United States District Court, M.D. Florida, Fort Myers Division
PWS ENVIRONMENTAL INC., a privately-held Illinois corporation doing business as Pressure Washing Systems Marketing, Plaintiff,
ALL CLEAR RESTORATION & REMEDIATION, LLC, a Florida limited liability company, BAYFRONT PLACE CONDOMINIUM ASSOCIATION, INC., a Florida not-for-profit corporation, THE MIRAGE ON THE GULF CONDOMINIUM, a Florida not-for-profit corporation, BORGHESE AT HAMMOCK BAY CONDOMINIUM ASSOCIATION, INC., a Florida not-for-profit corporation, VINTAGE BAY CONDOMINIUM ASSOCIATION, INC., a Florida not-for-profit corporation, and 400 LA PENINSULA CONDOMINIUM ASSOCIATION, INC., a Florida not-for-profit corporation, Defendants.
OPINION AND ORDER
E. STEELE JUDGE
matter comes before the Court on the condominium
defendant's Motion to Dismiss for Failure to State a
Claim (Doc. #26) filed on April 23, 2018. Plaintiff filed a
Response in Opposition (Doc. #51) on June 6, 2018. For the
reasons set forth below, the Motion is denied.
Federal Rule of Civil Procedure 8(a)(2), a Complaint must
contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). This obligation “requires more
than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citation omitted). To survive dismissal, the factual
allegations must be “plausible” and “must
be enough to raise a right to relief above the speculative
level.” Id. at 555. See also Edwards v.
Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). This
requires “more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and
take them in the light most favorable to plaintiff,
Erickson v. Pardus, 551 U.S. 89 (2007), but
“[l]egal conclusions without adequate factual support
are entitled to no assumption of truth, ” Mamani v.
Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations
omitted). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Iqbal, 556 U.S. at 678.
“Factual allegations that are merely consistent with a
defendant's liability fall short of being facially
plausible.” Chaparro v. Carnival Corp., 693
F.3d 1333, 1337 (11th Cir. 2012) (internal citations
omitted). Thus, the Court engages in a two-step approach:
“When there are well-pleaded factual allegations, a
court should assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief.”
Iqbal, 556 U.S. at 679.
a breach of contract case in which plaintiff PWS
Environmental, Inc. (“plaintiff” or
“PWS”) - a pressure washing company - alleges
that defendants failed to pay for more than $800, 000 of work
that plaintiff performed following Hurricane Irma. On
February 16, 2018, plaintiff filed a six-count Complaint
(Doc. #1) against All Clear Restoration and Remediation, LLC
(“All Clear”) (Count I) for breach of express
contract, and against the condo associations of each of the
five buildings that were pressure washed (the “condo
defendants”) (Counts II-VI) for breach of implied
contract. The condo defendants move to dismiss Counts II
through VI for failure to state a claim. (Doc. #24.)
Amended Complaint alleges as follows: On September 16, 2017,
All Clear contacted PWS to provide pressure washing services
to several properties in the wake of Hurricane Irma. (Doc.
#1, ¶ 23.) PWS had already been performing services in
Texas as part of the Hurricane Harvey clean up (Id.,
¶ 24), but “was induced not to accept further jobs
in Texas and move their equipment to Florida” because
of the business opportunity presented by All Clear.
(Id., ¶ 25.)
September 18, 2017, PWS emailed a “proposal”
(Doc. #1-1) to All Clear to provide services to 14
residential properties, including the condo defendants'
properties. (Doc. #1, ¶ 26; Doc. #1-1.) In its email,
PWS invited All Clear to sign and return the proposal or
“acknowledge acceptance by email.” (Doc. #1-2.)
The same day, Jay Lozecki, acting as an agent of All Clear,
provided written acceptance via email, stating:
“Thanks. I am fine with attachment. Please
proceed.” (Id.; Doc. #1, ¶ 27.) PWS
alleges that, at all times relevant, All Clear was acting as
an agent of each of the condo defendants. (Doc. #1, ¶
28.) The terms and conditions within the agreement provided
for a 1.5% per month interest penalty on unpaid invoices
(Id., ¶ 31), and a $15, 000 per property
cancellation penalty. (Id., ¶ 32.)
began pressure washing the condominiums in September and
October of 2017. All invoices were sent to All Clear, who has
not paid any amount to PWS for its services rendered to date;
therefore, PWS is seeking damages for the work performed
under the terms and conditions of the contract. (Doc. #1,
¶ 64.) In addition, PWS asserts claims against each of
the condo defendants for breach of implied contract, seeking
damages proportional to the work performed, mobilization and
demobilization, and accrued interest from past due invoices.
condo defendants' Motion to Dismiss (Doc. #26) and
supporting Memorandum of Law (Doc. #27) argue that dismissal
for failure to state a claim is warranted because the
existence of an express contract precludes recovery for
implied contract and because plaintiff fails to adequately
allege the elements of breach of implied contract. PWS
responds that the Complaint adequately asserts alternative
claims for breach of express and implied contract, conceding
that it may only recover in implied contract if the express
contract claim fails. (Doc. #51, pp. 5-6.)
for breach of a contract implied in law is also known as
“unjust enrichment.” Della Ratta v. Della
Ratta, 927 So.2d 1055, 1059 (Fla. 4th DCA 2008).
“In Florida, a claim for unjust enrichment is an
equitable claim based on a legal fiction which implies a
contract as a matter of law even though the parties to such
an implied contract never indicated by deed or word that an
agreement existed between them.” 14th &
Heinberg, LLC v. Terhaar & Cronley Gen. Contractors,
Inc., 43 So.3d 877, 880 (Fla. 1st DCA 2010).
“Unjust enrichment cannot apply where an express
contract exists which allows the recovery.”
Atlantis Estate Acquisitions, Inc. v. DePierro, 125
So.3d 889, 893 (Fla. 4th DCA 2013); Fulton v.
Brancato, 189 So.3d 967 (Fla. 4th DCA 2016). A claim of
unjust enrichment requires PWS to show by at least a
preponderance of the evidence that: (1) PWS conferred a
direct benefit on the condo defendants, (2) the condo
defendants had knowledge of the benefit, (3) the condo
defendants accepted or retained the conferred benefit, and
(4) the benefit was conferred under circumstances which make
it inequitable for the condo defendants to retain the benefit
without paying its fair value. Resnick v. AvMed,
Inc., 693 F.3d 1317, 1328 (11th Cir. 2012); CMH
Homes, Inc. v. LSFC Co., LLC, 118 So.3d 964, 965 (Fla.
1st DCA 2013); Malamud v. Syprett, 117 So.3d 434,
437 (Fla. 2d DCA 2013). Unjust enrichment “acknowledges
an obligation which is imposed by law regardless of the
intent of the parties.” Circle Fin. Co. v.
Peacock, 399 So.2d 81, 84 (Fla. 1st DCA 1981) (citation
omitted). A plaintiff must directly confer the benefit upon
defendant. Peoples Nat'l Bank of Commerce v. First
Union Nat'l Bank of Fla., 667 So.2d 876, 879 (Fla.
3d DCA 1996).
although there is no express contract between All Clear and
the condo defendants, a claim of unjust enrichment may be
presented as an alternative count to the express contract
claim against All Clear. See Fed.R.Civ.P. 8(d)(2)
and (3). As a breach of contract claim and an unjust
enrichment claim are alternative claims, the latter may not
be barred until an express enforceable contract between ...