Weaver v. Mateer & Harbert, P.A., Case No. 5:09-cv-514-Oc-34TBS

• Decision Date: 27 July 2012
• Docket Number: Case No. 5:09-cv-514-Oc-34TBS
• Parties: EVERETTE WEAVER, Plaintiff, v. MATEER AND HARBERT, P.A., et al., Defendants.
• Court: U.S. District Court — Middle District of Florida

EVERETTE WEAVER, Plaintiff,

v.MATEER AND HARBERT, P.A., et al., Defendants.

Case No. 5:09-cv-514-Oc-34TBS

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA OCALA DIVISION

Dated: July 27, 2012

ORDER

THIS CAUSE is before the Court on the Joint Dispositive Motion for Summary Judgment and Supporting Memorandum of Law of Defendants Mateer & Harbert, P.A., and Renee Thompson (Doc. No. 178; Joint Motion), and the Amended & Dispositive Motion of Defendant Dinkins for Summary Judgment (Doc. No. 179; Dinkins's Dispositive Motion, or collectively, the Motions), both filed on November 21, 2011. Plaintiff filed a response in opposition to both Motions on January 30, 2012. See Memorandum in Response to Mateer and Harbert and Renee Thompson's Motion for Summary Judgment (Doc. No. 184; Response to Joint Motion) and Memorandum in Response to Dinkins [sic] Motion for Summary Judgment (Doc. No. 185; Response to Dinkins's Dispositive Motion, or collectively the Responses).¹ Accordingly, the Motions are ripe for review.

I. Procedural History

Plaintiff initiated this action by filing the Complaint (Doc. No. 1) on November 23, 2009, asserting various claims against Defendants Mateer & Harbert, P.A. (Mateer), Renee Thompson (Thompson), Jack Singbush (Singbush), AAA Reporting Inc. (AAA), Lewis Dinkins (Dinkins), and John Dorough (Dorough). See generally Complaint. Because the Complaint was a shotgun pleading and failed to comply with Rules 8 and 10, Federal Rules of Civil Procedure (Rule(s)), the Court struck it and directed Plaintiff to file an amended complaint. See Order (Doc. No. 3) at 2-5. Plaintiff filed the Amended Complaint (Doc. No. 4) on December 16, 2009, which prompted a series of motions to dismiss by Defendants, as well as motions to amend and amended (or proposed amended) complaints by Plaintiff.²

The operative complaint is now the Third Amended Complaint (Doc. No. 162; Third Amended Complaint), as modified and entered pursuant to the Court's September 15 Order. See supra note 2. In the Third Amended Complaint, Plaintiff maintains the following claims: (1) breach of contract, breach of fiduciary duty, professional negligence, and unjust enrichment against Mateer; (2) breach of fiduciary duty and professional negligence against Thompson; and (3) negligence against Dinkins. Since the filing of the Third Amended Complaint, Defendants Mateer and Thompson filed a joint motion to dismiss that remains pending before the Court. See Joint Motion to Dismiss Plaintiff's Third Amended Complaint by Defendants, Mateer & Harbert, P.A. and Renee Thompson, and Supporting Memorandum of Law (Doc. No. 166; Joint Motion to Dismiss).

Mateer and Thompson filed the instant Joint Motion, along with multiple exhibits in support, which include: pleadings and orders from the case of Goldstone Homes, Inc. v.Southway Building Corp., Case No. 2007-CA-000488, in the Circuit Court of the Fifth Judicial Circuit, in and for Marion County, Florida, see Exhibits A-K to the Joint Motion (Doc. Nos. 178-1-178-11), an administrative order from the Fifth Judicial Circuit of Florida, see Exhibit L to the Joint Motion (Doc. No. 178-12), and an affidavit from Richard B. Schwamm (Schwamm). See Exhibit M to the Joint Motion (Doc. No. 178-13; Schwamm Aff.). In support of Dinkins's Dispositive Motion, Dinkins filed his own affidavit. See Affidavit of Lewis E. Dinkins (Doc. No. 179-1; Dinkins Aff.).

Plaintiff attached the following to his Response to the Joint Motion: Exhibit A, Attorney Work Product for Mediation Purposes, (Mediation Statement); Exhibit B, E-mail from Mr. Wells to Plaintiff,³ Exhibit C, E-mail chain between Mr. Wells's legal assistant, Mr. Wells, and Plaintiff; Exhibit D, Plaintiff's First Set of Interrogatories to AAA; Exhibit E, AAA Reporting, Inc.'s Notice of Serving Answers to First Set of Interrogatories; Exhibit F, Plaintiff's Second Set of Interrogatories to AAA; Exhibit G, AAA Reporting, Inc.'s Notice of Serving Supplemental Answer to Interrogatory No. 24 of First Set of Interrogatories and Answers to Second Set of Interrogatories; Exhibit H, Plaintiff's First Set of Interrogatories to Thompson; Exhibit I, Renee Thompson's Answers to Interrogatories; Exhibit J, AAA's Notice of Service of Interrogatory to Plaintiff; and Exhibit K, Letter from the U.S. Attorney'sOffice forwarding Plaintiff's complaint to the FBI.

Plaintiff also submitted the following exhibits in his Response to Dinkins's Dispositive Motion: Exhibit A, Letter from Dinkins to Judge Singbush; Exhibit B, Order to Set Status Conference; Exhibit C, Plaintiff's letter to the FBI; Exhibit D, Order from the Marion County License Review Board; Exhibit E, Letter of Reprimand to Peter Zarcone; Exhibit F, Southway Building Corp. Work Estimate for Jens and Alicia Thorne; Exhibit G, Citation dated March 27, 2007 from Marion County to Peter Zarcone dba Southway Building Corp.; Exhibit H, Printout from Marion County Board of County Commissioners; Exhibit I, Answers of Defendant, Lewis Dinkins to Interrogatories from Plaintiff; Exhibit J, Answers of Defendant, John R. Dorough, to Plaintiff's Interrogatories; Exhibit K, Demand Letter from Dinkins on behalf of Southway Building Corp. dated December 6, 2006; Exhibit L, Letter from Assistant State Attorney to Plaintiff. As the issues are fully briefed and the supporting materials have been filed, the Motions are ripe for resolution.

II. Standard of Review

Under Rule 56, "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Rule 56(a). The record to be considered on a motion for summary judgment may include "depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only),admissions, interrogatory answers, or other materials."⁴ Rule 56(c)(1)(A).⁵ An issue is genuine when the evidence is such that a reasonable jury could return a verdict in favor of the nonmovant. See Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (quoting Hairston v. Gainesville Sun Publ'g Co., 9 F.3d 913, 919 (11th Cir. 1993)). "[A] mere scintilla of evidence in support of the non-moving party's position is insufficient to defeat a motion for summary judgment." Kesinger ex rel. Estate of Kesinger v. Herrington, 381 F.3d 1243, 1247 (11th Cir. 2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).

The party seeking summary judgment bears the initial burden of demonstrating to the court, by reference to the record, that there are no genuine issues of material fact to bedetermined at trial. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). "When a moving party has discharged its burden, the non-moving party must then go beyond the pleadings, and by its own affidavits, or by depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593-94 (11th Cir. 1995) (internal citations and quotation marks omitted). Substantive law determines the materiality of facts, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. In determining whether summary judgment is appropriate, a court "must view all evidence and make all reasonable inferences in favor of the party opposing summary judgment." Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995) (citing Dibrell Bros. Int'l, S.A. v. Banca Nazionale Del Lavoro, 38 F.3d 1571, 1578 (11th Cir. 1994)).

III. Background Facts⁶

This litigation centers around the state court case of Goldstone Homes, Inc. v. Southway Building Corp., Case No. 2007-CA-000488, in the Circuit Court of the Fifth Judicial Circuit, in and for Marion County, Florida (State Action).⁷ Plaintiff initiated the StateAction on February 23, 2007, when he filed a complaint pro se on behalf of Goldstone Homes, Inc. (Goldstone) against Southway Building Corp. (Southway), seeking the return of a construction deposit. See Complaint (Doc. No. 178-1; State Complaint). In addition to filing suit, Plaintiff recorded a claim of lien on the personal residence of Southway's president, Peter Zarcone. See Claim of Lien (Doc. No. 178-2; Lien). Southway, through its attorney, Dinkins, answered the State Complaint and filed a counterclaim against both Goldstone and Plaintiff, who was added as a counterclaim defendant. See Answer to Complaint (Doc. No. 178-3; Counterclaim). Southway also filed a motion to dismiss the State Complaint, a motion to strike, and a motion for summary judgment, as well as requestsfor admissions on March 12, 2007. See Fifth Judicial Circuit Docket (Doc. No. 178-6; State Docket). On the same day, Southway filed a notice of lis pendens against Plaintiff's property. See Notice of Lis Pendens, Exhibit F to Third Amended Complaint (Doc. No. 162-2; Lis Pendens). On March 13, 2007, a process server filed an affidavit of service, swearing that Plaintiff had been individually served with the above documents filed by Southway. See Affidavit of Service, Exhibit 1 to Affidavit of Lewis E. Dinkins (Doc. No. 179-1; Aff. of Service).⁸

Goldstone filed an answer to the Counterclaim on March 27, 2007. See State Docket. On that same day, the state court dismissed the State Complaint because Goldstone, as a corporation, had to be represented by an attorney, but the state court granted leave for Goldstone to refile within 30 days if the complaint was signed by a licensed attorney. See Order Granting Motion to Dismiss (Doc. No. 178-4). On April 2, 2007, Southway moved to strike Goldstone's answer. See State Docket. On the following day, Southway moved for default against Plaintiff and the default was entered.⁹ See id. On April 19, 2007, the state court granted...