, Kislak v.
Kreedian, 95 So. 2d 510, 515 (Fla. 1957). In this case, the Contract to perform

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construction on the Project is between Plaintiff and Wharf. Neither Funding nor the
Starwood Defendants are parties to the Contract and neither has signed the Contract. A
third party is not liable for a contract, whether express or implied, unless that party was
an immediate party to the agreement or has become a party through subsequent
agreement. Jenkins v. City Ice & Fuel Co., 160 So. 215, 217 (Fla. 1935). Therefore, the
only way either Funding or the Starwood Defendants could breach the Contract would be
if they subsequently assumed the rights and obligations of Wharf.
In this case, such a subsequent assumption was contemplated and memorialized in
the Consent. The Consent, signed only by Plaintiff, was an agreement that stated that
Plaintiff would accept the assignment to Funding of Wharf’s obligations and rights if (1)
Wharf defaulted and (2) Funding made an express written assumption of Wharf’s
obligations. The Consent was not a bilateral agreement between Plaintiff and Funding,
but rather a unilateral acknowledgment of the rights Funding could exercise in the event
of Wharf’s default. See e.g. O. Ahlborg & Sons, Inc. v. United States, 74 Fed. Cl. 178,
191 (Fed. Cl. 2006) (finding that the consent agreement did not “establish an implied-infact contract” requiring payment to plaintiff). Funding was not bound to assume Wharf’s
obligations and did not sign the document. See Twin Constr., Inc. v. Boca Raton, 925
F.2d 378, 384 (11th Cir. 1991) (finding that when only a single party signs a document

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that the “document itself does not establish that the non-signatory is required to perform
any obligations contained in the document”). Since Plaintiff fails to allege and
acknowledges that there is no express written assumption by Funding of the obligations
of Wharf, this Count cannot survive Defendants’ Motion to Dismiss against Funding.
Further, Plaintiff’s contention that the Starwood Defendants breached the
Contract is far less plausible as the Starwood Defendants are not contemplated by either
of the documents. Since the Starwood Defendants are not a party to the Contract, they
cannot breach the Contract. Rollins, 951 So. 2d at 876. Therefore, Plaintiff’s Complaint
also fails to survive Defendants’ Motion to Dismiss against the Starwood Defendants.
Plaintiff also contends in its Response to Defendants’ Motion to Dismiss that an
implied-in-fact contract exists between Plaintiff and the Defendants. However, as noted
above, when an express contract exists, the law will not recognize a contract implied-infact. Id.; see Quayside Assocs., 506 So. 2d at 7; Ocean Commc’ns, 956 So. 2d at 1225.
Accordingly, Plaintiff’s Count II is dismissed against both Funding and the Starwood
Defendants.
Count III – Tortious Interference
Count III of Plaintiff’s Complaint alleges that Funding and the Starwood
Defendants engaged in tortious interference of a business relationship. To adequately

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plead tortious interference, Plaintiff must have allegations that plausibly show (1) a
business relationship existed; (2) Defendants knew of this business relationship; (3)
Defendants intentionally and unjustifiably interfered with this business relationship; and
(4) Plaintiff suffered damages as a result of this interference. Tamiami Trail Tours, Inc.
v. Cotton, 463 So. 2d 1126, 1127 (Fla. 1985); Burger King Corp. v. Ashland Equities,
Inc., 161 F. Supp. 2d 1331, 1336 (S.D. Fla. 2001). Of the four elements, Defendants only
challenge the sufficiency of the third – intentional and unjustified interference with a
business relationship. Defendants contend that Plaintiff has not pleaded adequate factual
allegations and, alternatively, that due to the legal relationship between Plaintiff and
Defendants, Plaintiff cannot adequately plead this element.
As to the sufficiency of factual allegations, Plaintiff sets out enough facts, which
if taken as true, show a plausible right to relief. Plaintiff has alleged that both Funding
and the Starwood Defendants were in control of payments to Plaintiff, directed Plaintiff
how it should complete its construction work and close out the Project, and negotiated
and made decisions regarding Plaintiff’s time extension and change order requests.
Plaintiff further alleges that Defendants directed Wharf not to make payments to Plaintiff,
thus causing Wharf to breach the Contract. Plaintiff clearly has alleged factual

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allegations, against both Funding and the Starwood Defendants, which are sufficient to
survive Defendants’ Motion to Dismiss.
In addition, Defendants’ argument that Plaintiff is lawfully unable to plead this
element of tortious interference is also mistaken. Defendants contend that to have
unjustified interference, the interference must be performed by a third party – a stranger
to the business relationship. Ernie Haire Ford, Inc. v. Ford Motor Co., 260 F.3d 1285,
1294 (11th Cir. 2001). Defendants then argue that if Plaintiff’s allegation – that
Defendants have a beneficial or economic interest in or control over the relationship – is
true, then Defendants would not be a third party to the relationship. See Palm Beach
Cnty. Health Care Dist. v. Prof’l Med. Educ., Inc., 13 So. 3d 1090, 1094 (Fla. 4th DCA
2009).
However, a party that is not a stranger to a business relationship may still be
liable for tortious interference when such interference was done for an improper purpose.
Morsani v. Major League Baseball, 663 So. 2d 653, 657 (Fla. 2d DCA 1995). Assuming
that Defendants did have the right to interfere by virtue of an economic interest or control
over the relationship, the Defendants must still exercise that right properly. Yoder v.
Shell Oil Co., 405 So. 2d 743, 744 (Fla. 2d DCA 1981). Plaintiff has raised numerous
factual allegations concerning the conduct of both Funding and the Starwood Defendants

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which would raise the issue of whether Defendants properly exercised a right to interfere.
Plaintiff has alleged that Defendants made promises to pay but also directed Wharf to
stop making payments. Plaintiff further alleges that Defendants continued to direct how
Plaintiff was to finish work on the Project despite not paying. Accordingly, Defendants’
Motion to Dismiss as to Count III is denied.

Count IV – Fraud
Count IV of Plaintiff’s Complaint alleges fraud against the Defendants. In order
to show a right upon which relief can be granted, Plaintiff must sufficiently plead each of
the following elements: (1) Defendants made a misrepresentation of material fact; (2)
Defendants knew the misrepresentation to be false when making it; (3) the
misrepresentation was made by Defendants to induce Plaintiff to act or rely upon it; (4)
Plaintiff did rely upon the misrepresentation; and (5) Plaintiff’s reliance on the
misrepresentation caused harm. Romo v. Amedex Ins. Co., 930 So. 2d 643, 651 (Fla. 3d
DCA 2006); Wadlington v. Cont’l Med. Servs., Inc., 907 So. 2d 631, 632 (Fla. 4th DCA
2005); Gandy v. Trans Word Computer Tech. Grp., 787 So. 2d 116, 118 (Fla. 2d DCA
2001).

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Defendants move to dismiss on the grounds that “[a]n action for fraud generally
may not be predicated on statements of opinion or promises of future action, but rather
must be based on a statement concerning a past or existing fact.” Mejia v. Jurich, 781
So. 2d 1175, 1177 (Fla. 3d DCA 2001). Defendants contend that because Plaintiff’s
allegations concern a promise to pay – a future action – that such promise cannot be used
as the basis on which to base a claim of fraud. However, although Defendants correctly
cite the general rule, “if the plaintiff can demonstrate that the person promising future
action does so with no intention of performing or with a positive intention not to perform,
such a promise may also constitute a fraudulent misrepresentation.” Id.; See Wadlington,
907 So. 2d at 632.
In this case, Plaintiff alleges that Funding and the Starwood Defendants made
promises that if Plaintiff continued construction, then they would pay Plaintiff for its
work, as well as address the additional costs of any work change requests or time
extensions. Plaintiff also alleged that Defendants never negotiated any of these requests,
nor paid Plaintiff for the work it completed on the Project. From these allegations it can
be reasonably inferred, and it is thus facially plausible, that neither Funding nor the
Starwood Defendants intended to pay Plaintiff for its work on the Project. As such,
Defendants’ Motion to Dismiss as to Count IV is denied.

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IV. ORDER
Based on the foregoing reasons, it is hereby ORDERED and ADJUDGED that
1. Defendants’ Motion to Dismiss is DENIED as to Count I, III and IV.
2. Defendants’ Motion to Dismiss is GRANTED as to Count II.

DONE and ORDERED on this 21st day of July, 2011

s/ Stephan P. Mickle
Stephan P. Mickle
Senior United States District Judge

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