Magnum Capital, LLC v. CARTER & ASSOCIATES

• Decision Date: 18 May 2005
• Docket Number: No. 1D03-5267.,1D03-5267.
• Parties: MAGNUM CAPITAL, LLC, Appellant, v. CARTER & ASSOCIATES, LLC; Southern Boulevard Corporation; Bay Point Marina Company; Bay Point Leisure Properties; W.F. Spann & Co., Inc., Bay Pointe Limited, LLC; Cape Holdings, Inc.; HBB Company; Grand Lagoon Café, LLC; B.P. Commercial Limited Partnership and B.P. Tango, Inc., Appellees.
• Court: Florida District Court of Appeals

905 So.2d 220

MAGNUM CAPITAL, LLC, Appellant, v. CARTER & ASSOCIATES, LLC; Southern Boulevard Corporation; Bay Point Marina Company; Bay Point Leisure Properties; W.F. Spann & Co., Inc., Bay Pointe Limited, LLC; Cape Holdings, Inc.; HBB Company; Grand Lagoon Café, LLC; B.P. Commercial Limited Partnership and B.P. Tango, Inc., Appellees.

No. 1D03-5267.

District Court of Appeal of Florida, First District.

May 18, 2005.

Rehearing Denied July 5, 2005.

Claire A. Duchemin, of Claire A. Duchemin, P.A., Tallahassee, for Appellant.

William W. Deem and Bryan S. Gowdy, of McGuire Woods, LLP, Jacksonville, Attorney for Appellee Southern Boulevard Corporation; Clifford C. Higby and Tiffany

A. Brown, of Bryant & Higby, Chartered, Panama City, Attorney for Appellees Bay Point Marina Company, Bay Point Leisure Properties, W.F. Spann & Co., Inc., Bay Point Limited, LLC, HBB Company, and Grand Lagoon Café; Timothy H. Crutchfield, of Timothy H. Crutchfield, P.A., Miami, Attorney for Appellees Cape Holdings, Inc., B.P. Commercial Limited Partnership, and B.P. Tango, Inc.; George N. Meros, Jr., and Carlos G. Muniz, of Gray Robinson, P.A., Tallahassee, Attorney for Appellee Carter & Associates, LLC.

BROWNING, J.

Appellant seeks reversal of the trial court's order dismissing its three-count Second Amended Complaint for failure to state a cause of action, with prejudice. The Second Amended Complaint comprised counts based on fraud and misrepresentation (Count One), negligent misrepresentation (Count Two), and breach of contract (Count Three). We affirm the dismissal of Counts One and Two without additional comment, but reverse the dismissal of the contract count and remand for further proceedings.

We review de novo a trial court's final disposition on a motion to dismiss for failure to state a cause of action. See W.R. Townsend Contracting, Inc. v. Jensen Civil Constr., 728 So.2d 297, 300 (Fla. 1st DCA 1999)

("Whether a complaint is sufficient to state a cause of action is an issue of law."). In exercising our review, we are required, as was the trial court, to take all the well-pled allegations of Appellant's Second Amended Complaint as admitted and to draw all reasonable inferences in favor of the pleading party. See id. However, if documents are attached to a complaint and conclusively negate a claim, the pleadings can be dismissed. See Franz Tractor Co. v. J.I. Case Co., 566 So.2d 524, 526 (Fla. 2d DCA 1990). If it is apparent that the claim cannot be cured by amendment, the dismissal may be with prejudice. See Kairalla v. John D. and Catherine T. MacArthur Found., 534 So.2d 774, 775 (Fla. 4th DCA 1988) ("[A] dismissal with prejudice should not be ordered without giving the plaintiff an opportunity to amend the defective pleading, unless it is apparent that the pleading cannot be amended to state a cause of action."). The trial court concluded that the proposal letter of April 28, 2003, attached to the Appellant's Second Amended Complaint, "was not an offer, but merely a request for an offer from the Defendants," and that the claim was unamendable. This ruling was error.

The letters of April 7, 2003; April 28, 2003; and May 2, 2003 (all of which were attached as exhibits to the Second Amended Complaint), when considered with the well-pled allegations of the Second Amended Complaint, state a cause of action in contract that is not conclusively negated by such attachments. To the contrary, such attachments support Appellant's contract claim. See Davidson v. Iona-McGregor Fire Protection & Rescue Dist., 674 So.2d 858, 860 (Fla. 2d DCA 1996)

. Even a cursory review of such letters reveals provisions that support Appellant's claim for breach of contract. For example, the April 28, 2003, letter from Appellees' representative to Appellant's President states, in pertinent part: "[T]his results in a counteroffer of $43,250,000.00." Appellant promptly replied by letter of May 2, 2003, from Appellant's President to Appellees' agent, stating: "On behalf of Magnum Capital, L.L.C. (or its assigns), I accept the counter-proposal you made to Magnum in your letter dated April 28, 2003, to purchase the Marriott Bay Point Resort in Panama City Beach, Florida, and the Loch Legend Golf Course, the Club Meadows Golf Course, the Bay Point Marina, the Bay Town Commercial/Retail Center and the 30 Degrees Blue Restaurant all in Panama City Beach, Florida all for the total...