Preview
Filing # 52770308 E-Filed 02/21/2017 02:32:24 PM
IN THE CIRCUIT COURT OF THE EIGHTH JUDICIAL CIRCUIT
IN AND FOR ALACHUA COUNTY, FLORIDA.
ADVANCED SOLAR TECHNOLOGIES, INC.,
a Florida corporation,
CASE NO.: 01-2015-CA-4357
Plaintiff, Div.: J
Vv.
SYBAC SOLAR, LLC, a Florida limited liability
company,
Defendant.
/
PLAINTIFF'S MEMORANDUM OF LAW IN OPPOSITION TO
DEFENDANT'S AMENDED MOTION FOR SUMMARY FINAL JUDGMENT
Plaintiff, ADVANCED SOLAR TECHNOLOGIES, INC., ("AST"), by and through its
undersigned counsel, hereby files this Memorandum of Law in Opposition to Defendant's
Amended Motion for Summary Final Judgment. Plaintiff AST respectfully submits Defendant's
Motion should be denied for the following reasons: (1) the contractor and real estate broker
licensing statutes on which Defendant relies have no application to the specific circumstances in
this case; and, (2) genuine issues of material fact exist as to all of the issues which are pertinent
to Defendant's Motion, including the parties' intent with respect to certain unclear licensing
language in their Professional Services Agreement. In further opposition to Defendant's Motion,
Plaintiff AST states as follows:
BACKGROUND
Plaintiff AST and Defendant Sybac Solar, LLC ("Sybac") are in the solar energy
business. On March 9, 2010, the parties decided to enter into a Professional Services Agreement
"2015 CA 004357" 52770308 Filed at Alachua County Clerk 02/21/2017 02:32:27 PM EST
(the "Agreement") relating to their joint development and implementation of Solar Photovoltaic
Power Generation Facilities.
The Agreement is not itself a contracting or installation agreement with respect to any
specific project or client. Rather, the Agreement describes the parties’ decision to create a
relationship where they would work together to design, engineer, procure, and install Solar
Photovoltaic Power Generation Facilities where future opportunities arose. The Agreement also
contemplated that AST, given its long term experience in the solar energy business, might
sometimes generate client leads for SYBAC, even in situations where AST would not be
involved in the actual installation of a project involving that client.
The Agreement describes how the parties intended to be compensated for the various
duties they performed thereunder. In this regard, the Agreement contemplates at least three (3)
separate scenarios where SYBAC would be obligated to pay AST for its services: (1) where AST
installs the SPF on a project initiated by SYBAC, AST will receive a percentage of the contract
sum (§3.1 of Agreement); (2) where both parties share the tasks and services for a project or
client, the generated gross profits of the project will be split at a 50:50 ratio (93.4 of Agreement);
and, (3) where AST provides a lead to SYBAC for a prospective client and that lead becomes a
SYBAC project on which AST does not perform any installation services, AST is entitled to a
commission of 5% of the contracted sum (43.5 of Agreement).
During the term of the Agreement, AST provided leads to SYBAC which culminated in
several highly lucrative Projects for SYBAC, including the following:
a. AST generated leads with representatives of solar energy contracting agencies
with which SYBAC eventually entered into lucrative regional Feed-In-Tariff
(“FIT”) contracts, including but not limited to SYBAC’s acquisition of 80% of all
FIT contracts with Gainesville Regional Utilities;
AST generated leads resulting in SYBAC’s development of a large project
commonly known as the “6th Street Project” in Gainesville, Florida;
AST generated leads resulting in SYBAC’s development of a large project
commonly known as the “UTC Project” in Gainesville, Florida; and
AST generated leads resulting in SYBAC’s development of a large project
commonly known as the “Waldo Road Project” in Gainesville, Florida.
Despite the fact Paragraph 3.6 of the Agreement specifically provides AST "will be the
exclusive partner of SYBAC for all clients of SYBAC in the service territory of Gainesville
Regional Utilities" and "for all other installations within the USA, each party has the right of first
refusal," the principals of SYBAC intentionally engaged in a series of nefarious tactics in an
attempt to avoid utilizing AST's services and to avoid compensating AST for these leads under
the terms of the Agreement."
When SYBAC refused to compensate AST for these leads as required by Paragraph 3.5
of the Agreement, AST filed the instant breach of contract action. SYBAC is now seeking
summary judgment based solely on the following two arguments: (1) SYBAC claims AST failed
to maintain an electrical contractor's license and, thus, could not perform its obligations under
the Agreement; and, (2) SYBAC claims AST did not hold a valid real estate license and, thus,
'For example, SYBAC, through its principals, engaged in the following (and other) wrongful acts: (1)
formed an entity called 6th Street Solar Energy Park of Gainesville, LLC., for the purpose of purchasing the 6th
Street Project property from the owner previously introduced by AST, then purportedly reassigned and/or
renegotiated the developmental rights between SYBAC and this “new” entity; (2) withheld documents, plans and
general information related to the negotiation and development of Projects originated and/or initiated, in whole or in
part, by AST; (3) deceptively misstated the outcome of Project leads initiated by AST; (4) wrongfully assigned
and/or contracted with other contractors similar to AST for the right to perform services exclusively granted to AST
under the Agreement; and, (5) wrongfully claimed AST did not initiate Project leads. (Amended Complaint, 12).
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cannot recover a commission. As AST will unequivocally establish herein, SYBAC's licensing
arguments do not preclude AST's breach of contract claim. Not only are there genuine issues of
fact as to material aspects of these licensing arguments, but Florida law also clearly establishes
the licenses at issue were not required either at the specific times relevant to AST's breach of
contract claims or otherwise under the specific circumstances of this case.
STANDARD OF ADJUDICATION
Rule 1.510 of the Florida Rules of Civil Procedure provides for the entry of summary
judgment when a party establishes “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). “The party
moving for summary judgment bears the heavy burden of proving a negative - - the nonexistence
of a genuine issue of material fact.” RNR Investments Limited Partnership v. Peoples First
Community Bank, 812 So. 2d 561, 564 (Fla. 1st DCA 2002); Cole Taylor Bank, 772 So. 2d at
550. And, “the nonmoving party is entitled to the benefit of every possible inference that may be
drawn from the facts before the trial court.” Richardson v, Wal-Mark Contracting Group, LLC
814 So, 2d 534, 535 (Fla. 2d DCA 2002).
“Summary judgment should be granted cautiously, with full recognition of the right of a
litigant to a jury trial on the merits of the case.” Cole Taylor Bank v, Shannon, 772 So. 2d 546,
550 (Fla. Ist DCA 2000). “If the record reflects even the possibility of a material issue of fact,
or if different inferences can be drawn reasonably from the facts, the doubt must be resolved
? See also Hastings v. Demming, 682 So. 2d 1107, 1110 (Fla. 2d DCA 1996)(“unless and until the material
facts at issue presented to the trial court are so ‘crystallized,’ conclusive, and compelling as to leave nothing for the
court's determination but a question of law, those facts, as well as any defenses, must be submitted to the jury for its
resolution”); Vandyk v. Southside Gun, Inc., 638 So. 2d 138 (Fla. 1st DCA 1994)(“Public policy requires that our
courts be ever vigilant in making summary disposition of causes lest the application of the rule result in eroding or
destroying the fundamental right of litigants under our system of jurisprudence to have the issues made by the
pleadings tried by a jury of fellow citizens. The importance of preserving the jury system, and the concomitant right
of a litigant to a jury trial on the merits of his cause, should be zealously protected”).
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against the moving party and summary judgment must be denied.” RNR Investments Limited
Partnership, 812 So. 2d at 564; Cole Taylor Bank, 772 So. 2d at 550. See also Ventana
Condominium Association, Inc. v. Chancey Design Partnership, Inc., 203 So. 3d 175, 183 (Fla.
2d DCA 2016)("Summary judgment is inappropriate if the record reflects even the possibility of
a material issue of fact, or if different inferences can reasonably be drawn from the facts");
Al Ibelo v. Southern Bell, 682 So. 2d 1126 (Fla. 4th DCA 1996)(every possible inference must be
drawn in favor of the party against whom summary judgment is sought - “even where the facts
are uncontroverted, the remedy of summary judgment is not available if different inferences can
be reasonably drawn from the uncontroverted facts”); Rem-Con Communications, Inc. v. United
American Bank of Memphis, 668 So. 2d 320, 322 (Fla. 2d DCA 1996)(“if there is even the
slightest possibility of a genuine issue of material fact, summary judgment is improper”).
With respect to contractual issues, where there are two or more reasonable interpretations
of a contract, "summary judgment is inappropriate because there is a genuine issue of material
fact." Palm Beach Pain Management, Inc. v. Carroll, 7 So. 3d 1144, 1145-1146 (Fla. 4th DCA
2009). "When a contract is ambiguous and the parties suggest different interpretations, the issue
of the proper interpretation is an issue of fact requiring the submission of evidence extrinsic to
the contract bearing upon the intent of the parties." Palm Beach Pain Management, Inc. v.
Carroll, 7 So. 3d 1144, 1146 (Fla. 4th DCA 2009). See also Ventana Condominium Association.
Inc. v. Chancey Design Partnership, Inc., 203 So. 3d 175, 183 (Fla. 2d DCA 2016)("If the terms
of a written instrument are in dispute and are reasonably susceptible to two different
interpretations, then an issue of fact is presented as to the parties’ intent; such an issue of fact
cannot be properly resolved by a summary judgment"); Fiore v. Hilliker, 170 So. 3d 147, 151
(Fla. 2d DCA 2015)(where terms in a contract are ambiguous, a finding of fact relating to the
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parties’ intent is not permitted at the summary judgment stage of the case).
AST respectfully submits that, at this stage of the proceedings and on the record before
the Court, SYBAC has failed to establish conclusively that AST cannot prevail on its breach of
contract claim. Moreover, this case involves complex, technical transactions and will require
expert testimony to assist this Court to analyze SYBAC's claims of illegality and licensing
requirements. Accordingly, SYBAC's Amended Motion for Summary Final Judgment should be
denied.
MEMORANDUM OF LAW OPPOSING MOTION FOR SUMMARY JUDGMENT
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD BE DENIED.
A. Contrary to SYBAC's Arguments, The Lack Of A Contractor's License At The
Specific Times In Question Does Not Preclude AST's Claims Under The Specific
Facts Of This Case.
The first basis for SYBAC's Motion for Summary Judgment is its claim that AST failed
to maintain an electrical contractor's license, thus invalidating the Agreement. SYBAC's
arguments regarding the contractor's license are based on Florida Statute §489.532 and on
Paragraph 2.2 of the Agreement.
Chapter 489 of the Florida Statutes governs contractor licensing. Florida Statute
§489.532 provides that contracts entered into by an unlicensed contractor are unenforceable by
the unlicensed contractor. §489.532(1), Fla. Stat. For the purposes of this statute, "a business
organization is unlicensed if the business organization does not have a primary or secondary
qualifying agent in accordance with this part concerning the scope of the work to be performed
under the contract." §489,.532(1)(a), Fla. Stat. Thus, the business organization must apply for a
Certificate of Authority naming a "qualifying agent" who will be responsible for all work
provided by the organization. §489.521, Fla. Stat.
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To the extent it addresses licensing, the Agreement refers to licensing in connection with
external, future projects:
Each Party shall maintain all necessary licenses, permits or other
authorizations necessary to perform its respective services for the
implementation of a Project until the Party's duties hereunder have
been fully satisfied.
({2.2 of Agreement)(emphasis added). Thus, according to Paragraph 2.2, once they entered into
a contract with a client to implement a project, AST and SYBAC were required to obtain and
maintain the "necessary" licenses for that project.
SYBAC claims it is released from any and all of its contractual duties to AST, including
its commission payment obligations, because AST did not hold a valid electrical contractor
license at the time SYBAC entered into construction contracts as a result of leads generated by
AST (ie., the 6th Street, UTC, and Waldo Road Projects). In doing so, SYBAC fails to consider
several material facts which refute its argument.
The first problem with SYBAC's argument is that the contract it wants to render
unenforceable (i.¢., the contract which AST "entered into" - the parties' Professional Services
Agreement) did not require AST to be licensed for the performance of its terms. The Professional
Services Agreement is not itself a contracting or installation agreement with respect to any
specific project or client. Rather, the Agreement describes the parties’ decision to create a
relationship where they would work together to design, engineer, procure, and install Solar
Photovoltaic Power Generation Facilities where future opportunities arose. The Agreement also
contemplated that AST, given its long term experience in the solar energy business, might
sometimes generate client leads for SYBAC, even in situations where AST would not be
involved in the actual installation of a project involving that client.
Second, the Agreement is unclear on what licenses were required of the parties and when
those licenses were required. Accordingly, the interpretation of the contract presents an issue of
fact requiring the submission of evidence bearing upon the intent of the parties. The ambiguous
nature of the Agreement's licensing requirements is demonstrated by several paragraphs therein.
Paragraph 2.2 states the parties will maintain all "necessary licenses" to perform their services
for the implementation of a Project. Thus, as stated above, once they entered into a contract with
a client to implement a project, AST and SYBAC were required to maintain the "necessary"
licenses. Despite this requirement, however, both Paragraph 3.1 and 3.2 state if the Project at
issue requires a service which is not covered by a party's license, then either SYBAC or AST
(depending on who initiated the project) "shall be responsible for hiring the respective
contractor." In other words, the Agreement contemplates situations where a party might not have
a required license and, in such event, will hire a contractor with the required license. Where a
contract is ambiguous as to whether an entity will provide services requiring it to have a
contractor's license, summary judgment based on the non-moving company's unlicensed status is
inappropriate. A-1 Quality Corp. v. Oak Park Terrace, Inc., 32 So. 3d 166, 167 (Fla. 4th DCA
2010).
Third, while AST was required to have the appropriate license (or to hire someone with
the appropriate license) had it performed the SPF installations on the Projects at issue, it did not
perform the installations on the projects. Rather, SYBAC intentionally concealed the Projects,
hired other contractors in violation of the exclusivity provision in the Agreement, and engaged in
other wrongful acts in order to preclude AST from performing the SPF installation services on
the Projects which culminated from AST's leads. See, ¢.g., Exhibit “A” attached hereto. This
‘ase does not arise from circumstances where AST entered into a contract to perform contractor
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services for the defendant, actually performed those services without a license, and now seeks
payment for that unlicensed work. To the contrary, AST was denied work for which it had or
could have timely obtained the necessary licenses had it been included in the Project as required
by the exclusivity provision in the Professional Services Agreement. SYBAC's own wrongful
actions in trying to avoid AST and its own contractual obligations before any specific licenses
were required preclude SYBAC from now relying on licensing statutes to avoid its contractual
obligations under the Professional Services Agreement.
SYBAC has presented no evidence suggesting AST could not have obtained the requisite
licenses in the necessary timeframe had AST been informed of the Projects and given the
opportunity. To the contrary, AST submits that if SYBAC had notified AST of these Projects,
AST would have easily obtained the requisite licensure status in accordance with its obligations
under the Agreement. On March 9, 2010, the effective date of the Agreement between AST and
SYBAC, Gary Clark Williams, a registered electrical contractor, was the primary qualified agent
for AST. Mr. Williams's status as the primary qualifying agent lapsed on August 31, 2010.
Pursuant to Florida Statute §489.531(1)(g), AST was allowed to continue operating without a
licensed qualifying agent for sixty (60) days after the license lapsed before obtaining another
qualifying agent (i.e., until October 30, 2010). Despite this statutory rule and despite the fact the
Agreement between AST and SYBAC includes an exclusivity clause, SYBAC submitted a
contract for bid (excluding AST) on August 31, 2010, the same day AST's contractor license /
certificate of authority expired. See Exhibit “B” attached hereto. AST would have been allowed
to work on this Project and had just under sixty days, until October 30, 2010, to obtain another
qualifying agent, yet SYBAC wrongfully excluded AST from the project.
AST employed several licensed contractors who could have easily become AST's
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qualifying agents for purposes of any of the projects which SYBAC entered into and tried to hide
from AST. For example, AST employed Zot Lynn Szurgot, a Certified Solar Contractor and
licensed journeyman electrician. See Exhibit “C” attached hereto. As a Certified Solar
Contractor, Mr. Szurgot's license encompassed his work on photovoltaic (solar electric) systems.
$489.105(3)(9), Fla. Stat.> Had AST known of SYBAC's projects and the resulting need for it to
update its licensure status, Mr. Szurgot would have easily stepped in and become AST's
qualifying agent during that sixty day period after the original license lapse so that there was no
interruption in AST's licensure status. And, AST could have refiled its qualifying agent papers
using Gary Williams, who at all relevant times from at least November 20, 1996 through the
current date, held a Master Electrician License with the State of Florida and was a licensed and
insured electrical contracting member of the National Electrical Contractors Association.
SYBAC's own wrongful actions deprived AST of the opportunity to obtain the licensure status
required for each of the Projects at issue.
Even more important, however, is the fact that no contractor's license was required in
order for AST to provide "leads" to SYBAC in circumstances when AST would not be
performing any installation services. Under the Agreement, where AST provided a project lead
to SYBAC, but did not perform any installation services on the resulting project, SYBAC was
required to pay AST a 5% commission:
In case AST provides a lead to SYBAC for a prospective client but
is not involved in the actual installation of the project, SYBAC will
pay AST a commission of 5.0% (five and 0/00 percent) of the
contracted sum. Payment of the commission is due within two
weeks of the first payment that SYBAC receives from the
prospective client.
3 During the relevant time period, AST also employed Seth Willey, a certified solar PV installer, and Chris
Fillie, who is certified as a LEED AP.
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(3.5 of Agreement)(emphasis added). By its very terms, Paragraph 3.5 of the Agreement
specifies a commission is only due when AST is not involved in the actual installation work on
the project. Because AST never provided labor, services, or materials under these contracts, its
license status as a contractor is completely irrelevant for purposes of its right to compensation
under Paragraph 3.5 of the Agreement. Even if a contractor's license was required for those
portions of the contract relating to AST's actual installation work (and for the reasons discussed
earlier, AST submits it either had or could have easily and timely obtained, absent SYBAC's
wrongdoing, the requisite licensing), AST is still entitled to remuneration for performing work
(i.e., providing "leads") which was not "illegal."
Under Florida law, "a bilateral contract is severable where the illegal portion of the
contract does not go to its essence and, where, with the illegal portion eliminated, there will still
remain valid legal promises on one side which are wholly supported by valid legal promises on
the other." Full Circle Dairy, LLC v. McKinney, 467 F. Supp. 2d 1343, 1354 (M.D. Fla. 2006).
See also Hardcastle Pointe Corp. v. Cohen, 505 So. 2d 1381, 1384 (Fla. 4th DCA 1987)(even
though first portion of consulting contract, pursuant to which consultant was to receive
commission for helping developer acquire real estate, was void as against public policy because
consultant was not licensed real estate broker, portion of contract providing for commission to
consultant for site planning, researching, assisting in preparation of site plan, consulting, and
proposing name for development project was enforceable, where payment and services rendered
in connection with second portion were separate and distinct from payment to be earned for
services rendered under first portion of contract). Accordingly, at the very least, SYBAC's claim
that AST lacked a contractor license does not preclude AST's claims for commissions under
Paragraph 3.5 of the Agreement.
i
B. Contrary to SYBAC's Arguments, The Lack Of A Real Estate License Does Not
Preclude AST's Claims Under The Specific Facts Of This Case.
SYBAC curiously asserts AST cannot recover any of the commissions due under
Paragraph 3.5 of the Agreement, because AST was not a licensed real estate broker. As will be
established below, AST was not required to have a real estate license in order to receive a
commission for "leads" provided to SYBAC.
SYBAC relies on Florida Statute §475.41, which provides as follows:
No contract for a commission or compensation for any act or
service enumerated _in s. 475.01(3) is valid unless the broker or
sales associate has complied with this chapter in regard to issuance
and renewal of the license at the time the act or service was
performed.
§475.41, Fla.Stat. (emphasis added). Florida Statute §475.01(3) provides::
Wherever the word “operate” r “operating” as a broker, broker
associate, or sales associate appears in this chapter . . . it shall be
deemed to mean the commission of one or more acts described in
this chapter as constituting or defining a broker, broker associate.
9 r_sales associate, not including, however, any of the exceptions
stated therein.
§475.01(3), Fla. Stat. The term "broker" is defined as:
“Broker” means a person who, for another, and for a compensation
or valuable consideration . . appraises, auctions, sells, exchanges,
buys, rents, or offers, attempts or agrees to appraise, auction, or
negotiate the sale, exchange, purchase, or rental of business
enterprises or business opportunities or any real property or any
interest in or concerning the same, including mineral rights or
leases, or who advertises or holds out to the public by any oral or
printed solicitation or representation that she or he is engaged in
the business of appraising, auctioning, buying, selling, exchanging,
leasing, or renting business enterprises or business opportunities or
real property of others or interests therein, including mineral rights,
or who takes any part in the procuring of sellers, purchasers.
lessors. or lessees of business enterprises or _ business
opportunities or the real property of another, or leases, or interest
therein, including mineral rights, or who directs or a! ts in the
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procuring of prospects or in the negotiation or closing of any
transaction which does, or is calculated to, result in a sale,
exchange, or leasing thereof, and who receives, expects, or is
promised any compensation or valuable consideration, directly or
indirectly therefor; and all persons who advertise rental property
information or lists. . . .
§475.01(1)(a), Fla. Stat. (emphasis added).
Originally, the Real Estate Brokers Act, Chapter 475 of the Florida Statutes only required
licensing for a person who is hired to "sell, exchange, buy, or rent . . . any real property or
interest therein." §475.01(2), Fla. Stat. (1979). The Act did not include the sale of "businesses"
but was limited to real estate. Often, however, the sale of a corporate entity or business holding
real property involved the sale of real estate. Prior to an amendment in 1982, courts held no
license was required to "broker" business deals, notwithstanding the sale of the business might
incidentally involve real estate. See Schindler v. Florida Real Estate Commission, 144 So. 2d
862 (Fla. 3d DCA 1962) (transactions relating to sale of business and incidental leases in
connection therewith were not subject to control under Real Estate License Law).
The Act was later amended to include sales of businesses. Specifically, in 1982, the Act
was amended to include a person who "sells, exchanges, buys, rents, . . . business enterprises or
business opportunities or any real property . . or who takes any part in the procuring of sellers,
purchasers, lessors, or lessees of business enterprises or business opportunities or the real
property of another . . . and who receives, expects or is promised any compensation or valuable
consideration, directly or indirectly, therefor..." §475.01(1)(a), Fla. Stat.
SYBAC argues the Agreement in this case contemplated the sale of a "business" or
"business opportunity" within the meaning of Chapter 475 (which is entitled "Real Estate
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Brokers, Sales Associates, Schools, and Appraisers").4 SYBAC focuses on the words "business
opportunity" and tries to expand that concept into any type of business or consulting transaction
between two companies. AST respectfully submits the licensing statute is not to be so broadly
read.
Although the term "business opportunity" is not defined in Chapter 475, the term is
defined in the Sale of Business Opportunities Act, §559,80-559.815. In that statute, the term
"business opportunity" is defined as “the sale or lease of any products, equipment, supplies, or
services which are sold or leased to a purchaser to enable the purchaser to start a business .. .
." §559.801(1), Fla. Stat. The Act goes on to specifically delineate narrow circumstances which
must apply in order to qualify as a business opportunity requiring AST to maintain a license as
argued by Defendant. For example, the statute imposes additional requirements on the seller
such as assisting the purchaser in finding locations for operation of vending machines, a promise
that SYBAC would purchase products manufactured by the purchaser, a guarantee that the
purchaser will derive income from the business which exceeds the price paid or rent charged or a
refund in the purchase price and goods sold through the business opportunity, and continued
assistance to the purchaser via sales and marketing. §559.801, Fla. Stat. See also Granoff v.
Clarendon National Ins. Co., 2007 WL 646973, *3 (S.D. Fla. Feb. 27, 2007). This scenario was
not involved in the instant case. SYBAC never made any representations or guarantees to, nor
did SYBAC ever provide or purchase any of the products and services from, the property owners
4 Horida Statute §475.001 still provides as follows:
The Legislature deems it necessary in the interest of the public welfare to
regulate real estat rokers. sales associates. ind schools in this state.
§475.001, Fla. Stat. (emphasis added).
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with which the construction contract was entered, thereby requiring AST to maintain a real estate
brokerage license.
Given the foregoing, SYBAC's reliance on Meteor Motors, Inc. v. Thompson Halbach &
A ssociates, 914 So. 2d 479 (Fla. 4th DCA 2005), which concerned the sale of an automobile
dealership (the entire business) is misplaced. In that case, Meteor Motors, the owner of an Acura
dealership, entered into an agreement with Thompson Halbach & Associates in which Meteor
Motors agreed to pay Thompson a commission of 5% of the closing price if Thompson found a
buyer for the seller's dealership. The court noted that Thompson was "in the business of bringing
together buyers and sellers of automobile dealerships." Id. at 481. Thereafter, Halbach contacted
businesses he thought might be interested in purchasing the automobile dealership. One of those
entities eventually purchased the dealership. Halbach was not paid a commission. When he filed
a breach of contract lawsuit, Meteor Motors defending on the grounds the contract was
unenforceable because Halbach was not licensed pursuant to Chapter 475. The Fourth District
Court of Appeal agreed with Meteor Motors and held Chapter 475 precluded the claim.
However, SYBAC's reliance on this case is misplaced, because Meteor Motors involved the sale
of an entire business.
Under SYBAC's interpretation, any referral by one company to another, in return for a
commission or other payment (if the referral is successful), would require a real estate license.
Arguably, the incredibly broad scenario contemplated by SYBAC could encompass situations
where one attorney refers a potential client to another, who accepts the case and then pays a
percentage of any contingent fee recovered to the referring attorney. Likewise, under SYBAC's
interpretation, a real estate license would be curiously required in situations where a headhunter
provides clients with "leads" on potential employees in return for a commission if the referred
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employee is hired.
Courts should strictly construe Florida Statute §475.41, because of its "highly penal
nature." Etkin & Company v. SBD, LLC, 2014 WL 12498221, *7 (S.D. Fla. July 7, 2014). When
determining whether a party is operating as a "broker" under Chapter 475, the court must look at
"the nature of the services rendered." Id. In doing so, courts should "be cognizant of the purpose
of Chapter 475 of the Florida Statutes, which ‘is to protect the public from being forced to deal
with dishonest or unscrupulous [brokers and sales associates], rather than to permit one party to
gain unconscionable advantage by avoiding a just obligation which he has contracted to pay."
Id. (emphasis added).
AST develops, installs, manages, and maintains solar energy power parks. AST is not in
the business of selling companies, selling business opportunities, or selling real estate (or being
the "middleman" in such transactions). Rather, due to AST's knowledge of and experience with
the solar energy business, the parties entered into an agreement where a commission would be
paid by SYBAC to AST if AST provided a "lead" to SYBAC for a prospective client which
later culminated in a contract between SYBAC and that prospective client. In order to protect the
exclusivity of their arrangement, and given AST experience and years of service in the solar
energy field, the parties agreed that if AST recognized a potential opportunity for SYBAC and
provided a "lead" to SYBAC, who then followed through with that prospective client and entered
into a contractual arrangement with that prospective client, then AST would be compensated for
providing the lead with a commission of 5% of the contract sum. SYBAC did not sell "business
opportunities" and AST was not referring clients to SYBAC so that they could purchase a
"business opportunity" from SYBAC. Accordingly, AST was not required to have a real estate
license in order to be entitled to commissions under Paragraph 3.5 of the Agreement.
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CONCLUSION
Based on the foregoing, Plaintiff ADVANCE SOLAR TECHNOLOGIES, INC.
respectfully requests the Court to deny SYBAC's Amended Motion for Summary Final
Judgment.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on February 21, 2017, a true and correct copy of the foregoing
was electronically filed with the Clerk of Court using the Florida Courts eFiling Portal with
electronic notice to: Hardin and Ball, P.A., at service@hardinpalaw.com.
/s/ C_ Gene Shipley
C. GENE SHIPLEY, ESQUIRE
Florida Bar No.: 130028
RICHARD W. SMITH, ESQUIRE
Florida Bar No. 0013943
Fisher Rushmer, P.A.
390 North Orange Avenue, Suite 2200
Orlando, Florida 32801-1642
Telephone: (407) 843-2111
Facsimile: (407) 422-1080
Email: gshipley@fisherlawfirm.com
Email: tpochedley@fisherlawfirm.cor
Attorneys for Plaintiff
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Mail :: AST.Partners.Sybac: Re: please explain http://www.ast-solar.com:2095/horde/imp/message.php?actionID=pri.
Date: Sat, 2 Oct 2010 05:45:32 -0400 [10/02/2010 05:45:32 AM EDT]
From: Artur Madej
Te Harald Kegelmann
Subject: Re: please explain
Harry,
You should know better than to believe everything you read in the paper.
Naveen hasn't even signed a contract yet with us. We are still negotiating terms
I am leaving for Europe today and won't be back for 3 weeks.
Artur.
I
On Oct 2, 2010, at 3:11 AM, Harald Kegelmann wrote:
Hi Artur,
have you seen this article in the Gainesville Sun:
http: //www. gainesville. com/article/20101001/ARTICLES/101009920/1118?p=al 1&tc=pgal 1&tc=ar
You are quoted in the article stating that construction will start in 4-6 weeks and the
project will be completed before the end of the year. However, Markus told me a few days
ago that construction will not begin until January.
For quite some time, I had the feeling that I'm getting the run around and it is no longer
clear who js telling the truth. I will call you next week to give you the opportunity to do
the right thing and resolve this amicably.
In the meantime, I have passed on the article to our attorney, Mark Dubose:
J Mark Dubose, dre, Esq.
Law Office of R. Flint Crump, P.A
4404-B NW 36th Avenue
Gainesville, FL 32606
Sincerely,
Harald w. Kegelmann
Exhibit "A", Page 1
1 von 1 14.08.2015 14:39
Mail :: AST.Partners.Sybac: transfer of interests http://www.ast-solar.com:2095/horde/imp/message.php?actionID=pri.
Date: Tue, 02 Nov 2010 14:15:48 -0400 [11/02/2010 02:15:48 PM EDT]
From: Harald Kegelmann
To: Markus Falz
ca ‘Artur Madej'
Subject: transfer of interests
Dear Mr. Falz,
thank you for your email with respect to our conversation of last night and your reference to
our Agreement. My recollection of the conversation is slightly different. But I rant you
that you may have forgotten parts or added others since almost 24 hours passed since our
conversation.
with respect to the project with Entrust Holdings, you stated in previous conversations that
the rights to the Entrust Holdings project was sold to 6th Street Solar Energy Park. Last
night, I mentioned to you the commission that is due AST from this project. I kindly request
(according to Section 11 of our Agreement) the written consent form for transferring AST's
interest with respect to said commission to 6th Street Solar Energy Park.
Furthermore, I kindly request the contact information for officers/investors or other forms
of owners of 6th Street Solar Energy Park so that I can inform them about this issue.
Last but not least, I request in the spirit of our Agreement, that SYBAC Solar provides
written proof that it has a contractual a reement with 6th Street Solar Energy Park and as
such is authorized to request quotations or the construction of said solar PV project. In
addition, I request a letter of credit stating that the funds to pay for the projects are
available. As you have said repeatedly over the last few weeks, the cause for the delay in
the construction of the project is due to lack of funding on part of SYBAC Solar.
Kindest regards,
Harald W. Kegelmann
Exhibit "A, Page 2
1 von 1 14.08.2015 14:53
Mail :: AST.Partners.Sybac: FW: transfer of interests http://www.ast-solar.com:2095/horde/imp/message.php?actionID=pri.
Date: Tue, 2 Nov 2010 15:20:49 -0400 [11/02/2010 03:20:49 PM EDT]
From: Markus Falz
Te ‘Harald Kegelmann'
ce: ‘Artur Madej'
Subject: FW: transfer of interests
Dear Mr Kegelman,
Thank you for reminding me how many hours there are between Spm and 12:00pm.
—ven with an almost 24hour delay I can categorically assure you that my
recollection of our conversation is quite accurate. Perhaps you are
referring to my omission of the Russian mafia as your source of funding that
you disclosed?
I note with interest that your response does not address any of the
questions or requests I raised. I trust that this is an omission on your
part and that you will shortly furnish me these answers so that we can
proceed with this project in a judicious manner.
As to point 11, I respectfully point out that Sybac had no contract with
Entrust and as such was never in a position to transfer any interest rights.
I fail to understand your reasoning here. Perhaps you would be so kind as to
enlighten me?
Please share any issues that you may have with respect to 6th Street Solar
Energy Park so that we can have a better understanding of them.
As discussed with you previously Sybac does not have a written contract with
6th Street, therefore there is nothing to forward. Right now we are in the
process of preparin a proposal which is why we are requesting your input as
stated earlier so tl Ra t We can be considered as a potential vendor.
I look forward to seeing your response.
Kind regards,
Markus Falz
mfalz@sybacsolar.com
cid: 3343992611_3632916
Sybac Solar LLC
4759 Drane Field Road
Lakeland, FL 33811
(863) 229-1081
Preview
Filing # 52770308 E-Filed 02/21/2017 02:32:24 PM IN THE CIRCUIT COURT OF THE EIGHTH JUDICIAL CIRCUIT IN AND FOR ALACHUA COUNTY, FLORIDA. ADVANCED SOLAR TECHNOLOGIES, INC., a Florida corporation, CASE NO.: 01-2015-CA-4357 Plaintiff, Div.: J Vv. SYBAC SOLAR, LLC, a Florida limited liability company, Defendant. / PLAINTIFF'S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT'S AMENDED MOTION FOR SUMMARY FINAL JUDGMENT Plaintiff, ADVANCED SOLAR TECHNOLOGIES, INC., ("AST"), by and through its undersigned counsel, hereby files this Memorandum of Law in Opposition to Defendant's Amended Motion for Summary Final Judgment. Plaintiff AST respectfully submits Defendant's Motion should be denied for the following reasons: (1) the contractor and real estate broker licensing statutes on which Defendant relies have no application to the specific circumstances in this case; and, (2) genuine issues of material fact exist as to all of the issues which are pertinent to Defendant's Motion, including the parties' intent with respect to certain unclear licensing language in their Professional Services Agreement. In further opposition to Defendant's Motion, Plaintiff AST states as follows: BACKGROUND Plaintiff AST and Defendant Sybac Solar, LLC ("Sybac") are in the solar energy business. On March 9, 2010, the parties decided to enter into a Professional Services Agreement "2015 CA 004357" 52770308 Filed at Alachua County Clerk 02/21/2017 02:32:27 PM EST (the "Agreement") relating to their joint development and implementation of Solar Photovoltaic Power Generation Facilities. The Agreement is not itself a contracting or installation agreement with respect to any specific project or client. Rather, the Agreement describes the parties’ decision to create a relationship where they would work together to design, engineer, procure, and install Solar Photovoltaic Power Generation Facilities where future opportunities arose. The Agreement also contemplated that AST, given its long term experience in the solar energy business, might sometimes generate client leads for SYBAC, even in situations where AST would not be involved in the actual installation of a project involving that client. The Agreement describes how the parties intended to be compensated for the various duties they performed thereunder. In this regard, the Agreement contemplates at least three (3) separate scenarios where SYBAC would be obligated to pay AST for its services: (1) where AST installs the SPF on a project initiated by SYBAC, AST will receive a percentage of the contract sum (§3.1 of Agreement); (2) where both parties share the tasks and services for a project or client, the generated gross profits of the project will be split at a 50:50 ratio (93.4 of Agreement); and, (3) where AST provides a lead to SYBAC for a prospective client and that lead becomes a SYBAC project on which AST does not perform any installation services, AST is entitled to a commission of 5% of the contracted sum (43.5 of Agreement). During the term of the Agreement, AST provided leads to SYBAC which culminated in several highly lucrative Projects for SYBAC, including the following: a. AST generated leads with representatives of solar energy contracting agencies with which SYBAC eventually entered into lucrative regional Feed-In-Tariff (“FIT”) contracts, including but not limited to SYBAC’s acquisition of 80% of all FIT contracts with Gainesville Regional Utilities; AST generated leads resulting in SYBAC’s development of a large project commonly known as the “6th Street Project” in Gainesville, Florida; AST generated leads resulting in SYBAC’s development of a large project commonly known as the “UTC Project” in Gainesville, Florida; and AST generated leads resulting in SYBAC’s development of a large project commonly known as the “Waldo Road Project” in Gainesville, Florida. Despite the fact Paragraph 3.6 of the Agreement specifically provides AST "will be the exclusive partner of SYBAC for all clients of SYBAC in the service territory of Gainesville Regional Utilities" and "for all other installations within the USA, each party has the right of first refusal," the principals of SYBAC intentionally engaged in a series of nefarious tactics in an attempt to avoid utilizing AST's services and to avoid compensating AST for these leads under the terms of the Agreement." When SYBAC refused to compensate AST for these leads as required by Paragraph 3.5 of the Agreement, AST filed the instant breach of contract action. SYBAC is now seeking summary judgment based solely on the following two arguments: (1) SYBAC claims AST failed to maintain an electrical contractor's license and, thus, could not perform its obligations under the Agreement; and, (2) SYBAC claims AST did not hold a valid real estate license and, thus, 'For example, SYBAC, through its principals, engaged in the following (and other) wrongful acts: (1) formed an entity called 6th Street Solar Energy Park of Gainesville, LLC., for the purpose of purchasing the 6th Street Project property from the owner previously introduced by AST, then purportedly reassigned and/or renegotiated the developmental rights between SYBAC and this “new” entity; (2) withheld documents, plans and general information related to the negotiation and development of Projects originated and/or initiated, in whole or in part, by AST; (3) deceptively misstated the outcome of Project leads initiated by AST; (4) wrongfully assigned and/or contracted with other contractors similar to AST for the right to perform services exclusively granted to AST under the Agreement; and, (5) wrongfully claimed AST did not initiate Project leads. (Amended Complaint, 12). 3 cannot recover a commission. As AST will unequivocally establish herein, SYBAC's licensing arguments do not preclude AST's breach of contract claim. Not only are there genuine issues of fact as to material aspects of these licensing arguments, but Florida law also clearly establishes the licenses at issue were not required either at the specific times relevant to AST's breach of contract claims or otherwise under the specific circumstances of this case. STANDARD OF ADJUDICATION Rule 1.510 of the Florida Rules of Civil Procedure provides for the entry of summary judgment when a party establishes “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). “The party moving for summary judgment bears the heavy burden of proving a negative - - the nonexistence of a genuine issue of material fact.” RNR Investments Limited Partnership v. Peoples First Community Bank, 812 So. 2d 561, 564 (Fla. 1st DCA 2002); Cole Taylor Bank, 772 So. 2d at 550. And, “the nonmoving party is entitled to the benefit of every possible inference that may be drawn from the facts before the trial court.” Richardson v, Wal-Mark Contracting Group, LLC 814 So, 2d 534, 535 (Fla. 2d DCA 2002). “Summary judgment should be granted cautiously, with full recognition of the right of a litigant to a jury trial on the merits of the case.” Cole Taylor Bank v, Shannon, 772 So. 2d 546, 550 (Fla. Ist DCA 2000). “If the record reflects even the possibility of a material issue of fact, or if different inferences can be drawn reasonably from the facts, the doubt must be resolved ? See also Hastings v. Demming, 682 So. 2d 1107, 1110 (Fla. 2d DCA 1996)(“unless and until the material facts at issue presented to the trial court are so ‘crystallized,’ conclusive, and compelling as to leave nothing for the court's determination but a question of law, those facts, as well as any defenses, must be submitted to the jury for its resolution”); Vandyk v. Southside Gun, Inc., 638 So. 2d 138 (Fla. 1st DCA 1994)(“Public policy requires that our courts be ever vigilant in making summary disposition of causes lest the application of the rule result in eroding or destroying the fundamental right of litigants under our system of jurisprudence to have the issues made by the pleadings tried by a jury of fellow citizens. The importance of preserving the jury system, and the concomitant right of a litigant to a jury trial on the merits of his cause, should be zealously protected”). 4 against the moving party and summary judgment must be denied.” RNR Investments Limited Partnership, 812 So. 2d at 564; Cole Taylor Bank, 772 So. 2d at 550. See also Ventana Condominium Association, Inc. v. Chancey Design Partnership, Inc., 203 So. 3d 175, 183 (Fla. 2d DCA 2016)("Summary judgment is inappropriate if the record reflects even the possibility of a material issue of fact, or if different inferences can reasonably be drawn from the facts"); Al Ibelo v. Southern Bell, 682 So. 2d 1126 (Fla. 4th DCA 1996)(every possible inference must be drawn in favor of the party against whom summary judgment is sought - “even where the facts are uncontroverted, the remedy of summary judgment is not available if different inferences can be reasonably drawn from the uncontroverted facts”); Rem-Con Communications, Inc. v. United American Bank of Memphis, 668 So. 2d 320, 322 (Fla. 2d DCA 1996)(“if there is even the slightest possibility of a genuine issue of material fact, summary judgment is improper”). With respect to contractual issues, where there are two or more reasonable interpretations of a contract, "summary judgment is inappropriate because there is a genuine issue of material fact." Palm Beach Pain Management, Inc. v. Carroll, 7 So. 3d 1144, 1145-1146 (Fla. 4th DCA 2009). "When a contract is ambiguous and the parties suggest different interpretations, the issue of the proper interpretation is an issue of fact requiring the submission of evidence extrinsic to the contract bearing upon the intent of the parties." Palm Beach Pain Management, Inc. v. Carroll, 7 So. 3d 1144, 1146 (Fla. 4th DCA 2009). See also Ventana Condominium Association. Inc. v. Chancey Design Partnership, Inc., 203 So. 3d 175, 183 (Fla. 2d DCA 2016)("If the terms of a written instrument are in dispute and are reasonably susceptible to two different interpretations, then an issue of fact is presented as to the parties’ intent; such an issue of fact cannot be properly resolved by a summary judgment"); Fiore v. Hilliker, 170 So. 3d 147, 151 (Fla. 2d DCA 2015)(where terms in a contract are ambiguous, a finding of fact relating to the 5 parties’ intent is not permitted at the summary judgment stage of the case). AST respectfully submits that, at this stage of the proceedings and on the record before the Court, SYBAC has failed to establish conclusively that AST cannot prevail on its breach of contract claim. Moreover, this case involves complex, technical transactions and will require expert testimony to assist this Court to analyze SYBAC's claims of illegality and licensing requirements. Accordingly, SYBAC's Amended Motion for Summary Final Judgment should be denied. MEMORANDUM OF LAW OPPOSING MOTION FOR SUMMARY JUDGMENT DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD BE DENIED. A. Contrary to SYBAC's Arguments, The Lack Of A Contractor's License At The Specific Times In Question Does Not Preclude AST's Claims Under The Specific Facts Of This Case. The first basis for SYBAC's Motion for Summary Judgment is its claim that AST failed to maintain an electrical contractor's license, thus invalidating the Agreement. SYBAC's arguments regarding the contractor's license are based on Florida Statute §489.532 and on Paragraph 2.2 of the Agreement. Chapter 489 of the Florida Statutes governs contractor licensing. Florida Statute §489.532 provides that contracts entered into by an unlicensed contractor are unenforceable by the unlicensed contractor. §489.532(1), Fla. Stat. For the purposes of this statute, "a business organization is unlicensed if the business organization does not have a primary or secondary qualifying agent in accordance with this part concerning the scope of the work to be performed under the contract." §489,.532(1)(a), Fla. Stat. Thus, the business organization must apply for a Certificate of Authority naming a "qualifying agent" who will be responsible for all work provided by the organization. §489.521, Fla. Stat. 6 To the extent it addresses licensing, the Agreement refers to licensing in connection with external, future projects: Each Party shall maintain all necessary licenses, permits or other authorizations necessary to perform its respective services for the implementation of a Project until the Party's duties hereunder have been fully satisfied. ({2.2 of Agreement)(emphasis added). Thus, according to Paragraph 2.2, once they entered into a contract with a client to implement a project, AST and SYBAC were required to obtain and maintain the "necessary" licenses for that project. SYBAC claims it is released from any and all of its contractual duties to AST, including its commission payment obligations, because AST did not hold a valid electrical contractor license at the time SYBAC entered into construction contracts as a result of leads generated by AST (ie., the 6th Street, UTC, and Waldo Road Projects). In doing so, SYBAC fails to consider several material facts which refute its argument. The first problem with SYBAC's argument is that the contract it wants to render unenforceable (i.¢., the contract which AST "entered into" - the parties' Professional Services Agreement) did not require AST to be licensed for the performance of its terms. The Professional Services Agreement is not itself a contracting or installation agreement with respect to any specific project or client. Rather, the Agreement describes the parties’ decision to create a relationship where they would work together to design, engineer, procure, and install Solar Photovoltaic Power Generation Facilities where future opportunities arose. The Agreement also contemplated that AST, given its long term experience in the solar energy business, might sometimes generate client leads for SYBAC, even in situations where AST would not be involved in the actual installation of a project involving that client. Second, the Agreement is unclear on what licenses were required of the parties and when those licenses were required. Accordingly, the interpretation of the contract presents an issue of fact requiring the submission of evidence bearing upon the intent of the parties. The ambiguous nature of the Agreement's licensing requirements is demonstrated by several paragraphs therein. Paragraph 2.2 states the parties will maintain all "necessary licenses" to perform their services for the implementation of a Project. Thus, as stated above, once they entered into a contract with a client to implement a project, AST and SYBAC were required to maintain the "necessary" licenses. Despite this requirement, however, both Paragraph 3.1 and 3.2 state if the Project at issue requires a service which is not covered by a party's license, then either SYBAC or AST (depending on who initiated the project) "shall be responsible for hiring the respective contractor." In other words, the Agreement contemplates situations where a party might not have a required license and, in such event, will hire a contractor with the required license. Where a contract is ambiguous as to whether an entity will provide services requiring it to have a contractor's license, summary judgment based on the non-moving company's unlicensed status is inappropriate. A-1 Quality Corp. v. Oak Park Terrace, Inc., 32 So. 3d 166, 167 (Fla. 4th DCA 2010). Third, while AST was required to have the appropriate license (or to hire someone with the appropriate license) had it performed the SPF installations on the Projects at issue, it did not perform the installations on the projects. Rather, SYBAC intentionally concealed the Projects, hired other contractors in violation of the exclusivity provision in the Agreement, and engaged in other wrongful acts in order to preclude AST from performing the SPF installation services on the Projects which culminated from AST's leads. See, ¢.g., Exhibit “A” attached hereto. This ‘ase does not arise from circumstances where AST entered into a contract to perform contractor 8 services for the defendant, actually performed those services without a license, and now seeks payment for that unlicensed work. To the contrary, AST was denied work for which it had or could have timely obtained the necessary licenses had it been included in the Project as required by the exclusivity provision in the Professional Services Agreement. SYBAC's own wrongful actions in trying to avoid AST and its own contractual obligations before any specific licenses were required preclude SYBAC from now relying on licensing statutes to avoid its contractual obligations under the Professional Services Agreement. SYBAC has presented no evidence suggesting AST could not have obtained the requisite licenses in the necessary timeframe had AST been informed of the Projects and given the opportunity. To the contrary, AST submits that if SYBAC had notified AST of these Projects, AST would have easily obtained the requisite licensure status in accordance with its obligations under the Agreement. On March 9, 2010, the effective date of the Agreement between AST and SYBAC, Gary Clark Williams, a registered electrical contractor, was the primary qualified agent for AST. Mr. Williams's status as the primary qualifying agent lapsed on August 31, 2010. Pursuant to Florida Statute §489.531(1)(g), AST was allowed to continue operating without a licensed qualifying agent for sixty (60) days after the license lapsed before obtaining another qualifying agent (i.e., until October 30, 2010). Despite this statutory rule and despite the fact the Agreement between AST and SYBAC includes an exclusivity clause, SYBAC submitted a contract for bid (excluding AST) on August 31, 2010, the same day AST's contractor license / certificate of authority expired. See Exhibit “B” attached hereto. AST would have been allowed to work on this Project and had just under sixty days, until October 30, 2010, to obtain another qualifying agent, yet SYBAC wrongfully excluded AST from the project. AST employed several licensed contractors who could have easily become AST's 9 qualifying agents for purposes of any of the projects which SYBAC entered into and tried to hide from AST. For example, AST employed Zot Lynn Szurgot, a Certified Solar Contractor and licensed journeyman electrician. See Exhibit “C” attached hereto. As a Certified Solar Contractor, Mr. Szurgot's license encompassed his work on photovoltaic (solar electric) systems. $489.105(3)(9), Fla. Stat.> Had AST known of SYBAC's projects and the resulting need for it to update its licensure status, Mr. Szurgot would have easily stepped in and become AST's qualifying agent during that sixty day period after the original license lapse so that there was no interruption in AST's licensure status. And, AST could have refiled its qualifying agent papers using Gary Williams, who at all relevant times from at least November 20, 1996 through the current date, held a Master Electrician License with the State of Florida and was a licensed and insured electrical contracting member of the National Electrical Contractors Association. SYBAC's own wrongful actions deprived AST of the opportunity to obtain the licensure status required for each of the Projects at issue. Even more important, however, is the fact that no contractor's license was required in order for AST to provide "leads" to SYBAC in circumstances when AST would not be performing any installation services. Under the Agreement, where AST provided a project lead to SYBAC, but did not perform any installation services on the resulting project, SYBAC was required to pay AST a 5% commission: In case AST provides a lead to SYBAC for a prospective client but is not involved in the actual installation of the project, SYBAC will pay AST a commission of 5.0% (five and 0/00 percent) of the contracted sum. Payment of the commission is due within two weeks of the first payment that SYBAC receives from the prospective client. 3 During the relevant time period, AST also employed Seth Willey, a certified solar PV installer, and Chris Fillie, who is certified as a LEED AP. 10 (3.5 of Agreement)(emphasis added). By its very terms, Paragraph 3.5 of the Agreement specifies a commission is only due when AST is not involved in the actual installation work on the project. Because AST never provided labor, services, or materials under these contracts, its license status as a contractor is completely irrelevant for purposes of its right to compensation under Paragraph 3.5 of the Agreement. Even if a contractor's license was required for those portions of the contract relating to AST's actual installation work (and for the reasons discussed earlier, AST submits it either had or could have easily and timely obtained, absent SYBAC's wrongdoing, the requisite licensing), AST is still entitled to remuneration for performing work (i.e., providing "leads") which was not "illegal." Under Florida law, "a bilateral contract is severable where the illegal portion of the contract does not go to its essence and, where, with the illegal portion eliminated, there will still remain valid legal promises on one side which are wholly supported by valid legal promises on the other." Full Circle Dairy, LLC v. McKinney, 467 F. Supp. 2d 1343, 1354 (M.D. Fla. 2006). See also Hardcastle Pointe Corp. v. Cohen, 505 So. 2d 1381, 1384 (Fla. 4th DCA 1987)(even though first portion of consulting contract, pursuant to which consultant was to receive commission for helping developer acquire real estate, was void as against public policy because consultant was not licensed real estate broker, portion of contract providing for commission to consultant for site planning, researching, assisting in preparation of site plan, consulting, and proposing name for development project was enforceable, where payment and services rendered in connection with second portion were separate and distinct from payment to be earned for services rendered under first portion of contract). Accordingly, at the very least, SYBAC's claim that AST lacked a contractor license does not preclude AST's claims for commissions under Paragraph 3.5 of the Agreement. i B. Contrary to SYBAC's Arguments, The Lack Of A Real Estate License Does Not Preclude AST's Claims Under The Specific Facts Of This Case. SYBAC curiously asserts AST cannot recover any of the commissions due under Paragraph 3.5 of the Agreement, because AST was not a licensed real estate broker. As will be established below, AST was not required to have a real estate license in order to receive a commission for "leads" provided to SYBAC. SYBAC relies on Florida Statute §475.41, which provides as follows: No contract for a commission or compensation for any act or service enumerated _in s. 475.01(3) is valid unless the broker or sales associate has complied with this chapter in regard to issuance and renewal of the license at the time the act or service was performed. §475.41, Fla.Stat. (emphasis added). Florida Statute §475.01(3) provides:: Wherever the word “operate” r “operating” as a broker, broker associate, or sales associate appears in this chapter . . . it shall be deemed to mean the commission of one or more acts described in this chapter as constituting or defining a broker, broker associate. 9 r_sales associate, not including, however, any of the exceptions stated therein. §475.01(3), Fla. Stat. The term "broker" is defined as: “Broker” means a person who, for another, and for a compensation or valuable consideration . . appraises, auctions, sells, exchanges, buys, rents, or offers, attempts or agrees to appraise, auction, or negotiate the sale, exchange, purchase, or rental of business enterprises or business opportunities or any real property or any interest in or concerning the same, including mineral rights or leases, or who advertises or holds out to the public by any oral or printed solicitation or representation that she or he is engaged in the business of appraising, auctioning, buying, selling, exchanging, leasing, or renting business enterprises or business opportunities or real property of others or interests therein, including mineral rights, or who takes any part in the procuring of sellers, purchasers. lessors. or lessees of business enterprises or _ business opportunities or the real property of another, or leases, or interest therein, including mineral rights, or who directs or a! ts in the 12 procuring of prospects or in the negotiation or closing of any transaction which does, or is calculated to, result in a sale, exchange, or leasing thereof, and who receives, expects, or is promised any compensation or valuable consideration, directly or indirectly therefor; and all persons who advertise rental property information or lists. . . . §475.01(1)(a), Fla. Stat. (emphasis added). Originally, the Real Estate Brokers Act, Chapter 475 of the Florida Statutes only required licensing for a person who is hired to "sell, exchange, buy, or rent . . . any real property or interest therein." §475.01(2), Fla. Stat. (1979). The Act did not include the sale of "businesses" but was limited to real estate. Often, however, the sale of a corporate entity or business holding real property involved the sale of real estate. Prior to an amendment in 1982, courts held no license was required to "broker" business deals, notwithstanding the sale of the business might incidentally involve real estate. See Schindler v. Florida Real Estate Commission, 144 So. 2d 862 (Fla. 3d DCA 1962) (transactions relating to sale of business and incidental leases in connection therewith were not subject to control under Real Estate License Law). The Act was later amended to include sales of businesses. Specifically, in 1982, the Act was amended to include a person who "sells, exchanges, buys, rents, . . . business enterprises or business opportunities or any real property . . or who takes any part in the procuring of sellers, purchasers, lessors, or lessees of business enterprises or business opportunities or the real property of another . . . and who receives, expects or is promised any compensation or valuable consideration, directly or indirectly, therefor..." §475.01(1)(a), Fla. Stat. SYBAC argues the Agreement in this case contemplated the sale of a "business" or "business opportunity" within the meaning of Chapter 475 (which is entitled "Real Estate 13 Brokers, Sales Associates, Schools, and Appraisers").4 SYBAC focuses on the words "business opportunity" and tries to expand that concept into any type of business or consulting transaction between two companies. AST respectfully submits the licensing statute is not to be so broadly read. Although the term "business opportunity" is not defined in Chapter 475, the term is defined in the Sale of Business Opportunities Act, §559,80-559.815. In that statute, the term "business opportunity" is defined as “the sale or lease of any products, equipment, supplies, or services which are sold or leased to a purchaser to enable the purchaser to start a business .. . ." §559.801(1), Fla. Stat. The Act goes on to specifically delineate narrow circumstances which must apply in order to qualify as a business opportunity requiring AST to maintain a license as argued by Defendant. For example, the statute imposes additional requirements on the seller such as assisting the purchaser in finding locations for operation of vending machines, a promise that SYBAC would purchase products manufactured by the purchaser, a guarantee that the purchaser will derive income from the business which exceeds the price paid or rent charged or a refund in the purchase price and goods sold through the business opportunity, and continued assistance to the purchaser via sales and marketing. §559.801, Fla. Stat. See also Granoff v. Clarendon National Ins. Co., 2007 WL 646973, *3 (S.D. Fla. Feb. 27, 2007). This scenario was not involved in the instant case. SYBAC never made any representations or guarantees to, nor did SYBAC ever provide or purchase any of the products and services from, the property owners 4 Horida Statute §475.001 still provides as follows: The Legislature deems it necessary in the interest of the public welfare to regulate real estat rokers. sales associates. ind schools in this state. §475.001, Fla. Stat. (emphasis added). 14 with which the construction contract was entered, thereby requiring AST to maintain a real estate brokerage license. Given the foregoing, SYBAC's reliance on Meteor Motors, Inc. v. Thompson Halbach & A ssociates, 914 So. 2d 479 (Fla. 4th DCA 2005), which concerned the sale of an automobile dealership (the entire business) is misplaced. In that case, Meteor Motors, the owner of an Acura dealership, entered into an agreement with Thompson Halbach & Associates in which Meteor Motors agreed to pay Thompson a commission of 5% of the closing price if Thompson found a buyer for the seller's dealership. The court noted that Thompson was "in the business of bringing together buyers and sellers of automobile dealerships." Id. at 481. Thereafter, Halbach contacted businesses he thought might be interested in purchasing the automobile dealership. One of those entities eventually purchased the dealership. Halbach was not paid a commission. When he filed a breach of contract lawsuit, Meteor Motors defending on the grounds the contract was unenforceable because Halbach was not licensed pursuant to Chapter 475. The Fourth District Court of Appeal agreed with Meteor Motors and held Chapter 475 precluded the claim. However, SYBAC's reliance on this case is misplaced, because Meteor Motors involved the sale of an entire business. Under SYBAC's interpretation, any referral by one company to another, in return for a commission or other payment (if the referral is successful), would require a real estate license. Arguably, the incredibly broad scenario contemplated by SYBAC could encompass situations where one attorney refers a potential client to another, who accepts the case and then pays a percentage of any contingent fee recovered to the referring attorney. Likewise, under SYBAC's interpretation, a real estate license would be curiously required in situations where a headhunter provides clients with "leads" on potential employees in return for a commission if the referred 15 employee is hired. Courts should strictly construe Florida Statute §475.41, because of its "highly penal nature." Etkin & Company v. SBD, LLC, 2014 WL 12498221, *7 (S.D. Fla. July 7, 2014). When determining whether a party is operating as a "broker" under Chapter 475, the court must look at "the nature of the services rendered." Id. In doing so, courts should "be cognizant of the purpose of Chapter 475 of the Florida Statutes, which ‘is to protect the public from being forced to deal with dishonest or unscrupulous [brokers and sales associates], rather than to permit one party to gain unconscionable advantage by avoiding a just obligation which he has contracted to pay." Id. (emphasis added). AST develops, installs, manages, and maintains solar energy power parks. AST is not in the business of selling companies, selling business opportunities, or selling real estate (or being the "middleman" in such transactions). Rather, due to AST's knowledge of and experience with the solar energy business, the parties entered into an agreement where a commission would be paid by SYBAC to AST if AST provided a "lead" to SYBAC for a prospective client which later culminated in a contract between SYBAC and that prospective client. In order to protect the exclusivity of their arrangement, and given AST experience and years of service in the solar energy field, the parties agreed that if AST recognized a potential opportunity for SYBAC and provided a "lead" to SYBAC, who then followed through with that prospective client and entered into a contractual arrangement with that prospective client, then AST would be compensated for providing the lead with a commission of 5% of the contract sum. SYBAC did not sell "business opportunities" and AST was not referring clients to SYBAC so that they could purchase a "business opportunity" from SYBAC. Accordingly, AST was not required to have a real estate license in order to be entitled to commissions under Paragraph 3.5 of the Agreement. 16 CONCLUSION Based on the foregoing, Plaintiff ADVANCE SOLAR TECHNOLOGIES, INC. respectfully requests the Court to deny SYBAC's Amended Motion for Summary Final Judgment. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on February 21, 2017, a true and correct copy of the foregoing was electronically filed with the Clerk of Court using the Florida Courts eFiling Portal with electronic notice to: Hardin and Ball, P.A., at service@hardinpalaw.com. /s/ C_ Gene Shipley C. GENE SHIPLEY, ESQUIRE Florida Bar No.: 130028 RICHARD W. SMITH, ESQUIRE Florida Bar No. 0013943 Fisher Rushmer, P.A. 390 North Orange Avenue, Suite 2200 Orlando, Florida 32801-1642 Telephone: (407) 843-2111 Facsimile: (407) 422-1080 Email: gshipley@fisherlawfirm.com Email: tpochedley@fisherlawfirm.cor Attorneys for Plaintiff 17 Mail :: AST.Partners.Sybac: Re: please explain http://www.ast-solar.com:2095/horde/imp/message.php?actionID=pri. Date: Sat, 2 Oct 2010 05:45:32 -0400 [10/02/2010 05:45:32 AM EDT] From: Artur Madej Te Harald Kegelmann Subject: Re: please explain Harry, You should know better than to believe everything you read in the paper. Naveen hasn't even signed a contract yet with us. We are still negotiating terms I am leaving for Europe today and won't be back for 3 weeks. Artur. I On Oct 2, 2010, at 3:11 AM, Harald Kegelmann wrote: Hi Artur, have you seen this article in the Gainesville Sun: http: //www. gainesville. com/article/20101001/ARTICLES/101009920/1118?p=al 1&tc=pgal 1&tc=ar You are quoted in the article stating that construction will start in 4-6 weeks and the project will be completed before the end of the year. However, Markus told me a few days ago that construction will not begin until January. For quite some time, I had the feeling that I'm getting the run around and it is no longer clear who js telling the truth. I will call you next week to give you the opportunity to do the right thing and resolve this amicably. In the meantime, I have passed on the article to our attorney, Mark Dubose: J Mark Dubose, dre, Esq. Law Office of R. Flint Crump, P.A 4404-B NW 36th Avenue Gainesville, FL 32606 Sincerely, Harald w. Kegelmann Exhibit "A", Page 1 1 von 1 14.08.2015 14:39 Mail :: AST.Partners.Sybac: transfer of interests http://www.ast-solar.com:2095/horde/imp/message.php?actionID=pri. Date: Tue, 02 Nov 2010 14:15:48 -0400 [11/02/2010 02:15:48 PM EDT] From: Harald Kegelmann To: Markus Falz ca ‘Artur Madej' Subject: transfer of interests Dear Mr. Falz, thank you for your email with respect to our conversation of last night and your reference to our Agreement. My recollection of the conversation is slightly different. But I rant you that you may have forgotten parts or added others since almost 24 hours passed since our conversation. with respect to the project with Entrust Holdings, you stated in previous conversations that the rights to the Entrust Holdings project was sold to 6th Street Solar Energy Park. Last night, I mentioned to you the commission that is due AST from this project. I kindly request (according to Section 11 of our Agreement) the written consent form for transferring AST's interest with respect to said commission to 6th Street Solar Energy Park. Furthermore, I kindly request the contact information for officers/investors or other forms of owners of 6th Street Solar Energy Park so that I can inform them about this issue. Last but not least, I request in the spirit of our Agreement, that SYBAC Solar provides written proof that it has a contractual a reement with 6th Street Solar Energy Park and as such is authorized to request quotations or the construction of said solar PV project. In addition, I request a letter of credit stating that the funds to pay for the projects are available. As you have said repeatedly over the last few weeks, the cause for the delay in the construction of the project is due to lack of funding on part of SYBAC Solar. Kindest regards, Harald W. Kegelmann Exhibit "A, Page 2 1 von 1 14.08.2015 14:53 Mail :: AST.Partners.Sybac: FW: transfer of interests http://www.ast-solar.com:2095/horde/imp/message.php?actionID=pri. Date: Tue, 2 Nov 2010 15:20:49 -0400 [11/02/2010 03:20:49 PM EDT] From: Markus Falz Te ‘Harald Kegelmann' ce: ‘Artur Madej' Subject: FW: transfer of interests Dear Mr Kegelman, Thank you for reminding me how many hours there are between Spm and 12:00pm. —ven with an almost 24hour delay I can categorically assure you that my recollection of our conversation is quite accurate. Perhaps you are referring to my omission of the Russian mafia as your source of funding that you disclosed? I note with interest that your response does not address any of the questions or requests I raised. I trust that this is an omission on your part and that you will shortly furnish me these answers so that we can proceed with this project in a judicious manner. As to point 11, I respectfully point out that Sybac had no contract with Entrust and as such was never in a position to transfer any interest rights. I fail to understand your reasoning here. Perhaps you would be so kind as to enlighten me? Please share any issues that you may have with respect to 6th Street Solar Energy Park so that we can have a better understanding of them. As discussed with you previously Sybac does not have a written contract with 6th Street, therefore there is nothing to forward. Right now we are in the process of preparin a proposal which is why we are requesting your input as stated earlier so tl Ra t We can be considered as a potential vendor. I look forward to seeing your response. Kind regards, Markus Falz mfalz@sybacsolar.com cid: 3343992611_3632916 Sybac Solar LLC 4759 Drane Field Road Lakeland, FL 33811 (863) 229-1081