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Deangelis v. Strayer Electric, LLC

United States District Court, M.D. Florida, Orlando Division

August 22, 2017

GREGORY DEANGELIS, Plaintiff,
v.
STRAYER ELECTRIC, LLC, Defendant.

          ORDER

          ROY B. DALTON, United States District Judge

         This cause is before the Court on consideration of the following: (1) Defendant's Motion for Partial Summary Judgment and Incorporated Memorandum of Law (Doc. 29), filed May 1, 2017; (2) Response in Opposition to Defendant's Motion for Partial Summary Judgment and Incorporated Memorandum of Law (Doc. 35), filed May 31, 2017; (3) Defendant's Reply to Plaintiff's Response in Opposition to Defendant's Motion for Partial Summary Judgment and Incorporated Memorandum of Law (Doc. 39), filed June 14, 2017; (4) Plaintiff's Motion for Summary Judgment (Doc. 30), filed May 1, 2017; (5) Defendant's Amended Memorandum of Law in Opposition to Plaintiff's Motion for Summary Judgment and Incorporated Memorandum of Law (Doc. 37), filed June 8, 2017; Plaintiff's Reply to Defendant's Memorandum of Law in Opposition to Plaintiff's Motion for Summary Judgment (Doc. 41), filed June 22, 2017; Defendant's Motion to Strike Affidavit in Support to Plaintiff[']s Motion for Summary Judgment and Incorporated Memorandum (Doc. 36), filed June 2, 2017; and Response in Opposition to Defendant's Motion to Strike Affidavit in Support of Plaintiff's Motion for Summary Judgment and Incorporated Memorandum of Law (Doc. 40), filed June 16, 2017.

         Background

         I. The Parties

         Plaintiff Gregory Deangelis (“Plaintiff”) is the owner and managing member of Fort Knight, LLC (“Fort Knight”)-a company that provides turnkey renovation construction services to the hotel and hospitality industry. (Doc. 6, ¶ 6.) In developing, negotiating and contracting for new renovation construction projects, Fort Knight solicits various contractors and subcontractors to perform the requisite scope of work for each project. (Id. ¶ 7.) Defendant Strayer Electric, LLC (“Defendant”) is a commercial and residential electrical contractor that provides electrical contracting services in the commercial hotel and hospitality industry. (Id. ¶ 8.) The owner and sole member of Defendant is Ronald J. Strayer (“Strayer”). (Id. ¶¶ 3, 14.)

         II. The Contracts

         A. The Employment Contract

         On September 24, 2014, Plaintiff entered into a one-year employment contract with Defendant. (Doc. 30-1, p. 3 (the “Employment Contract”).) According to the Employment Contract, Defendant offered, and Plaintiff accepted, a position as the Vice President of Business Development (“VPBD”). (Id.) As Defendant's VPBD, Plaintiff was required to “develop[] [n]ational relationships with [n]ational [g]eneral [c]ontractors for [h]otel [r]emodeling” through means of email, phone calls, and travel. (Id.) Plaintiff's objective was to “obtain true tangible RFQ [and] RQP, and [to] assist in negotiating the sale of jobs.” (Id.) In exchange, Defendant agreed to pay Plaintiff an annual salary of $104, 000.00 (“Salary”), plus three forms of “Bonus Compensation”: (1) the value of the rate saved on electrical contracts negotiated to sell to other contractors; (2) one and one-half percent of the contract value at payment of retention for work brought to Defendant; and (3) one percent of all other Defendant hotel contracts at payment of retention. (Id.)

         B. The Fort Knight Operating and Distribution Agreements

          Strayer and Plaintiff subsequently entered into a Fort Knight Operating Agreement (“FK Agreement”) whereby: (1) Strayer became a member of Fort Knight, and (2) each member, Plaintiff and Strayer, shared equally in any net profits (“Net Profits”) and losses from Fort Knight projects. (See Doc. 6-3, pp. 1-3.) Thereafter, Defendant and Fort Knight made an oral distribution agreement (“Distribution Agreement”) that Defendant would act as a conduit and receive funds for the Fort Knight projects until such time that those funds were disbursed to Fort Knight. (Doc. 29-2 ¶ 13; Doc. 30-3, p. 20.) Fort Knight would then disburse the funds to Plaintiff and Strayer in accordance with the FK Agreement. (Id.)

         III. The Alleged Breach

         Plaintiff performed services under the Employment Contract until May 2016. (Doc. 29-1, ¶ 3.) That same month, Strayer resigned as a member of Fort Knight. (Id. ¶ 5.) Though Plaintiff was paid a portion of his annual salary and Bonus Compensation, Defendant allegedly refused to pay him the remaining amount due under the Employment Contract. (Doc. 31, ¶¶ 6, 12.) Defendant also purportedly failed to remit Plaintiff his fifty percent share of Net Profits earned under the FK Agreement. (Id. ¶ 22.)

         As a result, Plaintiff's counsel, Aaron Thalwitzer, sent Defendant a letter demanding that it pay Plaintiff $100, 578.00 in Net Profits, $44, 000 in Salary, and $131, 702.00 in Bonus Compensation. (See Doc. 34-2, pp. 6-7 (“Demand Letter”).) Upon receipt, Defendant's pre-suit counsel, Thomas Moring (“Moring”), conducted a preliminary investigation into Plaintiff's claims before sending a letter rejecting his demand. (See Id. at 9-10 (“Response Letter”).)

         IV. This Action

         Dissatisfied with Defendant's response to his Demand Letter, Plaintiff filed suit against Defendant on August 18, 2016. (Doc. 1.) In Count I of the Amended Complaint, Plaintiff asserts a breach of contract claim for Defendant's alleged failure to fulfill its obligations under the Employment Contract. (See Doc. 6, ¶¶ 23-34.) In Count II, Plaintiff asserts a claim for unjust enrichment for Defendant's wrongful retention of benefits Plaintiff conferred upon it under the Employment Contract and FK Agreement. (See Id. ¶¶ 35-42.) Finally, in Count III, Plaintiff seeks to impose a constructive trust upon Defendant for Net Profits due and owing to him under the FK Agreement. (See id. ¶¶ 43- 49.) Defendant answered the Amended Complaint and asserted several affirmative defenses. (Doc. 10.)

         In May 2017, Plaintiff filed a motion for summary judgment as to all claims in the Complaint as well as Defendant's affirmative defenses. (See Doc. 30 (“SJ Motion”).) As support, Plaintiff submitted multiple exhibits, including an affidavit. (See Doc. 31 (“Plaintiff's Affidavit”).) That same day, Defendant moved for partial summary judgment with respect to Counts II and III (Doc. 29 (“PSJ Motion”)), and subsequently moved to strike portions of Plaintiff's Affidavit (Doc. 36 (“Strike Motion”)). The parties filed responses to each other's motions (Docs. 35, 37, 40) and replies in support of their respective summary judgment motions (Docs. 39, 41). By stipulation with Defendant, Plaintiff voluntarily dismissed Count II. (Doc. 38.) The parties' disputes concerning Counts I and III and the Strike Motion are fully briefed and are ripe for adjudication.

         Strike Motion

         I. Plaintiff's Affidavit

         Plaintiff's Affidavit references statements made in two documents prepared by Defendant: the Response Letter and an accounting worksheet (the “Worksheet”) (see Doc. 6-2). In particular, Plaintiff avers that:

7. . . . [Defendant] admitted to owing [Plaintiff] at least $103, 123.07 ($69, 577.50 in Net Profits pursuant to the [FK] Agreement “Net Profits agreement” and $33, 545.57 in commissions).
8. [Defendant] also admitted that additional distributions were due to [Plaintiff] upon close out of various projects (and in which ...

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