Begualg Investment Management Inc. et al v. Four Seasons Hotel Limited et al.

Filing 569

OMNIBUS ORDER on motions in limine. Signed by Judge Robert N. Scola, Jr. on 2/27/2013. (rss)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 10-22153-Civ-SCOLA
BEGUALG INVESTMENT
MANAGEMENT, INC., et al.,
Plaintiffs,
vs.
FOUR SEASONS HOTEL LIMITED, et al.,
Defendants.
_____________________________________/
OMNIBUS ORDER ON MOTIONS IN LIMINE
This case involves allegations of fraud and breach of contract relating to Begualg’s
purchase of several condominium units in Miami, Florida.

The parties have filed several

motions in limine. Specifically before the Court at this time is: (1) Defendants’ Motion in limine
to exclude evidence of statements that contradict written agreements (ECF No. 335 & 343), (2)
Defendants’ Motion in limine to exclude reports from Hotel Information Services, Inc. (ECF No.
344), (3) Begualg’s Motion in limine to exclude references to Amaranta Orozco (ECF No. 412),
and (4) Begualg’s Motion in limine regarding references to accounting matters of El Partido de
la Sociedad Nacionalista (ECF No. 346). For the reasons explained in this Order, all four of the
motions in limine are denied.
LEGAL STANDARDS
A motion in limine is made before a trial has begun for the purpose of excluding or
including certain evidence. 20 Am. Jur. Trials 441 § 2 (1973). In limine rulings are not binding
on a trial court and remain subject to reconsideration during course of trial. Stewart v. Hooters
of Am., Inc., 04-40-T-17, 2007 WL 1752873, at *1 (M.D. Fla. June 18, 2007). The real purpose
of a motion in limine is to give the trial judge notice of the movant’s position so as to avoid the
introduction of damaging evidence, which may irretrievably affect the fairness of the trial. Id.
Motions in limine are disfavored; admissibility questions should be ruled upon as they arise at
trial. Id. “[A] court should exclude evidence in limine only when it is clearly inadmissible on all
potential grounds.” United States v. Gonzalez, 718 F. Supp. 2d 1341, 1345 (S.D. Fla. 2010)
(Middlebrooks, J.)

DISCUSSION
1. Defendants’ Motion In Limine To Exclude Evidence Of Statements That
Contradict Written Agreements Is Denied.
The Defendants want to exclude any statements that contradict the terms of the parties’
subsequent written contracts. In support, the Defendants cite a body of case law that stands for
the general proposition that a person may not reasonably rely on representations that are
expressly contradicted by later written agreements. This argument fails because of the nature of
Begualg’s claims.
The essence of Begualg’s case is that the Defendants, acting in concert, made a number
of false promises in order to induce Begualg into purchasing several condominium units.
Begualg, whose agents only speak Spanish, allegedly relied on Interinvestments to review the
English-only contracts and to interpret them. It is alleged that Interinvestments, in collusion with
the other Defendants, advised Begualg that the contracts were completely consistent with all of
the pre-contractual promises. If Begualg is believed, the contracts were completely inconsistent
in many ways, containing material terms that stated the exact opposite of what the Defendants
had promised Begualg in the negotiations.
As has been previously noted by the Court, Begualg’s allegations here are analogous to
an illustration in the current Restatement of Contracts.
A and B reach an agreement that they will execute a written contract containing
terms on which they have agreed. A prepares a writing containing essential terms
that are different from those agreed upon and induces B to sign it by telling him
that it contains the terms agreed upon and that it is not necessary for him to read
it. . . . B is blind and gets C to read the writing to him, but C, in collusion with A,
reads it wrongly. B’s apparent manifestation of assent is not effective.
Restatement (Second) of Contracts § 163, illustrations 3-4 (1981).
Under these circumstances, the Defendants legal position – that a person may not
reasonably rely on representations that are expressly contradicted by subsequent written
agreements – is not applicable. Parol evidence, namely a Defendants’ contrary statements, are
admissible to establish that a contract was procured by fraud. Nobles v. Citizens Mortg. Corp.,
479 So. 2d 822 (Fla. 2d DCA 1985); accord Gregg v. U.S. Indus., Inc., 715 F.2d 1522, 1531
(11th Cir. 1983) (“[T]he parol evidence rule has no application where the claim is for
fraudulently inducing a party to enter into the writing.”).

2. Defendants’ Motion In Limine To Exclude Reports From Hotel Information
Services, Inc. Is Denied.
Reports containing hotel marketing data, prepared by a non-party vendor, are admissible
through a hearsay exception. In a separate, state-court action, which involved similar allegations
but different plaintiffs, Hotel Information Services, Inc. was hired to covertly contact the Four
Seasons Hotel. The purpose was to determine if Four Seasons was appropriately marketing the
plaintiffs’ condominium units. Hotel Information Services is a company that conducts hotel
market research and analysis. In other words, Hotel Information Services calls hotels using a
pretext to gather information from the hotels and to determine how the hotels respond to various
types of inquiries.
Hotel Information Services made several calls to the Four Seasons, each time pretending
to be a potential customer presenting a scenario for which the plaintiffs’ condominium units
would be a suitable match. In nearly every instance, the Four Seasons reservation staff did not
offer the condominium units as a solution for the customer’s needs. The results of these phone
calls were recorded in a series of reports prepared by Hotel Information Services.
The Defendants argue that the reports are inadmissible because they consist of double
hearsay. The first level being the statements made by the Four Seasons’s employees, the second
being the reports of those statements. The statements made by the Four Seasons’s reservation
staff are not hearsay because they are an admission of a party opponent and being offered against
the Four Seasons. See Fed. R. Evid. 801(d)(2)(D). The reports prepared by Hotel Information
Services are hearsay, but they are admissible under the business record exception.
Records which are “kept in the course of a regularly conducted business activity” are
admissible through a hearsay exception. Fed. R. Evid. 803(6). Under the exception, a report of
an event may be admitted into evidence if it was made, near the same time of the event, from
information transmitted by someone with knowledge. Id. It is also important that “neither the
source of information nor the method or circumstances of preparation indicate a lack of
trustworthiness.” Id.
Hotel Information Services’s reports were made shortly after the phone calls were placed.
These reports are based upon information transmitted by members of the Four Seasons’s
reservation staff who had personal knowledge. The Defendants argue that the reports should be
excluded because they were prepared in anticipation of litigation. The Defendants reason that
this indicates a lack of trustworthiness. Ordinarily, reports “prepared for purposes of litigation”

are not admissible under the business record exception. United States v. Arias-Izquierdo, 449
F.3d 1168, 1183 (11th Cir. 2006). But, the unique nature of Hotel Information Services’s
business model makes this situation different. There is no evidence to suggest that Hotel
Information Services was aware that it was preparing a report to be used in a lawsuit. (See
Rothwell Dep. 8:9-18; 10:6-15, ECF No. 480-1.) Hotel Information Services simply followed its
usual business practice in gathering market data about the Four Seasons. The Hotel Information
Services’s reports are admissible.
3. Begualg’s Motion In Limine To Exclude References To Amaranta Orozco And
Related Matters Is Denied.
Begualg wants to prevent the Defendants from suggesting that Amaranta Orozco had a
romantic affair with Gustavo Riojas. Orozco is listed as a purchaser, along with Riojas, for one
of the condominium units. Begualg claims that the Defendants’ questions about Orozco suggest
that Orozco and Riojas had an inappropriate romantic relationship. Begualg argues that any
evidence about Orozco is irrelevant, or if relevant would be unfairly prejudicial, misleading to
the jury, or would confuse the issues.

The Defendants agree that any suggestion of an

inappropriate romantic relationship between Orozco and Riojas would be improper. But the
Defendants assert that some reference to Orozco is relevant and necessary since she is listed as a
purchaser of one of the condominium units.
Begualg’s primary concern – that evidence of Orozco will be introduced to suggest an
inappropriate romantic relationship – is alleviated by the Defendants’ concession that such a
purpose would be improper. The determination of whether any evidence regarding Orozco may
be admitted will be deferred until trial to allow questions of foundation, relevancy, and prejudice
to be resolved in context. See Stewart v. Hooters of Am., Inc., 04-40-T-17, 2007 WL 1752873, at
*1 (M.D. Fla. June 18, 2007). This motion in limine is denied.
4. Begualg’s Motion In Limine Regarding References To Accounting Matters Of
El Partido de la Sociedad Nacionalista Is Denied.
Evidence regarding a corruption investigation and sanctions by Mexican election
authorities against a political party headed by Begualg’s principals is not clearly inadmissible.
The principals of Begualg, Gustavo Riojas and Bertha Simental, were once high-ranking officials
in a Mexican political party, El Partido de la Sociedad Nacionalista. In 2003, Mexican election
authorities were investigating la Sociedad Nacionalista for alleged improper payments made to
two companies owned by Riojas. In December 2003, shortly after Begualg closed on the

condominium units in this case, Mexican authorities sanctioned and fined la Sociedad
Nacionalista for these improper payments. The fines were for over $4 million (USD).
The Defendants want to offer evidence about the investigation and fines involving la
Sociedad Nacionalista. According to the Defendants, this evidence makes it less probable that
Riojas (and by extension Begualg) was defrauded.

The argument goes, Riojas made the

imprudent decision to purchase the condominium units without first having the contract
translated into Spanish for him, or having an attorney review and explain the contract to him
because la Sociedad Nacionalista was about to sanctioned. The Defendants will ask the jury to
infer that Riojas wanted to invest the money before it was seized by the Mexican authorities.
The evidence of the investigation into and sanctions against la Sociedad Nacionalista is
not clearly inadmissible. This is sort of evidentiary question that should be deferred until trial to
allow questions such as foundation, relevancy, and prejudice to be resolved in context. See
Stewart v. Hooters of Am., Inc., 04-40-T-17, 2007 WL 1752873, at *1 (M.D. Fla. June 18, 2007).
This motion in limine is denied.
CONCLUSION
For the reasons explained above, it is ORDERED and ADJUDGED as follows:
1. Defendants’ Motion in limine to exclude evidence of statements that contradict
written agreements (ECF No. 335 & 343) is DENIED.
2. Defendants’ Motion in limine to exclude reports from Hotel Information Services,
Inc. (ECF No. 344) is DENIED.
3. Plaintiff’s Motion in limine to exclude references to Amaranta Orozco and related
matters (ECF No. 412) is DENIED.
4. Plaintiff’s Motion in limine regarding references to accounting matters of El Partido
de la Sociedad Nacionalista (ECF No. 346) is DENIED.
DONE and ORDERED in chambers, at Miami, Florida, on February 27, 2013.

___________________________________
ROBERT N. SCOLA, JR.
UNITED STATES DISTRICT JUDGE
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