Feldkamp v. Partners

• Citation: 773 F.Supp.2d 1273
• Decision Date: 18 February 2011
• Docket Number: Case No. 2:09–cv–253–FtM–29SPC.
• Parties: Frederick L. FELDKAMP; Judith L. Feldkamp, Plaintiffs,v.LONG BAY PARTNERS, LLC a Florida limited liability company, Defendant.
• Court: U.S. District Court — Middle District of Florida

773 F.Supp.2d 1273

Frederick L. FELDKAMP; Judith L. Feldkamp, Plaintiffs,

v.LONG BAY PARTNERS, LLC a Florida limited liability company, Defendant.

Case No. 2:09–cv–253–FtM–29SPC.

United States District Court, M.D. Florida,Fort Myers Division.

Feb. 18, 2011.

Patrick E. Geraghty, Thomas M. Dougherty, Geraghty, Dougherty & Edwards, PA, Ft. Myers, FL, Salvatore A. Barbatano, Foley & Lardner, LLP, Detroit, MI, for Plaintiffs.George Donald Thomson, Jr., Henderson, Franklin, Starnes & Holt, PA, Bonita Springs, FL, Robert D. Mercurio, Scott R. Matthews, Windels, Marx, Lane & Mittendorf, LLP, New York, NY, for Defendant.

OPINION AND ORDER

JOHN E. STEELE, District Judge.

This case involves a dispute over a refundable deposit on a golf membership at a country club in the amount of $62,000 (or $92,000). Plaintiffs, represented by counsel, seek damages of up to $473.3 million. The matter now comes before the Court on cross-motions for summary judgment.

On June 1, 2010, both parties filed motions for summary judgment as to the Second Amended Complaint (Docs. 78, 79).¹ On June 18, 2010, the parties filed responses to the respective motions (Docs. 85, 86). On September 14, 2010, 2010 WL 3610452, this Court entered an Opinion and Order dismissing Count IV of the Second Amended Complaint for failure to state a claim (Doc. # 99), but granted plaintiffs leave to amend the allegations relating to Count IV only.

On October 22, 2010, plaintiffs filed a Third Amended Complaint (Doc. # 105) and a motion for summary judgment as to the amended Count IV (Doc. # 106). In response, on November 18, 2010, defendant filed a motion to dismiss or in the alternative motion for summary judgment as to Count IV (Doc. # 113). On December 9, 2010, plaintiffs filed a response (Doc. # 120) to defendant's motion, and on December 17, 2010, defendant filed its reply (Doc. # 122). Because the allegations of Counts I, II and III are identical to those in the Second Amended Complaint, the Court has construed the prior motions for summary judgment (Docs. 78, 79) as applying to the Third Amended Complaint.

I.

Summary judgment is appropriate only when the Court is satisfied 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.” Fed.R.Civ.P. 56(c). “An issue of fact is ‘genuine’ if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party.” Baby Buddies, Inc. v. Toys R Us, Inc., 611 F.3d 1308, 1314 (11th Cir.2010) (citation omitted). A fact is “material” if it may affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party bears the burden of identifying those portions of the pleadings, depositions, answers to interrogatories, admissions, and/or affidavits which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1259–60 (11th Cir.2004). To avoid the entry of summary judgment, a party faced with a properly supported summary judgment motion must come forward with extrinsic evidence, i.e., affidavits, depositions, answers to interrogatories, and/or admissions, which are sufficient to establish the existence of the essential elements to that party's case, and the elements on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. at 322, 106 S.Ct. 2548; Hilburn v. Murata Elecs. N. Am., Inc., 181 F.3d 1220, 1225 (11th Cir.1999).

In ruling on a motion for summary judgment, the Court views all evidence and draws all reasonable inferences in favor of the non-moving party. Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Tana v. Dantanna's, 611 F.3d 767, 772 (11th Cir.2010). However, “[i]f reasonable minds might differ on the inferences arising from undisputed facts, then the court should deny summary judgment.” St. Charles Foods Inc. v. Am.'s Favorite Chicken Co., 198 F.3d 815, 819 (11th Cir.1999), quoting Warrior Tombigbee Transp. Co. v. M/V Nan Fung, 695 F.2d 1294, 1296–97 (11th Cir.1983) (finding summary judgment “may be inappropriate even where the parties agree on the basic facts, but disagree about the factual inferences that should be drawn from these facts”). “If a reasonable fact finder evaluating the evidence could draw more than one inference from the facts, and if that inference introduces a genuine issue of material fact, then the court should not grant summary judgment.” Allen v. Bd. of Pub. Educ., 495 F.3d 1306, 1315 (11th Cir.2007). However, “the mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case.” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir.2003).

II.

The following facts are undisputed for summary judgment purposes:

Defendant Long Bay Partners, LLC (defendant or LBP) was in the business of developing (but not constructing) residential communities and golf club facilities. On or about April 19, 2005, plaintiffs Frederick L. Feldkamp and Judith L. Feldkamp (plaintiffs or the Feldkamps) entered into a contract with Taylor Woodrow Communities at Shadow Wood Preserve, LLC (Taylor Woodrow) to purchase a lot and a house to be built at 18170 Creekside View Drive, Bonita Springs, Florida (the Property). The Property is located in a development known as Shadow Wood Preserve. Taylor Woodrow was not owned by or affiliated with LBP. At the time, LBP owned club facilities, some of which were operated by or on behalf of LBP under the name of Shadow Wood Country Club (SWCC or the Club) in the Shadow Wood Preserve. As part of the real estate transaction with Taylor Woodrow, the Feldkamps received a Certificate issued by Brooks Realty on SWCC letterhead redeemable within three months for a $30,000 credit towards a $92,000 resident Golf Membership at SWCC.

On or about June 20, 2005, the Feldkamps presented and LBP accepted the Certificate as a $30,000 credit toward their fully refundable Golf Membership at SWCC. Effective July 14, 2005, the Feldkamps submitted, and LBP accepted, an Application for Resident Golf Membership. (Doc. # 105–2.) The Application provided in relevant part:

• SWCC is a private club owned and operated by LBP. Membership privileges are subject to the terms and conditions of the Club Membership Plan and Rules and Regulations, a copy of which the Feldkamps acknowledged receipt. ( Id. at p. 3, ¶ 2.)

• A member could resign from the Club by giving advance written notice to the Club “in accordance with the terms and conditions as the Club may require from time to time.” ( Id. at p. 4, ¶ 5.)

• Upon resignation, “One hundred percent (100%) of the membership deposit paid by a member will be refunded, without interest, by the Club to the member within 30 days after providing written notice of resignation to the Club, without having to be placed on any waiting list to receive a refund.” Otherwise, the membership deposit paid by the member would be refunded 30 years after the date membership is issued by the Club. ( Id. at p. 3, ¶ 4.)

• “I hereby acknowledge receipt of the Shadow Wood Country Club Membership Plan and the Rules and Regulations and agree to be bound by the terms and conditions thereof as the same may be amended from time to time by the Club or LBP and irrevocably agree to fully substitute the membership privileges acquired pursuant to the Club Rules and Regulations for any present or prior rights in or to use of the Club Facilities....” ( Id. at p. 4, ¶ 8.)

The Application was approved and accepted by LBP on July 14, 2005. LBP collected the remaining $62,000 deposit from the Feldkamps in the form of a $5,000 personal check and $57,000 in proceeds from an interest-free loan to the Feldkamps from SunTrust Bank (the interest was paid by LBP) arranged by LBP.

On or about July 19, 2005, LBP mailed the Feldkamps a membership packet consisting of the Club Membership Plan, Rules and Regulations and three proposed addenda. The Membership Plan provided in pertinent part:

• “Refundable Membership Deposit. If a Resident Golf Membership is purchased within 90 days of contract date for a new lot or home, you will receive one hundred percent (100%) of the membership deposit within 30 days after resignation, as provided for in this Membership Plan.... If a Resident Golf Membership is acquired after the applicable 90–day period, one hundred percent (100%) of the membership deposit will be refunded after the Club has reissued the resigned membership to three new members pursuant to the procedure described in this Membership Plan.” (Doc. # 105–4, p. ii.)

• “Each person who desires to acquire a membership will be required to pay a refundable membership deposit and a non-refundable initiation fee determined by the Club from time to time. Membership deposits are refundable only in accordance with this Membership Plan, the Rules and Regulations of the Club and the Application for Membership. The required membership deposit and initiation fee must be paid in full upon application to the Club.” ( Id. at p. 6.)

• New lot/home buyers who choose to purchase the Golf Membership within 90 days of the contract on their home or lot “will receive a refund of 100% of their membership deposit within 30 days of written notice of resignation to the Club.” For memberships purchased after the 90–day period, the member would be placed on a “resignation wait list” in chronological order of resignation; the first person on the wait list would receive their refund only after three other Golf Memberships have been sold by the Club. ( Id. at pp. 6–7.)

• Membership could be transferred only back to the Club. ( Id. at p. 8.)

• “Membership in the Club permits the member to use the Club Facilities in accordance...