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G Barrett LLC, F/K/A Barrett and Gilbert LLC, Gregory Barrett v. the Ginn Company

December 23, 2011

G BARRETT LLC, F/K/A BARRETT AND GILBERT LLC, GREGORY BARRETT, INDIVIDUALLY, DANIEL GILBERT, INDIVIDUALLY , PLAINTIFFS,
v.
THE GINN COMPANY, GINN-LA PINE ISLAND LTD, LLLP, GINN REAL ESTATE COMPANY, LLC, CAMERON, DAVIS & GONZALEZ, PA, SUNTRUST MORTGAGE, INC., DEFENDANTS.



MEMORANDUM OPINION AND ORDER GRANTING SUMMARY JUDGMENT

The Plaintiffs have filed a six-count Amended Complaint against the Defendants alleging violations of Florida's Deceptive and Unfair Trade Practices Act, Fla. Stat. §§501.201, et. seq ("FDUTPA"), and fraud under Florida common law, relating to the Plaintiffs' purchase of a plot of land located in Monteverde, Florida (Doc. 107). Defendants The Ginn Company, Ginn-LA Pine Island Ltd, LLLP, Ginn Real Estate Company, LLC (collectively "The Ginn Defendants"), and SunTrust Mortgage, Inc. ("SunTrust"), each moved to dismiss all claims against them (Docs. 115-116), and the Plaintiffs filed responses in opposition (Docs. 127-128).

As part of their motions, The Ginn Defendants and SunTrust submitted and cited to a copy of the Contract for Lot Purchase entered into between the Plaintiffs and The Ginn Defendants (Doc. 115, Ex. B). To consider the contract, the Court converted the Defendants' motions to dismiss into motions for summary judgment, see Fed. R. Civ. P. 12(d), and afforded each side additional time to file supplemental briefing and/or supporting evidence (Doc. 136).

The Plaintiffs and SunTrust filed supplemental briefs and exhibits (Docs. 137, 142), and Defendant Cameron, Davis & Gonzalez, P.A. was dismissed with prejudice pursuant to a stipulation of the parties (Doc. 133). The Plaintiffs also settled all claims with The Ginn Defendants (Doc. 138), and filed a notice of voluntary dismissal as to them (Doc. 143). Judgments have been entered (Docs. 135, 148), so that SunTrust is the only Defendant remaining. The only dispositive motion left to resolve is that of SunTrust.

The Court finds that the undisputed material facts establish, as a matter of law, that SunTrust is entitled to summary judgment on all claims asserted against it.*fn1

Undisputed Material Facts

The Plaintiffs are all citizens and residents of Illinois. Ginn Development Company (d/b/a The Ginn Company), is a corporation organized under the laws of Georgia, and the parent corporation of Ginn-LA Pine Island Ltd., LLLP, and Ginn Real Estate Company.

The Ginn Defendants are all authorized to do business in Florida. SunTrust is a banking institution incorporated in Georgia and transacting business in various states, including Florida. Cameron is a Florida law firm.

At some point before June 13, 2005, the Plaintiffs were solicited by the Ginn Defendants to purchase property in Monteverde, Lake County, Florida, in a residential real estate development known as "Bella Collina." Bella Collina is a golf community created, marketed, and sold by the Ginn Defendants.

On or about June 13, 2005, the Plaintiffs entered into a Contract for Lot Purchase with the Ginn Defendants to purchase Lot 74, recorded in the Lake County public records as "The Plat of Bella Collina West, Plat Book 54, Pages 1-19." (Doc. 115, Ex. B, ¶ 1). The contract price for the Lot was $739,900.00 (Id., ¶ 3), and the purchase was financed by a Conventional Loan Financing Agreement mortgage between the Plaintiffs and SunTrust in the amount of $587,920.00. (Doc. 142, Ex. B, p. 3). The sale was completed long-distance, with Cameron acting as the agent for both the Plaintiffs and the Ginn Defendants during the closing process. Prior to the sale, SunTrust had the property appraised at $745,000.00, and the Plaintiffs contend that SunTrust was one of the Ginn Defendants' "preferred lenders."

The Contract for Lot Purchase between the Plaintiffs and the Ginn Defendants contains several disclaimers. First, the Contract provides that the Plaintiffs are responsible for obtaining financing to purchase Lot 74, that the Ginn Defendants have no responsibility for obtaining any financing, and that the Ginn Defendants "[have] not represented or warranted that any such financing is or will be available to [the Plaintiffs]." (Doc. 115, Ex. B, ¶ 4). Next, the Contract contains a general disclaimer stating:

Buyer understands and acknowledges that the salespersons representing Seller in connection with this transaction do not have the authority to make any statements, promises or representations in conflict with or in addition to the information contained in this Contract and the Community Documents, and Seller and Buyer hereby specifically disclaim any responsibility for any such statements, promises or representations. By execution of this Contract, Buyer acknowledges that Buyer has not relied upon any such statements, promises or representations, if any, and waives any rights or claims arising from any such statements, promises or representations. (Id., Ex. B, ¶ 14(c)).

Lastly, the Contract contains a merger and integration clause, which states that the Contract and its attached Addenda A-E "constitutes the entire agreement between the Seller and Buyer with respect to the Lot and the Development. This Contract may only be amended in writing executed by both Buyer and Seller." (Id., ¶ 31).

ANY CURRENT OR PRIOR UNDERSTANDINGS, STATEMENTS, REPRESENTATIONS, UNDERTAKINGS, INCENTIVES OR AGREEMENTS, ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, RENDERINGS OR REPRESENTATIONS CONTAINED IN BROCHURES, ADVERTISING, PROMOTIONAL OR SALES MATERIALS AND ANY ORAL OR WRITTEN STATEMENTS OF SALES REPRESENTATIVES, IF NOT SPECIFICALLY EXPRESSED IN THIS CONTRACT OR IN THE COMMUNITY DOCUMENTS, ARE VOID AND HAVE NO FORCE OR EFFECT AND BUYER ACKNOWLEDGES AND AGREES THAT BUYER HAS NOT RELIED ON ANY SUCH ITEMS. BUYER HEREBY WAIVES ANY AND ALL CLAIMS AGAINST SELLER AND BROKER WITH RESPECT TO SUCH ITEMS. (Id.).

The Uniform Residential Loan Application between the Plaintiffs and SunTrust also contains disclaimer language that "neither Lender nor its agents, brokers, insurers, servicers, successors or assigns has made any representation or warranty, express or implied, to me regarding the property or the condition or value of the property." (Doc. 142, Ex. A, p. 3). And the Conventional Loan Financing Agreement provides a similar disclaimer that "SunTrust makes no representation or warranties, express ...


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