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Rahal v. Mussel Beach Restaurant Inc.

United States District Court, S.D. Florida

January 17, 2018

HELENE RAHAL, Plaintiff,



         THIS 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.

         I. Background

         Non-Party 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).

         In 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.[1](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 ¶ 33).

         Plaintiff 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).

         II. Standard

         "The 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).

         The 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).


         Defendants 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 other claims.

         a. Count VI: Breach of Oral Contract

         "To 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.

         In 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 ¶ ...

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