Judge Jordan order, December 2010

8/6/2019 Judge Jordan order, December 2010

http://slidepdf.com/reader/full/judge-jordan-order-december-2010 1/24

Defendant Chicago Title Insurance Co. did not move to dismiss the amended complaint, and1

thus this order does not consider any of the allegations against Chicago Title.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO. 09-21406-CIV-JORDAN

TRILOGY PROPERTIES LLC et al.,

Plaintiffs

vs.

SB HOTEL ASSOCIATES LLC et al.,

Defendants

____________________________________

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)

ORDER GRANTING IN PART AND DENYING IN PART THE DEFENDANTS’ MOTIONS TO DISMISS

For the reasons stated below, Mr. Stillman’s and the Bayrock Group’s motion to dismiss

[D.E. 55] and Corus Bank’s motion to dismiss [D.E. 45] are GRANTED. Trump Florida’s motion to

dismiss [D.E. 57] is GRANTED with respect to Counts I, II, III, IV, V, VI, VII, VIII, IX, X, XI, XIV

and XV. Donald Trump’s and Trump Organization’s motion to dismiss [D.E. 57] is GRANTED with

respect to Counts I, II, III, IV, V, VI, VIII, IX, X, XIV, and XV and DENIED as to Counts VII and XI.

SB Hotel’s motion to dismiss [D.E. 54] is DENIED as to Counts I, V, VI, VII, X, XI, and XIV and

GRANTED as to Counts II, III, IV, VIII, IX, XIII, and XV. Counts VIII and XIII of the amended

complaint are DISMISSED WITH PREJUDICE. All other dismissals are without prejudice.1

I. FACTS ALLEGED

The plaintiffs all purchased condominium units at what was to be a plush and luxurious

building development.

Throughout the marketing campaign, this building was promoted as an elite “Trump

Property,” which Donald Trump and his company, Trump Organization LLC, were developing. In

advertising materials and brochures, pictures of a smiling Mr. Trump advised the condominium

buyers that Mr. Trump presented the building to the plaintiffs with pleasure. The marketing materials

promised the plaintiffs and potential buyers a world-class luxurious hotel and the option of placing

purchased units in rental arrangements through the hotel.

Case 1:09-cv-21406-AJ Document 131 Entered on FLSD Docket 12/23/2010 Page 1 of 24



2

A license agreement originally granted the development the ability to name the building after

Mr. Trump. For this reason, the development was first known as the “Trump International Hotel &

Tower.” Throughout the building’s marketing, sales literature ballyhooed the building as a profitable

investment allowing favorable income share. The marketing campaign also promised completion of

the building by sometime in 2007.

From 2005 to January of 2006, the plaintiffs entered separate purchase agreements with SB

Hotel Associates LLC, the building developer. The plaintiffs placed deposits in escrow on the

condominium units.

The purchase agreements estimated the building’s completion by late 2008; allowed SB Hotel

to cancel the contract if (1) it failed to sell 75% of the units and (2) gave the condominium-unit buyer

notice of the cancellation within a year after the purchase agreement’s signing; and gave SB Hotel

the right to schedule the date, time, and place for closing, so long as the buyers received ten-days

notice. According to other clauses, SB Hotel could not unreasonably interfere with the buyers’ use

and enjoyment of the units, the buyers had the right to possession of their units—limited to a move-

in schedule organized by the condominium association—and the buyers could rescind the contract

if they gave notice within 15 days of SB Hotel making an adverse and material amendment to the

purchase agreement. The buyers represented that they did not rely on any representations concerning

the potential of future profits and that prior representations were of no effect unless contained in the

purchase agreements, the condominium documents, or in brochures for the building. Lastly, the

purchase agreements listed Trump Florida Management LLC as the initial hotel manager.

For one reason or another, the construction of the building lagged. Trouble brewed. The

development’s main lender, Corus Bank, N.A., faced threats of failure. The Federal Deposit

Insurance Corporation eventually took Corus Bank into receivership. The license agreement, which

gave the building the prestige of the Trump name, remained in place only precariously. The

completion date crawled further away.

Finally, in May of 2009, in a letter, SB Hotel asked the purchasers—including the

plaintiffs—to close on their units by the end of the month. The letter gave the plaintiffs effectively

two weeks to close. The May 2009 letter further informed the plaintiffs that, unless half or more of

the condominium-unit purchasers closed, the hotel would not open. And, if the hotel did not open,




3

the buyers could not occupy their units.

Within days of receiving the May 2009 letter, the plaintiffs sought to rescind their purchase

agreements and brought suit.

II. LEGAL STANDARD

To survive a motion to dismiss under Rule 12(b)(6), the plaintiff must plead “either direct

or inferential allegations respecting all the material elements necessary to sustain a recovery under

some viable legal theory.” Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 683 (11th Cir.

2001). The court must limit its consideration to the complaint. See GSW, Inc. v. Long County, 999

F.2d 1508, 1510 (11th Cir. 1993). The factual allegations are accepted as true and all reasonable

inferences from these allegations are drawn in the plaintiff’s favor. See Roberts v. Fla. Power &

Light Co., 146 F.3d 1305, 1307 (11th Cir. 1998). The plaintiff, however, must allege more than

“labels and conclusions.” See Fin. Sec. Assurance, Inc. v. Stephens, Inc., 500 F.3d 1276, 1282 (11th

Cir. 2007) (per curiam) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554–55 (2007)). The

factual allegations in the complaint must “possess enough heft” to set forth “a plausible entitlement

to relief.” Id.

III. ANALYSIS

A. CLAIMS AGAINST R OY STILLMAN OR BAYROCK GROUP, LLC

As I explained above, a plaintiff must allege more than mere labels and conclusions to

withstand a motion to dismiss. See Fin. Sec. Assurance, 500 F.3d at 1282. Two of the defendants

named in the amended complaint—Mr. Stillman and the Bayrock Group—make only expedient

appearances. Every allegation against Mr. Stillman or the Bayrock Group consists of a legal

conclusion. In fact, only two types of allegations name Mr. Stillman. The first type makes a legal

conclusion about Mr. Stillman’s role in the development. “Stillman [was an] individual bearing

responsibility for the misrepresentations and omissions in the materials” [D.E. 22-1 ¶¶ 85, 101]. The

second type tells us who Mr. Stillman is [D.E. 22-1 ¶¶ 16]. The plaintiffs do not even bother to make

legal conclusions about the Bayrock Group, merely explaining who the Bayrock Group is in one

allegation [D.E. 22-1 ¶ 15].

The plaintiffs do define the term “developer defendants” as a term including both Mr.

Stillman and the Bayrock Group, but every allegation using the term “developer defendants” is




The plaintiffs attach a printout of the Bayrock Group’s website to show that the Bayrock 2

Group involved itself with the building’s development [D.E. 70 at 4]. The printout is not part of the

complaint. Nor does the printout explain what, if any, representation the Bayrock Group made.

4

likewise a legal conclusion. The amended complaint gains clarity only in light of the amended

complaint’s exhibits, which link specific representations to specific defendants. None of the exhibits,

however, list any representation by Mr. Stillman or the Bayrock Group.

The plaintiffs try to save their claims against Mr. Stillman and the Bayrock Group by

highlighting language in the amended complaint’s exhibits showing that Mr. Stillman is the

managing member of SB Hotel. Nonetheless, the exhibits nowhere show a single representation by2

Mr. Stillman. In short, the plaintiffs’ allegations against Mr. Stillman and the Bayrock Group are

woefully inadequate, and, as to Mr. Stillman and the Bayrock Group, the plaintiffs’ claims are

dismissed without prejudice.

B. THE BREACH OF LICENSE AGREEMENT AND DECLARATORY R ELIEF R EGARDING LICENSE

AGREEMENT CLAIMS (COUNTS III & IV)

In their third and fourth counts, the plaintiffs allege that they are third-party beneficiaries

under the license agreement. Specifically, the plaintiffs allege that the license agreement governs the

right of the building to use the “Trump” name and that the parties to the license agreement intended

that the license agreement directly benefit the plaintiffs [D.E. 22-1 ¶ 65]. This sole allegation is

insufficient to survive a motion to dismiss.

Florida recognizes that, along with the parties to a contract, third-party beneficiaries have

standing to sue “for damages as the result of the acts of one of the parties to the contract.” Weimar

v. Yacht Club Point Estates, Inc., 223 So. 2d 100, 102 (Fla. Dist. Ct. App. 1969). In contrast, a person who receives no more than an incidental or consequential benefit from the contract cannot

enforce the contract. See Caretta Trucking, Inc. v. Cheoy Lee Shipyards, Ltd. , 647 So. 2d 1028,

1030–31 (Fla. Dist. Ct. App. 1994). And a party is a third-party beneficiary “only if the parties to the

contract clearly express, or the contract itself expresses, an intent to primarily and directly benefit

the third party or a class of persons to which that party claims to belong.” Id. at 1031.

The plaintiffs have alleged that the parties to the license agreement intended that the plaintiffs

be third-party beneficiaries to the license agreement. They allege nothing else regarding their third-




The dismissal is without prejudice, and so the plaintiffs can later seek to amend their 3

complaint if, during discovery, they find that they are indeed third-party beneficiaries.

The plaintiffs bring Count I (breach of contract), Count II (declaratory-relief action regarding4

purchase agreements), and Count XIV (breach of implied covenant of good faith and fair

dealing)—all of which relate to the breach of the purchase agreements—against the “Developer

Defendants,” a term that the plaintiffs defined as SB Hotel, Bayrock, Mr. Stillman, Mr. Trump,

Trump Organization, and Trump Florida [D.E. 22-1 ¶ 20]. The plaintiffs have acknowledged,

5

party–beneficiary status. The plaintiffs have not cited language in the license agreement or alleged

any statement indicating that the license agreement bestowed third-party–beneficiary status upon the

plaintiffs. From the amended complaint, it is not even clear who, exactly, the parties to the licensing

agreement are. The plaintiffs’ breach-of-license-agreement claim is thus dismissed without prejudice.

See In re Houbigant Inc., 914 F. Supp. 964, 986 (S.D.N.Y. 1995) (“While it is not required that

intent to confer a third-party beneficiary right be proved on the pleadings, there must be some facts

beyond a conclusory allegation that a party is a third party beneficiary, to survive a motion to

dismiss.”).

The plaintiffs argue that the defendants have not produced the license agreement and that I

should allow the plaintiffs to use discovery to see if their allegations are correct. This miscalculates3

the role of complaints. A complaint needs sufficient factual allegations to raise a plaintiff’s right to

relief above the speculative level. See Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1270 (11th Cir.

2009). With regard to the third count, the plaintiffs’ amended complaint fails to do this.

The plaintiffs’ fourth count seeks declaratory relief regarding the license-agreement

controversy. It fails for the same reason that the breach-of-license-agreement claim fails. Count IV

fails to plead facts indicating that the plaintiffs are third-party beneficiaries.

For these reasons, the breach-of-license-agreement claim (Count III) and the declaratory-

relief action regarding the license agreement (Count IV) are dismissed without prejudice.

C. BREACH OF CONTRACT CLAIM (COUNT I)

According to the purchase agreements and the parties, I should apply Florida law in any

dispute arising from the purchase agreements [D.E. 23-4 ¶ 27]. In Florida, where a defendant causes

a material breach of a valid contract resulting in damages, a plaintiff has a claim for breach of

contract. See Friedman v. N.Y. Life Ins., 985 So. 2d 56, 58 (Fla. Dist. Ct. App. 2008). SB Hotel and4




however, that they can bring these claims only against SB Hotel [D.E. 69 at 3 n.3; D.E. 70 at 3 n.3].

I accordingly analyze these claims only against SB Hotel, and Counts I, II, and XIV are dismissed

against Bayrock, Mr. Stillman, Mr. Trump, Trump Organization, and Trump Florida.

6

the plaintiffs agree that the purchase agreements are valid contracts. The plaintiffs allege that SB

Hotel breached these contracts by not finishing the building on time and by warning that the

plaintiffs may not be allowed to occupy their units even if they closed [D.E. 22-1 ¶¶ 38, 40–41]. The

plaintiffs have given SB Hotel deposits and nevertheless may not occupy the units for which they

contracted [D.E. 22-1 ¶¶ 37, 40, 57]. I find that the plaintiffs have alleged a valid contract, a material

breach, and damages and so have pleaded a breach-of-contract claim.

Quoting clauses in the purchase agreements, SB Hotel argues that the purchase agreements

show that it never breached. Specifically, SB Hotel notes that the purchase agreements limit the

plaintiffs’ right to move by subjecting it “to a ‘move-in’ schedule for all buyers” [D.E. 23-4 ¶ 43].

As the language quoted by SB Hotel does not unambiguously state that the plaintiffs have no right

to move in upon closing, I find SB Hotel’s argument unpersuasive.

The quoted language says:

Buyer shall be entitled to possession of the Unit as of the Closing

Date; however, Buyer’s right to move into the Unit shall be subject

to a ‘move-in’ schedule for all buyers and the move must be

scheduled with the Association, or its manager. Moving shall only be

permitted in accordance with the Rules and Regulations of the

Association

[ Id.]. This language endows the plaintiffs the right to “possession of the Unit as of the Closing Date”

[ Id.]. It then states that this right is subject to a move-in schedule. The “move-in schedule” language

commands purchasers to scheduled their move with the condominium association. At this time, I do

not decide what the language means, but the clause appears to create the mechanism through which

condominium buyers must move in. At least on its face, the language does not bestow upon SB Hotel

the right to prevent the plaintiffs’ possession of their units after they close. This language is

ambiguous at best.

SB Hotel next argues that the plaintiffs cannot bring a breach-of-contract claim because the

plaintiffs never closed. But“[a]n anticipatory breach of contract occurs before the time has come

when there is a present duty to perform as the result of words or acts evincing an intention to refuse




7

performance in the future.” Alvarez v. Rendon, 953 So. 2d 702, 709 (Fla. Dist. Ct. App. 2007). When

another party repudiates the contract, “the nonbreaching party is relieved of its duty to tender

performance and has an immediate cause of action against the breaching party.” Hosp. Mortg. Grp.

v. First Prudential Dev., 411 So. 2d 181, 182 (Fla. 1982). As alleged in the amended complaint, SB

Hotel refused to let the plaintiffs move into their units, even if they closed on the units, if all

purchasers failed to close on more than half the units [D.E. 22-1 ¶ 42]. If true, SB Hotel’s actions

arguably constituted an anticipatory repudiation of the purchase agreements. The plaintiffs properly

pleaded a claim for breach of contract.

D. THE CLAIM FOR DECLARATORY R ELIEF R EGARDING PURCHASE AGREEMENT (COUNT II)

As the defendants rightly point out, the claim for declaratory relief merely seeks a

determination on the factual dispute alleged in the breach-of-contract claim. In their count for

declaratory relief regarding the purchase agreement, the plaintiffs ask that I determine whether SB

Hotel breached the purchase agreements. This count asks for adjudication of past conduct and

duplicates the plaintiffs’ first count.

The Declaratory Judgment Act grants courts copious discretion in deciding whether to

entertain a declaratory-judgment claim. See Kerotest Mfg. v. C-O-Two Fire Equip., 342 U.S. 180,

183–84 (1952). The declaratory-judgment claim being duplicative and focused on past events, I have

the discretion to dismiss the claim. See, e.g., Del. State Univ. Student Hous. Found. v. Ambling

Mgmt., 556 F. Supp. 2d 367, 374 (D. Del. 2008) (Thynge, Mag.) (dismissing declaratory-relief claim

seeking to determine whether past actions constituted breach of contract);Smithkline Beecham Corp.

v. Cont’l Ins., No. 04-cv-2252, 2004 WL 1773713, at *1–2 (E.D. Pa. Aug. 4, 2004) (same). But the

mere repetitive nature of the claim does not force dismissal. See Johnson v. GEICO Gen. Ins., No.

08-cv-80740, 2008 WL 4793616, at *3 (S.D. Fla. Nov. 3, 2008).

In similar situations, courts have used two factors to decide whether to dismiss the repetitive

declaratory-judgment claim. First, they see if the declaratory relief offers the plaintiff relief above

and beyond the relief offered by the breach-of-contract claim. Second, they consider judicial

economy. See Kenneth F. Hackett & Assocs. v. GE Capital Info. Tech. Solutions, No. 10-cv-20715,

2010 WL 3981761, at *4 (S.D. Fla. Oct. 8, 2010). Both factors here militate toward dismissal.

A declaratory judgment in the plaintiffs’ favor offers nothing beyond what a victory on the




8

breach-of-contract claim offers. The plaintiffs nowhere allege that any continuing harm or dispute

would linger after victory or defeat on the breach-of-contract claim. Compare id. at *5 (refusing to

dismiss declaratory-judgment claim where plaintiffs alleged that defendant continued to raise

monthly charges and would continue to do so in the future), with Del. State Univ., 556 F. Supp. 2d

at 374 (dismissing declaratory-judgment where count sought adjudication of purely past conduct

concerning the breach of a contract). And judicial economy is preserved if the claim is dismissed.

Accordingly, I use my discretion to dismiss Count II of the amended complaint without prejudice.

E. CAUSE OF ACTION FOR BREACH OF IMPLIED COVENANT OF GOOD FAITH (COUNT XIV)

Parties to a contract raise the implied covenant of good faith and fair dealing “when a

question is not resolved by the terms of the contract or when one party has the power to make a

discretionary decision without defined standards.” Publix Super Mkts. v. Wilder Corp. of Del., 876

So. 2d 652, 654 (Fla. Dist. Ct. App. 2004). The implied covenant of good faith and fair dealing acts

as a restraint on a contracting party’s discretion by forcing it to act within the contracting parties’

commercial expectations. See id. “[W]here the terms of the contract afford a party substantial

discretion to promote the party’s self-interest, the duty to act in good faith nevertheless limits that

party’s ability to act capriciously to contravene the reasonable contractual expectations of the other

party.” Cox v. CSX Intermodal, Inc., 732 So. 2d 1092, 1095–96 (Fla. Dist. Ct. App. 1999).

In this count, the plaintiffs allege that SB Hotel breached the implied covenant by demanding

closing at a time when the building was in no fit state for an opening. SB Hotel gave so little notice

while the building was in such wretched condition, the plaintiffs allege, because SB Hotel hoped that

condominium-unit buyers would refuse to close. This, in turn, would cause the buyers to default,

giving SB Hotel a windfall [D.E. 22-1 ¶¶ 165–68].

Paragraph 9 of the purchase agreements gave SB Hotel apparent full discretion to select the

closing date, as long as the plaintiffs received 10-days notice of the closing date [D.E. 23-4 ¶ 4]. SB

Hotel had a duty to act in good faith when using its discretion. If SB Hotel abused that discretion by

forcing closure when the building was incomplete and unlikely to open (in order to cause the buyers

to default, no less), then a breach of the implied covenant possibly occurred. Since the plaintiffs

allege this exact scenario, I find that these allegations sufficiently plead a claim for breach of the

implied covenant of good faith and fair dealing.




9

F. CLAIM FOR R ESCISSION UNDER FLORIDA STAT . § 718.503 (COUNT V)

Continuing their claims concerning the purchase agreements, the plaintiffs allege that they

can rescind the purchase agreements under Florida law, which allows any condominium-unit buyer

to cancel the condominium-purchase contract within 15 days of receipt of an amendment to that

contract. See FLA. STAT. § 718.503(1)(a)1. To properly plead a claim for rescission under §

718.503(1)(a)1, a condominium-unit buyer must allege that the seller of the condominium unit

amended the underlying contract, that the amendment is both material and adverse, and that the

buyer gave the seller proper notice of his rescission.

Here, the plaintiffs properly plead a claim for rescission under § 718.503. The plaintiffs

allege that, by sending the May 2009 letter, the defendants amended the purchase agreements [D.E.

22-1 ¶¶ 41, 74]. Furthermore, “[a] change . . . is material if a ‘reasonable buyer under the purchase

agreement [would] find the change to be so significant that it would alter the buyer’s decision to

enter into the contract.’” Mastaler v. Hollywood Ocean Grp., 10 So. 3d 1114, 1116 (Fla. Dist. Ct.

App. 2009) (alteration in original) (quoting D&T Props. v. Marina Grande Assocs. , 985 So. 2d 43,

49 (Fla. Dist. Ct. App. 2008)). And a change is adverse if it is contrary to the buyer’s interest or

welfare. See BB Landmark, Inc. v. Haber , 619 So. 2d 448, 449 (Fla. Dist. Ct. App. 1993) (per

curiam). According to the May 2009 letter, if 50% of purchasers failed to close on their units, then

the hotel would not open. If the hotel did not open, the plaintiffs could not move into their units

[D.E. 22-1 ¶ 41; D.E. 23-7 at 3]. Thwarting the plaintiffs’ ability to move into their condominium

units is certainly material. It is adverse as well. Finally, the plaintiffs allege that, after receiving the

May 2009 letter, they rescinded the purchase agreements within this 15-day window [D.E. 22-1 ¶

75].

Attempting to dismiss the claim, the defendants raise two arguments. At first, the defendants

argue that the May 2009 letter is not an amendment. The defendants then argue that the plaintiffs

never delivered written notice of their intention to cancel the purchase agreements. Both arguments

contradict the amended complaint’s allegation, however.

The first argument is that § 718.503 of the Florida Statutes gives a condominium-unit buyer

the right to cancel an agreement 15 days after the seller amends the agreement. But the May 2009

letter is no amendment, and, in fact, the plaintiffs never even allege an amendment to the purchase




10

agreements. Therefore, the court should dismiss the complaint.

The plaintiffs never allege that the defendants “amended” the purchase agreement. Yet,

throughout the amended complaint, the plaintiffs allege that the May 2009 letter made a “change”

to the purchase agreements [D.E. ¶¶ 74–75]. And an amendment is a change made to a contract or

legal document. See BLACK ’S LAW DICTIONARY 89 (8th ed. 2004). The May 2009 letter may lack

the title “amendment,” but it appears to have changed the purchase agreements. The defendants’ first

argument is not persuasive .

Nor does the second argument withstand scrutiny. The defendants argue that they never

received written notice of the cancellation. But this is a motion to dismiss, where I must accept all

factual allegations as true. See Roberts, 146 F.3d at 1307. And the amended complaint states that the

plaintiffs gave the defendants the necessary notice: “Plaintiffs . . . have sought rescission of the

Purchase Agreement within 15 days after receiving notice of the material and adverse changes, in

compliance with the requirements of section 718.503(1)(a)1” [D.E. 22-1 ¶ 75]. This suffices.

Mr. Trump, Trump Organization, and Trump Florida argue that, regardless of a developer’s

liability under § 718.503, the plaintiffs have no claim against them, for they are not developers. Mr.

Trump, Trump Organization, and Trump Florida are correct, and I therefore dismiss Count V as it

pertains to Mr. Trump, Trump Organization, and Trump Florida.

“‘Developer’ means a person who creates a condominium or offers condominium parcels for

sale or lease in the ordinary course of business.” FLA. STAT. § 718.103(16). Nowhere in the amended

complaint do the plaintiffs allege facts showing that Mr. Trump, Trump Organization, or Trump

Florida either created a condominium or offered condominium parcels for sale or lease in the

ordinary course of business. The plaintiffs legal conclusion that these defendants are developers is

simply insufficient to survive a motion to dismiss. See Fin. Sec. Assurance, 500 F.3d at 1282.

The plaintiffs have stated a claim against SB Hotel, but the claim is dismissed without

prejudice against Mr. Trump, Trump Organization, and Trump Florida.

G. THE FRAUD-BASED CLAIMS

The defendants raise a general critique against the plaintiffs’ fraud-based claims—that the

claims fail to meet the heightened-pleading standard of Federal Rule of Civil Procedure 9(b). This

argument lacks merit.




11

“In alleging fraud or mistake, a party must state with particularity the circumstances

constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind

may be alleged generally.” FED. R. CIV. P. 9(b). In particular, the defendants demand that the

plaintiffs spell out the “who, what, when, where, and how” of the alleged fraud. It is true that a

complaint must plead fraud with particularity, possibly by using the who, what, when, where and

how of the alleged fraud. See, e.g., Mizzaro v. Home Depot, Inc., 544 F.3d 1230, 1237 (11th Cir.

2008). But a plaintiff need not allege the fraud in novelistic detail. See Seville Indus. Mach. v.

Southmost Mach. Corp., 742 F.2d 786, 791 (3d Cir. 1984) (“It is certainly true that allegations of

‘date, place or time’ fulfill [Rule 9(b)’s function of giving defendants’ notice of the claim against

them], but nothing in the rule requires them. Plaintiffs are free to use alternative means of injecting

precision and some measure of substantiation into their allegations of fraud.”).

Here, the plaintiffs not only quote the alleged misrepresentations but also attach the materials

making the supposed misrepresentations. The first exhibit of the amended complaint, for example,

is a letter written and signed by Donald Trump, with the “Trump International Hotel & Tower Fort

Lauderdale” logo on it [D.E. 23-1 at 2]. The amended complaint quotes this exhibit and alleges that

the language is a material misrepresentation. The other misrepresentations also arise from similar

publications and material. The amended complaint quotes the language from these exhibits, alleging

that the language materially misrepresented some fact [D.E. 22-1 ¶¶ 25–27]. Rule 9(b) does not

require more specificity than the quotation and attachment of the material, marked with logos and

(at times) signed by a defendant, that makes the alleged misrepresentations. See W. Coast Roofing

& Waterproofing v. Johns Manville, Inc., 287 F. App’x 81, 87 (11th Cir. 2008) (per curiam) (holding

that complaint properly pleaded common-law fraud where complaint specified the representations

alleged to be false through exhibits attached to complaint).

H. THE CLAIM FOR VIOLATION OF FLORIDA STAT . § 718.506 (COUNT VI)

The plaintiffs’ sixth count seeks rescission under Florida Stat. § 718.506. That statute

states:

Any person who, in reasonable reliance upon any material statement

or information that is false or misleading and published by or under

authority from the developer in advertising and promotional

materials, including, but not limited to, a prospectus, the items




12

required as exhibits to a prospectus, brochures, and newspaper

advertising, pays anything of value toward the purchase of a

condominium parcel located in this state shall have a cause of action

to rescind the contract . . . .

FLA. STAT. § 718.506(1). Brochures, published by the defendants, represented that (1) the building

would be named after Mr. Trump, (2) the building would be completed in 2007, (3) the plaintiffs

could occupy their units at closing, and (4) the building would include an operational and luxurious

hotel [D.E. 22-1 ¶¶ 81–84]. All of these statements by the brochures, the plaintiffs allege, were

misrepresentations on which the plaintiffs reasonably relied [D.E. 22-1 ¶¶ 85–89].

A buyer can seek rescission under § 718.506 if, and only if, she alleges reasonable reliance

on a false or misleading representation that is material and is published in promotional materials. See

Kaufman v. Swire Pac. Holdings, 675 F. Supp. 2d 1148, 1151–52 (S.D. Fla. 2009). The parties

dispute whether the plaintiffs alleged reasonable reliance. In a nutshell, the defendants argue that,

as a matter of law, the plaintiffs cannot show reasonable reliance, for the plaintiffs signed the

purchase agreements, which in certain paragraphs contradict the representations on which the

plaintiffs rely. The plaintiffs dispute this contention, arguing that the purchase agreement does not

contradict any of the alleged misrepresentations. The parties are each only partly right.

In claims under Florida Statutes § 718.506, a plaintiff cannot reasonably rely on

misrepresentations that a subsequent written agreement contradicts. See, e.g., Law-Yue v. Miami

River, LLC , No. 3D09-2243, 2010 WL 4103349, at *1 (Fla. Dist. Ct. App. Oct. 20, 2010); Kaufman,

675 F. Supp. 2d at 1152–53; Weaver v. Opera Tower, LLC , No. 07-cv-23332, 2008 WL 4145520,

at *2 (S.D. Fla. Aug. 1, 2008); Garcia v. Santa Maria Resort, Inc., 528 F. Supp. 2d 1283, 1291 (S.D.

Fla. 2007). Once a party receives a contract expressly contradicting the previous assurances and

representations, the party should be aware that something is amiss. The same holds true if a contract

states that the party cannot rely on previous assurances and representations. See Garcia, 528 F. Supp.

2d at 1295. By signing the contradicting contract, a party can no longer reasonably rely on the

previous misrepresentations.

Nevertheless, where terms in the contract do not expressly contradict the alleged

misrepresentations, dismissal is unwarranted. See Gentry v. Harborage Cottages-Stuart, LLLP , No.

08-cv-14020, 2008 WL 1803637, at *3 (S.D. Fla. Apr. 21, 2008). The question becomes, do the




13

purchase agreements contradict the alleged misrepresentations that the brochures make?

I note that the purchase agreements state that the “Agreement contains the entire

understanding between Buyer and Seller, and Buyer hereby acknowledges that the displays,

architectural models, artist renderings and other promotional materials contained in the sales office

and model suite are for promotional purposes only and may not be relied upon” [D.E. 23-4 ¶ 39].

And they include a provision whereby the plaintiffs agreed that “the Hotel Unit Owner intends

(without creating any obligation) to retain Trump Florida Management LLC . . . as the initial Hotel

Manager” [D.E. 23-4 ¶ 39]. The purchase agreements also state that prior “representations,

understandings or oral statements of sales representatives or others, if not expressed in this

Agreement, the Condominium Documents or in brochures for the Condominium, are void and have

no effect” [D.E. 23-4 ¶ 44]. Finally, paragraph 7 of the purchase agreements estimates that the

developer would finish construction by December 31, 2008 [D.E. 23-4 ¶ 7].

In essence, the purchase agreements do four things. First, they prevent the plaintiffs from

relying on promotional material in the sales office. Second, they warn that the building may or may

not be named after Mr. Trump and managed by Mr. Trump and his organization. Third, they prevent

the plaintiffs from relying on any representation unless found in the agreement, the condominium

documents, or in brochures for the condominium. Fourth, the purchase agreements estimated

completion of the building in late 2008.

From this, it is clear that the plaintiffs could not have reasonably relied on representations

that Mr. Trump or his organization would run the building. The purchase agreements, after all,

contradict this representation [D.E. 23-4 ¶ 39]. The same problem befalls the plaintiffs’ claim that

the defendants represented that construction would be completed by 2007. Since the purchase

agreements states that SB Hotel “estimated” completion by late 2008, the plaintiffs could not have

reasonably relied on the previous representation.

Still, the purchase agreements do not contradict the alleged representations that the plaintiffs

could move in after their units closed or that the building would have an operational hotel. Thus, I

cannot find that the plaintiffs lacked reasonable reliance as a matter of law and refuse to grant the

defendants’ motions to dismiss as to these matters.

Garcia, 528 F. Supp. 2d 1283, on which the defendants heavily rely, is not to the contrary.




14

In Garcia, the representations were oral representations. The representations in this case come from

a brochure, and the purchase agreements uphold the validity of representations in condominium

brochures [D.E. 23-4 ¶ 44]. This case more closely mirrors Gentry, 2008 WL 1803637, at *1, *3,

where condominium documents made the misrepresentations and the court refused to dismiss the

§ 718.506 claim on a motion to dismiss, than Garcia. The plaintiffs have sufficiently pleaded a cause

of action under § 718.506.

Nonetheless, the plaintiffs’ § 718.503 claim fails to state a cause of action against Mr. Trump,

Trump Organization, or Trump Florida, and, for the same reason, the plaintiffs’ § 718.506 claim fails

to state a cause of action against those same defendants. Under chapter 718 of the Florida Statutes,

“‘Developer’ means a person who creates a condominium or offers condominium parcels for sale

or lease in the ordinary course of business.” FLA. STAT. § 718.103(16). The amended complaint

makes only conclusory assertions about Mr. Trump, Trump Organization, and Trump Florida’s status

as developers.

This claim states a cause of action against SB Hotel. As alleged against Mr. Trump, Trump

Organization, and Trump Florida, this claim is dismissed without prejudice.

I. THE FEDERAL SECURITIES LAWS CLAIM (COUNT IX)

In their ninth count, the plaintiffs allege that the purchase agreements between the plaintiffs

and SB Hotel constitute an “investment contracts” under the Securities Act of 1933. An “investment

contract,” in turn, is a “security” by definition. See 15 U.S.C. § 77b(a)(1) (2006). The Securities Act

of 1933 prohibits the sale or delivery of unregistered securities through interstate commerce or

through the mail system. Id. § 77e(a). Finally, under 15 U.S.C. § 77l (a)(1), anyone who violates this

prohibition “shall be liable . . . to the person purchasing such security from him, who may sue either

at law or in equity in any court of competent jurisdiction, to recover the consideration paid for such

security with interest thereon.” Id. § 77l (a)(1). The purchase agreement is an investment contract that

the defendants never registered, and, hence, the plaintiffs can recover the consideration paid, the

plaintiffs argue.

Yet the Securities Act of 1993 places a limitation on any action seeking liability because a

seller failed to register a security. To enforce liability for failure to register a security, a buyer of the

security must bring the action “within one year after the violation upon which it is based.” Id. § 77m.




SB Hotel Associates, LLC, one of the defendants, attached copies of plaintiffs’ purchase5

agreement’s signature pages [D.E. 54-1]. Courts “may consider a document attached to a motion to

dismiss without converting the motion into one for summary judgment if the attached document is

(1) central to the plaintiff’s claim and (2) undisputed.” Day v. Taylor , 400 F.3d 1272, 1276 (11th Cir.

2005). The purchase agreements are central to the plaintiffs’ claims, and the plaintiffs do not dispute

the purchase agreements’ authenticity. Hence, I consider the documents.

In Bonner v. City of Prichard , 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh6

Circuit adopted as binding precedent all decisions handed down by the former Fifth Circuit before

October 1, 1981.

15

And dismissal is appropriate if, on the face of the complaint, it is apparent that the claim is time-

barred. See Tello v. Dean Witter Reynolds, Inc., 410 F.3d 1275, 1288 (11th Cir. 2005). The plaintiffs

filed this suit on May 26, 2009. Hence, the statute of limitations prevents the plaintiffs from suing

for any violation occurring before May 26, 2008. Here, every violation happened before May 26,

2008.

For instance, Joseph Salerno, one of the plaintiffs, signed the purchase agreement in January

of 2006 [D.E. 23-4 at 17]. The other named plaintiffs signed their purchase agreements before May

26, 2008 too. Gaetano Salerno signed two purchase agreements, one in 2006 and one in 2005 [D.E.5

54-1 at 2–5]. Trilogy Properties (through John Bellini and David Hackert), Richard Atkinson,

Michelle Gerlick, Grant Greeley, and Maryanne Greeley signed their purchase agreements in 2005

[ Id. at 6–11, 16–17]. Robert Piccoli signed his purchase agreement in January of 2006, as did Victor

Senofonte [ Id. at 12–15]. None of the purchase agreements were signed after May 26, 2008. The

one-year statute of limitations prevents the plaintiffs from suing the defendants under the Securities

Act of 1933.

The “last pertinent activity” test, does not prevent dismissal. Under this test, the statute of

limitations accrues at the latest of offer, sale, or delivery of the security. See Doran v. Petroleum

Mgmt., 576 F.2d 91, 93 (5th Cir. 1978). The sale, according to the plaintiffs, is not complete until6

closing, because only at the closing do the plaintiffs receive the deed to their units. The plaintiffs’

argument, however, contradicts the allegations of their amended complaint.

According to the amended complaint, the purchase agreements constitute the unregistered

“investment contracts” [D.E. 22-1 ¶ 120]. It is not, then, the delivery of the deed that triggers the




16

statute of limitations. At best, delivery of the purchase agreements controls. The most recent

purchase agreement is from January of 2006. Regardless of the delivery date for the deeds, the

purchase agreements fall outside of the statute of limitations.

The plaintiffs also argue that they could not have reasonably discovered that the offerings

were unregistered until SB Hotel sent them a letter in May 2009 informing the plaintiffs of the units’

occupancy restrictions. This argument lacks merit because the statute of limitations does not depend

on the plaintiffs’ reasonable discovery that the offerings were unregistered.

The discovery rule does not apply here. The statute of limitations differentiates between

actions under § 77l (a)(1) and actions under § 77l (a)(2). Claims brought under § 77l (a)(2) are barred

if brought “one year after the discovery of the untrue statement or omission.” 15 U.S.C. § 77m

(emphasis added). That language clashes vividly with the language used for § 77l (a)(1) claims, like

the one here, which are barred “one year after the violation upon which it is based.” Id. The

plaintiffs’ knowledge is irrelevant. See Cook v. Avien, Inc., 573 F.2d 685, 691 (1st Cir. 1978) (“[T]he

limitations period runs from the date of the violation irrespective of whether the plaintiff knew of

the violation.”); Temple v. Gorman, 201 F. Supp. 2d 1238, 1241 (S.D. Fla. 2002) (“This Court agrees

with numerous other district courts that have held that the discovery rule does not apply to [§

77l (a)(1)] claims.”).

The statute of limitations prevents the plaintiffs from filing a claim under 15 U.S.C. §

77l (a)(1). Count IX of the amended complaint is dismissed without prejudice.

J. THE FLORIDA SECURITIES AND INVESTOR PROTECTION ACT CLAIM (COUNT X)

Florida has statutes, analogous to the statutes under the Securities Act of 1933, that protect

investors who buy securities. The Florida Securities Investor Protection Act prohibits anyone from

selling unregistered securities. FLA. STAT. § 517.07(1)–(2). Florida law considers “investment

contracts” a form of security, and anyone who purchases an unregistered security can rescind the

sale. Id. §§ 517.021(21)(q), 517.211.

To begin, for a buyer to have a claim under Florida Statutes § 517.211, buyer/seller privity

must exist. See E.F. Hutton & Co. v. Rousseff , 537 So. 2d 978, 981 (Fla. 1989); Beltram v.

Shackleford, Farrior, Stallings & Evans, 725 F. Supp. 499, 500 (M.D. Fla. 1989). Indeed, Florida

law makes the “person making the sale and every director, officer, partner, or agent of the . . . the




17

seller, if the director, officer, partner, or agent has personally participated or aided in making the

sale” liable for violating § 517.211(1). See FLA. STAT. § 517.211(1). The purchase agreements show

privity between the plaintiffs and SB Hotel but show no privity with any of the other defendants. The

amended complaint, moreover, alleges no facts showing that the other defendants worked for SB

Hotel as agents. The best that the plaintiffs offer is that every defendant worked as an agent for every

other defendant [D.E. 22-1 ¶ 20]. Such a conclusory allegation, unsupported by facts, fails to show

that any of the defendants were SB Hotel’s agents. So I dismiss, without prejudice, this claim against

every defendant but SB Hotel.

To determine whether a transaction constitutes an “investment contract” under Florida Stat.

§ 517.021(21)(q), Florida courts follow the test laid down by federal courts (called the Howey test).

See Adams v. State, 443 So. 2d 1003, 1005 (Fla. Dist. Ct. App. 1983). Hence, Florida and federal

courts ask three questions: was there an investment of money; was there a common enterprise; and

was there an expectation of profit to be derived solely from another’s efforts? See, e.g., Adams, 443

So. 2d at 1005; Stottler Stagg & Assocs. v. Argo, 403 So. 2d 617, 618–19 (Fla. Dist. Ct. App. 1981).

The answer must be “yes” to all three questions for an investment contract to exist. See Stottler

Stagg , 403 So. 2d at 618–19.

The plaintiffs have sufficiently pleaded the existence of an investment contract. The plaintiffs

allege that they deposited money to own the units, that the defendants would apportion revenue

among the hotel units by rotating the occupancy of hotel units, that the defendants told the plaintiffs

that they could place their units in rental arrangements, and that the defendants led them to believe

that they could expect profits from the units arising from the work of the defendants [D.E. 22-1 ¶¶

26–27, 29–36, 143]. So plaintiffs alleged that they invested money in a hotel that was to be run by

the defendants, who would apportion revenue among the investors and who promised the plaintiffs

profits through this system of apportionment. These allegations suffice for now. See Parr v.

Maesbury Homes, Inc. , No. 06-cv-1268, 2009 WL 5171770, at * 6 (M.D. Fla. Dec. 22, 2009). After

deriving every reasonable inference in the plaintiff’s favor, I cannot say that, as a matter of law, no

investment contract existed here.

SB Hotel raises three arguments in an attempt to dismiss the Florida Securities and Investor

Protection Act claim.




18

First, SB Hotel argues that the statute of limitations bars the plaintiffs from suing under the

Florida Securities and Investor Protection Act claim. At this stage, I do not find the argument

dispositive.

Unlike the federal statute of limitations, Florida’s statute of limitations bars claims filed two

years after “the facts giving rise to the cause of action were discovered or should have been

discovered with the exercise of due diligence.” FLA. STAT. § 95.11(4)(e). The date on which the

plaintiffs should have reasonably discovered that their investment contracts were unregistered is a

question of fact. This is a question best left for summary judgment or trial.

Second, SB Hotel argues that the purchase agreements are not “investment contracts.” SB

Hotel marshals forth the purchase agreement’s language, which states that the plaintiffs entered the

purchase agreements without reliance on potential future profit. Because the purchase agreements

state that the plaintiffs did not expect profits, SB Hotel believes that I must dismiss this claim. This

argument fails to persuade me.

The purchase agreement’s language constitutes formidable evidence suggesting that the

plaintiffs entered the purchase agreement without an expectation of profit. But, under the Howey test,

“form should be disregarded for substance and the emphasis should be on economic reality.” Rudd

v. State, 386 So. 2d 1216, 1218 (Fla. Dist. Ct. App. 1980). None of the defendants offer, nor could

I find, any case stating that a court should refuse to look at the economic substance of the transaction

where a contractual provision states that the buyer did not have an expectation of profit. In fact,

Florida law indicates that courts should look at the economic realities of a transaction regardless of

what the transactional documents say. See Farag v. Nat’l Databank Subscriptions, 448 So. 2d 1098,

1101 (Fla. Dist. Ct. App. 1984) (“It is not appropriate that a promoter’s offerings be judged as being

what they are represented to be. While there is language in the sales brochure . . . from which it could

be inferred that what plaintiffs purchased was not a security, resolution of this issue was

inappropriate without greater factual exploration.” (citation omitted)). Whatever the purchase

agreement states, I must look at the economic substance of the transaction, which requires a factual

determination.

Third, SB Hotel relies on the bespeaks-caution doctrine to demand dismissal. The bespeaks-

caution doctrine is inapplicable to this count. The doctrine applies to forward-looking statements




19

made by defendants. See Edward J. Goodman Life Income Trust v. Jabil Circuit, Inc., 594 F.3d 783,

796 (11th Cir. 2010). The plaintiffs do not base Count X of the amended complaint on fraud or the

defendants’ statements. The claim merely alleges that the defendants failed to register a security

(whether negligently, fraudulently, intentionally, or accidently is irrelevant) and are thus strictly

liable under Florida law. SB Hotel does not even cite a Florida case applying the bespeaks-caution

doctrine (and I could find none), and thus it is not clear that the doctrine even applies to § 517.211

claims. Consequently, the bespeaks-caution doctrine is inapplicable.

K. THE INTERSTATE LAND SALES FULL DISCLOSURE ACT CLAIMS (COUNTS VII AND VIII)

Counts VII and VIII of the amended complaint deal with a federal law entitled the Interstate

Land Sales Full Disclosure Act. In Count VII, the plaintiffs allege that the defendants violated 15

U.S.C. § 1703(a)(2)(A)–(C) by making untrue or fraudulent statements to the plaintiffs [D.E. 22-1

¶ 94]. According to Count VIII, the defendants violated 15 U.S.C. § 1703(a)(1)(C) by having a

statement of record or property report that contained untrue statements of material fact or omitted

to state material facts [D.E. 22-1 ¶ 114].

Count VIII is barred by the statute of limitations. A plaintiff must bring a suit for a violation

of § 1703(a)(1) within “three years after the date of signing of the contract of sale or lease.” 15

U.S.C. § 1711(a)(1). A “sale” happens when the land-sales contract is formed. See Cook v. Deltona

Corp., 753 F.2d 1552, 1561 (11th Cir. 1985). The latest signing of the purchase agreements occurred

in January 2006 [D.E. 54-1 at 15]. The plaintiffs began this suit in May of 2009, more than three

years after the last signed purchase agreement. I therefore dismiss Count VIII with prejudice.

The plaintiffs argue that I should apply equitable tolling. But nothing in the amended

complaint hints, let alone shows, the extraordinary circumstances or due diligence that merit

equitable tolling. See Bhd. of Locomotive Eng’r & Trainmen Gen. Comm. of Adjustment CSX

Transp. N. Lines v. CSX Transp., 522 F.3d 1190, 1197 (11th Cir. 2008) (“Equitable tolling is a form

of extraordinary relief that courts have extended only sparingly.” (internal quotation marks omitted));

Ditthardt v. N. Ocean Condos, L.P., 580 F. Supp. 2d 1288, 1293 (S.D. Fla. 2008) (refusing to

equitably toll statute of limitation in Interstate Land Sales Full Disclosure Act case). And the fact

that the claim involves the omission of material fact cannot alone require equitable tolling.

Otherwise, every failure-to-disclose claim under 15 U.S.C. § 1703(a)(1)(C) would demand equitable




To the extent that the plaintiffs claim that the defendants violated 15 U.S.C. § 1703(a)(2)7

by failing to tell the plaintiffs that the hotel may not be named “Trump” or that the defendants would

complete the building by 2007, the allegations are time barred. The purchase agreements placed the

plaintiffs on notice that the previous representations were misrepresentations, and thus the plaintiffs

should have been aware of those violations on the dates they signed the purchase agreements.

20

tolling, and equitable tolling would no longer be extraordinary. See Ditthardt , 580 F. Supp. 2d at

1293.

The statute of limitations, however, does not bar Count VII, since Count VII seeks relief for

violation of 15 U.S.C. § 1703(a)(2), and a plaintiff has “three years after discovery of the violation

or after discovery should have been made by the exercise of reasonable diligence” to bring suit under

§ 1703(a)(2). 15 U.S.C. § 1711(a)(2). Most of the violations here were material omissions

concerning the existence of a hotel and the plaintiffs’ access to their units. Reading all factual

allegations in the light most favorable to the plaintiffs, I find that the plaintiffs should not have

discovered the defendants’ material omissions until the plaintiffs received the May 2009 letter, which

informed them that (1) no hotel would open and (2) the plaintiffs could not possess their units unless

50% of all buyers closed on their units.7

Mr. Trump, Trump Organization, and Trump Florida additionally argue that I should dismiss

the claim against them because they had nothing to do with the purchase agreements.

The Interstate Land Sales Full Disclosure Act makes any “developer” or “agent” liable for

violating the act. A developer is “any person who, directly or indirectly, sells or leases or offers to

sell or lease, or advertises for sale or lease any lots in a subdivision.” Id. § 1701(5). And an “agent”

means “any person who represents, or acts for or on behalf of, a developer in selling or leasing, or

offering to sell or lease, any lot or lots in a subdivision.” Id. § 1701(6). The amended complaint

asserts that Mr. Trump and Trump Organization, in a brochure that the plaintiffs attached as an

exhibit, depicted the building as a luxurious hotel [D.E. 22-1 ¶ 25]. I do not rule on the issue at this

time, but these allegations seem to suffice to define Mr. Trump and Trump Organization as persons

“who . . . advertise[] for sale or lease any lot in a subdivision.” 15 U.S.C. § 1701(5).

Neither Mr. Trump or Trump Organization contradict this conclusion. They rely, rather, on

the purchase agreements, which state that SB Hotel is the “developer.” It is unclear to me how a

contractual provision can change the definition contained in a statute as a matter of law. Because Mr.




21

Trump and Trump Organization fail to argue that they do not fall within the statutory definition of

“developer” or “agent,” I cannot dismiss this claim against them.

On the other hand, the only mention of Trump Florida occurs in the purchase agreement,

which states that Trump Florida may be the initial hotel manager. But, as I have already discussed,

the plaintiffs should have discovered this misrepresentation when they signed their purchase

agreements. The statute of limitations bars this claim as alleged against Trump Florida. For this

reason, the claim is dismissed against Trump Florida.

L. THE FLORIDA UNFAIR AND DECEPTIVE TRADE PRACTICES ACT CLAIM (COUNT XI)

The Florida Unfair and Deceptive Trade Practices Act outlaws any “unconscionable acts or

practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce.” FLA.

STAT. § 501.204. Anyone who has suffered a loss from unfair or deceptive trade practices may

recover his or her actual damages. See id. § 501.211(2). Practices likely to mislead consumers

constitute “deceptive” practices, and practices that offend public policy or that are immoral,

oppressive, unscrupulous, or substantially deleterious to consumers constitute “unfair” practices. See

Rollins, Inc. v. Butland , 951 So. 2d 860, 869 (Fla. Dist. Ct. App. 2006). A Florida Unfair and

Deceptive Trade Practice Act claim has three elements: (1) an unfair or deceptive practice, (2)

causation, and (3) damages. See id.

The plaintiffs have carried their burden at this stage and, accordingly, state a cause of action

upon which relief may be granted.

The defendants believe that this claim fails to state a cause of action upon which relief may

be granted because the purchase agreement contradicts the alleged misrepresentations and because

the plaintiffs have not alleged causation, a necessary element to this claim. In addition, the

defendants argue that the plaintiffs also seek consequential damages, which the Florida Deceptive

and Unfair Trade Practices Act prevents the plaintiffs from seeking, and that the plaintiffs cannot

prove any actual damages.

In one respect, the defendants are correct—the Florida Deceptive and Unfair Trade Practices

prevents the plaintiffs from recovering consequential damages. See Schauer v. Morse Operations,

Inc., 5 So. 3d 2, 7 (Fla. Dist. Ct. App. 2009). The plaintiffs cannot seek the consequential damages

they allege. But the defendants err in arguing that the plaintiffs have not suffered any actual damages.




22

They placed money in escrow for the defendants and that money still sits in escrow. The plaintiffs

have suffered actual damages.

And, while causation is a necessary element in a Florida Deceptive and Unfair Trade

Practices Act claim, see Rollins, 951 So. 2d at 869, the plaintiffs have properly alleged causation

when they state that each of the defendants’ misrepresentations was an “indispensable basis of the

bargains” [D.E. 22-1 ¶ 42]. The inference is clear. Without each alleged misrepresentation, the

plaintiffs would have never entered the purchase agreements, placed their deposits in escrow, and

lost their money.

Finally, the defendants correctly note that no Florida Deceptive and Unfair Trade Practices

Act claim lies where the plaintiff could not have reasonably relied on the misrepresentations. See

Dorestin v. Hollywood Imps., 45 So. 3d 819, 825 (Fla. Dist. Ct. App. 2010). This includes the

situation, like here, where a contract contradicts previous representations. See id. Consequently, to

the extent that the purchase agreements specifically contradict the alleged misrepresentations by the

defendants, the plaintiffs have failed to state a cause of action. This includes the claim against Trump

Florida entirely, since the purchase agreement squarely contradicts Trump Florida’s only alleged

misrepresentation (that Trump Florida would manage the building). As I have already discussed

above, the purchase agreements do not contradict all of the alleged misrepresentations, and the part

of the claim alleging those misrepresentations against Mr. Trump, Trump Organization, and SB

Hotel survives.

M. VENDEE’S LIEN CLAIM (COUNT XIII)

The plaintiffs also seek a vendee’s lien on their units as a matter of equity. In Florida an

equitable lien is proper where “a written contract that indicates an intention to charge a particular

property with a debt or obligation.” 34 FLA. JUR . 2D LIENS § 4 (2007). Since the purchase agreement

prevents the plaintiffs from imposing liens on their units, I cannot impose an equitable lien under

the purchase agreements.

Equitable liens are also appropriate, however, “out of general considerations of right and

justice as applied to the relations of the parties and the circumstances of their dealings in the

particular cases.” Jones v. Carpenter , 106 So. 127, 129 (Fla. 1925). But I cannot impose an equitable

lien where a plaintiff has an adequate remedy at law. See, e.g., Lewinson v. Shaw , 56 So. 2d 449, 450




At oral argument, the plaintiffs argued that the defendants used part of their deposits on8

construction of the building. The purchase agreement does state that SB Hotel may use part of the

deposits for construction and development purposes [D.E. 23-4 ¶ 4], but nothing in the amended

complaint alleges that SB Hotel did use part of the deposits for construction purposes or even that

SB Hotel holds any part of the deposits.

23

(Fla. 1952); Garcia, 528 F. Supp. 2d at 1296. The plaintiffs here have a cause of action for breach

of contract and thus have an adequate remedy at law. I therefore dismiss the plaintiffs’ claim for an

equitable lien.

The cases cited by the plaintiffs, Wolfle v. Daugherty, 137 So. 717 (Fla. 1931), Sparks v.

Charles Wayne Group, 568 So. 2d 512 (Fla. Dist. Ct. App. 1990), and Fry v. J.E. Jones

Construction, 567 So. 2d 901 (Fla. Dist. Ct. App. 1990) do not contradict this conclusion.

In both Wolfle, 137 So. 717, and Sparks, 568 So. 2d 512, the real-estate seller held the buyers’

deposits in its possession. “[A]s a vendee makes payments on a land contract the vendor becomes

trustee for him of the legal estate, and he becomes in equity the owner of the land to the extent of

payments made.” Sparks, 568 So. 2d at 515. Thus, where a buyer makes payments directly to the

seller, an equitable lien may be warranted. In contrast, where the deposit is placed in escrow and the

real-estate contract limits the buyer’s remedy to a return of its deposit, the seller does not become

trustee for the buyer, and no right to an equitable lien exists. See Harbour Vill. at Saga Bay, Inc. v.

Dahm, 367 So. 2d 1100, 1101–02 (Fla. Dist. Ct. App. 1979). As the purchase agreements placed the

plaintiffs’ deposits in an escrow account, neither Wolfle nor Sparks apply. And lastly, the Fry court8

did not consider whether the purchaser in that case deserved a vendee’s lien.

Because the plaintiffs have an adequate remedy at law, the plaintiffs’ claim for an equitable

lien is dismissed with prejudice.

N. DECLARATORY R ELIEF ON FLORIDA STAT. § 718.103 (COUNT XV)

In their last count, the plaintiffs ask that I decide whether the closings scheduled by SB Hotel

are legal under Florida law.

To have Article III standing, “[a] plaintiff must allege personal injury fairly traceable to the

defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen v.

Wright , 468 U.S. 737, 751 (1984). Plus, the injury must be real, not hypothetical. See Fla. Family

Policy Council v. Freeman, 561 F.3d 1246, 1253 (11th Cir. 2009). When applied to claims under the




24

Declaratory Judgment Act, the injury must show a definite, not speculative, threat of future injury.

Emory v. Peeler , 756 F.2d 1547, 1552 (11th Cir. 1985).

The closings never happened. SB Hotel scheduled the closings for late May 2010, and the

plaintiffs sought rescission (and brought suit) before the scheduled closings. Indeed, it is now

December of 2010. The plaintiffs, then, raise a hypothetical question: under the facts that they have

alleged, would the closings have been legal if the plaintiffs had gone through with them? The question

posed by the plaintiffs being speculative, the plaintiffs lack standing to seek a declaratory judgment

and fail to state a cause of action under Count XV of the amended complaint. The claim is dismissed

without prejudice.

IV. CONCLUSION

For these reasons, Mr. Stillman’s and the Bayrock Group’s motion to dismiss [D.E. 55]

and Corus Bank’s motion to dismiss [D.E. 45] are GRANTED. Trump Florida’s motion to dismiss

[D.E. 57] is GRANTED as to Counts I, II, III, IV, V, VI, VII, VIII, IX, X, XI, XIV, and XV. Mr.

Trump and Trump Organization’s motion to dismiss [D.E. 57] is GRANTED as to Counts I, II, III,

IV, V, VI, VIII, IX, X, XIV, and XV and DENIED as to Counts VII and XI. SB Hotel’s motion to

dismiss [D.E. 54] is DENIED as to Counts I, V, VI, VII, X, XI, and XIV and GRANTED as to Counts

II, III, IV, VIII, IX, XIII, and XV. Counts VIII and XIII of the amended complaint are DISMISSED

WITH PREJUDICE. All other dismissals are without prejudice. The defendants shall answer the

remaining portions of the amended complaint by January 10, 2011.

DONE and ORDERED in chambers in Miami, Florida, this 22 day of December, 2010.nd

_______________________

Adalberto Jordan

United States District Judge

Copy to: All counsel of record
