Bluegreen Vacations Unlimited, Inc. v. Timeshare Lawyers, P.A.
| Docket Number | Civil Action 20-24681-Civ-Scola |
| Decision Date | 02 May 2023 |
| Parties | Bluegreen Vacations Unlimited, Inc. and Bluegreen Vacations Corporation, Plaintiffs, v. Timeshare Lawyers P.A., and others, Defendants. |
| Court | U.S. District Court — Southern District of Florida |
OMNIBUS ORDER ON MOTIONS FOR SUMMARY JUDGMENT
This matter is before the Court on the parties' cross-motions for summary judgment, which have been fully briefed and are ripe for review. The following claims are at issue with respect to the pending and fully briefed cross motions for summary judgment and the indicated Defendants:
Count
Defendant
Pandora Marketing, LLC, Rick Folk, and William Wilson (collectively, the “Marketing Defendants”)
Carlsbad Law Group, LLP and J.L. Slattery (collectively, the “Lawyer Defendants”)
Seven: Civil Conspiracy to Commit Tortious Interference
The Plaintiffs Bluegreen Vacations Unlimited, Inc. and Bluegreen Vacations Corporation (collectively, “Bluegreen”) move for partial summary judgment on the claims for false advertising, contributory false advertising, tortious interference, and violation of Florida's Deceptive and Unfair Trade Practice Act (“FDUTPA”), as well as on the Defendants' affirmative defenses. (Pls.' Mot for Summ. J., ECF No. 270.) The Marketing Defendants cross-move for summary judgment on all claims, arguing generally, that Bluegreen lacks standing and has failed to prove causation and damages and, specifically, that Bluegreen cannot satisfy the elements of its claims for false advertising or for tortious interference. (M.Ds.' Mot for Summ. J., ECF No. 276.) The Lawyer Defendants also cross-move for summary judgment on all claims, raising similar arguments as to Bluegreen's standing and causation, and specifically attacking the evidence in support of Bluegreen's claims for contributory false advertising tortious interference, violation of FDUTPA, and civil conspiracy. (L.Ds.' Mot. for Summ. J., ECF No. 274.) For the following reasons, the Court denies the Marketing Defendants and the Lawyer Defendants' motions in their entireties (ECF Nos. 274, 276) and grants in part and denies in part Bluegreen's motion (ECF No. 270).
Bluegreen, a company in the business of selling timeshare interests, brings this action against the Defendants for damages resulting from their participation in a scheme to induce Bluegreen timeshare owners to breach their timeshare contracts. This case thus arises from the parties' competing interests in the infamous timeshare industry.
Per the Defendants, Bluegreen relies on a high-pressure and unethical sales process that ultimately leads many timeshare owners to experience dissatisfaction with their purchases and with Bluegreen's customer service. (M.Ds.' Stmt. of Facts ¶¶ 22, 30, ECF No. 275.) In response, they sell timeshare owners “exit services,” or the ability to terminate their obligations under their timeshare contracts. However, Bluegreen counters that the Defendants' purported exit services are nothing but a sham, which ultimately hurts both the timeshare owners and Bluegreen. The course of relevant events generally unfolds as follows:
The Marketing Defendants advertise their services through a nationwide, muti-stage campaign involving various dissemination methods, including, for example, the Marketing Defendants' website, in-person presentations, and social media. (Id. ¶¶ 7-8, 10.) This comprehensive advertising generates inbound calls from potential customers that are routed to the Marketing Defendants and received by their “specialists,” who then schedule potential customers to speak with an “analyst.” (Id. ¶¶ 14-17.) Analysts help potential customers decide whether the Marketing Defendants' services are right for them by delivering oral sales presentations. (Id. ¶¶ 18-21.)
The Defendants do not contest that some of these statements were made to some potential customers, but they dispute whether they were made to every customer as a regular course during the sales presentations. (M.Ds.' Resp. Stmt. ¶¶ 30, 34, 36-37, 39, 41, ECF No. 305; L.Ds.' Resp. Stmt. ¶¶ 30, 34, 36, 39, 41, ECF No. 311.)
The last statement, to the effect that it would be advantageous for an owner to stop making payments to Bluegreen, turns out to play a critical role in the Defendants' process. This is because of Bluegreen's internal policy of terminating and reacquiring the interests of owners who are delinquent on their payments. Specifically, Bluegreen's internal collections policy allows it, at its discretion, to terminate and reacquire the timeshare interests of owners who are delinquent on their obligations. (M.Ds.' Stmt. of Facts ¶¶ 17-18.) Pursuant to the policy, Bluegreen notifies delinquent owners at set intervals that if their delinquency is not cured within a specified period, their timeshare interest will be terminated. (Id.) Typically, after around 130 days of delinquency, Bluegreen terminates and reacquires an owners' interest to resell it to a new purchaser. (Id.) Because Bluegreen usually follows the policy, instead of suing owners who default on their loan, owners can in effect get out of their timeshare contracts by breaching them. .)
After timeshare owners retain the Marketing Defendants, the latter refers them to an attorney, which may include the Lawyer Defendants, to purportedly perform the work needed to obtain the owners' releases from their timeshare agreements. However, Bluegreen contends that, far from doing any work to legally release owners from their timeshare contracts, the Lawyer Defendants rely entirely on the owners' defaults on their timeshare obligations to effectuate a formal termination of their contracts with Bluegreen. (Id. ¶¶ 83-84.) While the Defendants dispute this, all agree that Lawyer Defendants' representation of the timeshare owners is limited to drafting two letters to, and making themselves available to negotiate with, Bluegreen. (L.Ds.' Resp. Stmt. ¶¶ 79-80.) Bluegreen's position, however, is that it has never engaged in negotiations with the Lawyer Defendants regarding the owners and does not otherwise establish a relationship with the Defendants. More importantly, neither of the Defendants is aware of any Bluegreen owner that has been released from her financial contractual obligations while continuing to make her payments to Bluegreen. (Id. ¶¶ 55, 84, 87.)
At least 187 owners of Bluegreen timeshare interests retained the Marketing Defendants' services. (Id. ¶ 88.) Based on Bluegreen's calculations, which the Defendants do not accept, forty-eight percent of those owners stopped making payments on their timeshare obligations within one month of hiring the Marketing Defendants and eighty-two percent stopped within three months. (Id. ¶ 90.) Bluegreen took the deposition of fifteen of those owners and claims they testified that the analysts' sales presentations were the reason they defaulted on their timeshare obligations. (Id. ¶ 91, 105.) The Defendants dispute Bluegreen's interpretation, arguing that those owners were predisposed to breaching their agreements with Bluegreen due to the latter's poor treatment. (M.Ds.' Resp. Stmt. ¶¶ 105, 118-33; L.Ds.' Resp. Stmt. ¶¶ 118.) To that end, the Lawyer Defendants submit declarations from fifteen additional owners, claiming that they all decided to terminate their payments to Bluegreen before contacting Pandora as a result of Bluegreen's poor conduct. (L.Ds.' Resp. Stmt. ¶¶ 118-22.)
“Summary judgment is such a lethal weapon, depriving a litigant of a trial on the issue, caution must be used to ensure only those cases devoid of any need for factual determinations are disposed of by summary judgment.” Tippens v Celotex Corp., 805 F.2d 949, 952-53 (11th Cir. 1986); see also Brunswick Corp. v. Vineberg, 370 F.2d 605, 612 (5th Cir. 1967) (). Thus, summary judgment is only proper if following discovery, the pleadings, depositions, answers to interrogatories, affidavits and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed.R.Civ.P. 56. An issue of fact is “material” if it “might affect the outcome of the suit under the governing law.” Furcron v. Mail Centers Plus, LLC, 843 F.3d 1295, 1303 (11th Cir. 2016) (internal citation omitted). “A material fact is genuine...
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