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Christian Tennant Custom Homes of Florida Inc v. Ebsco Gulf Coast Development Inc.

United States District Court, N.D. Florida, Pensacola Division

September 15, 2017

CHRISTIAN TENNANT CUSTOM HOMES OF FLORIDA, INC., Plaintiff,
v.
EBSCO GULF COAST DEVELOPMENT, INC. and JAMES COMER, Defendants.

          ORDER

          M. CASEY RODGERS CHIEF UNITED STATES DISTRICT JUDGE.

         Plaintiff 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.[1] 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.[2]

         Background[3]

         Plaintiff 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.[4] 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).

         According 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).

         Tennant 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).

         In 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.”[5] 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.[6] 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.

         Comer “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).

         On or 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.

         Generally, 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).

         Motion To Strike

         Defendants 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.[7] 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 No. 47.

         I. Hearsay Objections

         Defendants 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.[8] Id. at 1323-1324.

         Paragraph 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.[9] 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.[10]

         Under 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 particular contract”)).

         However, 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.

         II. Contradictory Statements

         Defendants 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 testimony.

         III. Speculative Statements

         Defendants 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 stricken. Id.

         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, 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.”[11] Fed.R.Evid. 602 advisory committee's note to 1972 proposed rule.

         In this 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.

         Motion For Summary Judgment

         Legal Standard

         Summary 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).

         The 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).

         The 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.” Fed.R.Civ.P. 56(e)(2)&(3).

         In 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.

         I. Tortious Interference with a Business Relationship (Counts I and II)

         In 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).

         In 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.

         A. Business Relationship

         In 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)).

         Defendants 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 disagrees.

         Viewing 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.[12] 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.

         B. Knowledge

         Defendants 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.

         C. Intentional and Unjustified Interference

         Defendants 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.

         To 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).

         In this 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.

         In 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 CTCHFL ...


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