United States District Court, S.D. Florida
ORDER ON MOTIONS FOR SUMMARY JUDGMENT
M. MIDDLEBROOKS, UNITED STATE DISTRICT JUDGE.
CAUSE comes before the Court on Defendants Mussel Beach
Restaurant Inc., Mark Mezzancello, Patricia Mezzancello, and
DCB321 LLC's (collectively "Defendants") Motion
for Summary Judgment, filed on November 13, 2017. (DE 128).
Plaintiff Helene Rahal ("Plaintiff) filed a response on
November 28, 2017 (DE 164), to which Defendants replied on
December 2, 2017 (DE 171). On November 13, 2017, Plaintiff
filed a Motion for Partial Summary Judgment as to Counts I
and II only. (DE 131). That Motion is fully briefed as well.
Joseph Bilotti ("Bilotti") owned a restaurant in
Delray Beach, Florida. (DE 129 at 2). In August 2013,
Defendants Mark and Patricia Mezzancello (collectively
"the Mezzancellos") purchased a 75% interest in the
restaurant from Bilotti who retained a 25% ownership
interest. (DE 129 at 2). On August 28, 2013, the Mezzancellos
and Bilotti formed Mussel Beach Restaurant Inc.
("MBR") and began redesigning the restaurant. (DE
129 at 2). Nearly a year after MBR's formation, the
Mezzancellos purchased Bilotti's 25% interest thereby
becoming the sole owners of MBR. (DE 129 at 3).
January 2015, Plaintiff orally agreed to invest $700, 000.00
for, among other things, a 49% interest in MBR. (DE 131 at
1). The Parties never memorialized the agreement in
writing.(DE 129 at 3). Over the course of the next
six months, Plaintiff made three payments, totaling $700,
000.00 into DCB321, LLC, an account owned and controlled by
Defendant Patricia Mezzancello. (DE 131 at 1). The final
payment occurred in July 2015. (DE 131 at 2). On July 29,
2016, Plaintiff was issued a share certificate reflecting a
49% interest in MBR. (DE 131-1 at 1). Plaintiffs present 49%
ownership interest is not disputed. (DE 129 Â¶ 33).
initiated this action seeking the following forms of relief:
an inspection of MBR's corporate documents (Count I), an
accounting against MBR (Count II), a Judicial Dissolution of
MBR (Count III), as well as damages resulting from
Defendants' alleged breach of fiduciary duty (Count IV),
unjust enrichment (Count V), breach of oral contract (Count
VI), negligent misrepresentation (Count VII), civil theft
(Count VIII), and conspiracy to commit civil theft (Count
IX). On November 29, 2017, 1 granted Defendants' Motion
for Partial Judgment on the Pleadings as to Plaintiffs claims
of unjust enrichment (Count V), civil theft (Count VIII), and
conspiracy to commit civil theft (Count IX).
court shall grant summary judgment 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). "Only disputes over facts that might
affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). "Genuine
disputes are those in which the evidence is such that a
reasonable jury could return a verdict for the
non-movant." Ellis v. England, 432 F.3d 1321,
1325-26 (11th Cir. 2005). "For factual issues to be
considered genuine, they must have a real basis in the
record." Id. at 1326 (internal citation
omitted). "For instance, mere conclusions and
unsupported factual allegations are legally insufficient to
defeat a summary judgment motion." Id.
(internal citation omitted). "Moreover, statements in
affidavits that are based, in part, upon information and
belief, cannot raise genuine issues of fact, and thus also
cannot defeat a motion for summary judgment."
Id. (internal citations omitted).
movant "always bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of 'the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, ' which it
believes demonstrate the absence of a genuine issue of
material fact." Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56(c)(1)(A)). When
the moving party bears the burden of proof at trial,
"the moving party must show that, on all the essential
elements of its case on which it bears the burden of proof at
trial, no reasonable jury could find for the nonmoving
party." United States v. Four Parcels of Real Prop,
in Greene & Tuscaloosa Ctys. in State of Ala., 941
F.2d 1428, 1438 (11th Cir. 1991) (internal citation omitted).
"If the moving party makes such an affirmative showing,
it is entitled to summary judgment unless the nonmoving
party, in response, comes forward with significant, probative
evidence demonstrating the existence of a triable issue of
fact." Id. (internal quotations and citations
omitted). When the non-moving party bears the burden of proof
on an issue, the moving party may meet its burden of showing
the absence of a genuine issue of material fact "by
either pointing out to the court specific portions of the
record that it believes demonstrate that the [non-movant]
claimant cannot show by a preponderance of the evidence that
he is entitled to [judgment], or by introducing affirmative
evidence negating the non-movant's case."
Id. at 1439. At the summary judgment stage, courts
construe the facts in the light most favorable to the
non-movant, and any doubts should be resolved against the
moving party. Davis v. Williams, 451 F.3d 759, 761
(11th Cir. 2006); Adickes v. S.H. Kress & Co.,
398 U.S. 144, 157 (1970).
move for summary judgment on all counts. Defendants argue
that the Parties' oral agreement is unenforceable under
Florida's statute of frauds and further argue that the
statute of frauds "serves to bar any claims that are
premised on the same conduct and representations that were
insufficient to form a contract and are merely derivative of
the unsuccessful contract claim." (DE 128 at 7).
Defendants argue that each of Plaintiffs other claims is
"based upon the same conduct and representations that
were insufficient to form an enforceable contract, " and
thus summary judgment is warranted on all counts. Because
Defendants' arguments are premised on the theory that the
Parties' oral contract is unenforceable, I will first
consider whether summary judgment is appropriate as to Count
VI (breach of oral contract) before proceeding to Plaintiffs
Count VI: Breach of Oral Contract
prove the existence of a contract, a plaintiff must plead:
(1) offer; (2) acceptance; (3) consideration; and (4)
sufficient specification of the essential terms."
Kolodziej v. Mason, 774 F.3d 736, 740 (11th Cir.
2014) (citing Vega v. T-Mobile USA, Inc., 564 F.3d
1256, 1272 (11th Cir. 2009)). "An oral contract is
subject to all basic requirements of contract law."
Id. at 741 (citing St. Joe Corp, v. Mclver,
875 So.2d 375, 381 (Fla. 2004)). Kolodziej v. Mason,
774 F.3d 736, 740-41 (11th Cir. 2014). The Parties agree that
the Mezzancello Defendants "offered to [Plaintiff] an
interest as shareholder in MBR, payment of distributions of
profits generated by MBR, and payment in full of the
investment requested from Rahal within three years" and
that "Rahal accepted the offer." (DE 27 ¶ 71;
DE 128 at 5). Further, Rahal invested $700, 000 in
consideration for her ownership interest. (DE 129-9 ¶
12). Therefore, the Parties do not dispute that they entered
into an oral contract.
Count VI of her Second Amended Complaint, Plaintiff alleges
that the Mezzancello Defendants breached the oral contract
"by among other things, failing to pay in full the
investment made by [Plaintiff] and failing to pay
distributions and/or dividends to [Plaintiff] based on
profits generated by MBR in 2015, 2016, 2017 through the
present time." (DE 27 at ¶ ...