High Bid, LLC v. Kenneth Everett

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-16554
Non-Argument Calendar
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D.C. Docket No. 5:12-cv-00059-RS-EMT
HIGH BID, LLC,
d.b.a. Roebuck Auctions,
Plaintiff-Appellant,
versus
KENNETH EVERETT,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(June 26, 2013)
Before HULL, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant High Bid LLC, d.b.a. Roebuck Auctions (“Roebuck
Auctions”), appeals the district court’s grant of summary judgment to Defendant-
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Appellee Kenneth Everett. After review, we affirm the district court’s grant of
summary judgment to Defendant Everett as well as the district court’s order
finding Everett was entitled to recover reasonable attorney’s fees.
I. BACKGROUND
On December 1, 2011, Plaintiff Roebuck Auctions conducted an auction of
16 unfinished condominium units, fixtures, and building materials in Panama City
Beach, Florida. John Roebuck, the owner of Roebuck Auctions, served as the
auctioneer.
Defendant Everett arrived at the auction site, completed his registration
materials (which included signing certain documents), and received his bid card.
Among the materials Everett signed was a bidder identification stub, which
notified Everett that the auction company would charge a ten percent bidder’s
premium to the high bidder. The stub also stated that if the bidder defaulted on the
agreement, the bidder would “agree to pay all legal fees and damages incurred by
Auctioneer as a result of [bidder’s] default.”
The auction commenced, and Everett ultimately placed the high bid:
$47,000 per condominium unit, for a total of $752,000, with an additional $75,200
for the bidder’s premium of ten percent. It is undisputed that despite placing the
high bid, Everett never closed on his purchase of the condominium units, citing the
units’ legal and financial problems as the basis for his decision to cancel the
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transaction. Everett also failed to pay the ten percent bidder’s premium, despite
Roebuck Auctions’s demand for payment. This lawsuit is only about the payment
of the bidder’s premium on a sale of auctioned property that never closed.
II. PROCEDURAL HISTORY
A. Initial Proceedings
In February 2012, Plaintiff Roebuck Auctions sued Defendant Everett in
Florida state court for breach of contract based on Everett’s failure to pay the
$75,200 bidder’s premium. Roebuck Auctions sought a judgment against Everett
in the amount of $75,200, plus interest, costs, and reasonable attorney’s fees.
Defendant Everett subsequently removed the action to federal district court
and filed a motion to dismiss Roebuck Auctions’s complaint. In his motion to
dismiss, Everett contended, inter alia, that Roebuck Auctions had not adequately
stated a prima facie claim for relief because it had not alleged that it was a
“licensed auction business,” pursuant to Florida Statute § 468.385(7)(b), or that it
was “otherwise exempt from licensure.”
Roebuck Auctions then filed an amended complaint that addressed the
grounds raised in Everett’s motion to dismiss. As relevant to the issues on appeal,
the amended complaint alleged that John Roebuck, the owner and sole managing
member of Roebuck Auctions, was a licensed auctioneer and real estate broker
under Florida law. The amended complaint contained no allegations addressing
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Plaintiff Roebuck Auctions’s licensure status. As attachments to the amended
complaint, Plaintiff Roebuck Auctions filed Internet printouts from an official
State of Florida website showing John Roebuck’s status as a licensed auctioneer
and real estate broker.
In his answer to the amended complaint, Defendant Everett reasserted as his
“Second Affirmative Defense” that Plaintiff Roebuck Auctions “ha[d] failed to
state a cause of action upon which relief can be granted because it failed to allege
that it was licensed to perform the auction at issue in the complaint.”
B. Summary Judgment Proceedings
Following discovery, the parties filed cross motions for summary judgment.
Defendant Everett contended that in light of the undisputed material facts, he was
entitled to judgment as a matter of law on two grounds: (1) Plaintiff Roebuck
Auctions was not a party to the document upon which it relied for its claim; and
(2) even if Roebuck Auctions had standing to pursue its breach of contract claim, it
could not collect a bidders’ premium in this case because the owner of the
auctioned property and Everett never entered into a valid and enforceable contract.
In its motion for summary judgment, Plaintiff Roebuck Auctions likewise
contended that it was entitled to judgment as a matter of law based on Everett’s
undisputed placement of the high bid (after signing the Bidder Agreement and bid
card that identified Roebuck Auctions as the auction company and hearing
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pre-auction announcements about the auctions terms and conditions) and
subsequent failure to pay the bidder’s premium.
Roebuck Auctions’s own motion for summary judgment then addressed
Everett’s asserted affirmative defenses and the grounds for summary judgment
alleged in Everett’s motion. Specifically, Roebuck Auctions’s motion addressed
Everett’s “Second Affirmative Defense,” which was that Roebuck Auctions “failed
to allege it was licensed to perform the auction at issue in the complaint.”
Roebuck Auctions argued John Roebuck being a licensed auctioneer was
sufficient, as follows:
It is undisputed that John Roebuck, the auctioneer who conducted the
subject auction, was and is a duly licensed auctioneer pursuant to
Chapter 468, Florida Statutes. There is no legal requirement that
Roebuck “register” his license to Roebuck Auctions in the manner of
a real estate broker. Chapter 468 provides that auctioneers be
individuals—there is no way for a fictitious business entity to be a
licensed auctioneer.
The statute defines an “Auction Business” as a sole
proprietorship or business entity that “employs auctioneers to conduct
auctions.” FLA. STAT. §468.382(1). Section 468.385(2)&(3), Florida
Statutes, which sets forth the requirements for licensure, provides that
no one may conduct an auction “unless he or she is licensed” and that
one can’t be licensed if “he or she” is under 18 years of age or has
committed any prohibiting act or offense. In sum, a licensed
auctioneer must be an individual.
Roebuck Auctions also filed a separate response to Everett’s motion for summary
judgment, but this response did not address the “Second Affirmative Defense.”
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In his response to Roebuck Auctions’s motion for summary judgment,
Everett noted that Roebuck Auctions did “not dispute that it [was] not a licensed
auction business.” Everett further noted that Florida law provides for three
separate types of auction-related licenses—for auctioneers, apprentices, and
auction businesses—and the law further requires that “[e]ach auction . . . be
conducted under the auspices of a licensed auction business.” Everett thus
contended that Roebuck Auctions, “[h]aving failed to establish that it maintained
the required license,” was “precluded from recovering any monies” from him
because “an unlicensed entity may not benefit as a result of its wrongdoing.”
Roebuck Auctions did not reply, or request leave from the district court to
file a reply, to Everett’s response to its motion for summary judgment. 1
The district court granted Everett’s motion for summary judgment and
denied Roebuck Auctions’s motion for summary judgment. Summarizing the
relevant statutes, the district court noted that Florida law separately defines
“auctioneer” and “auction business” and requires both entities to be licensed: an
auctioneer must be licensed in order to actually perform an auction, and the auction
business under whose auspices the auction is held must also be licensed. In
addition, under Florida Statute § 498.385(8), a license issued by the state “to an
1
Pursuant to the Local Rules for the Northern District of Florida, “[n]o reply memoranda
shall be filed absent a showing of good cause and upon leave of the court.” N.D. Fla., Local
Rule 7.1(C)(2).
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auctioneer, apprentice, or auction business is not transferable.” Thus, the district
court concluded that in light of these relevant statutory provisions,
[i]t is undisputed in this case that John Roebuck was a licensed
auctioneer. However, it is also undisputed that High Bid, LLC, d/b/a
Roebuck Auctions was not a licensed auction business. Plaintiff’s
argument that “Chapter 468 provides that auctioneers be individuals—
there is no way for a fictitious business entity to be a licensed
auctioneer” is true in that the business itself can’t be the auctioneer—
obviously an auctioneer must be a person. The statute, however,
makes it clear that the business must be licensed for auctions to be
conducted under its name by a licensed auctioneer. Because Plaintiff
is unlicensed, it cannot benefit from its wrongdoing.
(citation omitted). In other words, the district court concluded that the agreement
in the bidder identification stub that obliged Everett to pay the ten percent bidder’s
premium was unenforceable.2 The district court then entered judgment in
Defendant Everett’s favor.
C. Roebuck Auctions’s Motion for Reconsideration
Plaintiff Roebuck Auctions then filed a motion for reconsideration of the
district court’s judgment, pursuant to Federal Rule of Civil Procedure 59(e).
Roebuck Auctions raised two grounds in support of its motion: first, that the
district court did not give Roebuck Auctions notice and a reasonable time to
respond prior to granting summary judgment in Everett’s favor on an issue not
2
On appeal, the parties do not dispute that the district court in effect found the agreement
unenforceable due to Roebuck Auctions’s failure to establish that it was a properly licensed
auction business, despite the fact that the district court did not explicitly so state in its summary
judgment order.
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raised in Everett’s motion for summary judgment, an issue “only addressed
preemptively by Roebuck [Auctions] with less than complete knowledge of the
true basis for Everett’s contention.” Second, Roebuck Auctions admitted that it
was not a licensed auction business, but argued that Florida Statute § 468.383(7)
explicitly exempts auctions performed “as a part of the sale of real property by a
real estate broker” from any auction licensure requirements. Because John
Roebuck was a licensed real estate broker, and the auction at issue here was for the
sale of real property, Roebuck Auctions contended that it was not required to
obtain an auction business license.
After Defendant Everett filed a response, and Roebuck Auctions (after
obtaining permission from the district court) filed a reply, the district court denied
Roebuck Auctions’ Rule 59(e) motion for reconsideration. The district court
concluded that Roebuck Auctions bore the burden of negating Everett’s affirmative
defense of non-licensure, and that Roebuck Auctions had clearly attempted to do
so in its motion for summary judgment. However, Roebuck Auctions did not, at
any time prior to filing its Rule 59(e) motion, argue that it was exempt from
licensure; instead, Roebuck Auctions wrongly relied on John Roebuck’s personal
auctioneer license to attempt to negate Everett’s affirmative defense. The district
court refused to provide Roebuck Auctions with a “second bite at the apple” when
it could have raised its exemption argument during the summary judgment phase
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but failed to do so. Accordingly, the district court denied Roebuck Auctions’s
motion for reconsideration.
D. Attorney’s Fees Proceedings
Following the entry of summary judgment in his favor, Defendant Everett
moved for an award of attorney’s fees, pursuant to Fla. Stat. § 57.105(7),
contending that (1) the bidder identification stub that Everett signed provided that
the auctioneer, Roebuck Auctions, was entitled to an award of attorney’s fees in
the event of a contractual breach; (2) Roebuck Auctions had sought to recover
attorney’s fees as part of its damages in this case; (3) Fla. Stat. § 57.105(7) permits
one-sided contractual attorney’s fee provisions to apply to both parties to the
contract; and (4) Everett was therefore entitled to an award of reasonable
attorney’s fees.
Roebuck Auctions responded to Everett’s motion by noting that in granting
summary judgment to Everett, the district court effectively found the auction
contract unenforceable due to Roebuck Auctions’ non-licensure. In light of the
unenforceable auction contract, any provisions contained therein, including the
provision providing for an award of attorney’s fees, was likewise unenforceable.
The district court granted Everett’s motion for attorney’s fees, stating that
although the auction contract was unenforceable due to Roebuck Auctions’s
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“failure to show that it was properly licensed to conduct the auction, Florida law
states that an ‘innocent party’ can enforce the contract to recover attorneys’ fees.”
On January 24, 2013, Roebuck Auctions filed a notice of appeal from the
district court’s (1) order granting summary judgment to Everett; (2) order denying
Roebuck Auctions’s motion for reconsideration; and (3) order granting Everett
entitlement to attorney’s fees.
III. DISCUSSION
A. Summary Judgment & Motion for Reconsideration
We review a district court’s grant of summary judgment de novo, applying
the same legal standards that bound the district court. Whatley v. CNA Ins. Cos.,
189 F.3d 1310, 1313 (11th Cir. 1999). Summary judgment is appropriate when the
evidence, viewed in the light most favorable to the nonmoving party, presents no
genuine issue of material fact and compels judgment as a matter of law. Id.; see
also Fed. R. Civ. P. 56(a).
The Florida Department of Business and Professional Regulation and the
Florida Board of Auctioneers enforce a comprehensive statutory scheme regulating
auctions and providing for the licensure of auction businesses and auctioneers. See
Fla. Stat. §§ 468.381–468.399. Under state law, “[n]o person shall auction or offer
to auction any property in this state unless he or she is licensed,” and “[n]o
business shall auction or offer to auction any property in this state unless it is
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licensed as an auction business.” Id. § 468.385(2), (7)(b). Certain auctions are
exempt from the statutory requirements governing auctions and auctioneers,
including “[a]uctions conducted as a part of the sale of real property by a real
estate broker.” Id. § 468.383(7).
Chapter 468 goes on to require that:
[e]ach auction must be conducted by an auctioneer who has an active
license or by an apprentice who has an active apprentice auctioneer
license and who has received prior written sponsor consent. Each
auction must be conducted under the auspices of a licensed auction
business. Any auctioneer or apprentice auctioneer conducting an
auction, and any auction business under whose auspices such auction
is held, shall be responsible for determining that any auctioneer,
apprentice, or auction business with whom they are associated in
conducting such auction has an active Florida auctioneer, apprentice,
or auction business license.
Id. § 468.388(4) (emphasis added). An “auction business” is defined as “a sole
proprietorship, partnership, or corporation which in the regular course of business
arranges, manages, sponsors, advertises, promotes, or carries out auctions, employs
auctioneers to conduct auctions in its facilities, or uses or allows the use of its
facilities for auctions.” Id. § 468.382(1). An “auctioneer” is defined as “any
person licensed pursuant to this part who holds a valid Florida auctioneer license.”
Id. § 468.382(2). Additionally, “[a] license issued by the department to an
auctioneer, apprentice, or auction business is not transferable.” Id. § 468.385(8).
Thus, the Florida statutory scheme governing auctions requires (1) separate,
non-transferable licenses for auctioneers and auction businesses, and (2) that
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auctions be conducted by a licensed auctioneer “under the auspices” of a licensed
auction business.
Here, we conclude, as did the district court, that Defendant Everett was
entitled to summary judgment on the ground that Plaintiff Roebuck Auctions was
not a licensed auction business, thus rendering the agreement to pay the bidder’s
premium unenforceable. To the extent that Roebuck Auctions contends that it was
not given fair notice, pursuant to Federal Rule of Civil Procedure 56(f), of the
district court’s intention to grant summary judgment on this ground, we find this
argument lacks merit. Defendant Everett, in his motion to dismiss and amended
answer, raised as an affirmative defense the fact that Roebuck Auctions was not a
licensed auction business. In its own motion for summary judgment, Plaintiff
Roebuck Auctions responded to this affirmative defense and attempted to negate it
by relying on John Roebuck’s personal status as a licensed auctioneer. In light of
the non-transferability of auctioneer licenses and the statutory requirement that
“[e]ach auction . . . be conducted under the auspices of a licensed auction
business,” however, Roebuck Auctions clearly failed to negate Everett’s
affirmative defense. Fla. Stat. §§ 468.385(8), 468.388(4).
Further, in response to Roebuck Auctions’s motion for summary judgment,
Everett reasserted his affirmative defense, and Roebuck Auctions, rather than
seeking leave of court to file a reply (as permitted by the Local Rules) maintained
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its reliance on John Roebuck’s personal auctioneer license as sufficient to negate
Everett’s affirmative defense. Thus, Roebuck Auctions was on notice of this
affirmative defense raised by Everett and had an opportunity to respond to this
defense, despite the fact that its response was ultimately insufficient to carry the
day.
Nor was the district court required to grant Roebuck Auctions’ motion for
reconsideration. For the first time, Roebuck Auctions’s motion raised the
argument that it was exempt from the auction business license requirement because
the auction was conducted “as a part of the sale of real property by a real estate
broker.” Fla. Stat. § 468.383(7). We review a district court’s denial of a motion
for reconsideration only for an abuse of discretion, and the law in this Circuit is
well-settled that a “motion for reconsideration cannot be used to relitigate old
matters, raise argument or present evidence that could have been raised prior to the
entry of judgment.” Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 957 (11th
Cir. 2009) (internal quotation marks omitted). “This prohibition includes new
arguments that were previously available, but not pressed.” Id. (internal quotation
marks omitted). Roebuck Auctions has not identified any reason why it failed to
raise the issue of the statutory exemption prior to the entry of judgment in Everett’s
favor, and the district court did not abuse its discretion in refusing to permit
Roebuck Auctions to relitigate, with new argument, the issue on which summary
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judgment was granted. See id. (“Denial of a motion to amend is especially soundly
exercised when a party gives no reason for not previously raising an issue.”
(internal quotation marks omitted)).
B. Defendant Everett’s Entitlement to Attorney’s Fees
We review de novo a district court’s interpretation of state law governing
entitlement to attorney’s fees. Smalbein v. City of Daytona Beach, 353 F.3d 901,
904 (11th Cir. 2003). In addition, we review the district court’s ultimate decision
to grant or deny attorney’s fees for an abuse of discretion. Davis v. Nat’l Med.
Enter., Inc., 253 F.3d 1314, 1318–19 (11th Cir. 2001) (reviewing an award of
attorney’s fees under Florida law in a diversity suit).
Under Florida law, absent a specific statutory or contractual provision, a
prevailing litigant has no general entitlement to attorney’s fees. Dade County v.
Pena, 664 So. 2d 959, 960 (Fla. 1995) (“[A]ttorney’s fees may only be awarded by
a court pursuant to an entitling statute or an agreement of the parties.”). Here, the
language of the bidder identification stub obligated the bidder, Everett, to pay
Roebuck Auctions’s legal fees in the event that Everett breached the auction
contract. Florida law permits such one-sided contractual attorney’s fee provisions
to be applied reciprocally: “[i]f a contract contains a provision allowing attorney’s
fees to a party when [it] is required to take any action to enforce the contract, the
court may also allow reasonable attorney’s fees to the other party when that party
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prevails in any action . . . with respect to the contract.” Fla. Stat. § 57.105(7). The
parties do not contest that the “legal fees” provision in the bidder identification
stub falls generally within this statutory language that permits reciprocal recovery,
such that Everett could use the provision to obtain an award of attorney’s fees.
Roebuck Auctions contends, however, that although Everett was a prevailing
party in the underlying suit (inasmuch as he successfully defended against
Roebuck Auctions’s suit on the basis of the identification stub’s unenforceability),
he is not entitled to recover attorney’s fees precisely because of the stub’s
unenforceability. Roebuck Auctions objects to Everett’s attempt to, in effect, have
his cake and eat it too.
“[F]or the purpose of determining whether an award of attorney’s fees is
proper under a contract’s prevailing party fee provision, ‘there is a difference
between contracts that never came into existence and contracts that exist but are
later found to be unenforceable.’ ” Tarr v. Honea, 959 So. 2d 780, 781 (Fla. 4th
DCA 2007) (quoting Fabing v. Eaton, 941 So. 2d 415, 418 (Fla. 2d DCA 2006)).
“[W]here a motion for attorney’s fees is based on a prevailing-party provision of a
document, the fact that a contract never existed precludes an award of attorney’s
fees.” David v. Richman, 568 So. 2d 922, 924 (Fla. 1990). However, “when
litigation ensues in connection with a validly formed contract, attorney’s fees may
be recovered under a prevailing-party provision of the contract even though the
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contract has been rescinded or held to be unenforceable.” Id. Thus, the question
before us is whether the auction “contract” (i.e., as memorialized in the bidder
identification stub) at issue (1) never came into existence due to Roebuck
Auctions’s non-licensure, or (2) whether the “contract” was merely unenforceable
due to Roebuck Auctions’s non-licensure.
Although Roebuck Auctions’s status as an unlicensed auction business
prevented it from enforcing the terms of the bidder identification stub, this does not
per se mean that there was no “meeting of the minds” with respect to the formation
of a contract. To the contrary, the record reflects that Defendant Everett and
Roebuck Auctions did enter into a contract, based on Roebuck Auctions
conducting the auction and Everett placing the high bid after signing the bidder
identification stub. Their contract’s ultimate unenforceability does not alter the
fact that a contract was formed between the parties. See Katz v. Van Der Noord,
546 So. 2d 1047, 1049 (Fla. 1989) (“When parties enter into a contract and
litigation later ensues over that contract, attorney’s fees may be recovered under a
prevailing-party attorney’s fee provision contained therein even though the
contract is rescinded or held to be unenforceable. The legal fictions which
accompany a judgment of rescission do not change the fact that a contract did
exist.”).
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In addition, this case is readily distinguishable from those cases in which
Florida courts have concluded that the parties never entered into a contract ex ante,
such as in the event of a rescinded offer prior to acceptance, mutual mistake, or a
contract governing illegal subject matter that was void under state law. See, e.g.,
Gibson v. Courtois, 539 So. 2d 459, 460 (Fla. 1989) (where offeror revoked offer
prior to acceptance, “no contract came into existence and no legal obligations
attached. . . . Absent mutual assent, neither the contract nor any of its provisions
[including an attorney’s fees provision] come into existence.”); Carnival Leisure
Indus. Ltd. v. Arviv, 655 So. 2d 177, 180 (Fla. 3d DCA 1995) (where a state
statute rendered “void and of no effect” contracts governing the repayment of
money lent for the purpose of being wagered, the statute likewise “invalidate[d] the
nonseverable provision for attorney’s fees.”).
Given Florida law in this area, we conclude that Roebuck Auctions has not
shown that the district court erred in granting Everett entitlement to reasonable
attorney’s fees.
IV. CONCLUSION
In sum, we affirm the district court’s orders (1) granting summary judgment
to Defendant Everett, and (2) finding Everett was entitled to reasonable attorney’s
fees.
AFFIRMED.
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