Fla. Col. of Osteopathic v. Dean Witter Reynolds

• Decision Date: 17 November 1997
• Docket Number: No. 97-720-CIV-T-17C.,97-720-CIV-T-17C.
• Citation: 982 F.Supp. 862
• Parties: FLORIDA COLLEGE OF OSTEOPATHIC MEDICINE, INC., a Florida not-for-profit corporation, Plaintiff, v. DEAN WITTER REYNOLDS INC., Defendant.
• Court: U.S. District Court — Middle District of Florida

982 F.Supp. 862

FLORIDA COLLEGE OF OSTEOPATHIC MEDICINE, INC., a Florida not-for-profit corporation, Plaintiff, v. DEAN WITTER REYNOLDS INC., Defendant.

No. 97-720-CIV-T-17C.

United States District Court, M.D. Florida, Tampa Division.

November 17, 1997.

Brent Allan Rose, Steel, Orsini & Rose, St. Petersburg, FL, for Plaintiff.

Bradford D. Kaufman, Joseph C. Coates, III, Steel, Hector & Davis, West Palm Beach, FL, for Defendant.

ORDER

KOVACHEVICH, Chief Judge.

This cause of action is before the Court on the following motions and responses:

1. Defendant, Dean Witter Reynolds Inc.'s, (hereinafter "Dean Witter") Motion to Dismiss and Memorandum of Law (Docket No. 9), filed April 28, 1997.

2. Plaintiff, Florida College of Osteopathic Medicine, Inc.'s, (hereinafter "FCOM") Memorandum of Law in Opposition to Defendant's Motion to Dismiss (Docket No. 14), filed May 30, 1997.

3. Defendant's supplemental authority in support of Motion to Dismiss (Docket No. 17), filed June 13, 1997.

4. Defendant's supplemental authority in support of Motion to Dismiss (Docket No. 18), filed July 24, 1997.

5. Defendant's Motion for Summary Judgment (Docket No. 25), filed September 18, 1997.

I. STATEMENT OF THE CASE

FCOM was established in 1993 to operate a medical osteopathic college in the State of Florida. After FCOM's establishment, it's board of directors (hereinafter "the board") sought funding for the construction of it's college. The board chose to obtain FCOM's funding through a bond issue to be under-written by Dean Witter.

FCOM claims that the board's decision was based upon the representations made by Robert Mulcay (herein "Mulcay"), the Managing Director of Municipal Finance for Dean Witter, as agent and representative of Dean Witter. FCOM asserts that Mulcay advised the board not to contact any other bonding company, as Dean Witter's commitment was firm. FCOM also asserts that Mulcay provided the board with information regarding the selection of architects, contractors, and engineers, as well as, advising the board on how to work with the local city officials with the proposed plant of the college.

Further, FCOM argues that Mulcay made oral statements, to persons involved with the formation of the college, that Dean Witter would underwrite, sell, or purchase the bond used for funding FCOM. FCOM claims that the board relied on these representations by not seeking other firms to underwrite the bond, hiring personnel, expending FCOM funds, and taking other actions necessary to the establishment of a medical college.

On January 14, 1994, Mulcay and FCOM's President and Chief Executive Officer executed a letter of agreement (labeled exhibit "A" to the Complaint) confirming the appointment of Dean Witter, to serve as Investment Banker to FCOM, to underwrite the proposed bond issue, as required to fund the new college facilities and expenses. FCOM argues that this letter of agreement was binding on FCOM to appoint Dean Witter to underwrite the bond, and binding on Dean Witter to underwrite the bond.

FCOM filed a complaint on February 26, 1997, alleging the following causes of action against Dean Witter: Count I — breach of contract; Count II — detrimental reliance; Count III — negligent misrepresentation; and Count IV — fraudulent misrepresentation. Dean Witter then filed a Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6), arguing that FCOM failed to state a claim upon which relief could be granted. Subsequently, Dean Witter filed an alternative for Summary Judgment against FCOM, to which no response was filed.

Upon FCOM's failure to respond to Dean Witter's Motion for Summary Judgment, this Court entered an Order to Show Cause which stated that the Court would rule on the pending motions if FCOM did not respond. FCOM has not responded to Defendant's Motion for Summary Judgment. Therefore, the Court considers both the pending Motion to Dismiss and the Motion for Summary Judgment ripe for adjudication.

II. STANDARD OF REVIEW

A. Motion to Dismiss

In deciding a motion to dismiss, a court can examine only the four (4) corners of the complaint. Rickman v. Precisionaire, Inc., 902 F.Supp. 232 (M.D.Fla.1995). Review of matters outside of the allegations of the complaint are not proper considerations in ruling on a motion to dismiss. Friedman v. South Carolina Ins. Co., 1995 WL 89447 (M.D.Fla. 1995). The threshold of sufficiency that a complaint must meet to survive a motion to dismiss is exceedingly low. Ancata v. Prison Health Servs., 769 F.2d 700, 703 (11th Cir. 1985) (citation omitted). Also, a court must accept a plaintiff's well pled facts as true and construe the complaint in the light most favorable to the plaintiff. Colodny v. Iverson, Yoakum, Papiano & Hatch, 838 F.Supp. 572 (M.D.Fla.1993) (citing Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Howry v. Nisus, Inc., 910 F.Supp. 576 (M.D.Fla.1995)). However, when, on the basis of a dispositive issue of law, no construction of the factual allegations of a complaint will support the cause of action, dismissal of the complaint is appropriate. Executive 100, Inc. v. Martin County, 922 F.2d 1536 (11th Cir.1991), cert. denied, 502 U.S. 810, 112 S.Ct. 55, 116 L.Ed.2d 32 (1991); Powell v. United States, 945 F.2d 374 (11th Cir.1991).

B. Motion for Summary Judgment

This circuit clearly holds summary judgment is only entered when the moving party has sustained its burden of showing the absence of a genuine issue as to any material fact when all the evidence is viewed in the light most favorable to the non-moving party. Sweat v. Miller Brewing Co., 708 F.2d 655 (11th Cir.1983). All doubt as to the existence of a genuine issue of material fact must be resolved against the moving party and in favor of the non-moving party. Hayden v. First Nat'l Bank of Mt. Pleasant, 595 F.2d 994 (5th Cir.1979). Factual disputes preclude summary judgment.

The Eleventh Circuit Court of Appeals has held that the moving party bears the initial burden to demonstrate to the district court the basis for its motion for summary judgment and identify those portions of the pleadings, depositions, answers to interrogatories, and admissions which that party believes show an absence of any genuine issue of material fact. Hairston v. Gainesville Sun Publishing, 9 F.3d 913, 918 (11th Cir. 1993). See Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). "Only when that burden has been met does that burden shift to the non-moving party to demonstrate that there is indeed a material issue of fact that precludes summary judgment" Clark v. Coats & Clark, Inc., 929 F.2d 604, 606 (11th Cir.1991).

III. ANALYSIS

Dean Witter asserts primarily three (3) reasons that FCOM's complaint fails to state a claim upon which relief may be granted: 1) the alleged underwriting "agreement" is barred by the Statute of Frauds; 2) Florida's Economic Loss Rule bars FCOM's negligent and fraudulent misrepresentation claims and; 3) FCOM failed to plead fraud with particularity, as required by Fed.R.Civ.P. 9(b).

A. Statute of Frauds

FCOM seeks enforcement of an alleged agreement with Dean Witter to underwrite and purchase a bond issue for the construction of FCOM's College of Osteopathy. Florida's Statute of Frauds requires that contracts for the sale of securities be in writing. Specifically, Section 678.319, Florida Statutes, a provision of Article 8 of the Uniform Commercial Code adopted by Florida, provides in pertinent part:

A contract for the sale of securities is not enforceable by way of action or defense unless:

(1) There is some writing signed by the party against whom enforcement is sought or by his authorized agent or broker, sufficient to indicate that a contract has been made for sale of a stated quantity of described securities at a defined or stated price.

Thus, in contracts for the sale of securities, the Statute of Frauds requires a writing that specifies quantity and price.

To comply with the Statute of Frauds all essential terms must be included in the written contract. Canell v. Arcola Housing Corp., 65 So.2d 849, 851 (Fla.1953). The Eleventh Circuit stated in Pelletier v. Stuart-James Co., Inc., 863 F.2d 1550 (11th Cir.1989) that an agreement that does not comply with the Statute of Frauds is unenforceable and must be dismissed.

FCOM, in its complaint, specifically alleges that Dean Witter agreed to "underwrite, sell, or purchase the bond used for funding FCOM" through a letter of agreement executed by Dean Witter's Managing Director and FCOM's President and Chief Executive Officer. This letter of agreement was in writing and was signed by both parties. However, the agreement did not state the quantity of the securities (bond) to be purchased nor the price of the securities to be purchased by Dean Witter, two of the four essential elements of the Statute of Frauds.

In response to the Motion to Dismiss, FCOM claims that the agreement is not barred by the Statute of Frauds because the agreement between FCOM and Dean Witter was not a contract for the sale of securities. Rather FCOM, argues that the agreement was merely a collateral agreement to employ Dean Witter to underwrite a bond at some future date. However, in it's responses to the Interrogatories, as attached to the Motion for Summary Judgment, FCOM specifically admits that it brought this suit to enforce the letter of agreement under which Dean Witter would purchase FCOM's bonds and that it relied on statements made by Mulcay that Dean Witter would underwrite, sell, or purchase FCOM's bond issue.

Based on the foregoing analysis, this Court finds that the letter of agreement between FCOM and Dean Witter is unenforceable as it does not comply with the Statute of Frauds and therefore Counts I and II are barred. The Motion for Summary Judgment will be granted as to those counts.

B. Florida's Economic Loss Rule

As to Counts III and IV, Dean Witter argues that FCOM's claims for...