Movie Prop Rentals LLC v. The Kingdom of God Global Church

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 22-cv-22594-BLOOM/Torres

MOVIE PROP RENTALS LLC, et al.,

Plaintiffs,

v.

THE KINGDOM OF GOD GLOBAL

CHURCH, et al.,

Defendants.

_______________________________/

ORDER ON MOTION FOR SUMMARY JUDGMENT

THIS CAUSE is before the Court upon Plaintiffs Movie Prop Rentals, LLC, and Miami

Prop Rentals, LLC’s (“Plaintiffs”) Motion for Summary Judgment, ECF No. [102] (“Motion”).

Defendants the Kingdom of God Global Church and Joshua Media Ministries International

(“Defendants”) filed a Response in Opposition, ECF No. [115] (“Response”), to which Plaintiffs

filed a Reply, ECF No. [126] (“Reply”). The Court has carefully reviewed the Motion, all opposing

and supporting submissions,1 the record in this case, the applicable law, and is otherwise fully

advised. For the reasons set forth below, the Motion is granted in part and denied in part.

I. BACKGROUND

Plaintiffs and Defendants each assert breach of contract and related claims arising from the

construction of a complex stage prop for an outreach event initially scheduled for July 2020. On

June 10, 2022, Plaintiffs initiated this breach of contract action against Defendants in the Circuit

1 Plaintiffs filed a Statement of Material Facts, ECF No. [103] (“SMF”), with its Motion for

Summary Judgment. Defendants filed a Statement of Material Facts in Opposition to Plaintiffs Motion for

Summary Judgment and a Statement of Additional Material Facts (“SAMF”), ECF No. [114], with its

Response to Defendant’s Motion. Plaintiffs also filed a Reply Statement of Additional Materials Facts to

Defendants SAMF (“RSAMF”), ECF No. [127].

Court of the Eleventh Judicial Circuit for Miami-Dade County, Florida, Case No.: 2022-010734-

CA-01. ECF No. [1]. Defendants thereafter removed this action to federal court and on September

9, 2022, Plaintiffs filed their Amended Complaint. ECF No. [12].

Plaintiffs assert six claims against Defendants arising from Defendants alleged breach of

the Parties contract: Damages under an Account Stated (Count I); Damages under an Open

Account (Count II); Unjust Enrichment (Count III); Contract Implied in Fact (Count IV); Contract

Implied in Law (Count V); and for a Declaratory Judgment (Count VI). See generally id. On

September 23, 2022, Defendants filed an Answer and Counterclaim, ECF No. [14]. Defendants

assert five claims based on the breach of the same contract: Breach of Oral Contract (Count I);

Unjust Enrichment in the Alternative (Count II); Breach of the Implied Duty of Good Faith and

Fair Dealing (Count III); Violation of the Florida Deceptive and Unfair Trade Practices Act (Count

IV); and a request for Temporary, Preliminary, and Permanent Injunctive Relief (Count V).

On September 13, 2023, Plaintiffs filed the instant Motion seeking summary judgment on

all five of Defendants counterclaims. Plaintiffs assert that the undisputed material facts establish

that an oral contract exists between the parties obligating Plaintiffs to design and manufacture a

“modular Roman-Corinthian ‘Coliseum’” in exchange for a total sum of $1,252,968.00. Motion at

2. Plaintiffs contend that Defendants assert an invalid breach of contract counterclaim, and that

their remaining claims are either implausible or foreclosed by the existence of the oral contract.

Defendants respond that genuine disputes of material fact preclude summary judgment on its

breach of oral contract claim, and that they assert viable claims for unjust enrichment and

injunctive relief.2 Plaintiffs reply that the undisputed material facts establish that they are entitled

to summary judgment on each of the pending counterclaims.

2 Defendants do not respond to Plaintiffs argument that they are entitled to summary judgment on

Counts III and IV of Defendants Counterclaim. The Court previously denied Defendants motion to

A. MATERIAL FACTS

Based on the Parties’ briefings and the evidence in the record, the following facts are not

genuinely in dispute unless otherwise noted.

Beginning in early 2020, Defendants engaged Plaintiffs to design and manufacture a

specialized modular Roman-Corinthian “Coliseum” stage prop (“Stage Prop”) for use at an event

organized by Defendants at Amway Arena in Orlando, Florida (“Amway Arena Event”). SMF ¶

3; SAMF ¶ 3. The event was originally scheduled to take place in July 2020. SMF ¶ 3; SAMF ¶ 3.

The Parties initially entered an agreement for Plaintiffs to fabricate the Stage Prop in exchange for

Defendants paying a total sum of approximately $679,000.00. ECF No. [97-1] at 49; ECF No. [98-

1] at 2.3 On or about March 2020, the Parties executed an oral contract (“Oral Contract”) modifying

their original agreement. SMF ¶ 4; SAMF ¶ 4. The Oral Contract obligated Plaintiffs to fabricate

a larger version of the Stage Prop within approximately three and a half months and to assist with

installing and disassembling the Stage Prop at the Amway Arena Event. SMF ¶ 4; SAMF ¶ 4. The

Parties dispute the modified total price Defendants agreed to pay for the Stage Prop fabrication

and related services.4 SMF ¶ 5; SAMF ¶ 5. The total price of the Oral Contract was to be paid in

installments intended to finance Plaintiffs fabrication of the Stage Prop. SMF ¶ 5; SAMF ¶ 5. The

terms governing the installation payments are disputed. SMF ¶¶ 5, 7; SAMF ¶¶ 5, 7.

On March 25, 2020, Plaintiffs sent Defendants the first of several invoices. The invoice

voluntarily dismiss those claims. See ECF No. [95].

3 The Court uses the pagination generated by the electronic CM/ECF database, which appears in the headers

of all court filings.

4 Plaintiffs move to strike Defendants’ SAMF under Local Rule 56.1(b)(2) due to Defendants’

failure to comply with Local Rule 56.1(b)(2)’s formatting conventions, and because Defendants fail to limit

their evidentiary citations to evidence specific to the disputes implicated by Plaintiffs’ SMF. See RSAMF

at 1-2. The Court declines to strike Defendants’ SAMF due to those deficiencies. The Court shall limit its

discussion of the material facts to those raised by Plaintiffs’ Motion and the supporting and opposing

submissions, however.

listed a total cost of $1,252,968.00 for the Stage Prop as well as a $250,000.00 down payment.

ECF No. [98-4] at 1. The invoice notes that the initial deposit came “directly from the client” and

“will be refunded once the full deposit (for the start of the job) has been received by [Plaintiffs]

funded by the ‘Bank.’” Id. The invoice also provides that $125,890.80 is “due by the end of

April[,]” and that additional payments of $375,890.80 were due in the beginning of May and June

2020, respectively. Id. The invoice also includes a “remaining 10%” of the Oral Contract, or

$125,296.80, as due upon installation. Id. Plaintiffs subsequently prepared a second invoice

featuring the same total cost of $1,252,968.00, but with a slightly adjusted payment schedule. ECF

No. [98-5] at 1. The invoice provided for a $150,000.00 down payment, a $100,000.00 “additional

down[] payment[,]” and the same additional payments of $375,890.80 due in the beginning of May

and June 2020. Id. The invoice also included a payment of $125,296.80 due upon installation. Id.

Defendants made two initial payments: an initial down payment of $150,000.00 on March

31, 2020, and a $100,000.00 payment on April 22, 2020. ECF No. [98-1] ¶¶ 8, 11 (“Blohm

Declaration”). On April 23, 2020, Jerry Blohm (“Blohm”), Plaintiffs’ owner and principal, sent

Michelle Brannon (“Brannon”), a member of Defendants Executive Board, an email titled “New

Invoice”. ECF No. [98-6] at 1. Blohm noted that Plaintiffs “received the funds yesterday” and

attached a third invoice. Id. The invoice listed a total cost of $1,252,968.00, and Defendants “non-

refundable” down payments of $150,000.00 and $100,000.00.5 Id. at 2; ECF No. [98-1] ¶ 11. The

invoice listed an additional $125,890.80 payment as the “remainder due in 5 days to continue” as

well as the same $375,890.80 payments due in the beginning of May and June 2020, respectively.

Id. The invoice also included the same final installation payment of $125,296.80. Id.

On April 28, 2020, Blohm sent Brannon another email, titled “Budget”. ECF No. [98-7].

5 The latter $100,000.00 payment is labeled as “23-Apr-2020”. ECF No. [98-6] at 1.

Blohm noted that he “reviewed my numbers [and] at the moment we are as [of] today at $255k[.]”

Blohm also stated that “[o]ur contract with you was $375k per month” and that as of “Friday 1

May 2020 I need the rest of April’s payment of $125,890.” Id. Blohm further noted that “this is a

critical time in the fabrication process[]” and that “we will be lucky to make [the Stage Prop] come

in at” the total budget of $1,252,968.00. Id. Blohm attached a fourth invoice with a total budget of

$1,252,968.00 listing deposits of $150,000.00 labeled “3/31/202[0] non-refundable”, $100,020.00

labeled “4/22/2020 non-refundable”, and $60,000.00 labeled “5/6/2020 non-refundable”. Id. at 2.

The invoice also reflects a sum of $310,020.00 both as “an initial deposit … (coming directly from

the client) … [to be] refunded once the deposit (for the start of the job) has been received by

[Plaintiffs] funded by the ‘Bank[,]’” and as a “non-refundable [payment] 30 April 2020.” Id. The

invoice also provides for three payments of $375,890.80 due April 1st, 2020, and the beginning of

May and June 2020, respectively. Id. The April 1st payment includes a note explaining that this

payment is “to start project[.]” The invoice also includes a $125,296.80 payment “[u]pon final

install.” Id.

Plaintiffs also provided Defendants with two undated invoices titled “ART BUDGET

Arena Stage”. ECF Nos. [98-3] at 1-2, [98-8] at 4-5. The first of those invoices (“First Art Budget”)

lists a total budget of $1,252,968.00. ECF No. [98-3] at 1-2. The First Art Budget provides for

total labor costs of $404,075.00 and a total materials cost of $848,893.00, with the latter sum

itemized as “PRODUCTION EXPENSES TOTAL”. Id. The second detailed invoice (“Second Art

Budget”) lists a total budget of $1,262,668.00. ECF No. [98-8] at 4-5. The Second Art Budget

provides for total labor costs of $404,075.00 and a total materials cost of $858,593.00, also listed

as “PRODUCTION EXPENSES TOTAL”. Id. In his deposition, Joseph Busch (“Busch”), a

volunteer minister and Defendants’ designed representative, testified that the Second Art Budget’s

total budget of $1,262,668.00 reflects the final agreed-upon price for the Stage Prop. ECF No. [97-

1] at 52, 54.

In approximately late May 2020, Defendants advised Plaintiffs that the Amway Arena

Event was postponed to a later date. ECF No. [98-1] ¶ 17. Plaintiffs insisted that Defendants

continue to make payments to enable Plaintiffs to fabricate the Stage Prop within the agreed-upon

timeline of three and a half months. Id. ¶ 18. Defendants paid Plaintiffs a total of approximately

$788,000.00 between April 2020 and May 2021. ECF No. [97-1] at 99; SAMF ¶ 5. The Parties

dispute whether Defendants’ payments complied with the installment payment schedule under the

Oral Contract. It is also disputed whether Plaintiffs’ progress in fabricating the Stage Prop required

Defendants to continue making timely payments.6

II. LEGAL STANDARD

A. Summary Judgment

A court may grant a motion for 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.”

Fed. R. Civ. P. 56(a). The parties may support their positions by citations to materials in the record,

including depositions, documents, affidavits, or declarations. See Fed. R. Civ. P. 56(c). “A factual

dispute is ‘material’ if it would affect the outcome of the suit under the governing law, and

‘genuine’ if a reasonable trier of fact could return judgment for the non-moving party.” Miccosukee

Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 1243 (11th Cir. 2008) (citing Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)).

A court views the facts in the light most favorable to the non-moving party, draws “all

6 Busch testified that Plaintiffs failed to provide sufficient documentation of their progress,

including receipts accounting for the expenditure of Defendants’ funds. ECF No. [97-1] at 120-24, 126,

128. Busch also testified that he was unaware of any deceptive conduct by Plaintiffs. ECF No. [97] at 158-

60.

reasonable inferences in favor of the nonmovant and may not weigh evidence or make credibility

determinations[.]’” Lewis v. City of Union City, Ga., 934 F.3d 1169, 1179 (11th Cir. 2019); see

also Crocker v. Beatty, 886 F.3d 1132, 1134 (11th Cir. 2018) (“[W]e accept [the non-moving

party’s] version of the facts as true and draw all reasonable inferences in the light most favorable

to him as the non-movant.” (citation omitted)). “The mere existence of a scintilla of evidence in

support of the [non-moving party’s] position will be insufficient; there must be evidence on which

a jury could reasonably find for the [non-moving party].” Anderson, 477 U.S. at 252. “If more than

one inference could be construed from the facts by a reasonable fact finder, and that inference

introduces a genuine issue of material fact, then the district court should not grant summary

judgment.” Bannum, Inc. v. City of Fort Lauderdale, 901 F.2d 989, 996 (11th Cir. 1990) (citation

omitted).

III. DISCUSSION

A. Count I – Breach of Oral Contract

Plaintiffs contend that they are entitled to judgment on Count I because Defendants’ breach

of oral contract claim is invalid as a matter of law. Alternatively, Plaintiffs argue that, even if

Defendants assert a valid breach of contract claim, the undisputed evidence establishes that

Defendants breached the oral contract.

The Court must apply Florida law to interpret the Parties’ oral contract, as this is a question

of contract interpretation under diversity jurisdiction. Canal Indem. Co. v. Margaretville of NSB,

Inc., 562 F. App’x 959, 961 (11th Cir. 2014); Mid-Continent Cas. Co. v. Am. Pride Bldg. Co.,

LLC, 601 F.3d 1143 (11th Cir. 2010). “For there to be an enforceable oral contract, there must be

an offer, an acceptance, consideration, and sufficient specification of essential terms so that the

obligations involved can be ascertained.” New Dirt, Inc. v. Harrison, 182 So. 3d 773, 774-75 (Fla.

Dist. Ct. App. 2015) (citing St. Joe Corp. v. McIver, 875 So.2d 375, 381 (Fla. 2004)).

Here, Plaintiffs argue that Defendants’ breach of contract claim is based on an

unenforceable contract because essential terms are indefinite, and it is subject to the statute of

frauds. Defendants respond that the Oral Contract between the Parties includes all essential terms,

and those terms demonstrate that it is not subject to the statute of frauds. It is undisputed that the

Oral Contract exists between the Parties, and that this contract features consideration, namely,

money, in exchange for fabricating the Stage Prop.

a. The Oral Contract’s price term

As a threshold matter, the Court finds that the agreed-upon price for Plaintiffs’ fabrication

of the Stage Prop constitutes a genuine dispute of material fact. Plaintiffs contend that Defendants

accepted their modified offer to fabricate the Stage Prop in exchange for a total payment of

$1,252,968.00. In support, Plaintiffs point to the First Art Budget and five invoices providing a

total budget of $1,252,968.00 for the Stage Prop, emails referencing the same, and Blohm’s

Declaration attesting that the Parties understood the Oral Contract as providing a total price of

$1,252,968.00. See ECF Nos. [98-1] ¶ 10, [98-3] at 1-2, [98-4] at 1, [98-5] at 1, [98-6] at 1-2, [98-

7] at 1-2. Defendants argue that the agreed-upon price was $1,262,668.00 and provide the undated

Second Art Budget listing that price as the total for the Stage Prop. ECF No. [98-8] at 4-5.

Defendants also rely on Joseph Busch’s deposition testimony wherein he explains that Defendants’

understanding was that $1,262,668.00 represents the final agreed-upon price under the Oral

Contract. ECF No. [97-1] at 52, 54. Plaintiffs concede that the undated $1,262,668.00 Second Art

Budget was “publish[ed] at one point” by Plaintiffs but assert that this budget “is not the final

budget agreed to.” SMF ¶¶ 30-31. Other than relying on the Blohm Declaration, however,

Plaintiffs provide no evidence that the Second Art Budget was not intended to constitute the

agreed-upon price for the Stage Prop, or that it was superseded by the First Art Budget or invoices

providing a budget of $1,252,968.00.

The Parties thus each point to documentation, including the total budget, that they argue

was the agreed-upon price under the Oral Contract, as well as record testimony providing that each

total was the final budget agreed to by the Parties. As noted, both the First and Second Art Budgets

are undated, and Plaintiffs do not account for the Second Art Budget’s higher total price beyond

pointing to the $1,252,968.00 budget provided in the First Art Budget, related invoices, and

supporting testimony. On this record, the Court is unable to determine which budget reflects the

final agreed-upon price under the Oral Contract. The fact that Plaintiffs provide more

documentation in support of the $1,252,968.00 sum as the final contract price and argue that the

$1,262,668.00 was never an agreed-upon price fails to show that this is conclusive, considering

the contrary record evidence. The Oral Contract’s final price thus constitutes a genuine dispute of

material fact. The Court proceeds to consider whether Plaintiffs have established that Defendants’

breach of oral contract claim nonetheless fails as a matter of law.

b. Whether Defendants breach of contract claim fails as a matter of law

As discussed, Defendants contend that the Oral Contract provides that Defendants would

pay Plaintiffs a total of $1,262,668.00 in monthly installments based on Plaintiffs “periodic status

updates on construction”—complete with proof of the costs expended on the Stage Prop—in

exchange for Plaintiffs’ fabrication of the Stage Prop and assisting with installation and

disassembly at the Amway Arena Event. Response at 9. Plaintiffs argue that this Oral Contract,

even if established, is invalid due to the absence of specific terms as to “how payments were to be

made, and [the] duration of the construction project[.]” Motion at 9. As Defendants accurately

observe, however, it is undisputed that the Parties intended the duration of this project to be three

and a half months. See SMF ¶ 4; SAMF ¶ 4. Moreover, Defendants’ contention that the Oral

Contract does not provide for fixed installment payments does not invalidate Defendants’ breach

of contract claim.

Although the Parties dispute the fixed price under the Oral Contract, it is undisputed that

the Oral Contract contains a fixed price term. More generally, it is also undisputed that the Parties

1) executed the express Oral Contract, 2) that Oral Contract provides for money in exchange for

fabrication of the Stage Prop as consideration, and 3) the Oral Contract was intended to be

completed within three and a half months. See SMF 4; SAMF ¶ 4. For the reasons set forth below,

the Court finds that whether the Oral Contract provides for fixed installment payments fails to

create a genuine dispute of material fact. Plaintiff fails to show that the absence of specific

installment payments renders Defendants breach of contract claim invalid as a matter of law.

Accordingly, Plaintiff fails to show that it is entitled to judgment on Count I regardless of whether

the Oral Contract contains such fixed payments.

Plaintiff’s reliance on Jacksonville Port Authority v. W.R. Johnson Enterprises, Inc., 624

So.2d 313 (Fla. 1st DCA 1993) and W.R. Townsend Contracting, Inc. v. Jensen Civil Const., Inc.,

728 So.2d 297, 300 (Fla. 1st DCA 1999) to argue that Defendants’ claim is fatally indefinite is

misplaced. In Jacksonville Port Authority, the court concluded that “clearly no enforceable

contract existed” after determining that “[t]here was never an agreed-upon price between the

parties[]” nor agreement as to the “scope of the work[]” under the construction contract in question.

624 So.2d at 315. The court noted that “negotiations between the parties as to these essential terms”

continued without ever fixing those terms, and that the bidding party “was still seeking acceptance

of its proposals[]” well after the alleged breach occurred. Id. Here, as discussed, Plaintiffs do not

argue that an enforceable contract never existed between the Parties, or that it lacks a fixed price.

Conversely, Plaintiffs argue that an enforceable oral contract exists between the Parties and was

breached by Defendants. Moreover, it is undisputed that Plaintiffs accepted Defendants’ offer to

pay them in exchange for fabricating the Stage Prop. The Parties instead dispute which of the two

budgets at issue constitutes the final agreed-upon price. None of the missing terms that led to the

court’s determination that no contract existed in Jacksonville Port Authority—the price, scope of

work, and lack of acceptance—are present here.

In W.R. Townsend Contracting, Inc., the court concluded that an enforceable oral contract

existed between a subcontractor and general contractor after finding that that contract included all

essential terms. 728 So.2d at 301-02. The court found that the general contractor accepted the

subcontractor’s offer to accept the subcontractor’s bid price, and to hire that subcontractor if it was

awarded the bid in question. Id. at 301. The court determined that the oral contract’s terms—

furnished by the subcontractor bid listing labor and materials based on the construction project’s

specifications—provided the essential price terms as well as consideration. Id. at 301-02. Although

the oral contract did not contain specifics as to performance or payment, the court found that “[t]he

fact that other, non-essential terms remained open is not fatal to Appellant’s claim.” Id. at 302

(citing Henry C. Beck Co. v. Arcrete, Inc., 515 S.W.2d 712, 716 (Tex. Civ. App. 1974)).

Here, as discussed, Plaintiffs argue that specific installment payments are an essential term

of the Parties’ Oral Contract, and that Defendants’ argument that the Oral Contract features no

specific installment payments is fatal to their breach of contract claim. However, W.R. Townsend

Contracting, Inc., provides little support for concluding that specific installment payments

constitute an essential contractual term where, here, it is undisputed that the Oral Contract contains

a specified price, a specific duration, and a defined scope of work to be performed. Plaintiffs,

accordingly, fail to show that Defendants’ breach of contract claim is invalid as a matter of law for

failing to provide for fixed installment payments.

c. Whether the Statute of Frauds precludes enforcing the Oral Contract

Plaintiffs next argue that, even if Defendants assert a valid breach of contract claim, the

Statute of Frauds precludes enforcement of the contract. This argument fails as a matter of law.

The Statute of Frauds provides that "[n]o action shall be brought … upon any agreement that is

not to be performed within the space of 1 year from the making thereof … unless the agreement

or promise … shall be in writing and signed by the party to be charged therewith[.]" Fla. Stat. §

725.01. As noted, it is undisputed that the Parties executed the Oral Contract with the intention

that the Stage Prop be completed within three and a half months’ time. SMF 4; SAMF ¶ 4. The

Oral Contract is thus not “an oral contract of indefinite duration.” Browning v. Poirier, 165 So. 3d

663, 666 (Fla. 2015).

Plaintiffs nonetheless argue that the fact that this project was delayed, and Defendants

continued payments to Plaintiffs as late as May 2021 support that the Statute of Frauds precludes

Defendants’ breach of contract claim. That argument ignores the Supreme Court of Florida’s

guidance that “oral contracts … [are] not within the statute [of frauds] if at the time the contract is

made there is a possibility in law and in fact that full performance … may be completed before the

expiration of a year.” Id. at 665-66 (citing 9 Williston on Contracts § 24:3 (4th ed. 2011)). Here,

the Oral Contract was plainly intended to be completed within three and a half months’ time.

Moreover, the Oral Contract’s “full performance [was] possible within one year from the inception

of the contract[,]” a finding Plaintiffs do not dispute. Id. at 666. Plaintiffs have accordingly failed

to show that they are entitled to judgment on Count I based upon the Statute of Frauds.

d. Whether Defendants breached the Oral Contract

Finally, Plaintiffs argues that even if Defendants assert a valid breach of contract claim,

the undisputed evidence establishes that Defendants breached the Oral Contract. Plaintiffs

specifically contend that Defendants’ argument that they paid roughly 87% of the total contract

price despite Plaintiffs only completing about 30% of the work is contradicted by the record.

Defendants argue that Plaintiffs breached the Oral Contract by failing to timely fabricate the Stage

Prop despite receiving funds from Defendants. Defendants contend that they paid approximately

$788,000.00 to Plaintiffs—representing approximately 87% of the total construction costs owed

under the Oral Contract—yet Plaintiffs only performed about 30% of the work.

Plaintiffs argue that Defendants arrived at this figure by misallocating the construction and

labor costs under the Oral Contract. Plaintiffs concede that the Second Art Budget on which

Defendants rely provides for $858,593.00 for total production costs and $404,075.00 for total labor

costs. ECF No. [98-8] at 4-5. Plaintiffs contend that those figures reference the total costs for

building the Stage Prop, however. Plaintiffs explain that Defendants only derived their 87% figure

by considering the $404,075.00 total labor cost budget as encompassing only the setup and

disassembling at the Amway Arena Event itself, not the total labor costs involved in fabricating

the Stage Prop. Plaintiffs conclude that the premise of Defendants’ breach of contract claim is thus

false and establishes that Defendants, not Plaintiffs, breached the Oral Contract.

Plaintiffs’ argument that Defendants misallocate the costs included in the Second Art

Budget fails to establish that they are entitled to judgment as a matter of law. The Second Art

Budget’s cost allocation is ambiguous as to the distinction between overall labor costs and labor

costs associated with the Amway Arena Event. The itemized positions contained therein include

positions that would be necessary to both fabricate the Stage Prop in the first place and to assemble

and disassemble it for the Amway Arena Event. For example, the budget provides for welders,

carpenters, foam painters, and foam carvers. Id. Those positions would presumably be necessary

to fabricate the Stage Prop. The budget also includes numerous positions that appear intertwined

with the Amway Event, however, such as “matching riggers”, “stage builders”, “[r]igger high

points”, and a production designer. It is accordingly unclear whether the total labor costs concern

the fabrication of the Stage Prop or its assembly and disassembly at the Amway Arena Event.

Moreover, even if Plaintiffs establish that Defendants misallocated the cost breakdown in

the $1,262,668 budget, this fails to establish that Plaintiffs are entitled to judgment as a matter of

law on Defendants’ breach of contract claim. As noted, Defendants rely on this budget to argue

that they paid Plaintiffs approximately 87% of the total contract price despite Plaintiffs only

completing about 30% of the work on the Stage Prop. Plaintiffs dispute that this figure is correct,

but not that Defendants paid Plaintiffs more than $780,000.00. Accordingly, even if Plaintiffs are

correct that Defendants misallocated the costs reflected in the Second Art Budget, that merely

establishes that they paid approximately 60% of that total price rather than 87%. That fails to show

that Defendants breached the Oral Contract first, as Plaintiffs contend, considering Defendants’

argument that they stopped making payments due to Plaintiffs’ failure to perform under the Oral

Contract. Plaintiffs have not shown that the undisputed material facts establish that Plaintiffs

sufficiently performed under the Oral Contract, or that Defendants failure to continue payment

was unjustified. Plaintiffs have accordingly failed to show that they are entitled to summary

judgment on Count I of Defendants’ Counterclaim.

B. Count II – Unjust Enrichment

Plaintiffs next argue that Defendants’ unjust enrichment claim fails, as it is undisputed that

an express contract exists between the Parties. Defendants respond that Plaintiffs’ argument fails

because a reasonable juror could conclude that Plaintiffs were unjustly enriched by Defendants

payments under the Oral Contract.

“A claim for unjust enrichment must satisfy four essential elements: (1) the plaintiff must

confer a benefit upon the defendant; (2) the defendant must have knowledge of the benefit; (3) the

defendant accepts and retains the benefit; and (4) the circumstances are such that it would be

inequitable for the defendant to retain the benefit without paying the value thereof.” Jackson–

Jester v. Aziz, 48 So.3d 88, 90 (Fla. 2d DCA 2010). Defendants argue that Plaintiffs performed

between 30-40% of the total work on the Stage Prop, and that their payment of approximately 87%

of the total owed under Oral Contract thus establishes that about half of those payments have been

improperly retained by Plaintiff. As Plaintiffs accurately observe, however, it is undisputed that

an express agreement—the Oral Contract—exists between the Parties.

Under Florida law, a party “cannot pursue an equitable theory, such as unjust enrichment

or quantum meruit, to prove entitlement to relief if an express contract exists.” Ocean Commc’ns,

Inc. v. Bubeck, 956 So. 2d 1222, 1225 (Fla. 4th DCA 2007); see also Kovtan v. Frederiksen, 449

So.2d 1, 1 (Fla. 2d DCA 1984) (“It is well settled that the law will not imply a contract where an

express contract exists concerning the same subject matter[.]”). As noted, Defendants rely on their

payments under the Oral Contract to support their unjust enrichment claim. That fact is fatal to

their unjust enrichment claim, as “[a]ny proof of an express agreement between the parties as to

the compensation to be paid for the services rendered … defeat[s] rather than sustain[s] an action

based upon quantum meruit.” In re Estate of Lonstein, 433 So.2d 672, at 674 (Fla. 4th DCA 1983).

Defendants’ argument in support of Count II is accordingly foreclosed by the existence of the Oral

Contact. Plaintiffs have therefore demonstrated their entitlement to summary judgment on Count

II of Defendants’ Counterclaim.

C. Count III – Implied Duty of Good Faith and Fair Dealing

As with Count II, Plaintiffs contend that the existence of the Oral Contract forecloses

Defendants’ claim that Plaintiff’s deficient performance breached an implied duty of good faith

and fair dealing. Defendants do not offer a response. “Where a party to a contract has in good faith

performed the express terms of the contract, an action for breach of the implied covenant of good

faith will not lie.” Burger King Corp. v. Weaver, 169 F.3d 1310, 1317-18 (11th Cir. 1999).

Accordingly, “a cause of action for breach of the implied covenant cannot be maintained (a) in

derogation of the express terms of the underlying contract or (b) in the absence of breach of an

express term of the underlying contract.” Id. (citing City of Riviera Beach v. John's Towing, 691

So.2d 519, 521 (Fla. Dist. Ct. App. 1997); Hospital Corp. of America v. Florida Med. Ctr., Inc.,

710 So.2d 573, 575 (Fla. Dist. Ct. App. 1998)).

Here, as discussed, Defendants contend that the Oral Contract obligated Plaintiffs to

fabricate the Stage Prop in exchange for Defendants’ installment payments, contingent on

Plaintiffs’ status updates. Defendants’ breach of the Oral Contract claim is based on Plaintiffs

breach of this express term rather than on an implied duty to perform in good faith. In other words,

Plaintiffs failure to fully perform either constitutes a breach of this express term, or, should

Plaintiff prevail on their breach of contract claim, Plaintiffs’ partial performance does not

constitute a breach in light of Defendants’ failure to continue making payments.

Count III accordingly fails as a matter of law, as any breach of an implied duty of good

faith and fair dealing would be in derogation of the undisputed terms of the Oral Contract, namely,

performance in exchange for installment payments based on Plaintiffs construction progress. See

Flagship Nat. Bank v. Gray Distribution Sys., Inc., 485 So. 2d 1336, 1340 (Fla. Dist. Ct. App.

1986) (“The good faith obligation found … may not be imposed to override express terms in the

contract.”) (citations omitted). Plaintiffs are therefore entitled to judgment on Count III of

Defendants’ Counterclaim.

D. Count IV – Florida Deceptive and Unfair Trade Practices Act

Plaintiffs argue that they are entitled to summary judgment on Count IV because

Defendants fail to state a plausible claim under the Florida Deceptive and Unfair Trade Practices

Act (“FDUTPA”), and the undisputed evidence fails to support any such claim. As with Count III,

Defendants do not offer a response. To prevail on their FDUTPA claim, Defendants must prove

three elements: “(1) a deceptive act or unfair practice; (2) causation; and (3) actual damages.” Am.

Mariculture, Inc. v. Syaqua Americas, Inc., 2021 WL 2315003, *4 (M.D. Fla. June 7, 2021)

(quoting Rollins, Inc. v. Butland, 951 So. 2d 860, 869 (Fla. 2d DCA 2006)). An act is deceptive

within the meaning of the FDUTPA where a party makes a “representation, omission, or practice

that is likely to mislead the consumer acting reasonably in the circumstances, to the consumer’s

detriment.” Peterbrooke Franchising of Am., LLC v. Miami Chocolates, LLC, 312 F. Supp. 3d

1325, 1343 (S.D. Fla. 2018)). Furthermore, “[p]roof of actual damages is necessary to sustain a

FDUTPA claim.” Nazario v. Pro. Acct. Servs., Inc., 2017 WL 1179917, *5 (M.D. Fla. Mar. 30,

2017).

Defendants’ deceptive and unfair trade practice claim alleges that Plaintiffs violated the

FDUTPA by “improperly using the funds paid by [Defendants] for construction of the stage prop

for other purposes, misrepresenting to [Defendants] the timeliness of constructing the prop set,

[and by] failing and/or refusing to account for over $300,000 in contract funds despite demand

from [Defendants].” ECF No. [14] ¶ 55. Defendants do not point to any record evidence supporting

those allegations, however. The Court’s independent review of the record evidence fails to reveal

evidence to support Defendants’ allegations that Plaintiffs’ improperly used Defendants’ funds

and related misrepresentations in violation of the FDUTPA.7 Moreover, the undisputed evidence

is devoid of any indication that Defendants detrimentally relied on any misrepresentations made

by Plaintiffs.

Conversely, Plaintiffs point to Busch’s deposition testimony and Defendants’ interrogatory

7 When asked to identify specific evidence supporting the allegation that Plaintiffs misappropriated

Defendants’ funds, for example, Busch testified “[i]t was not about accusing them, it was about

investigating to inspect to make sure that things were on course, which we did not receive.” ECF No. [97-

1] at 129.

responses to demonstrate their entitlement to judgment as a matter of law on Count IV. When

asked to describe facts supporting Defendants’ FDUTPA claim, Busch testified that Defendants

“are simply seeking a breach of contract[.]” ECF No. [97] at 158-60. Busch also testified that he

was “not aware[]” of any facts supporting a finding that Plaintiffs acted deceptively during the

Parties’ course of dealing. Id. at 160. Defendants’ interrogatory responses similarly fail to support

Defendants’ FDUTPA claim. When asked to describe the events or facts supporting their FDUTPA

claim, Defendants responded that they “do not intend on pursuing any claims or damage associated

with reputation or non-economic damages and do not intend on asserting any facts or other

evidence in support of these claims.” ECF No. [99-2] at 3-4. Defendants cannot prevail on their

FDUTPA claim without any such evidence. Plaintiffs have accordingly met their burden to show

that the undisputed evidence entitles them to judgment on Defendants’ FDUTPA claim.

E. Count V – Injunctive Relief

Plaintiffs argue that they are entitled to judgment on Count V because the undisputed

evidence fails to show that injunctive relief is an appropriate remedy. Plaintiffs contend that

monetary damages are an adequate remedy for Defendants’ breach of contract claim, and

injunctive relief is accordingly improper. Defendants respond that injunctive relief is appropriate

because they will suffer irreparable injury if Plaintiffs sell or dispose of the Stage Prop materials.

Granting a request for preliminary injunction is “appropriate if—but only if—the movant

shows ‘(1) substantial likelihood of success on the merits; (2) irreparable injury will be suffered

unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage

the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not

be adverse to the public interest.’” Callahan v. United States Dep't of Health & Hum. Servs.

through Alex Azar II, 939 F.3d 1251, 1257 (11th Cir. 2019) (quoting McDonald's Corp. v.

Robertson, 147 F.3d 1301, 1306 (11th Cir. 1998)).

Relevant here, the Eleventh Circuit has explained that a party suffers an irreparable injury

only if monetary damages cannot remedy that injury:

“An injury is ‘irreparable’ only if it cannot be undone

through monetary remedies. ‘The key word in this consideration is

irreparable. Mere injuries, however substantial, in terms of money,

time and energy necessarily expended in the absence of a stay, are

not enough. The possibility that adequate compensatory or other

corrective relief will be available at a later date, in the ordinary

course of litigation, weighs heavily against a claim of irreparable

harm.’”

Northeastern Fla. Chapter of the Ass'n of Gen. Contractors v. City of Jacksonville, 896 F.2d 1283,

1285 (11th Cir.1990) (quoting Sampson v. Murray, 415 U.S. 61, 88, 94 S.Ct. 937, 952, 39 L.Ed.2d

166 (1974)).

Here, Defendants argue that they will suffer substantial injuries if Plaintiffs are not

enjoined from liquidating or selling the Stage Prop materials. Defendants contend that the unique

nature of the Stage Prop materials, money invested in the Stage Prop materials to date, risk of loss

of reputation and future donors, and inability to host similar outreach events in the future shows

that they will suffer irreparable injury without injunctive relief.

Despite the risk of those potential injuries, the undisputed evidence establishes that “even

if [Defendants] establish a likelihood of success on the merits, the absence of a substantial

likelihood of irreparable injury would, standing alone, make preliminary injunctive relief

improper.” Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (collecting cases). Moreover,

as “emphasized on many occasions” by the Eleventh Circuit, “the asserted irreparable injury ‘must

be neither remote nor speculative, but actual and imminent.’” Id. (quoting Northeastern Fla.

Chapter of the Ass'n of Gen. Contractors, 896 F.2d at, 1285); see also Chacon v. Granata, 515

F.2d 922, 925 (5th Cir.1975) (“An injunction is appropriate only if the anticipated injury is

imminent and irreparable.”).

The overwhelming majority of Defendants’ injuries are plainly amendable to monetary

remedies. The money invested in the Stage Prop to date, as well as the need to expend additional

resource should Defendants re-create this Stage Prop through another vendor, are compensable as

part of Defendants’ expectation damages. The same is true of Defendants’ potential loss of

reputation or future donors. If Defendants can prove those injuries are non-speculative, they are

also properly included in Defendants’ expectation damages. This determination is supported by

the fact that Defendants seek monetary damages for Plaintiffs’ alleged breach of the Oral Contract.

Defendants also emphasize the unique nature of the Stage Prop design, yet no record

evidence suggests that another vendor would be unable to recreate Plaintiffs’ progress to date.

Moreover, the unique nature of the Stage Prop design alone fails to establish irreparable injury,

particularly in light of Defendants’ contention that Plaintiffs rendered deficient performance in

constructing the Stage Prop. Finally, Defendants’ observation that failing to afford injunctive relief

will preclude them from hosting future outreach events is without merit. As noted, Defendants

must show their asserted irreparable injury is “actual and imminent.” Siegel, 234 F.3d at 1176-77.

Here, there is no evidence that Defendants have immediate plans to host similar outreach events

featuring the Stage Prop, or that they will be unable to host such events without first obtaining the

Stage Prop materials in Plaintiffs’ possession. The Court concludes that the monetary remedies

available to Defendants are sufficient to remedy their injuries.

The Court thus determines that the undisputed evidence shows that Defendants are not

entitled to injunctive relief. The Court accordingly need not consider whether Defendants satisfy

the remaining three factors. See Ne. Fla. Chapter of Ass'n of Gen. Contractors of Am, 896 F.2d

1283, 1285 (11th Cir. 1990) (“We need not address each element because we conclude that no

Case No. 22-cv-23346-BLOOM/Torres

showing of irreparable injury was made.”); see also Snook v. Tr. Co. of Georgia Bank of Savannah,

909 F.2d 480, 487 (11th Cir. 1990) (same).

IV. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED as follows:

1. Plaintiffs’ Motion for Summary Judgment, ECF No. [102], is GRANTED in part

and DENIED in part consistent with this Order.

2. Defendants’ claim under Count I shall proceed against Plaintiffs.

DONE AND ORDERED in Chambers at Miami, Florida, on November 30, 2023.

BETH BLOOM

UNITED STATES DISTRICT JUDGE

Copies to:

Counsel of Record

21