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eFile Accepted: 09/24/2014 03:09 PM
Filing # 18615626 Electronically Filed 09/24/2014 01:27:52 PM
IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT
IN AND FOR SARASOTA COUNTY, FLORIDA
McCANN HOLDINGS, LTD.,
Plaintiff,
Case No. 2011 CA 3897 NC
Vv.
SDC COMMUNITIES, INC.,
VOTT-A, LLC, VOTT-B,
LLC, VOTT-C, LLC,
VOTT-D, LLC, HENRY
RODRIGUEZ, and
RANDALL BENDERSON
Defendants.
DEFENDANTS’, VOTT-A, LLC, VOTT-B, LLC, VOTT-C, LLC AND VOTT-D,
LLC, MOTION FOR SUMMARY JUDGMENT AS TO COUNTS I, I, TH, VI AND IX
Defendants, VOTT-A, LLC, VOTT-B, LLC, VOTT-C, LLC and VOTT-D, LLC,
(hereinafter collectively “VOTT”), pursuant to Rule 1.510, Fla. R. Civ. Proc., moves for
summary judgment as to Counts I, II, III, VI and IX of the Third Amended Complaint filed by
MCCANN HOLDINGS, LTD., (“McCann”), and as grounds states as follows:
I. STANDARD FOR SUMMARY JUDGMENT
A movant is entitled to summary judgment “if the pleadings, depositions, answers to
interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on
file show that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Fla. R. Civ. P. 1.510(c); Estate of Githens v. Bon
Secours —Maria Manor Nursing Care Center, Inc., 928 So.2d 1272, 1274 (Fla. 2d DCA 2006);
Willis v. Sears, Roebuck & Co., 351 So.2d 29 (Fla. 1977); Shaw v. Tampa Elec. Co., 949 So.2d
]1066 (Fla. 2d DCA 2007); Maynard v. Household Fin. Corp. III, 861 So.2d 1204, 1206 (Fla. 2d
DCA 2003).
I. MATERIAL FACTS AND EVIDENCE NOT IN DISPUTE
As grounds for the Motion for Summary Judgment, VOTT relies on the Affidavits of
David Baldauf and Randall Benderson, McCann’s Answers to Interrogatories, minutes of
meetings of the Sarasota County Board of County Commissioners, the depositions of Hugh
Culverhouse, Justin Powell, Henry Rodriguez, Randall Benderson, David Baldauf, and Alicia
Gayton, and the pleadings filed of record in this case. For purposes herein, (1) the Energy
Economic Zone Joint Cooperation Agreement, attached as Exhibit “A” to the Third Amended
Complaint, shall be referred to herein as the “VOTT Agreement,” (11) the Comprehensive Plan
Amendment 2010-02-E shall be referred to herein as the “Amendment,” (111) the Sarasota County
Board of County Commissioners shall be referred to herein as the “BOCC,” and, (iv) the E-mail
from Henry Rodriguez dated June 24, 2010, attached as Exhibit “B” to the Third Amended
Complaint, shall be referred to herein as the “Rodriguez E-mail.”
Hl. SUMMARY OF ARGUMENT
As no genuine issue of material facts exists, and VOTT 1s entitled to a judgment as a
matter of law, VOTT should be granted summary judgment as to Counts I, I, III, VI and IX of
the Third Amended Complaint because:
¢ The VOTT Agreement is clear, unambiguous, valid and enforceable as a
matter of law.
¢ McCann cannot establish an action for breach of contract as a matter of
law where the alleged damages are not the natural consequence of the
breach and/or are based on conjecture and speculation such that they
cannot be reasonably ascertained or do not exist.* McCann cannot establish an action for breach of implied warranty of good
faith and fair dealing as a matter of law where (1) the alleged damages do
not exist or are too speculative to be reasonably ascertained as a matter of
law, and (11) McCann could never reasonably expect that the VOTT
Agreement would insure the adoption of the Amendment.
¢ McCann cannot sustain a breach of fiduciary duty claim against VOTT
because (1) the tort claim 1s not independent of the breach of contract
claim, (11) VOTT owed no fiduciary duty to McCann, and (ii) the
damages do not exist or are too speculative to be reasonably ascertained as
a matter of law.
¢ VOTT committed no unlawful act, lawful act by unlawful means nor any
other overt act in pursuance of a conspiracy.
IV. ARGUMENT
A. Count I:
The VOTT Agreement is clear, unambiguous, valid and
enforceable as a matter of law.
In Count I of the Third Amended Complaint, McCann claims the VOTT Agreement
should be declared null and void, as it was never enforceable or no longer enforceable. To that
effect:
1) McCann alleges the VOTT Agreement is void because Randall
Benderson, (“Benderson”), had no authority to execute the VOTT Agreement. However,
Benderson did in fact have authority, as VOTT’s agent, to negotiate and execute the VOTT
Agreement on behalf of and to bind VOTT therein. VOTT hereby incorporates herein the
arguments, authority and Affidavits as set forth in that certain “Defendant Randall Benderson’s
Motion for Summary Judgment As To Counts IV, V, VII, VII and IX,” and more specifically
the David Baldauf/VOTT Affidavit attached thereto, as further evidence and support ofBenderson’s authority to act as VOTT’s agent to negotiate and execute the VOTT Agreement,
binding VOTT thereto.
2.) McCann alleges the VOTT Agreement is void because Defendant
SDC Communities, Inc., (“SDC”), was referenced in the introductory paragraph but did not
execute the VOTT Agreement. However, as Alicia Gayon, one of the drafters of the VOTT
Agreement, has testified, the one (1) reference to SDC in the introductory paragraph of the
VOTT Agreement was merely a scrivener’s error, as SDC is not a party to the VOTT
Agreement. [Gayton P. 16, L. 1-20]. SDC has no rights, duties or obligations for performance
described therein the VOTT Agreement supported by consideration, nor did SDC execute the
VOTT Agreement as there was no signature page for SDC. As a matter of law, SDC was not
and could never be deemed a party to the VOTT Agreement. See Mangus v. Present, 135 So.2d
417, 418 (Fla. 1961), noting the essential elements necessary to find SDC to be bound by and a
party to the contract are not met. The fact that SDC did not execute the VOTT Agreement
because it was not a party thereto has no bearing whatsoever on the validity and enforceability of
the contract, as argued by McCann. Further, Hugh Culverhouse, by his own testimony an
experienced Florida licensed attorney practicing law, [Culverhouse P. 9, L. 13 - P. 10, L 20],
certainly knew when he negotiated and executed the VOTT Agreement on behalf of McCann
that only VOTT and McCann were parties to, bound by and had obligations for performance
under the contract; similarly, Mr. Culverhouse has testified that he knew that neither Henry
Rodriguez nor any representative from SDC were present during the final, closed-door
negotiations and execution of the VOTT Agreement. [Culverhouse P. 102, L. 5-7].
Additionally, the scrivener’s error in the introductory paragraph wherein SDC’s name
was typed in error does not render the contract ambiguous, invalid or unenforceable. In light ofthe scrivener’s error, this Court has the authority to interpret and reform the VOTT Agreement,
to the extent it deems necessary, and to determine that as a matter of law, SDC was never a party
to the VOTT Agreement. See Estate of Robinson v. Robinson, 720 So.2d 540, 542 (Fla. 4" DCA
1998), holding: “The power and authority of a court of equity to correct the mistakes of a
scrivener incorporated into a contract, deed, or other instrument is so well known as to require no
citation of authorities.” Therefore, SDC’s failure to execute a contract to which it was not a
party does not render the contract invalid nor unenforceable.
3.) McCann alleges the VOTT Agreement is void because a legal
description of the McCann property is not attached as Exhibit “B” to the VOTT Agreement.
However, the VOTT Agreement sufficiently describes the McCann property with specificity
therein, including by reference to that portion of McCann’s real estate holdings subject to the
Amendment [and to that, we note that specific legal descriptions of the affected McCann
property were expressly set forth and described in the Amendment]. The VOTT Agreement is
not ambiguous, as VOTT and McCann each understood with clarity and specificity exactly what
property owned by McCann was subject to the VOTT Agreement, the restrictions therein and the
Amendment. Further, McCann has never alleged that it does not understand the precise property
that is the subject matter of the VOTT Agreement. In fact, Hugh Culverhouse’s deposition is
complete with testimony regarding his knowledge and understanding of the affected McCann
property.
4.) McCann alleges the VOTT Agreement is void because VOTT
failed to support the Amendment and thus breached the VOTT Agreement. However, the
question of whether a beach of the VOTT Agreement occurred has absolutely no relevance as to
the validity and enforceability of the contract.5.) McCann alleges the VOTT Agreement is void because its
performance was tied to the passage of the Amendment by the BOCC, and thus, when the BOCC
did not vote to approve the Amendment, the VOTT Agreement’s purpose was frustrated.
However, McCann’s reliance on what is typically an affirmative defense --the doctrine of
commercial frustration-- 1s without merit and unsupported by case law.
When they entered into the VOTT Agreement, no party knew, or could have known, with
any degree of reasonable certainty, whether the BOCC would ultimately vote to approve the
Amendment — a legislative act. Rather, they entered into the VOTT Agreement so that they
could each bring a degree of commercial certainty to potential land use matters affecting their
respective properties, both at the time of execution and in the future. Although the Amendment
was not passed, McCann could certainly reapply now or at a later date for a similar
comprehensive plan amendment or other land use approvals affecting his property. Further,
McCann cannot rely on the doctrine of commercial frustration because McCann, quite simply,
knew the relevant and foreseeable business risk when he entered into the VOTT Agreement --
that business risk being that the BOCC, an independent political subdivision, local government
and governing body of the State of Florida, may not ultimately vote to adopt the Amendment. As
such, courts have held that “[a|lthough the doctrines of impossibility of performance and
commercial frustration are ‘undoubtedly in [the] process of evolution’ and have been applied
with increasing liberality, they should be employed with great caution if the relevant
business risk was foreseeable at the inception of the agreement and could have been the
subject of an express contractual agreement.” Home Design Center —Joint Venture v. County
Appliances of Naples, Inc., 563 So.2d 767, 769 (Fla. 2d DCA 1990). (Emphasis Added). See
Also, Ferguson v. Ferguson, 54 So.3d 553 (Fla. 3d DCA 2011); American Aviation, Inc., v.Aero-Flight Service, Inc., 712 So.2d 809 (Fla. 4'" DCA 1998); Florida Dept. of Financial Serv. v.
Freeman, 921 So.2d 598 (Fla. 2006); Walter T. Embry, Inc., v. LaSalle Nat. Bank, 792 So.2d
567 (Fla. 4" DCA 2001).
McCann knew from the language of the documents and when the VOTT Agreement was
executed that it was not contingent on the Amendment being approved, and that no party could
ever insure the ultimate vote by the BOCC to approve or deny the Amendment. This was clearly
a relevant business risk foreseen by McCann and its agent, Hugh Culverhouse, who by his own
testimony has experience litigating issues involving local governments [Culverhouse P. 8, L 7-
P. 9, L. 12]. The doctrine of commercial frustration / impossibility as its relates to the
Amendment’s not passing has no bearing on the validity and enforceability of the VOTT
Agreement as a matter of law. Home Design Center at 769.
The VOTT Agreement is clear, unambiguous and binding upon VOTT and McCann.
VOTT respectfully requests this Court to declare the VOTT Agreement to be valid and
enforceable as a matter of law.
B. Count I:
McCann cannot establish an action for breach of contract as a
matter of law where the alleged damages are not the natural
consequence of the breach and/or are based on conjecture and
speculation such that they cannot be reasonably ascertained or
do not exist.
Alleged Damages Are Not The Natural Consequence Of The Alleged Breach
In Count II of the Third Amended Complaint, McCann claims VOTT breached the
VOTT Agreement by not supporting it and/or sabotaging it. Putting aside the question of
whether there is a material breach, to maintain an action for breach of contract, McCann must
establish 1t has damages. Mettler, Inc. v. Ellen Tracy, Inc., 648 So.2d 253, 255 (Fla. 2d DCA1994), “Damages recoverable by a party injured by a breach of contract are those which would
naturally result from the breach and can reasonably be said to have been contemplated by the
parties at the time the contract was made.” Sharick v. Se. University of the Health Sciences,
Inc., 780 So.2d 136, 139 (Fla. 3d DCA 2000). At the time the VOTT Agreement was entered
into by the parties, no one knew with any degree of reasonable certainty whether the BOCC
would vote to approve the Amendment. The VOTT Agreement was not contingent on the
Amendment’s adoption; the consideration by VOTT was to support the Amendment not insure
its passage. VOTT could not insure passage of the Amendment as a matter of law.
The damages McCann alleges it may sustain for breach of the VOTT Agreement are not
at all related to and do not arise out of the VOTT Agreement. Rather, if they exist at all,
damages would relate to the lack of land use approvals, density and related land use permits that
McCann speculates 1t would have received. [Culverhouse P. 266, L. 21 — P. 268, L. 9].
McCann’s alleged damages relate entirely to its future projections of how land use entitlements
associated with the Amendment could potentially impact its property. However, these alleged
damages are not the natural consequence of any alleged breach of the VOTT Agreement and
arise solely from the County government’s failure to act at one specific point in time. The two
are not related. To that, the court in River Bridge Corporation v. American Somax Ventures, 18
So.3d 648, 650-1 (Fla. 4"" 2009), citing Sostchin v. Doll Enters., Inc., 847 So.2d 1123, 1128 (Fla.
3d DCA 2003), held that damages must be established “with a reasonable degree of certainty and
must be a natural consequence of the wrong ...such an award cannot be based upon speculation
or conjecture.” McCann will never be able to prove as a matter of law that any alleged breach of
the VOTT Agreement caused the BOCC to defer the Amendment; nor can McCann ever
establish as a matter of law that the lack of future land use entitlements and resulting allegeddamages are the natural consequence of any breach of the VOTT Agreement. River Bridge at
650-1.
Alleged Damages Could Have Been Avoided
The damages alleged by McCann for diminution in future value of its land and/or lost
development related future profits are the result of not having specific land use approvals and
entitlements on its property that would permit certain densities, residential units, industrial,
commercial and retail square footages. [Culverhouse P. 266, L. 21 — P. 268, L. 9]. However, it
is important to remember that the BOCC, as a local government, 1s the only body with authority
to independently review, authorize and permit land use entitlements as it deems appropriate and
consistent with its zoning and development ordinances as well as its comprehensive plan. VOTT
certainly had no control over or duty to “force” the BOCC to approve the Amendment to then
entitle McCann’s lands, as a comprehensive plan amendment is a legislative act and not a
guaranteed right of a landowner. It is entirely too speculative for this Court to allow McCann’s
conjecture that it has suffered or will suffer damages as a result of an alleged breach of the
VOTT Agreement, when Hugh Culverhouse has already testified that McCann’s alleged
damages are actually based upon his perception of how the lack of land use entitlements
associated with the BOCC’s failure to adopt the Amendment will affect the future marketing and
development of its property. [Culverhouse P. 266, L. 21 — P. 268, L. 9]. And we note that
McCann could have continued to pursue the Amendment and can always reapply for similar land
use entitlements, so as to reasonably avoid the consequences McCann associates with the lack of
land use entitlements. However, McCann has elected to sue rather than make any attempt to
obtain the entitlements it alleges to be the source of its damages. [Culverhouse P. 349, L. 24 — P.
351, L. 11; P. 479, L. 20 — P. 480, L. 6]. See Sys. Components Corp. v. Fla. Dep’t of Transp., 14So.3d 967, 982 (Fla. 2009), discussing how the “doctrine of avoidable consequences,” also
commonly referred to as mitigation of damages, requires McCann to take ordinary and
reasonable ameliorative actions to avoid loss. Continuing to pursue or reapplying for land use
entitlements for its property is certainly reasonable and ordinary for any land use developer. In
fact, Justin Powell, Vice President of the General Partner of McCann, already testified that
McCann could file a similar comprehensive plan amendment on its own but has not. [Powell P.
316, L. 19-—P. 317, L. 3]. Similarly, Hugh Culverhouse does not dispute this fact, [Culverhouse
P. 458, L. 9-15], and confirmed that McCann choose to sue instead.
Alleged Damages Are Too Speculative To Be Reasonably Ascertained
As held by the court in Forest's Mens Shop v. Schmidt, 536 So.2d 334, 336 (Fla. 4th
DCA 1988): "When a party seeks lost future profits based upon a breach of contract or other
wrong, the party must prove that the lost profits were a direct result of the defendant's actions
and that the amount of the lost profits can be established with reasonable certainty." "Lost profits
must be established with a reasonable degree of certainty and must be a natural consequence of
the wrong," and "[s]uch an award cannot be based upon speculation or conjecture." Sostchin v.
Doll Enters., Inc., 847 So.2d 1123, 1128 (Fla. 3d DCA 2003). McCann can never prove as a
matter of law that absent the alleged breach of the VOTT Agreement, the BOCC would have
approved the Amendment and McCann would have received the land use entitlements it desired.
Thus, McCann can never establish damages as a matter of law and with any degree of reasonable
certainty as 1s necessary to establish and sustain a cause of action for breach of contract. Sharick
at 139,
Further, Hugh Culverhouse, on behalf of McCann, has testified that () McCann 1s not
marketing the subject property for sale, and (41) McCann 1s not attempting to take any further
10action to develop or obtain land use entitlements for its property right now. [Culverhouse P. 482,
L. 7 — P. 484, L. 4]. It appears McCann has presently suffered no damages. And certainly any
damages McCann perceives that may arise in the future based upon lost development profits
associated with the lack of land use entitlements, for which McCann could reapply to obtain but
has opted to not pursue, are too speculative as a matter of law to establish and sustain a cause of
action for breach of contract. To that, we note that “[t]he general rule 1s that anticipated profits
of a commercial business are too speculative and dependent upon changing circumstances to
warrant a judgment for their loss.” Levitt-ANSCA Towne Park P'ship v. Smith & Co., Inc., 873
So.2d 392, 396 (Fla. 4th DCA 2004). “It 1s as inappropriate to use purely speculative forecasts of
future revenue to determine the market value of a business as it is to use such speculative
forecasts in determining lost future profits.” Susan Fixel, Inc. v. Rosenthal & Rosenthal, Inc.,
921 So.2d 43, 46 (Fla. 3d DCA 2006).
As McCann has suffered no damages and/or the alleged damages are too speculative to
be determined with reasonable certainty as required by law, summary judgment should be award
in favor of VOTT.
C. Count IIT:
McCann cannot establish an action for breach of implied
warranty of good faith and fair dealing as a matter of law
where (i) the alleged damages do not exist or are too
speculative to be reasonably ascertained as a matter of law,
and (ii) McCann could never reasonably expect that the VOTT
Agreement would insure the adoption of the Amendment.
In Count III of the Third Amended Complaint, McCann claims VOTT breached an
implied obligation of good faith and fair dealing by failing to support the VOTT Agreement
and/or by sabotaging it. We note that Hugh Culverhouse and Justin Powell have testified that
1]neither they nor McCann ever requested VOTT do any specific acts in support of the
Amendment. [Culverhouse P. 460, L. 15 — P. 461, L. 7; Powell P. 576, L. 19 — P. 577, L. 10;
Powell P. 291, L. 22 — P. 292, L. 24; and we also note Powell has testified that “McCann” is
comprised of just himself and Hugh Culverhouse, Powell P. 314, L. 17-20]. In describing the
degree of support McCann would find acceptable, it alleges for the first time in the Third
Amended Complaint that VOTT should have “[a]t a minimum ...support[ed] the Amendment in
the same fashion 1t would support a comprehensive plan amendment if it directly affected and
benefited its own land.” [Page 16, Paragraph 48 of the Third Amended Complaint]. To that,
both Randall Benderson and VOTT have testified that the support VOTT rendered to the
Amendment was provided in the same fashion that they would have supported a similar
comprehensive plan amendment affecting their own lands under the circumstances. [Affidavit of
Randall Benderson and Affidavit of David Baldauf]. As only VOTT 1s in a position to know
what level of support it would find acceptable for a similar comprehensive plan amendment
affecting its property, the testimony by VOTT is uncontroverted.
Additionally, the purpose of the implied covenant of good faith and fair dealing 1s “to
protect the reasonable expectations of the contracting parties.” Ins. Concepts & Design, Inc. v.
Heathspan Services, Inc., 785 So.2d 1232, 1234 (Fla. 4° DCA 2001) (Emphasis Added); See
Also Cox v. CSX Intermodal, Inc., 732 So.2d 1092, 1097 (Fla. 1° DCA 1999), holding: “[T]he
implied covenant of good faith and fair dealing is designed to protect the contracting parties’
reasonable expectations.” (Emphasis Added). | If McCann’s expectation was for VOTT to
support the Amendment in the same fashion it would support a comprehensive plan amendment
affecting its own property, then the uncontroverted evidence proves VOTT rendered that support.
12On the other hand, if McCann’s expectation for support was linked to the adoption of the
Amendment by the BOCC, [which sticks out of the Third Amended Complaint like a sore thumb
to be McCann’s “true underlying claim” and source of its alleged damages], then that
expectation could never be found to be a “reasonable expectation” as a matter of law. Ins.
Concepts at 1234. McCann could never reasonably expect that the VOTT Agreement would
guaranty a vote approving the Amendment by the independent governing body of the BOCC.
Further, considering McCann never asked for any specific acts to be performed by VOTT
in support of the Amendment, it is improper for McCann to now attempt to use the implied
covenant of good faith to vary, enlarge or override the terms of the VOTT Agreement, which do
not specify any degree of support required. See City of Riviera Beach v. John’s Towing, 691
So.2d 519, 521 (Fla. 4" DCA 1997), holding: “The implied obligation of good faith cannot be
used to vary the terms of an express contract.” VOTT supported the Amendment and spoke in
favor of the Amendment at the June 23, 2010, and October 26, 2010, BOCC hearing. McCann
alleges this was just “lip service,” [Third Amended Complaint, Paragraph 48] or “neutral” [Third
Amended Complaint, Paragraph 29], but McCann will never be able to establish any other
objective level of support necessary to comply with the VOTT Agreement, because that
agreement’s terms are silent as to any specific level, acts or conduct McCann expected of VOTT.
McCann cannot now as a matter of law seek to vary or impose some new standard and obligation
for support upon VOTT that did not exist in the original contract. Riviera Beach at 521. And we
note, McCann never asked VOTT to do any specific thing to “support” the Amendment
[Culverhouse P. 460, L. 15 — P. 461, L. 7; Powell P. 576, L. 19 — P. 577, L. 10; Powell P. 291, L.
22 —P, 292, L. 24].
13Finally, for the same reasons and case law references noted above in our response to
Count I, Breach of Contract, McCann cannot establish and sustain any damages arising out of a
cause of action for breach of implied covenant of good faith and fair dealing, because McCann
cannot prove with any degree of reasonable certainty that it sustained any damages as a result of
the alleged breach of implied covenants. McCann cannot prove as a matter of law that the
BOCC would have adopted the Amendment and its lands would have received the land use
entitlements absent any alleged breach of the implied covenants. Any damages to which
McCann alludes are entirely too speculative as a matter of law. Therefore, VOTT respectfully
requests summary judgment be granted in its favor.
D. Count VI:
McCann cannot sustain a breach of fiduciary duty claim
against VOTT because (i) the tort claim is not independent of
the breach of contract claim, (il) VOTT owed no fiduciary duty
to McCann, and (iii) damages do not exist or are too
speculative to be reasonably ascertained as a matter of law
In Count VI, McCann alleges VOTT breached a fiduciary duty to McCann by (1) failing
to provide support for the Amendment, and (11) tacitly or expressly encouraging SDC, Rodriguez
and Benderson’s efforts to oppose the Amendment.
The Tort Claim Is Not Independent From the Contract Claim
Florida law recognizes that a breach of fiduciary duty claim may be raised even where a
contract claim exists, so long as the tort claim is independent from the underlying contract.
Moransais v. Heathman, 744 So.2d 973, 981-3 (Fla. 1999). In this case, however, the breach of
fiduciary duty claim is merely a repackaged claim for breach of contract. McCann has already
alleged in Count II that VOTT breached the VOTT Agreement by failing to support the
Amendment, either directly or by tacitly encouraging others to oppose the Amendment. The
14breach of contract claim 1s identical to this breach of fiduciary duty claim. The Florida Supreme
Court, while recently limiting the application of the economic loss rule, has reaffirmed the long
standing basic common law in Florida that “in order to bring a valid tort claim, a party still must
demonstrate that all of the required elements for the cause of action are satisfied, including that
99
the tort is independent of any breach of contract claim.” Tiara Condominium Association,
Inc. v. Marsh & McLennan Companies, Inc., 110 So.3d 399, 408 (Fla. 2013) (Pariente, J.,
concurring). The question of whether VOTT failed to support the Amendment, directly or
indirectly, and VOTT’s alleged conduct and actions associated therewith, is entirely subsumed in
the breach of contract claim as well as Count III’s breach of implied covenants of good faith and
fair dealing claim. McCann cannot now seek to turn a contract claim for alleged
nonperformance of VOTT’s obligation to support the Amendment into a tort for economic loss.
Tiara Condominium at 409 (Pariente, J., concurring), citing Indem. Ins. Co. of N. Am. v. Am.
Aviation, Inc., 891 So.2d 532, 541 (Fla. 2004).
VOTT Owed No Fiduciary Duty to McCann
Notwithstanding the fact that the tort claim is not independent of the contract claim,
VOTT nevertheless owed no fiduciary duty to McCann as a matter of law. And we note that this
Court has already ruled in favor of SDC as to this claim, finding SDC owed no fiduciary duty to
McCann. For those same reasons, authorities and ruling, this Court should similarly rule in favor
of VOTT that it owed no fiduciary duty to McCann.
First, the Amendment, as a land use entitlement and legislative act to be approved
by a local government, cannot establish any partnership between VOTT and McCann nor duty of
VOTT to act for McCann’s benefit. The Amendment was not an agreement between VOTT and
McCann of any kind, and certainly the Amendment did not involve any special trust or
15confidence of McCann accepted by VOTT; the Amendment imposed no duty upon VOTT to act
on behalf of McCann. See Lanz v. Resolution Trust Corp., 764 F.Supp. 176, 179 (S.D. Fla.
1991). The only obligations imposed upon VOTT arose out of the VOTT Agreement, and for
that reason the tort claim is clearly not independent of the contract claim.
Second, the Amendment did not create a highly confidential relationship between VOTT
and McCann; to the contrary, the Amendment was a fully public process initiated by Sarasota
County. Cowan Liebowitz & Latman, P.C. v. Kaplan, 902 So.2d 755 (Fla. 2005).
Third, McCann was not the weaker party dependent upon VOTT; VOTT had no duty to
protect McCann. Watkins v. NCNB Nat’l Bank of Fla., N.A., 622 So.2d 1063, 1065 (Fla. 3d
DCA 1993); Barnett Bank of W. Florida v. Hooper, 498 So.2d 923, 927-28 (Fla. 1986). VOTT
has no inequality of position, superior knowledge, superior strength or power over McCann that
could give raise to a fiduciary duty. Thunder Marine, Inc. v. Brunswick Corp., 277 Fed. Appx.
910, 913 (11" Cir. 2008); and see MediaXposure Ltd (Cayman) v. Harrington, 2012 Lexis 69294
(M.D. Fla. 2012), holding: “(a) fiduciary relationship involves parties of different strengths.”
Rather, Hugh Culverhouse/McCann and Randall Benderson/VOTT are both experienced
businessman in the business of seeking and obtaining land use entitlements from local
governments. As held in Orlinsky v. Patraka, 971 So.2d 796, 800 (Fla. 3d DCA 2007), there is
no general fiduciary duty between two experienced business associates. The claim in this case,
similar to that held by the Orlinsky Court, is really based upon breach of contract.
Fourth, the mere fact that “one party places trust or confidence in the other does not
create a confidential relationship in the absence of some recognition, acceptance or undertaking
of the duties of a fiduciary on the part of the other party.”. Mukamal v. BMO Harris Bank N.A..,
488 B.R. 758, 781(Bankr. S.D. Fla. 2013), citing Harris v. Zeuch, 103 Fla. 183, 137 So. 135
16(1931). VOTT did not accept or recognize any trust or confidence of McCann, and as a matter of
law, McCann could never prove as that such trust, confidence and acceptance existed. Rather,
VOTT and McCann were two businessmen who entered into an arms length contract for
performance.
Finally, we note that for the same reasons and authorities as cited elsewhere herein this
Motion for Summary Judgment, McCann could never establish and sustain as a matter of law
that absent a breach of fiduciary duty, the BOCC would have voted to adopt the Amendment.
The Amendment constitutes a request for a legislative land use approval that is only granted at a
public hearing upon majority vote by the BOCC. McCann had no identifiable agreement,
contract, partnership or business relationship with Sarasota County upon which upon which it
could ever have a probability of completion, trust, or confidence. In fact, no private landowner
can ever be considered to have a “business relationship” or “partnership” with a local
government concerning land use petitions such as the Amendment. McCann was nothing more
than a land use applicant — requesting Sarasota County, by and through its BOCC, grant land use
approvals. In this case, a comprehensive plan amendment is considered a legislative act and is
totally discretionary with the BOCC. Any prior “agreement” or “business relationship” that
McCann felt it had with Sarasota County to vote a certain way regarding the Amendment would
be invalid, illegal and constitute “contract zoning.” As the Second District has made clear in a
case involving Sarasota County, contract zoning is unlawful. See Chung v. Sarasota County, 686
So. 2d 1358 (Fla. 2d DCA 1996). Given that the bar to contract zoning prevents any agreement
as to outcome to exist between a private party and the government as related to land use
decisions, such as the Amendment, McCann could never have a partnership or any other
17relationship with Sarasota County concerning the Amendment or any land use approval that
could give rise to any fiduciary duties or damages arising therefrom.
E. Count IX:
VOTT committed no unlawful act, lawful act by unlawful means
nor any other overt act in pursuance of a conspiracy.
This is a claim alleging VOTT conspired with the other defendants in the case causing
VOTT “to breach fiduciary duties” McCann alleged it had relating to (1) the VOTT Agreement,
and (11) the Amendment.
1. An actionable conspiracy requires an actionable underlying tort or wrong.
The elements of a claim for civil conspiracy are:
(a) a conspiracy between two or more parties, (b) to do an unlawful act or to do a
lawful act by unlawful means, (c) the doing of some overt act in pursuance of the
conspiracy, and (d) damage to plaintiff as a result of the acts performed pursuant
to the conspiracy.” Florida Fern Growers Ass’n, Inc. v. Concerned Citizens of
Putnam County, 616 So.2d 562, (Fla. 5" DCA 1993), as cited in Walters v.
Blankenship, 931 So.2d 137, 140 (Fla. 5" DCA 2006).
“Generally an actionable conspiracy requires an actionable underlying tort or wrong.”
Walters at 140. The underlying tort associated with the conspiracy that McCann claims VOTT
committed relate to Count VI, breach of fiduciary duty. As previously argued herein, VOTT is
requesting summary judgment be granted in its favor as to all Counts against VOTT. If the
Court grants summary judgment in VOTT’s favor as to Counts VI, then there will no longer be a
claim for an alleged underlying tort or wrong by VOTT. Therefore, the elements necessary to
establish a claim for civil conspiracy in Count IX would likewise fail. Summary judgment should
therefore be awarded in VOTT’s favor.
182. There is no evidence in the record of a conspiracy.
Despite approximately three (3) years of voluminous discovery and four (4) attempts at
drafting the Complaints, McCann 1s not able to point to any direct evidence of a conspiracy
linking VOTT to any other party to commit an unlawful or tortious act. In fact, McCann seems
to rest its entire premise of a civil conspiracy by VOTT on the Rodriguez E-mail and any
paranoid speculations McCann derives therefrom, such as McCann’s belief that at least three (3)
individual Sarasota County Commissioners are all involved in the conspiracy and “cover-up” to
deny McCann the passage of the Amendment [Culverhouse P. 285, L. 10 — 18; P. 161, L. 10 —
P. 166, L. 4; and, P. 62, L. 10 — 15]. The Rodriguez E-mail was written by Henry Rodriguez
alone and was not sent to Benderson. There is no evidence in the record that VOTT, or its agent
Benderson, individually or as agent for VOTT, ever conspired with any defendant, let alone
Rodriguez, to interfere with the VOTT Agreement, the Amendment or any other matter related
thereto.
In fact, in the Third Amended Complaint, Paragraph 101, Page 27, McCann even
acknowledges and alleges there are “no witnesses” nor does it have actual knowledge as “to
what was discussed” between the defendants Benderson, as VOTT’s agent, and Rodriguez.
McCann simply links Benderson, and therefore VOTT, to Rodriguez based upon pure
speculation related to the Rodriguez E-mail alone. Whatever acts Rodriguez, individually and/ or
as agent for SDC, may have done are not relevant as a matter of law as to VOTT and its agent
Benderson. Rodriguez has already testified that the Rodriguez E-mail and information presented
therein was a unilateral and independent statement by Rodriguez that was in no way requested by
nor acted upon by Benderson, individually or as agent for VOTT. [Rodriguez Vol. I, P. 117, L
13-14; P. 119, L 21-22; P. 120, L 12-17]. To find otherwise would be simply stating VOTT and
19Benderson are “guilty by association” because Benderson was mentioned in an unsolicited,
rogue E-mail written by Rodriguez.
Further, in Paragraph 28, Page 11 of the Third Amended Complaint, McCann states that
based upon “information and _ belief” it believes Benderson, individually and/or acting as
VOTT’s agent, conspired with Rodriguez, independently and/or as agent for SDC. At this stage
in the lawsuit, McCann needs facts supported by evidence, not unsubstantiated belief and
speculation. As held in Thompson v. Citizens National Bank of Leesburg Florida, 433 So.2d
32, 33 (Fla. 1* DCA 1983), at the summary judgment stage, one needs admissible evidence, and
“laln affidavit [for instance| based on information and belief rather than personal knowledge is
not admissible into evidence and should not be considered by the trial court on a motion for
summary judgment.” (Emphasis Added). See also Campbell v. Salman, 384 So.2d 1331 (Fla. 3d
DCA 1980); Silber v. Campus Sweater & Sportswear, 313 So.2d 409 (Fla. 1 DCA 1975);
Garwood v. Equitable Life Assurance Society of U.S., 299 So.2d 163 (Fla. 2d DCA 1974); Elser
v. Law Offices of James M. Russ, P.A., 679 So.2d 309 (Fla. 5" DCA 1996). Information and
belief is not evidence, it is pure speculation, and “[s]peculation should never be sufficient in
place of facts.” Department of Highway Safety and Motor Vehicles v. Roberts, 938 So.2d 513,
516 (Fla. 5'" DCA 2006). McCann has alleged and admitted there are “no witnesses” — take this
to mean no facts and no evidence — of a conspiracy. (See Third Amended Complaint, Paragraph
101, Page 27). There is no direct evidence that VOTT, itself or through its agent Benderson,
conspired with any of the other named defendants in the Third Amended Complain to commit
any unlawful or tortious act.
Further, McCann has failed to establish any basis or present any evidence that proves
VOTT, acting in concert with the other defendants, possessed some peculiar power of coercion
20by virtue of their combination that could not be possessed by an individually-named defendant
acting alone. See Walters at 140. There is simply no evidence to establish that VOTT, itself
and/or by and through its agent Benderson, committed a tort or unlawful act, let alone any
evidence that VOTT through Benderson conspired with the other defendants in this case to
commit a tort or unlawful act. All existing evidence negates a claim for civil conspiracy against
VOTT and Benderson. Further, as argued numerous times herein, McCann cannot establish as a
matter of law that 1s suffered any damages as a result of the alleged conspiracy, since McCann
can never prove as a matter of law that absent the conspiracy, the BOCC would have approved
the Amendment. Therefore, as McCann has failed to satisfy the necessary elements to sustain a
cause of action for civil conspiracy as against VOTT, summary judgment should be granted in
VOTT’s favor.
WHEREFORE, VOTT requests Summary Judgment as to Counts I, II, III, VI and IX of
the Third Amended Complaint and for this Court to reserve jurisdiction as to any other relief,
including attorney’s fees and costs.
_/s/_ Edward Vogler II
EDWARD VOGLER II
Vogler Ashton, PLLC
2411-A Manatee Avenue W.
Bradenton, FL 34205
Email: edvogler@voglerashton.com
(941) 388-9400 x104
(941) 866-7648 Fax
Florida Bar No. 0380970
Attorneys for VOTT and Benderson
21CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished
this 24" day of September, 2014, by Electronic Mail to: Steven D. Hutton, Esq., 240 S.
Pineapple Avenue, Suite 801, Sarasota, Florida 34236 sdh@buttonlawfirm.com;
pdominko@huttonlawfirm.com, and noreen@huttonlawfirm.com, and Morgan R. Bentley, Esq.
783 S. Orange Avenue, Suite 220, Sarasota, Florida 34236 mbentley@bentleyandbruning.com,
and nwhite@bentleyandbruning.com.
__/s/ Edward Vogler II
EDWARD VOGLER II, ESQUIRE
Florida Bar No. 0380970
Vogler Ashton, PLLC
2411 —A Manatee Avenue West
Bradenton, Florida 34205
(941) 388-9400 x104
(941) 866-7648 Facsimile
Attorney For VOTT and Benderson
edvogler@voglerashton.com
22
Preview
eFile Accepted: 09/24/2014 03:09 PM Filing # 18615626 Electronically Filed 09/24/2014 01:27:52 PM IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT IN AND FOR SARASOTA COUNTY, FLORIDA McCANN HOLDINGS, LTD., Plaintiff, Case No. 2011 CA 3897 NC Vv. SDC COMMUNITIES, INC., VOTT-A, LLC, VOTT-B, LLC, VOTT-C, LLC, VOTT-D, LLC, HENRY RODRIGUEZ, and RANDALL BENDERSON Defendants. DEFENDANTS’, VOTT-A, LLC, VOTT-B, LLC, VOTT-C, LLC AND VOTT-D, LLC, MOTION FOR SUMMARY JUDGMENT AS TO COUNTS I, I, TH, VI AND IX Defendants, VOTT-A, LLC, VOTT-B, LLC, VOTT-C, LLC and VOTT-D, LLC, (hereinafter collectively “VOTT”), pursuant to Rule 1.510, Fla. R. Civ. Proc., moves for summary judgment as to Counts I, II, III, VI and IX of the Third Amended Complaint filed by MCCANN HOLDINGS, LTD., (“McCann”), and as grounds states as follows: I. STANDARD FOR SUMMARY JUDGMENT A movant is entitled to summary judgment “if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fla. R. Civ. P. 1.510(c); Estate of Githens v. Bon Secours —Maria Manor Nursing Care Center, Inc., 928 So.2d 1272, 1274 (Fla. 2d DCA 2006); Willis v. Sears, Roebuck & Co., 351 So.2d 29 (Fla. 1977); Shaw v. Tampa Elec. Co., 949 So.2d ]1066 (Fla. 2d DCA 2007); Maynard v. Household Fin. Corp. III, 861 So.2d 1204, 1206 (Fla. 2d DCA 2003). I. MATERIAL FACTS AND EVIDENCE NOT IN DISPUTE As grounds for the Motion for Summary Judgment, VOTT relies on the Affidavits of David Baldauf and Randall Benderson, McCann’s Answers to Interrogatories, minutes of meetings of the Sarasota County Board of County Commissioners, the depositions of Hugh Culverhouse, Justin Powell, Henry Rodriguez, Randall Benderson, David Baldauf, and Alicia Gayton, and the pleadings filed of record in this case. For purposes herein, (1) the Energy Economic Zone Joint Cooperation Agreement, attached as Exhibit “A” to the Third Amended Complaint, shall be referred to herein as the “VOTT Agreement,” (11) the Comprehensive Plan Amendment 2010-02-E shall be referred to herein as the “Amendment,” (111) the Sarasota County Board of County Commissioners shall be referred to herein as the “BOCC,” and, (iv) the E-mail from Henry Rodriguez dated June 24, 2010, attached as Exhibit “B” to the Third Amended Complaint, shall be referred to herein as the “Rodriguez E-mail.” Hl. SUMMARY OF ARGUMENT As no genuine issue of material facts exists, and VOTT 1s entitled to a judgment as a matter of law, VOTT should be granted summary judgment as to Counts I, I, III, VI and IX of the Third Amended Complaint because: ¢ The VOTT Agreement is clear, unambiguous, valid and enforceable as a matter of law. ¢ McCann cannot establish an action for breach of contract as a matter of law where the alleged damages are not the natural consequence of the breach and/or are based on conjecture and speculation such that they cannot be reasonably ascertained or do not exist.* McCann cannot establish an action for breach of implied warranty of good faith and fair dealing as a matter of law where (1) the alleged damages do not exist or are too speculative to be reasonably ascertained as a matter of law, and (11) McCann could never reasonably expect that the VOTT Agreement would insure the adoption of the Amendment. ¢ McCann cannot sustain a breach of fiduciary duty claim against VOTT because (1) the tort claim 1s not independent of the breach of contract claim, (11) VOTT owed no fiduciary duty to McCann, and (ii) the damages do not exist or are too speculative to be reasonably ascertained as a matter of law. ¢ VOTT committed no unlawful act, lawful act by unlawful means nor any other overt act in pursuance of a conspiracy. IV. ARGUMENT A. Count I: The VOTT Agreement is clear, unambiguous, valid and enforceable as a matter of law. In Count I of the Third Amended Complaint, McCann claims the VOTT Agreement should be declared null and void, as it was never enforceable or no longer enforceable. To that effect: 1) McCann alleges the VOTT Agreement is void because Randall Benderson, (“Benderson”), had no authority to execute the VOTT Agreement. However, Benderson did in fact have authority, as VOTT’s agent, to negotiate and execute the VOTT Agreement on behalf of and to bind VOTT therein. VOTT hereby incorporates herein the arguments, authority and Affidavits as set forth in that certain “Defendant Randall Benderson’s Motion for Summary Judgment As To Counts IV, V, VII, VII and IX,” and more specifically the David Baldauf/VOTT Affidavit attached thereto, as further evidence and support ofBenderson’s authority to act as VOTT’s agent to negotiate and execute the VOTT Agreement, binding VOTT thereto. 2.) McCann alleges the VOTT Agreement is void because Defendant SDC Communities, Inc., (“SDC”), was referenced in the introductory paragraph but did not execute the VOTT Agreement. However, as Alicia Gayon, one of the drafters of the VOTT Agreement, has testified, the one (1) reference to SDC in the introductory paragraph of the VOTT Agreement was merely a scrivener’s error, as SDC is not a party to the VOTT Agreement. [Gayton P. 16, L. 1-20]. SDC has no rights, duties or obligations for performance described therein the VOTT Agreement supported by consideration, nor did SDC execute the VOTT Agreement as there was no signature page for SDC. As a matter of law, SDC was not and could never be deemed a party to the VOTT Agreement. See Mangus v. Present, 135 So.2d 417, 418 (Fla. 1961), noting the essential elements necessary to find SDC to be bound by and a party to the contract are not met. The fact that SDC did not execute the VOTT Agreement because it was not a party thereto has no bearing whatsoever on the validity and enforceability of the contract, as argued by McCann. Further, Hugh Culverhouse, by his own testimony an experienced Florida licensed attorney practicing law, [Culverhouse P. 9, L. 13 - P. 10, L 20], certainly knew when he negotiated and executed the VOTT Agreement on behalf of McCann that only VOTT and McCann were parties to, bound by and had obligations for performance under the contract; similarly, Mr. Culverhouse has testified that he knew that neither Henry Rodriguez nor any representative from SDC were present during the final, closed-door negotiations and execution of the VOTT Agreement. [Culverhouse P. 102, L. 5-7]. Additionally, the scrivener’s error in the introductory paragraph wherein SDC’s name was typed in error does not render the contract ambiguous, invalid or unenforceable. In light ofthe scrivener’s error, this Court has the authority to interpret and reform the VOTT Agreement, to the extent it deems necessary, and to determine that as a matter of law, SDC was never a party to the VOTT Agreement. See Estate of Robinson v. Robinson, 720 So.2d 540, 542 (Fla. 4" DCA 1998), holding: “The power and authority of a court of equity to correct the mistakes of a scrivener incorporated into a contract, deed, or other instrument is so well known as to require no citation of authorities.” Therefore, SDC’s failure to execute a contract to which it was not a party does not render the contract invalid nor unenforceable. 3.) McCann alleges the VOTT Agreement is void because a legal description of the McCann property is not attached as Exhibit “B” to the VOTT Agreement. However, the VOTT Agreement sufficiently describes the McCann property with specificity therein, including by reference to that portion of McCann’s real estate holdings subject to the Amendment [and to that, we note that specific legal descriptions of the affected McCann property were expressly set forth and described in the Amendment]. The VOTT Agreement is not ambiguous, as VOTT and McCann each understood with clarity and specificity exactly what property owned by McCann was subject to the VOTT Agreement, the restrictions therein and the Amendment. Further, McCann has never alleged that it does not understand the precise property that is the subject matter of the VOTT Agreement. In fact, Hugh Culverhouse’s deposition is complete with testimony regarding his knowledge and understanding of the affected McCann property. 4.) McCann alleges the VOTT Agreement is void because VOTT failed to support the Amendment and thus breached the VOTT Agreement. However, the question of whether a beach of the VOTT Agreement occurred has absolutely no relevance as to the validity and enforceability of the contract.5.) McCann alleges the VOTT Agreement is void because its performance was tied to the passage of the Amendment by the BOCC, and thus, when the BOCC did not vote to approve the Amendment, the VOTT Agreement’s purpose was frustrated. However, McCann’s reliance on what is typically an affirmative defense --the doctrine of commercial frustration-- 1s without merit and unsupported by case law. When they entered into the VOTT Agreement, no party knew, or could have known, with any degree of reasonable certainty, whether the BOCC would ultimately vote to approve the Amendment — a legislative act. Rather, they entered into the VOTT Agreement so that they could each bring a degree of commercial certainty to potential land use matters affecting their respective properties, both at the time of execution and in the future. Although the Amendment was not passed, McCann could certainly reapply now or at a later date for a similar comprehensive plan amendment or other land use approvals affecting his property. Further, McCann cannot rely on the doctrine of commercial frustration because McCann, quite simply, knew the relevant and foreseeable business risk when he entered into the VOTT Agreement -- that business risk being that the BOCC, an independent political subdivision, local government and governing body of the State of Florida, may not ultimately vote to adopt the Amendment. As such, courts have held that “[a|lthough the doctrines of impossibility of performance and commercial frustration are ‘undoubtedly in [the] process of evolution’ and have been applied with increasing liberality, they should be employed with great caution if the relevant business risk was foreseeable at the inception of the agreement and could have been the subject of an express contractual agreement.” Home Design Center —Joint Venture v. County Appliances of Naples, Inc., 563 So.2d 767, 769 (Fla. 2d DCA 1990). (Emphasis Added). See Also, Ferguson v. Ferguson, 54 So.3d 553 (Fla. 3d DCA 2011); American Aviation, Inc., v.Aero-Flight Service, Inc., 712 So.2d 809 (Fla. 4'" DCA 1998); Florida Dept. of Financial Serv. v. Freeman, 921 So.2d 598 (Fla. 2006); Walter T. Embry, Inc., v. LaSalle Nat. Bank, 792 So.2d 567 (Fla. 4" DCA 2001). McCann knew from the language of the documents and when the VOTT Agreement was executed that it was not contingent on the Amendment being approved, and that no party could ever insure the ultimate vote by the BOCC to approve or deny the Amendment. This was clearly a relevant business risk foreseen by McCann and its agent, Hugh Culverhouse, who by his own testimony has experience litigating issues involving local governments [Culverhouse P. 8, L 7- P. 9, L. 12]. The doctrine of commercial frustration / impossibility as its relates to the Amendment’s not passing has no bearing on the validity and enforceability of the VOTT Agreement as a matter of law. Home Design Center at 769. The VOTT Agreement is clear, unambiguous and binding upon VOTT and McCann. VOTT respectfully requests this Court to declare the VOTT Agreement to be valid and enforceable as a matter of law. B. Count I: McCann cannot establish an action for breach of contract as a matter of law where the alleged damages are not the natural consequence of the breach and/or are based on conjecture and speculation such that they cannot be reasonably ascertained or do not exist. Alleged Damages Are Not The Natural Consequence Of The Alleged Breach In Count II of the Third Amended Complaint, McCann claims VOTT breached the VOTT Agreement by not supporting it and/or sabotaging it. Putting aside the question of whether there is a material breach, to maintain an action for breach of contract, McCann must establish 1t has damages. Mettler, Inc. v. Ellen Tracy, Inc., 648 So.2d 253, 255 (Fla. 2d DCA1994), “Damages recoverable by a party injured by a breach of contract are those which would naturally result from the breach and can reasonably be said to have been contemplated by the parties at the time the contract was made.” Sharick v. Se. University of the Health Sciences, Inc., 780 So.2d 136, 139 (Fla. 3d DCA 2000). At the time the VOTT Agreement was entered into by the parties, no one knew with any degree of reasonable certainty whether the BOCC would vote to approve the Amendment. The VOTT Agreement was not contingent on the Amendment’s adoption; the consideration by VOTT was to support the Amendment not insure its passage. VOTT could not insure passage of the Amendment as a matter of law. The damages McCann alleges it may sustain for breach of the VOTT Agreement are not at all related to and do not arise out of the VOTT Agreement. Rather, if they exist at all, damages would relate to the lack of land use approvals, density and related land use permits that McCann speculates 1t would have received. [Culverhouse P. 266, L. 21 — P. 268, L. 9]. McCann’s alleged damages relate entirely to its future projections of how land use entitlements associated with the Amendment could potentially impact its property. However, these alleged damages are not the natural consequence of any alleged breach of the VOTT Agreement and arise solely from the County government’s failure to act at one specific point in time. The two are not related. To that, the court in River Bridge Corporation v. American Somax Ventures, 18 So.3d 648, 650-1 (Fla. 4"" 2009), citing Sostchin v. Doll Enters., Inc., 847 So.2d 1123, 1128 (Fla. 3d DCA 2003), held that damages must be established “with a reasonable degree of certainty and must be a natural consequence of the wrong ...such an award cannot be based upon speculation or conjecture.” McCann will never be able to prove as a matter of law that any alleged breach of the VOTT Agreement caused the BOCC to defer the Amendment; nor can McCann ever establish as a matter of law that the lack of future land use entitlements and resulting allegeddamages are the natural consequence of any breach of the VOTT Agreement. River Bridge at 650-1. Alleged Damages Could Have Been Avoided The damages alleged by McCann for diminution in future value of its land and/or lost development related future profits are the result of not having specific land use approvals and entitlements on its property that would permit certain densities, residential units, industrial, commercial and retail square footages. [Culverhouse P. 266, L. 21 — P. 268, L. 9]. However, it is important to remember that the BOCC, as a local government, 1s the only body with authority to independently review, authorize and permit land use entitlements as it deems appropriate and consistent with its zoning and development ordinances as well as its comprehensive plan. VOTT certainly had no control over or duty to “force” the BOCC to approve the Amendment to then entitle McCann’s lands, as a comprehensive plan amendment is a legislative act and not a guaranteed right of a landowner. It is entirely too speculative for this Court to allow McCann’s conjecture that it has suffered or will suffer damages as a result of an alleged breach of the VOTT Agreement, when Hugh Culverhouse has already testified that McCann’s alleged damages are actually based upon his perception of how the lack of land use entitlements associated with the BOCC’s failure to adopt the Amendment will affect the future marketing and development of its property. [Culverhouse P. 266, L. 21 — P. 268, L. 9]. And we note that McCann could have continued to pursue the Amendment and can always reapply for similar land use entitlements, so as to reasonably avoid the consequences McCann associates with the lack of land use entitlements. However, McCann has elected to sue rather than make any attempt to obtain the entitlements it alleges to be the source of its damages. [Culverhouse P. 349, L. 24 — P. 351, L. 11; P. 479, L. 20 — P. 480, L. 6]. See Sys. Components Corp. v. Fla. Dep’t of Transp., 14So.3d 967, 982 (Fla. 2009), discussing how the “doctrine of avoidable consequences,” also commonly referred to as mitigation of damages, requires McCann to take ordinary and reasonable ameliorative actions to avoid loss. Continuing to pursue or reapplying for land use entitlements for its property is certainly reasonable and ordinary for any land use developer. In fact, Justin Powell, Vice President of the General Partner of McCann, already testified that McCann could file a similar comprehensive plan amendment on its own but has not. [Powell P. 316, L. 19-—P. 317, L. 3]. Similarly, Hugh Culverhouse does not dispute this fact, [Culverhouse P. 458, L. 9-15], and confirmed that McCann choose to sue instead. Alleged Damages Are Too Speculative To Be Reasonably Ascertained As held by the court in Forest's Mens Shop v. Schmidt, 536 So.2d 334, 336 (Fla. 4th DCA 1988): "When a party seeks lost future profits based upon a breach of contract or other wrong, the party must prove that the lost profits were a direct result of the defendant's actions and that the amount of the lost profits can be established with reasonable certainty." "Lost profits must be established with a reasonable degree of certainty and must be a natural consequence of the wrong," and "[s]uch an award cannot be based upon speculation or conjecture." Sostchin v. Doll Enters., Inc., 847 So.2d 1123, 1128 (Fla. 3d DCA 2003). McCann can never prove as a matter of law that absent the alleged breach of the VOTT Agreement, the BOCC would have approved the Amendment and McCann would have received the land use entitlements it desired. Thus, McCann can never establish damages as a matter of law and with any degree of reasonable certainty as 1s necessary to establish and sustain a cause of action for breach of contract. Sharick at 139, Further, Hugh Culverhouse, on behalf of McCann, has testified that () McCann 1s not marketing the subject property for sale, and (41) McCann 1s not attempting to take any further 10action to develop or obtain land use entitlements for its property right now. [Culverhouse P. 482, L. 7 — P. 484, L. 4]. It appears McCann has presently suffered no damages. And certainly any damages McCann perceives that may arise in the future based upon lost development profits associated with the lack of land use entitlements, for which McCann could reapply to obtain but has opted to not pursue, are too speculative as a matter of law to establish and sustain a cause of action for breach of contract. To that, we note that “[t]he general rule 1s that anticipated profits of a commercial business are too speculative and dependent upon changing circumstances to warrant a judgment for their loss.” Levitt-ANSCA Towne Park P'ship v. Smith & Co., Inc., 873 So.2d 392, 396 (Fla. 4th DCA 2004). “It 1s as inappropriate to use purely speculative forecasts of future revenue to determine the market value of a business as it is to use such speculative forecasts in determining lost future profits.” Susan Fixel, Inc. v. Rosenthal & Rosenthal, Inc., 921 So.2d 43, 46 (Fla. 3d DCA 2006). As McCann has suffered no damages and/or the alleged damages are too speculative to be determined with reasonable certainty as required by law, summary judgment should be award in favor of VOTT. C. Count IIT: McCann cannot establish an action for breach of implied warranty of good faith and fair dealing as a matter of law where (i) the alleged damages do not exist or are too speculative to be reasonably ascertained as a matter of law, and (ii) McCann could never reasonably expect that the VOTT Agreement would insure the adoption of the Amendment. In Count III of the Third Amended Complaint, McCann claims VOTT breached an implied obligation of good faith and fair dealing by failing to support the VOTT Agreement and/or by sabotaging it. We note that Hugh Culverhouse and Justin Powell have testified that 1]neither they nor McCann ever requested VOTT do any specific acts in support of the Amendment. [Culverhouse P. 460, L. 15 — P. 461, L. 7; Powell P. 576, L. 19 — P. 577, L. 10; Powell P. 291, L. 22 — P. 292, L. 24; and we also note Powell has testified that “McCann” is comprised of just himself and Hugh Culverhouse, Powell P. 314, L. 17-20]. In describing the degree of support McCann would find acceptable, it alleges for the first time in the Third Amended Complaint that VOTT should have “[a]t a minimum ...support[ed] the Amendment in the same fashion 1t would support a comprehensive plan amendment if it directly affected and benefited its own land.” [Page 16, Paragraph 48 of the Third Amended Complaint]. To that, both Randall Benderson and VOTT have testified that the support VOTT rendered to the Amendment was provided in the same fashion that they would have supported a similar comprehensive plan amendment affecting their own lands under the circumstances. [Affidavit of Randall Benderson and Affidavit of David Baldauf]. As only VOTT 1s in a position to know what level of support it would find acceptable for a similar comprehensive plan amendment affecting its property, the testimony by VOTT is uncontroverted. Additionally, the purpose of the implied covenant of good faith and fair dealing 1s “to protect the reasonable expectations of the contracting parties.” Ins. Concepts & Design, Inc. v. Heathspan Services, Inc., 785 So.2d 1232, 1234 (Fla. 4° DCA 2001) (Emphasis Added); See Also Cox v. CSX Intermodal, Inc., 732 So.2d 1092, 1097 (Fla. 1° DCA 1999), holding: “[T]he implied covenant of good faith and fair dealing is designed to protect the contracting parties’ reasonable expectations.” (Emphasis Added). | If McCann’s expectation was for VOTT to support the Amendment in the same fashion it would support a comprehensive plan amendment affecting its own property, then the uncontroverted evidence proves VOTT rendered that support. 12On the other hand, if McCann’s expectation for support was linked to the adoption of the Amendment by the BOCC, [which sticks out of the Third Amended Complaint like a sore thumb to be McCann’s “true underlying claim” and source of its alleged damages], then that expectation could never be found to be a “reasonable expectation” as a matter of law. Ins. Concepts at 1234. McCann could never reasonably expect that the VOTT Agreement would guaranty a vote approving the Amendment by the independent governing body of the BOCC. Further, considering McCann never asked for any specific acts to be performed by VOTT in support of the Amendment, it is improper for McCann to now attempt to use the implied covenant of good faith to vary, enlarge or override the terms of the VOTT Agreement, which do not specify any degree of support required. See City of Riviera Beach v. John’s Towing, 691 So.2d 519, 521 (Fla. 4" DCA 1997), holding: “The implied obligation of good faith cannot be used to vary the terms of an express contract.” VOTT supported the Amendment and spoke in favor of the Amendment at the June 23, 2010, and October 26, 2010, BOCC hearing. McCann alleges this was just “lip service,” [Third Amended Complaint, Paragraph 48] or “neutral” [Third Amended Complaint, Paragraph 29], but McCann will never be able to establish any other objective level of support necessary to comply with the VOTT Agreement, because that agreement’s terms are silent as to any specific level, acts or conduct McCann expected of VOTT. McCann cannot now as a matter of law seek to vary or impose some new standard and obligation for support upon VOTT that did not exist in the original contract. Riviera Beach at 521. And we note, McCann never asked VOTT to do any specific thing to “support” the Amendment [Culverhouse P. 460, L. 15 — P. 461, L. 7; Powell P. 576, L. 19 — P. 577, L. 10; Powell P. 291, L. 22 —P, 292, L. 24]. 13Finally, for the same reasons and case law references noted above in our response to Count I, Breach of Contract, McCann cannot establish and sustain any damages arising out of a cause of action for breach of implied covenant of good faith and fair dealing, because McCann cannot prove with any degree of reasonable certainty that it sustained any damages as a result of the alleged breach of implied covenants. McCann cannot prove as a matter of law that the BOCC would have adopted the Amendment and its lands would have received the land use entitlements absent any alleged breach of the implied covenants. Any damages to which McCann alludes are entirely too speculative as a matter of law. Therefore, VOTT respectfully requests summary judgment be granted in its favor. D. Count VI: McCann cannot sustain a breach of fiduciary duty claim against VOTT because (i) the tort claim is not independent of the breach of contract claim, (il) VOTT owed no fiduciary duty to McCann, and (iii) damages do not exist or are too speculative to be reasonably ascertained as a matter of law In Count VI, McCann alleges VOTT breached a fiduciary duty to McCann by (1) failing to provide support for the Amendment, and (11) tacitly or expressly encouraging SDC, Rodriguez and Benderson’s efforts to oppose the Amendment. The Tort Claim Is Not Independent From the Contract Claim Florida law recognizes that a breach of fiduciary duty claim may be raised even where a contract claim exists, so long as the tort claim is independent from the underlying contract. Moransais v. Heathman, 744 So.2d 973, 981-3 (Fla. 1999). In this case, however, the breach of fiduciary duty claim is merely a repackaged claim for breach of contract. McCann has already alleged in Count II that VOTT breached the VOTT Agreement by failing to support the Amendment, either directly or by tacitly encouraging others to oppose the Amendment. The 14breach of contract claim 1s identical to this breach of fiduciary duty claim. The Florida Supreme Court, while recently limiting the application of the economic loss rule, has reaffirmed the long standing basic common law in Florida that “in order to bring a valid tort claim, a party still must demonstrate that all of the required elements for the cause of action are satisfied, including that 99 the tort is independent of any breach of contract claim.” Tiara Condominium Association, Inc. v. Marsh & McLennan Companies, Inc., 110 So.3d 399, 408 (Fla. 2013) (Pariente, J., concurring). The question of whether VOTT failed to support the Amendment, directly or indirectly, and VOTT’s alleged conduct and actions associated therewith, is entirely subsumed in the breach of contract claim as well as Count III’s breach of implied covenants of good faith and fair dealing claim. McCann cannot now seek to turn a contract claim for alleged nonperformance of VOTT’s obligation to support the Amendment into a tort for economic loss. Tiara Condominium at 409 (Pariente, J., concurring), citing Indem. Ins. Co. of N. Am. v. Am. Aviation, Inc., 891 So.2d 532, 541 (Fla. 2004). VOTT Owed No Fiduciary Duty to McCann Notwithstanding the fact that the tort claim is not independent of the contract claim, VOTT nevertheless owed no fiduciary duty to McCann as a matter of law. And we note that this Court has already ruled in favor of SDC as to this claim, finding SDC owed no fiduciary duty to McCann. For those same reasons, authorities and ruling, this Court should similarly rule in favor of VOTT that it owed no fiduciary duty to McCann. First, the Amendment, as a land use entitlement and legislative act to be approved by a local government, cannot establish any partnership between VOTT and McCann nor duty of VOTT to act for McCann’s benefit. The Amendment was not an agreement between VOTT and McCann of any kind, and certainly the Amendment did not involve any special trust or 15confidence of McCann accepted by VOTT; the Amendment imposed no duty upon VOTT to act on behalf of McCann. See Lanz v. Resolution Trust Corp., 764 F.Supp. 176, 179 (S.D. Fla. 1991). The only obligations imposed upon VOTT arose out of the VOTT Agreement, and for that reason the tort claim is clearly not independent of the contract claim. Second, the Amendment did not create a highly confidential relationship between VOTT and McCann; to the contrary, the Amendment was a fully public process initiated by Sarasota County. Cowan Liebowitz & Latman, P.C. v. Kaplan, 902 So.2d 755 (Fla. 2005). Third, McCann was not the weaker party dependent upon VOTT; VOTT had no duty to protect McCann. Watkins v. NCNB Nat’l Bank of Fla., N.A., 622 So.2d 1063, 1065 (Fla. 3d DCA 1993); Barnett Bank of W. Florida v. Hooper, 498 So.2d 923, 927-28 (Fla. 1986). VOTT has no inequality of position, superior knowledge, superior strength or power over McCann that could give raise to a fiduciary duty. Thunder Marine, Inc. v. Brunswick Corp., 277 Fed. Appx. 910, 913 (11" Cir. 2008); and see MediaXposure Ltd (Cayman) v. Harrington, 2012 Lexis 69294 (M.D. Fla. 2012), holding: “(a) fiduciary relationship involves parties of different strengths.” Rather, Hugh Culverhouse/McCann and Randall Benderson/VOTT are both experienced businessman in the business of seeking and obtaining land use entitlements from local governments. As held in Orlinsky v. Patraka, 971 So.2d 796, 800 (Fla. 3d DCA 2007), there is no general fiduciary duty between two experienced business associates. The claim in this case, similar to that held by the Orlinsky Court, is really based upon breach of contract. Fourth, the mere fact that “one party places trust or confidence in the other does not create a confidential relationship in the absence of some recognition, acceptance or undertaking of the duties of a fiduciary on the part of the other party.”. Mukamal v. BMO Harris Bank N.A.., 488 B.R. 758, 781(Bankr. S.D. Fla. 2013), citing Harris v. Zeuch, 103 Fla. 183, 137 So. 135 16(1931). VOTT did not accept or recognize any trust or confidence of McCann, and as a matter of law, McCann could never prove as that such trust, confidence and acceptance existed. Rather, VOTT and McCann were two businessmen who entered into an arms length contract for performance. Finally, we note that for the same reasons and authorities as cited elsewhere herein this Motion for Summary Judgment, McCann could never establish and sustain as a matter of law that absent a breach of fiduciary duty, the BOCC would have voted to adopt the Amendment. The Amendment constitutes a request for a legislative land use approval that is only granted at a public hearing upon majority vote by the BOCC. McCann had no identifiable agreement, contract, partnership or business relationship with Sarasota County upon which upon which it could ever have a probability of completion, trust, or confidence. In fact, no private landowner can ever be considered to have a “business relationship” or “partnership” with a local government concerning land use petitions such as the Amendment. McCann was nothing more than a land use applicant — requesting Sarasota County, by and through its BOCC, grant land use approvals. In this case, a comprehensive plan amendment is considered a legislative act and is totally discretionary with the BOCC. Any prior “agreement” or “business relationship” that McCann felt it had with Sarasota County to vote a certain way regarding the Amendment would be invalid, illegal and constitute “contract zoning.” As the Second District has made clear in a case involving Sarasota County, contract zoning is unlawful. See Chung v. Sarasota County, 686 So. 2d 1358 (Fla. 2d DCA 1996). Given that the bar to contract zoning prevents any agreement as to outcome to exist between a private party and the government as related to land use decisions, such as the Amendment, McCann could never have a partnership or any other 17relationship with Sarasota County concerning the Amendment or any land use approval that could give rise to any fiduciary duties or damages arising therefrom. E. Count IX: VOTT committed no unlawful act, lawful act by unlawful means nor any other overt act in pursuance of a conspiracy. This is a claim alleging VOTT conspired with the other defendants in the case causing VOTT “to breach fiduciary duties” McCann alleged it had relating to (1) the VOTT Agreement, and (11) the Amendment. 1. An actionable conspiracy requires an actionable underlying tort or wrong. The elements of a claim for civil conspiracy are: (a) a conspiracy between two or more parties, (b) to do an unlawful act or to do a lawful act by unlawful means, (c) the doing of some overt act in pursuance of the conspiracy, and (d) damage to plaintiff as a result of the acts performed pursuant to the conspiracy.” Florida Fern Growers Ass’n, Inc. v. Concerned Citizens of Putnam County, 616 So.2d 562, (Fla. 5" DCA 1993), as cited in Walters v. Blankenship, 931 So.2d 137, 140 (Fla. 5" DCA 2006). “Generally an actionable conspiracy requires an actionable underlying tort or wrong.” Walters at 140. The underlying tort associated with the conspiracy that McCann claims VOTT committed relate to Count VI, breach of fiduciary duty. As previously argued herein, VOTT is requesting summary judgment be granted in its favor as to all Counts against VOTT. If the Court grants summary judgment in VOTT’s favor as to Counts VI, then there will no longer be a claim for an alleged underlying tort or wrong by VOTT. Therefore, the elements necessary to establish a claim for civil conspiracy in Count IX would likewise fail. Summary judgment should therefore be awarded in VOTT’s favor. 182. There is no evidence in the record of a conspiracy. Despite approximately three (3) years of voluminous discovery and four (4) attempts at drafting the Complaints, McCann 1s not able to point to any direct evidence of a conspiracy linking VOTT to any other party to commit an unlawful or tortious act. In fact, McCann seems to rest its entire premise of a civil conspiracy by VOTT on the Rodriguez E-mail and any paranoid speculations McCann derives therefrom, such as McCann’s belief that at least three (3) individual Sarasota County Commissioners are all involved in the conspiracy and “cover-up” to deny McCann the passage of the Amendment [Culverhouse P. 285, L. 10 — 18; P. 161, L. 10 — P. 166, L. 4; and, P. 62, L. 10 — 15]. The Rodriguez E-mail was written by Henry Rodriguez alone and was not sent to Benderson. There is no evidence in the record that VOTT, or its agent Benderson, individually or as agent for VOTT, ever conspired with any defendant, let alone Rodriguez, to interfere with the VOTT Agreement, the Amendment or any other matter related thereto. In fact, in the Third Amended Complaint, Paragraph 101, Page 27, McCann even acknowledges and alleges there are “no witnesses” nor does it have actual knowledge as “to what was discussed” between the defendants Benderson, as VOTT’s agent, and Rodriguez. McCann simply links Benderson, and therefore VOTT, to Rodriguez based upon pure speculation related to the Rodriguez E-mail alone. Whatever acts Rodriguez, individually and/ or as agent for SDC, may have done are not relevant as a matter of law as to VOTT and its agent Benderson. Rodriguez has already testified that the Rodriguez E-mail and information presented therein was a unilateral and independent statement by Rodriguez that was in no way requested by nor acted upon by Benderson, individually or as agent for VOTT. [Rodriguez Vol. I, P. 117, L 13-14; P. 119, L 21-22; P. 120, L 12-17]. To find otherwise would be simply stating VOTT and 19Benderson are “guilty by association” because Benderson was mentioned in an unsolicited, rogue E-mail written by Rodriguez. Further, in Paragraph 28, Page 11 of the Third Amended Complaint, McCann states that based upon “information and _ belief” it believes Benderson, individually and/or acting as VOTT’s agent, conspired with Rodriguez, independently and/or as agent for SDC. At this stage in the lawsuit, McCann needs facts supported by evidence, not unsubstantiated belief and speculation. As held in Thompson v. Citizens National Bank of Leesburg Florida, 433 So.2d 32, 33 (Fla. 1* DCA 1983), at the summary judgment stage, one needs admissible evidence, and “laln affidavit [for instance| based on information and belief rather than personal knowledge is not admissible into evidence and should not be considered by the trial court on a motion for summary judgment.” (Emphasis Added). See also Campbell v. Salman, 384 So.2d 1331 (Fla. 3d DCA 1980); Silber v. Campus Sweater & Sportswear, 313 So.2d 409 (Fla. 1 DCA 1975); Garwood v. Equitable Life Assurance Society of U.S., 299 So.2d 163 (Fla. 2d DCA 1974); Elser v. Law Offices of James M. Russ, P.A., 679 So.2d 309 (Fla. 5" DCA 1996). Information and belief is not evidence, it is pure speculation, and “[s]peculation should never be sufficient in place of facts.” Department of Highway Safety and Motor Vehicles v. Roberts, 938 So.2d 513, 516 (Fla. 5'" DCA 2006). McCann has alleged and admitted there are “no witnesses” — take this to mean no facts and no evidence — of a conspiracy. (See Third Amended Complaint, Paragraph 101, Page 27). There is no direct evidence that VOTT, itself or through its agent Benderson, conspired with any of the other named defendants in the Third Amended Complain to commit any unlawful or tortious act. Further, McCann has failed to establish any basis or present any evidence that proves VOTT, acting in concert with the other defendants, possessed some peculiar power of coercion 20by virtue of their combination that could not be possessed by an individually-named defendant acting alone. See Walters at 140. There is simply no evidence to establish that VOTT, itself and/or by and through its agent Benderson, committed a tort or unlawful act, let alone any evidence that VOTT through Benderson conspired with the other defendants in this case to commit a tort or unlawful act. All existing evidence negates a claim for civil conspiracy against VOTT and Benderson. Further, as argued numerous times herein, McCann cannot establish as a matter of law that 1s suffered any damages as a result of the alleged conspiracy, since McCann can never prove as a matter of law that absent the conspiracy, the BOCC would have approved the Amendment. Therefore, as McCann has failed to satisfy the necessary elements to sustain a cause of action for civil conspiracy as against VOTT, summary judgment should be granted in VOTT’s favor. WHEREFORE, VOTT requests Summary Judgment as to Counts I, II, III, VI and IX of the Third Amended Complaint and for this Court to reserve jurisdiction as to any other relief, including attorney’s fees and costs. _/s/_ Edward Vogler II EDWARD VOGLER II Vogler Ashton, PLLC 2411-A Manatee Avenue W. Bradenton, FL 34205 Email: edvogler@voglerashton.com (941) 388-9400 x104 (941) 866-7648 Fax Florida Bar No. 0380970 Attorneys for VOTT and Benderson 21CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished this 24" day of September, 2014, by Electronic Mail to: Steven D. Hutton, Esq., 240 S. Pineapple Avenue, Suite 801, Sarasota, Florida 34236 sdh@buttonlawfirm.com; pdominko@huttonlawfirm.com, and noreen@huttonlawfirm.com, and Morgan R. Bentley, Esq. 783 S. Orange Avenue, Suite 220, Sarasota, Florida 34236 mbentley@bentleyandbruning.com, and nwhite@bentleyandbruning.com. __/s/ Edward Vogler II EDWARD VOGLER II, ESQUIRE Florida Bar No. 0380970 Vogler Ashton, PLLC 2411 —A Manatee Avenue West Bradenton, Florida 34205 (941) 388-9400 x104 (941) 866-7648 Facsimile Attorney For VOTT and Benderson edvogler@voglerashton.com 22