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Sokolow v. Damico

United States District Court, S.D. Florida

December 26, 2019

BRETT SOKOLOW, et al., Plaintiffs,
DOMINIQUE DAMICO, et al., Defendants.



         On September 19, 2019, the parties consented to have the undersigned preside over the final disposition of this lawsuit. DE 65. Presently before the Court is Defendants' Motion for Summary Judgment (DE 80) and Statement of Undisputed Material Facts (SOF) (DE 79, 81, 86), Plaintiffs' opposition papers (DE 90) accompanied by their Responsive Statement of Material Facts (RSOF) (DE 89, 91), and Defendants' reply (DE 97). Also before the Court is Plaintiffs' Motion to Strike two affidavits of Rick Fleiderman submitted by Defendants in support of their Motion for Summary Judgment. DE 93. For the reasons explained below, Defendants' Motion for Summary Judgment (DE 80) is GRANTED. Plaintiffs' Motion to Strike the Affidavits of Rick Fleiderman (DE 93) is GRANTED.


         This case centers around a competitive show horse named Rockette. It is undisputed that in October 2018, the parties entered into a written Lease Agreement by which Defendants leased Rockette to Plaintiffs for a period of 13 months for their daughter to use in show jumping competitions. Plaintiffs made a partial payment on the lease. In January 2019, Plaintiffs determined that Rockette was injured and could not be used for competitions. Plaintiffs then returned Rockette to Defendants and did not pay the balance owed on the lease.


         The legal standard for summary judgment is well-settled:

A party may obtain 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). The parties may support their positions by citation to the record, including inter alia, depositions, documents, affidavits, or declarations. Fed.R.Civ.P. 56(c). An issue is genuine if “a reasonable trier of fact could return judgment for the non-moving party.” A fact is material if it “might affect the outcome of the suit under the governing law.” The Court views the facts in the light most favorable to the non-moving party and draws all reasonable inferences in its favor. . . .
The moving party shoulders the initial burden of showing the absence of a genuine issue of material fact. Once this burden is satisfied, “the nonmoving party ‘must make a sufficient showing on each essential element of the case for which he has the burden of proof.'” Accordingly, the non-moving party must produce evidence, going beyond the pleadings, and by its own affidavits, or by depositions, answers to interrogatories, and admissions on file, designating specific facts to suggest that a reasonable jury could find in his favor.

Rubenstein v. Fla. Bar, 72 F.Supp.3d 1298, 1307-08 (S.D. Fla. 2014) (J. Bloom) (citations omitted).


         At all relevant times, Rockette was owned by Defendants. Defendant Damico owns Defendant Ramble on Farm (ROF), which is located in Pennsylvania. ¶¶ 2, 5.[1] Prior to Plaintiffs moving to California in June 2017, their minor daughter received equine training from Defendant Damico at ROF for several years. ¶ 5. When Plaintiffs moved to California, Plaintiffs' daughter began training with Elizabeth Reilly. ¶ 6.

         In the summer of 2018, Plaintiffs arranged to lease Rockette from Defendants for a three-week period so their daughter could compete in horse shows. ¶¶ 9, 10. Plaintiffs sent Rockette to a veterinarian with their trainer Elizabeth Reilly in October 2018 to assess the horse's soundness and suitability. ¶ 10.[2] Thereafter, Plaintiffs and Defendants negotiated an extended lease for Plaintiffs' daughter to use Rockette through November 2, 2019. ¶¶ 11, 12. On October 8, 2018, the parties executed a Lease Agreement whereby Plaintiffs agreed to pay $100, 000 at the time they executed the lease, and $50, 000 on April 8, 2019. DE 41-1 (Lease Agreement). The Lease Agreement contained a choice-of-law provision that stated, “[t]he law of the State of Pennsylvania shall govern this Agreement.” Id. ¶ 15.

         Plaintiffs' daughter competed successfully with Rockette in several horse shows during the fall of 2018. ¶ 16. In November 2018, Plaintiffs shipped Rockette to Elizabeth Reilly's farm in California. ¶ 17. Plaintiffs' veterinarian, Dr. Baileys, examined Rockette on December 16, 2018 and found the horse to be sound. ¶ 18. Shortly thereafter, Rockette refused to jump and on December 20, 2018, Dr. Baileys examined Rockette again, this time for right front lameness. ¶ 19.[3] Plaintiffs did not notify any of the Defendants of Rockette's lameness in December. ¶ 21. Plaintiffs shipped Rockette from California to Wellington, Florida. ¶ 20. On January 3, 2019, while in Florida, Rockette had an MRI which revealed a fracture in the right front ankle and the horse underwent surgery that involved inserting a metal screw into Rockette's ankle. ¶ 22. On January 29, 2019, Plaintiffs returned Rockette to Defendants and did not pay the second lease installment of $50, 000. ¶ 29.


         Defendants move for summary judgment on all ten causes of action alleged in the First Amended Complaint (“FAC”): Fraudulent Misrepresentation (Count One), Negligent Material Misrepresentation (Count Two), Unjust Enrichment and Disgorgement (Count Three), Strict Liability for Unfair and Deceptive Trade Practices (Count Four), Breach of Fiduciary Duties (Count Five), Breach of Contract (Count Six), Breach of Express Warranties (Count Seven), Breach of Implied Warranty of Fitness for Particular Purpose (Count Eight), Breach of Implied Warranty of Merchantability (Count Nine), and Rescission and Cancellation (Count Ten). DE 41. In essence, the FAC contends that Defendants procured the Lease Agreement by fraud because they “intentionally did not disclose” Rockette's pre-existing condition to “induce[ ] Plaintiffs to execute the Lease Agreement.” FAC ¶¶ 62, 66. Plaintiffs claim to have rescinded the agreement by returning Rockette; they claim they are entitled to repayment of the lease fee. FAC ¶ 65.[4]

         Defendants contend that they are entitled to summary judgment on all counts because (1) there was no fiduciary relationship between the parties at the time of the Lease Agreement, (2) Rockette was not injured prior to being in Plaintiffs' custody, (3) they had no duty to disclose any pre-existing conditions, (4) no material misrepresentations or omissions occurred, (5) Plaintiffs had a pre-purchase veterinary examination conducted on the horse and should have been aware of any alleged pre-existing conditions, and (6) based on a choice-of-law provision in the Lease Agreement, Pennsylvania substantive law governs disputes arising from the agreement, thereby negating Plaintiffs' claims based on the Florida Statutes. DE 80.

         Plaintiffs counter that there are many disputed issues of fact as to the parties' relationship and Defendants' duties regarding disclosure of the horse's condition at the time the lease was executed. Plaintiffs also contend that because the Lease Agreement was procured by fraud, the agreement is void ab initio, the Pennsylvania choice-of-law provision is inapplicable, so Florida law applies to all claims in the FAC. DE 90; see e.g., D & M Jupiter, Inc. v. Friedopfer, 853 So.2d 485, 489 (Fla. 4th DCA 2003) (“where there is fraudulent inducement of a contract, the fraudulent misrepresentation vitiates every part of the contract.”).

         Fraudulent Misrepresentation and Negligent Misrepresentation (Counts One and Two)

         The sufficiency of Counts One and Two affects whether the choice-of-law provision in the Lease Agreement must be enforced, so the Court will address those Counts first. Plaintiffs contend that because disputed facts exist regarding the representations made about Rockette's condition, summary judgment is inappropriate on these Counts. See DE 90 at 2.

         Counts One and Two allege that Defendants made both affirmative false statements and material omissions which fraudulently induced Plaintiffs to enter into the Lease Agreement. Specifically, the FAC alleges that “Defendants made statements to Plaintiffs and to Plaintiffs' veterinarian . . . that the Horse lacked any preexisting medical condition and was suitable for the intended purpose of the Plaintiffs.” FAC at ¶¶ 70, 80. Plaintiffs also claim that Defendants “purposefully and willfully omitted . . . [material] information . . . about any preexisting medical conditions . . . with the intent to induce Plaintiffs to lease the Horse with an option to purchase, in order that Defendants receive compensation for that transaction.” Id. at ¶¶ 71, 73, 74. Both Counts cite to a remedy provision of the Florida Uniform Commercial Code, Florida Statutes § 680.505(4), which states, “Rights and remedies for material misrepresentation or fraud include all rights and remedies available under this chapter for default.” The Court therefore interprets Count One and Two to be asserting claims under Florida law.

         “The elements of a claim for fraudulent inducement are: (1) a false statement of material fact; (2) the maker of the false statement knew or should have known of the falsity of the statement; (3) the maker intended that the false statement induce another's reliance; and (4) the other party justifiably relied on the false statement to its detriment.” Sena v. Pereira, 179 So.3d 433, 435-36 (Fla. 4th DCA 2015) (quoting Prieto v. Smook, Inc., 97 So.3d 916, 917 (Fla. 4th DCA 2012)). The elements of negligent misrepresentation are: “(1) a misrepresentation of material fact that the defendant believed to be true but which was in fact false; (2) that defendant should have known the representation was false; (3) the defendant intended to induce the plaintiff to rely on the misrepresentation; and (4) the plaintiff acted in justifiable reliance upon the misrepresentation, resulting in injury.” Arlington Pebble Creek, LLC v. Campus Edge Condo. Ass'n, Inc., 232 So.3d 502, 505 (Fla. 1st DCA 2017); accord Gongloff Contracting, L.L.C. v. L. Robert Kimball & Associates, Architects and Engineers, Inc., 119 A.3d 1070, 1076 (Pa. Super. 2015) (same elements under Pennsylvania law). “A defendant's knowing concealment or non-disclosure of a material fact may only support an action for fraud where there is a duty to disclose. [S]uch duty arises when one party has information that the other party has a right to know because of a fiduciary or other relation of trust or confidence between them.” TransPetrol, Ltd. v. Radulovic, 764 So.2d 878, 879-880 (Fla. 4th DCA 2000) (brackets in original) (citations omitted).[5]

         Plaintiffs have not met their burden of showing the existence of a disputed material fact, or that they are otherwise entitled to judgment as a matter of law, on the theory of alleged affirmative misrepresentations. Plaintiffs have not offered any facts that Defendants made affirmative misrepresentations about Rockette's condition. In their Answers to the unverified FAC, all Defendants denied that they told Plaintiffs and their veterinarian that Rockette lacked any pre-existing medical conditions. DE 48 ¶¶ 70, 80; DE 57 ¶¶ 70, 80. They subsequently moved for summary judgment on Count One. In the RSOF, Plaintiffs did not offer any facts by affidavit, or cite to any portions of the record, that support the assertion ...

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