United States District Court, N.D. Florida, Pensacola Division
CASEY RODGERS CHIEF UNITED STATES DISTRICT JUDGE.
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. 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. Having carefully
considered the motions, the Court finds that both motions are
due to be granted in part and denied in part.
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. 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 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).
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
37-1 at 26 (Dep. at 97). However, the record reflects that
neither the October 14, 2005 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).
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).
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 technical boundaries of the
development.” ECF No. 37-2 at 36-37 (Dep. at 253-254);
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. 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 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.
“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
“by-the-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).
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 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.
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. 37-2 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 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 15-percent 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).
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. 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 inconsistencies in
Tennant's statements, and (3) Tennant has personal
knowledge of the statements contained in his declaration. ECF
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, 1322-1323 (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. Id. at 1323-1324.
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 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. 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.
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
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.
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
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
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.” Fed.R.Evid. 602 advisory
committee's note to 1972 proposed rule.
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 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.
For Summary Judgment
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).
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 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).
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 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.”
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 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.
Tortious Interference with a Business Relationship (Counts I
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).
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 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.
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 defendant-appellees 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)).
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
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. ECF No. 35-1 at 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 263-264). 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 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.
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.
Intentional and Unjustified Interference
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.
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).
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. 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 “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.
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 65. Comer
states in his declaration that EBSCO's decision to remove