George Ekins v. Harbourside Funding, LP

Case: 14-14658 Date Filed: 04/28/2015 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-14658
Non-Argument Calendar
________________________
D.C. Docket No. 9:14-cv-80479-JIC
GEORGE EKINS,
an individual,
Plaintiff - Appellee,
v.
HARBOURSIDE FUNDING, LP,
a Florida limited partnership,
HARBOURSIDE FUNDING GP, LLC,
a Florida limited liability company,
FLORIDA REGIONAL CENTER, LLC,
a Florida limited liability company,
Defendants - Appellants.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 28, 2015)
Case: 14-14658 Date Filed: 04/28/2015 Page: 2 of 8
Before JULIE CARNES, FAY, and EDMONDSON, Circuit Judges.
PER CURIAM:
Defendants Harbourside Funding, LP, Harbourside Funding GP, LLC, and
Florida Regional Center, LLC appeal the district court’s grant of summary
judgment in favor of Plaintiff George Ekins, in Plaintiff’s breach of contract case.
In this state-law controlled, diversity action, no reversible error has been shown;
we affirm.
Defendants were involved in financing a mixed-use real estate development
project called “Harbourside Place,” in Jupiter, Florida. Plaintiff entered into a
written agreement (the “Consulting Agreement”)1 with Defendants to provide
various services in connection with the development project. Defendants
eventually stopped making payments to Plaintiff under the Consulting Agreement,
and Plaintiff threatened to file suit.
1
The written agreement is in fact titled “Summary of Principal Terms, 9/11/11, ‘Harbourside
Place.’” This single written agreement has been referred to by three different names throughout
this proceeding: (1) as the “Service Contract” by the district court, (2) as the “Consulting
Agreement” by Plaintiff, and (3) as the “Brokerage Agreement” by Defendants. Because the
Settlement Agreement at issue in this appeal refers to the underlying written agreement as the
“Consulting Agreement,” we use that term.
2
Case: 14-14658 Date Filed: 04/28/2015 Page: 3 of 8
Plaintiff and Defendants 2 then entered into a Settlement Agreement and
General Release (“Settlement Agreement”). Briefly stated, Defendants agreed to
pay Plaintiff a total of $900,000 (to be paid in six installments) in exchange for
Plaintiff’s release of Defendants from all claims arising out of the Consulting
Agreement.
Defendants made the first installment payment to Plaintiff under the
Settlement Agreement but failed to make further payment. In accordance with the
terms of the Settlement Agreement, Plaintiff provided written notice to Defendants
of the payment default, allowed Defendants time to cure the default, and
accelerated the payments due under the Settlement Agreement. Plaintiff then filed
this civil action seeking enforcement of the Settlement Agreement.
The district court granted Plaintiff’s motion for summary judgment. Then,
following a hearing, the district court denied Defendants’ motion for
reconsideration and entered final judgment in favor of Plaintiff.
We review the district court’s grant of summary judgment de novo, viewing
the evidence and all reasonable factual inferences in the light most favorable to the
nonmoving party. Skop v. City of Atlanta, 485 F.3d 1130, 1136 (11th Cir. 2007).
2
Defendants dispute whether Harbourside Funding GP, LLC was in fact a party to the Settlement
Agreement. As discussed later in this opinion, we conclude that Harbourside Funding GP, LLC
is bound by the terms of the Settlement Agreement.
3
Case: 14-14658 Date Filed: 04/28/2015 Page: 4 of 8
Summary judgment is proper where no genuine issue of material fact exists and the
moving party is entitled to judgment as a matter of law. Id.
On appeal, Defendants first argue that the Settlement Agreement is
unenforceable under Fla. Stat. § 475.41 which, briefly stated, invalidates contracts
for unlicensed brokerage services. Defendants allege that Plaintiff (who is not a
Florida-licensed broker) provided brokerage services pursuant to the Consulting
Agreement. As a result, Defendants contend that the Settlement Agreement
constitutes indirect payment to Plaintiff for unlicensed brokerage services and,
thus, is invalid under section 475.41.
“In rendering a decision based on state substantive law, a federal court must
decide the case the way it appears the state’s highest court would.” Ernie Haire
Ford, Inc. v. Ford Motor Co., 260 F.3d 1285, 1290 (11th Cir. 2001) (quotations
omitted). Where the state’s highest court has not spoken to an issue, we look to
decisions of the state’s intermediate appellate courts unless we are “convinced by
other persuasive data that the highest court of the state would decide otherwise.”
Mesa Air Group, Inc. v. Delta Air Lines, Inc., 573 F.3d 1124, 1131 n.9 (11th Cir.
2009).
According to the Florida Supreme Court, when statutory language is “clear
and unambiguous and conveys a clear and definite meaning, . . the statute must be
4
Case: 14-14658 Date Filed: 04/28/2015 Page: 5 of 8
given its plain and obvious meaning.” Donato v. AT&T, 767 So. 2d 1146, 1150
(Fla. 2000).
Under section 475.41, “[n]o contract for a commission or compensation for
any act or service enumerated in § 475.01(3) is valid unless the broker or sales
associate” was licensed properly under Florida law when they performed the act or
service. Fla. Stat. § 475.41. Section 475.01(3) defines “operating” as a broker to
mean “the commission of one or more acts described in this chapter as constituting
or defining a broker.” A “Broker” is defined, in pertinent part, as
a person who, for another . . . takes any part in the procuring of
sellers, purchasers, lessors, or lessees of business enterprises or
business opportunities or the real property of another, or leases, or
interest therein, including mineral rights, or who directs or assists in
the procuring of prospects or in the negotiation or closing of any
transaction which does, or is calculated to, result in a sale, exchange,
or leasing thereof, and who receives, expects, or is promised any
compensation or valuable consideration, directly or indirectly therefor
....
Fla. Stat. § 475.01(1)(a).
In determining the applicability of Fla. Stat. § 475.41 to this case, we stress
that Plaintiff seeks to enforce the terms of the Settlement Agreement, not the
underlying Consulting Agreement. Under Florida law, a settlement agreement is
treated “as a distinct contract, separate from the parties’ underlying agreements.”
See Lazy Flamingo, USA, Inc. v. Greenfield, 834 So. 2d 413, 414 (Fla. Ct. App.
5
Case: 14-14658 Date Filed: 04/28/2015 Page: 6 of 8
2003). Moreover, “settlements are highly favored and will be enforced whenever
possible.” Robbie v. Miami, 469 So. 2d 1384, 1385 (Fla. 1985). “[I]n the absence
of an ambiguity on the face of a contract, it is well settled that the actual language
used in the contract is the best evidence of the intent of the parties, and the plain
meaning of that language controls.” Emergency Assocs., P.A. v. Sassano, 664 So.
2d 1000, 1003 (Fla. Ct. App. 1995).
The parties entered into the Settlement Agreement “to settle and resolve all
disputes between and among the Parties relative to the Consulting Agreement.” In
furtherance of that goal, Defendants agreed to pay Plaintiff a set monetary amount
in exchange for Plaintiff’s release of Defendants from all claims “related to or
arising out of the Consulting Agreement.” The Settlement Agreement provides
expressly that it “is being entered into by the Parties as a compromise of disputed
claims and is not for the payment of any particular fee payable to [Plaintiff]
pursuant to the Consulting Agreement.” (emphasis added).
Under the plain, unambiguous language of the Settlement Agreement, the
payment to Plaintiff was to be made in exchange for Plaintiff’s release of claims
against Defendants, not in exchange for Plaintiff’s services. Because the
6
Case: 14-14658 Date Filed: 04/28/2015 Page: 7 of 8
Settlement Agreement is no “contract for a commission or compensation for any
act or service,” the Agreement falls outside the scope of section 475.41.3
We reject Defendants’ alternative argument that the Settlement Agreement is
unenforceable against Harbourside Funding GP, LLC: Defendants contend that
Harbourside Funding GP, LLC was no party to the Settlement Agreement. First,
the Settlement Agreement was entered into expressly by “Harbourside Funding,
LP, Harbourside Place GP, LLC, and Florida Regional Center, LLC and their
respective affiliates and successors.” (emphasis added). The Settlement
Agreement also provides that it is “binding on, and shall inure to the benefit of,
each of the Parties and their respective past, present and future . . . affiliates,
owners, [and] members . . . .” That Harbourside Funding GP, LLC was the
managing member of Harbourside Funding, L.P. when the Settlement Agreement
was signed is undisputed.4 Thus, as an “affiliate” and “member” of a named party
to the Settlement Agreement, Harbourside Funding GP, LLC is bound by the terms
of that Agreement.
3
Because Plaintiff does not seek to enforce the underlying Consulting Agreement and because
we conclude that the Settlement Agreement is not a contract covered by section 475.41, we need
not determine, as a matter of Florida law, whether Plaintiff’s contracted-for services under the
Consulting Agreement constituted unlicensed brokerage services.
4
Harbourside Funding GP, LLC in fact signed the Settlement Agreement in its capacity as
Harbourside Funding, L.P.’s managing member.
7
Case: 14-14658 Date Filed: 04/28/2015 Page: 8 of 8
Because we conclude that the Settlement Agreement is not invalid under
section 475.41 and is enforceable against all Defendants, Plaintiff is entitled to
summary judgment. 5
AFFIRMED.
5
In the district court, Defendants also argued that Plaintiff was unentitled to summary judgment
because Plaintiff stood in pari delicto with Defendants. Because Defendants have not raised this
argument on appeal, it is abandoned. See N. Am. Med. Corp. v. Axiom Worldwide, Inc., 522
F.3d 1211, 1217 n.4 (11th Cir. 2008).
8