The opinion
USCA11 Case: 24-10194 Document: 34-1 Date Filed: 08/22/2024 Page: 1 of 21
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 24-10194
Non-Argument Calendar
____________________
In Re: HALLUCINATION MEDIA, LLC,
Debtor.
________________________________________________
HALLUCINATION MEDIA, LLC,
Plaintiff-Appellant,
versus
THE RITZ YBOR, LLC,
N.C.J. INVESTMENT COMPANY,
JOE CAPITANO, JR.,
AMPHITHEATRE EVENTS, LLC,
JOHN A. SANTARO,
USCA11 Case: 24-10194 Document: 34-1 Date Filed: 08/22/2024 Page: 2 of 21
2 Opinion of the Court 24-10194
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:22-cv-00564-SDM
____________________
Before WILSON, BRANCH, and LUCK, Circuit Judges.
PER CURIAM:
In 2013, Plaintiff Hallucination Media, LLC
(“Hallucination”) began contract discussions with Defendant Ritz
Ybor (“the Ritz”) for Hallucination to promote and produce club
nights at the Ritz special events venue. Although the parties
contest whether an agreement was ever reached, it is undisputed
that Hallucination and the Ritz developed a business relationship
whereby Hallucination promoted and produced club nights at the
Ritz on Friday nights and some Saturday nights from August 2013
until May 2016, when the Ritz allegedly breached the agreement.
Around the time that the relationship between Hallucination and
the Ritz ended, Amphitheatre LLC (“Amphitheatre”)—a
competitor to Hallucination—executed a three-year lease
agreement to hold events at the Ritz after a fire destroyed its
former venue.
After filing for Chapter 11 bankruptcy, Hallucination
brought an adversarial proceeding against the Ritz, its managing
USCA11 Case: 24-10194 Document: 34-1 Date Filed: 08/22/2024 Page: 3 of 21
24-10194 Opinion of the Court 3
member Joe Capitano, and owner N.C.J. Investment Company
(“NCJ”); as well as Amphitheatre and its owner John Santoro.
Hallucination sought damages against (1) the Ritz and NCJ for
breach of a partnership agreement (Count I) and breach of a right
of first refusal (Count II); (2) the Ritz, NCJ, and Capitano for self-
help eviction in violation of Florida Statutes § 83.05 (Count III); (3)
Capitano, Amphitheatre, and Santoro for tortious interference
with contracts and business relationships (Count IV); and (4) the
Ritz, NCJ, and Capitano for fraudulent inducement (Count V).
The bankruptcy court granted summary judgment in favor of
defendants on all claims, which the district court affirmed.
On appeal, Hallucination argues that the bankruptcy court
erred by (1) granting summary judgment based on affirmative
defenses and arguments it argues were never made by defendants,
(2) misapplying the law on statute of frauds and competition
privilege, and (3) denying its motions to reconsider. 1 After careful
review, we affirm.
I. Background
The Ritz, with Capitano as its managing member, operated
a special events venue in a building owned by NCJ. In 2013, the
Ritz, NCJ, and Capitano (collectively “the Ritz defendants”) began
discussions with Hallucination and its managing members, Bryan
Nichols and Steve McClure, about entering into an agreement for
1 In the interest of clarity, the issues on appeal have been reorganized from the
format presented in Hallucination’s brief.
USCA11 Case: 24-10194 Document: 34-1 Date Filed: 08/22/2024 Page: 4 of 21
4 Opinion of the Court 24-10194
Hallucination to promote and produce club nights at the Ritz.
While it is undisputed that Hallucination and the Ritz developed a
business relationship whereby Hallucination promoted and
produced club nights at the Ritz on Friday nights and some
Saturday nights between August 2013 and May 2016, the parties
dispute the nature of the relationship, and whether an enforceable
agreement was ever reached. The parties also dispute whether
Amphitheatre—a competitor to Hallucination who executed a
lease with the Ritz around the time that the Ritz allegedly breached
the agreement with Hallucination—tortiously interfered with the
relationship between the Ritz and Hallucination. The evidence
pertaining to these disputes will be summarized in turn.
A. E-mails between the Ritz and Hallucination
The main evidence of the relationship between the Ritz and
Hallucination is a series of e-mails between the parties. In May
2013, Stephanie Petrucelli, an agent for the Ritz, e-mailed
Hallucination setting out “some talking points from our last sit
down.” The e-mail then discussed the Ritz’s commitment to
capital improvements, proposed a 3-year term consisting of Friday
and Saturday nights only, attached a financial pro forma projecting
the split of the revenue, and listed topics that the parties needed to
discuss further. Later that day, Hallucination responded, in part,
that there were a few things relating to specifics of the costs and
the format of the club nights that “were very concerning to
[Hallucination.]”
USCA11 Case: 24-10194 Document: 34-1 Date Filed: 08/22/2024 Page: 5 of 21
24-10194 Opinion of the Court 5
Two weeks later, in June 2013, Petrucelli e-mailed
Hallucination with “a few edits to some of our discussion so we
can take the next step to develop a document. I know there is some
language needed from you guys….I highlighted those areas in red.
Let me know your thoughts.” The edits included a placeholder
next to the 3-year term, stating that Hallucination was to provide
language regarding options to extend the lease or a right of first
refusal, and a comment that Hallucination was to draft language
dealing with incidents or nuisance. A few days later, after not
hearing from Hallucination, Petrucelli sent a follow-up e-mail
stating that she “[j]ust wanted to check in to see where you are on
the language that we need from your team to move forward to
finalize an agreement.”
The next day, Hallucination responded with several changes,
and noted that “[w]e would like to set up a meeting with everyone
tomorrow, if possible . . . so we are all on the same page.” Later
that day, Petrucelli responded with responses to the changes. In
relevant part, she stated that she understood that Hallucination
wanted to be protected beyond the proposed 3-year term of the
potential lease, and that “[i]t seems the most prudent way to do this
would be for certain first right of refusal regarding club nights etc
at the end of the term[.]” Ultimately, the e-mail stated that
Capitano, the managing member of the Ritz, “fe[lt] confident that
we will get aligned and strike an agreement that is favorable for us
all,” and that they would set up a call to discuss the comments later
that day or the next day. This was the last written communication
USCA11 Case: 24-10194 Document: 34-1 Date Filed: 08/22/2024 Page: 6 of 21
6 Opinion of the Court 24-10194
between the parties prior to the alleged onset date of the
agreement.
It appears that, over a year later, in September 2014, the
parties still disagreed on the exclusivity of Hallucination’s rights on
Saturday nights. Hallucination e-mailed Petrucelli that “[w]e
cannot be exclusive for just one night guaranteed and have a non-
compete for 3 years. . . . [W]e rely on a minimum of two nights in
this industry in order to succeed[.]” Thus, Hallucination proposed
the following exclusivity language for Saturday nights:
“Hallucination shall be granted the right to operate . . . on Saturday
Nights.” Petrucelli responded that “[w]e appreciate your creative
suggestions for Saturday, however, we are not going [to] get there
at this time.” The next day, Hallucination responded that “[w]e are
clearly in a stalemate with the Saturday issue.”
Despite the disagreement over terms, Hallucination and the
Ritz were able to conduct business together, with Hallucination
holding events at the Ritz between August 2013 and May 2016. But
eventually, the disagreements proved insurmountable. On January
22, 2016, Hallucination sent Capitano a strongly worded e-mail
suggesting that the relationship was not running smoothly.
Hallucination stated that the Ritz had not been honoring various
aspects of the “agreement” that they had reached. Hallucination
ended the e-mail by stating that “[e]ither you choose to uphold
your end of the bargain under the terms which we all agreed upon,
or you choose to break the agreement.” Capitano e-mailed
USCA11 Case: 24-10194 Document: 34-1 Date Filed: 08/22/2024 Page: 7 of 21
24-10194 Opinion of the Court 7
Hallucination that “I think it is best for us to set a [meeting] for us
to figure [out] a plan to sever[] our relationship.”
On May 13, 2016, Capitano e-mailed Hallucination that
Hallucination’s “tenancy by oral agreement is terminated as of
May 13, 2016,” that Hallucination had “until noon on May 14th to
remove its property,” and that Hallucination “d[id] not have a right
of first refusal[.]” Additionally, Capitano stated that he “ha[d] no
legal obligation” to Hallucination because there was no written
lease; rather, Capitano stated that Hallucination “operated and paid
weekly and your oral tenancy was week to week.”
B. Amphitheatre and the Ritz reach an agreement
On April 28, 2016, Amphitheatre entered an initial
“Promoter Space Rental Agreement,” with the Ritz to hold events
at the venue for several dates in May 2016. Thereafter, the parties
executed a three-year lease for Amphitheatre to hold events at the
Ritz. Discussions between Amphitheatre and Ritz commenced
after a fire destroyed Amphitheatre’s previous venue in April 2016.
Because “[t]here were a number of events already booked to take
place at the Amphitheatre, and . . . a number of staff members . . .
relied upon [Amphitheatre] for their livelihood,” Santoro (the
owner of Amphitheatre) immediately “began searching for suitable
venues to hold . . . events.” Santoro had meetings with Capitano,
in hopes of moving Amphitheatre’s scheduled events to the Ritz.
During conversations with the Ritz, “it was [Santoro’s]
understanding that Hallucinations Media did not have a lease or
other contract, and was operating on a week to week basis,” and
USCA11 Case: 24-10194 Document: 34-1 Date Filed: 08/22/2024 Page: 8 of 21
8 Opinion of the Court 24-10194
that the Ritz “began contemplating termination of [the]
relationship” in January 2016.
C. Procedural History
In May 2016, Hallucination filed a voluntary petition for
relief under Chapter 11 of the United States Bankruptcy Code.
After litigating the main bankruptcy case for nearly three years,
Hallucination initiated the instant adversary proceeding against
defendants in March 2019. Hallucination sought damages against
the Ritz and NCJ for breach of a partnership agreement (Count I)
and breach of a right of first refusal (Count II); the Ritz, NCJ, and
Capitano for self-help eviction in violation of Florida Statute § 83.05
(Count III); Capitano, Amphitheatre, and Santoro for tortious
interference with contracts and business relationships (Count IV);
and the Ritz, NCJ, and Capitano for fraudulent inducement (Count
V).
Ritz filed an answer, stating in pertinent part that “[t]he
parties exchanged several emails, but never reached an
agreement,” that “no joint venture or partnership was ever
formed,” and, as an affirmative defense, that “Debtor had, at best,
a license to conduct ‘club nights’ . . . during limited hours on Friday
nights.” Amphitheatre and Santoro filed a separate answer, stating
in pertinent part that neither “Amphitheater [n]or Santoro had
knowledge of any of the alleged contracts and business
relationships at any material time,” and, as an affirmative defense,
that “Defendants were entitled to take the actions alleged to
USCA11 Case: 24-10194 Document: 34-1 Date Filed: 08/22/2024 Page: 9 of 21
24-10194 Opinion of the Court 9
protect their business interest and such actions are privileged and
immune from liability for tortious interference.”
The Ritz defendants and Amphitheatre defendants then filed
separate motions for summary judgment.
1. The Ritz defendants’ motions for summary judgment
Following a hearing on the motions for summary judgment
conducted before the close of discovery, the bankruptcy court
granted in part and denied in part the Ritz defendants’ motion. As
to Counts One and Two for breach of agreement and right of first
refusal, the bankruptcy court denied the motion because “[t]he
summary judgment record as it stands . . . does not clearly define
the business relationship,” and “[w]ithout such clarity, it is difficult
to determine whether the statute of frauds would bar Plaintiff’s
claims.” The court, however, granted the motion as to Counts
Three, Four, and Five. On Count Three, the court held that the
Ritz defendants did not engage in self-help eviction because any
alleged agreement, to the extent one existed, could not be
characterized as a lease because Hallucination did not have a right
of exclusive possession to the venue, and, therefore, the provisions
of Fla. Stat. § 83.05 did not apply. On Count Four, the court held
that Capitano could not engage in tortious interference with a
business relationship because Capitano did not act in his individual
capacity. And on Count Five, the court held “the application of
Florida’s independent tort doctrine” barred Hallucination’s
fraudulent inducement claim. Hallucination filed a motion for
USCA11 Case: 24-10194 Document: 34-1 Date Filed: 08/22/2024 Page: 10 of 21
10 Opinion of the Court 24-10194
reconsideration under Federal Rule of Civil Procedure 59 on these
counts, which the court denied.
After the discovery period progressed and additional
evidence was submitted, the Ritz defendants filed an amended and
renewed motion for summary judgment on Counts One and Two,
which the court granted. As to Count One, the court held that “the
[e-mail] communications between the parties are insufficient to
create a material issue of fact regarding the essential terms of a
three-year partnership agreement.” While those documents
showed that the parties were working toward an agreement, “they
never got beyond the outline” of such an agreement. Indeed, the
e-mails demonstrated that Ritz and Hallucination did not even
“establish agreement to the material terms of a promotion
agreement.” And as to Count Two, the court held that
“Hallucination does not point to any writing where Ritz or NCJ
actually agreed to [a] right of first refusal.”
2. Amphitheatre defendants’ motion
The bankruptcy court also granted the Amphitheatre
defendants’ motion. The court held that Hallucination’s claim
against the Amphitheatre defendants (Count Four—tortious
interference with a business contract) failed because of the defense
of “competition privilege,” which was properly raised by
defendants. Hallucination filed a motion for reconsideration under
Rule 59, which was denied.
USCA11 Case: 24-10194 Document: 34-1 Date Filed: 08/22/2024 Page: 11 of 21
24-10194 Opinion of the Court 11
3. Appeal
Hallucination appealed these rulings to the district court,
which affirmed on all counts. Hallucination then filed the instant
appeal.
II. Standard of Review
In a bankruptcy case, we sit “as a second court of review and
thus examine[] independently the factual and legal determinations
of the bankruptcy court and employ[] the same standards of review
as the district court.” In re Brown, 742 F.3d 1309, 1315 (11th Cir.
2014) (quotations omitted). “Furthermore, when a district court
affirms a bankruptcy court’s order, as the district court did here, we
review the bankruptcy court’s decision. Id. “We review the
bankruptcy court’s factual findings for clear error and its legal
conclusions de novo.” Id. (quotations omitted). And we review
“[t]he denial of a motion for reconsideration . . . for abuse of
discretion.” Sanderlin v. Seminole Tribe of Fla., 243 F.3d 1282, 1285
(11th Cir. 2001).
III. Discussion
On appeal, Hallucination argues that the bankruptcy court
erred by (1) granting summary judgment based on affirmative
defenses and arguments that were allegedly never made by
defendants, (2) misapplying the law on the statute of frauds and
competition privilege, and (3) denying its motions to reconsider.
After careful review, we affirm.
USCA11 Case: 24-10194 Document: 34-1 Date Filed: 08/22/2024 Page: 12 of 21
12 Opinion of the Court 24-10194
A. Unpleaded affirmative defenses
Hallucination argues that the bankruptcy court erred by
entering summary judgment in favor of defendants based on the
(1) statute of frauds and (2) competition privilege because they
were “unpleaded affirmative defenses raised for the first time in
their motions for summary judgment.”
Federal Rule of Civil Procedure (8)(c) provides that, in
general, “[i]n responding to a pleading, a party must affirmatively
state any avoidance or affirmative defense.” “However, the liberal
pleading rules established by the Federal Rules of Civil Procedure
apply to the pleading of affirmative defenses. We must avoid
hypertechnicality in pleading requirements and focus, instead, on
enforcing the actual purpose of the rule,” which “is simply to
guarantee that the opposing party has notice of any additional issue
that may be raised at trial so that he or she is prepared to properly
litigate it.” Hassan v. U.S. Postal Serv., 842 F.2d 260, 263 (11th Cir.
1988). “When a plaintiff has notice that an affirmative defense will
be raised at trial, the defendant’s failure to comply with Rule
8(c) does not cause the plaintiff any prejudice.” Id. Moreover,
“when the failure to raise an affirmative defense does not prejudice
the plaintiff, it is not error for the trial court to hear evidence on
the issue.” Id.
With respect to the statute of frauds, while the Ritz
defendants’ answer did not specifically use the phrase “statute of
frauds,” it stated that, while the parties exchanged several e-mails,
no formal agreement was ever finalized in a signed writing.
USCA11 Case: 24-10194 Document: 34-1 Date Filed: 08/22/2024 Page: 13 of 21
24-10194 Opinion of the Court 13
Because the statute of frauds requires certain contractual
agreements to be in a writing signed by the party to be charged, the
answer put Hallucination on notice that the statute of frauds was
at issue. See Fla. Stat. § 725.01 (“No 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 . . .
shall be in writing and signed by the party to be charged[.]”).
For a similar reason, Hallucination’s arguments related to
the competition privilege on its tortious interference claims fail.
With respect to the competition privilege defense, while the
Amphitheatre defendants’ answer did not use the specific words
“competition privilege,” it described the competition privilege in
slightly different words, listing as an affirmative defense that they
were entitled to “protect their business interest and such actions
are privileged and immune from liability for tortious
interference.” 2 See Hassan, 842 F.2d at 263 (“We must avoid
2 Hallucination also argues in a conclusory fashion, without argument, that
the Ritz defendants failed to plead “Capitano’s representative capacity
immunity defense” as an affirmative defense to Hallucination’s tortious
interference claim. “We have long held that an appellant abandons a claim
when he either makes only passing references to it or raises it in a perfunctory
manner without supporting arguments and authority.” Sapuppo v. Allstate
Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014). But even if we considered
this waived argument, it fails. The “representative capacity immunity
defense” provides that an agent of a corporation acting within his
representative capacity cannot be personally liable for a tortious interference
claim. See Cedar Hills Properties Corp. v. Eastern Federal Corp., 575 So.2d 673, 676
(Fla. 1st DCA 1991). Because the allegations in the complaint only describe
USCA11 Case: 24-10194 Document: 34-1 Date Filed: 08/22/2024 Page: 14 of 21
14 Opinion of the Court 24-10194
hypertechnicality in pleading requirements and focus, instead, on
enforcing the actual purpose of the rule,” which “is simply to
guarantee that the opposing party has notice of any additional issue
that may be raised at trial so that he or she is prepared to properly
litigate it.”). Because an element of the “competition privilege” is
whether the purpose of the alleged interference was to advance the
defendant’s business interest in competing with the plaintiff, see
International Sales & Service v. Austral Insulated Products, Inc., 262
F.3d 1152, 1159 (11th Cir. 2001), Hallucination was on notice that
defendants intended to assert such a defense. Thus, Hallucination
was not prejudiced by defendants’ failure to use the specific words
“competition privilege” in its answer. 3
Capitano as operating in his representative capacity, it was clear from the face
of the complaint that Capitano was entitled to this defense.
3 Additionally, Hallucination argues that the bankruptcy court erred by basing
its decision on unraised arguments; specifically, (1) Hallucination having a
license rather than a lease, (2) the independent tort doctrine, and (3) lack of
mutual assent. According to Hallucination, the defendants did not raise these
arguments in their motions for summary judgment and it was thus improper
for the district court to consider them. But Hallucination’s argument is belied
by the record. As to Hallucination’s argument that the defendants did not
move for summary judgment on the basis that Hallucination held a license
and not a lease, defendants’ motion for summary judgment clearly makes that
argument. In relevant part, the motion states that “Hallucination alleges an
agreement much different than the right exclusively to possess property and
it therefore cannot prevail on its claim that it held a lease subject to the
provisions of Chapter 83, Florida Statutes.” As to Hallucination’s argument
that defendants did not move for summary judgment on the independent tort
doctrine, both defendants and Hallucination presented argument on the
independent tort doctrine at a summary judgment hearing, and the
USCA11 Case: 24-10194 Document: 34-1 Date Filed: 08/22/2024 Page: 15 of 21
24-10194 Opinion of the Court 15
B. Merits
On the merits, Hallucination argues that the bankruptcy
court misapplied the law on (1) the statute of frauds in finding that
no partnership or joint venture with a right of first refusal existed,
and (2) the competition privilege.
1. Statute of Frauds
Hallucination argues that the bankruptcy court misapplied
the law on the statute of frauds because the parties had a three-year
partnership with a right of first refusal, which Hallucination argues
was evidenced by e-mails sufficient to overcome the statute of
frauds. 4 Hallucination’s arguments fail.
Florida’s statute of frauds states that:
defendants’ motion stated that Hallucination’s fraudulent inducement claim
failed because it was not independent from the breach of contract claim—
which is precisely what Florida’s independent tort doctrine states. See Island
Travel & Tours, Ltd., Co. v. MYR Indep., Inc., 300 So. 3d 1236, 1239 (Fla. 3d DCA
2020) (“It is a fundamental, long-standing common law principle that a plaintiff
may not recover in tort for a contract dispute unless the tort is independent of
any breach of contract.”). Finally, Hallucination’s argument that the
defendants did not move for summary judgment on mutual assent or
ambiguity fails because defendants’ motion asserted that a valid contract was
never formed.
4 Hallucination also argues that the doctrine of part performance forecloses
application of the statute of frauds. But the doctrine of part performance is an
equitable doctrine only, and it does not apply to damages actions such as this
one. Dwight v. Tobin, 947 F.2d 455, 459 (11th Cir. 1991) (citing Elsberry v. Sexton,
54 So. 592 (Fla. 1911)).
USCA11 Case: 24-10194 Document: 34-1 Date Filed: 08/22/2024 Page: 16 of 21
16 Opinion of the Court 24-10194
No action shall be brought . . . for any lease . . . for a
period longer than 1 year, or upon any agreement that
is not to be performed within the space of 1 year from
the making thereof . . . unless the agreement or
promise upon which such action shall be brought, or
some note or memorandum thereof shall be in
writing and signed by the party to be charged . . . .
Fla. Stat. § 725.01. “To satisfy the statute, a note or memorandum
may take almost any possible form.” Kolski ex rel. Kolski v. Kolski,
731 So. 2d 169, 171 (Fla. 3d DCA 1999). “All that the statute requires
is written evidence from which the whole contract may be made
out.” Id. Under Florida law, “[i]t is well established that a meeting
of the minds of the parties on all essential elements is a prerequisite
to the existence of an enforceable contract, and where it appears
that the parties are continuing to negotiate as to essential terms of
an agreement, there can be no meeting of the minds.” Greater N.Y.
Corp. v. Cenvill Miami Beach Corp., 620 So. 2d 1068, 1070 (Fla. 3d DCA
1993).
“Under Florida law, a joint venture is a form of
partnership[.]” Williams v. Obstfeld, 314 F.3d 1270, 1275 (11th Cir.
2002) “A partnership is created only where ‘both parties contribute
to the labor or capital of the enterprise, have a mutuality of interest
in both profits and losses, and agree to share in the assets and
liabilities of the business.’” Id. (citing Dreyfuss v. Dreyfuss, 701 So.
2d 437, 439 (Fla. 3d DCA 1997)). The necessary elements to create
a joint venture are (1) a common purpose; (2) a joint proprietary
interest in the subject matter; (3) the right to share profits and duty
USCA11 Case: 24-10194 Document: 34-1 Date Filed: 08/22/2024 Page: 17 of 21
24-10194 Opinion of the Court 17
to share losses; and (4) joint control or right of control. Id. at 1275–
76. A court cannot find that a partnership or joint venture exists if
any factor is missing. Id. at 1276 & n.7.
As an initial matter, Hallucination acknowledges that the
alleged agreement was for longer than one year and so the statute
of frauds applies, but Hallucination maintains that the e-mails
between the parties satisfied the statute of frauds. But the e-mails
between the parties indicate that, while the parties were working
towards an agreement, they had not yet finalized that agreement.
For example, after Petrucelli e-mailed Hallucination setting
out “talking points,” Hallucination responded that there were a few
things that “were very concerning.” Petrucelli responded with
some edits, and highlighted areas where Hallucination needed to
add language in order to “take the next step to develop a
document”—including key terms such as whether there would be
a right to extend or a right of first refusal. Hallucination responded
with several changes and requested a meeting to get “on the same
page.” Petrucelli responded to the changes and suggested that a
right of refusal might best protect Hallucination’s concerns about
the end of the term, but that they would set up a call to discuss
further, and that Capitano “fe[lt] confident that we will get aligned
and strike an agreement that is favorable for us all.” This was the
last written communication between the parties prior to the
alleged onset date of the agreement. Then, over a year later, the e-
mails between the parties demonstrated that they still had not
USCA11 Case: 24-10194 Document: 34-1 Date Filed: 08/22/2024 Page: 18 of 21
18 Opinion of the Court 24-10194
agreed over key terms, including whether Hallucination had
exclusive rights on Saturday nights.
Thus, these communications do not demonstrate a finalized
agreement of any sort, let alone a three-year partnership with a
right of first refusal. Kolski ex rel. Kolski, 731 So. 2d at 171; Cenvill
Miami Beach Corp., 620 So. 2d at 1070. Regardless, there is no
mention of forming a partnership or joint venture in e-mails, let
alone confirmation that one was officially being entered. And as to
the right of first refusal, while the possibility of including such a
term was discussed, there is no e-mail confirming its inclusion.
Because these e-mails are insufficient “evidence from which the
whole contract may be made out,” Kolski ex rel. Kolski, 731 So. 2d at
171, the bankruptcy court properly granted summary judgment to
the Ritz defendants on statute of frauds grounds.
2. Competition privilege
Hallucination argues that the bankruptcy court misapplied
the law on the competition privilege in granting summary
judgment to the Amphitheatre defendants on Hallucination’s
tortious interference claim.
To succeed on its tortious interference claim, Hallucination
must prove (1) the existence of a contract or business relationship;
(2) knowledge of the contract or relationship by the defendant; (3)
“an intentional and unjustified interference with the [contract or]
relationship by the defendant”; and (4) damage to the plaintiff as a
result. Ethan Allen, Inc. v. Georgetown Manor, Inc., 647 So. 2d 812,
814 (Fla. 1994). The competition privilege, if shown, can negate as
USCA11 Case: 24-10194 Document: 34-1 Date Filed: 08/22/2024 Page: 19 of 21
24-10194 Opinion of the Court 19
a matter of law the “unjustified interference” element of a tortious
interference claim. See Austral Insulated Prods., Inc., 262 F.3d at
1158–59.
To establish the competition privilege defense—i.e., that
any interference was lawful and justified—the Amphitheatre
defendants were required to show that: (1) the relationship
between Hallucination and Amphitheatre “concerned a matter
involved in the competition between [them]”; (2) Amphitheatre
“did not employ improper means”; (3) “it did not intend to create
or continue an illegal restraint of competition”; and (4) “its purpose
was at least in part to advance its interest in competing with
[Hallucination].” Id. at 1159. The bankruptcy court did not err in
holding that the competition privilege applied here. As to the first
and fourth elements, Hallucination and Amphitheatre are in a
similar business and were competing for use of the venue. As to
the second element, there is no evidence that Amphitheatre
employed improper means—such as fraud, deceit, pretext, or
broken promises—to attain the use of the venue. And as to the
third element, there is no evidence or suggestion that
Amphitheatre sought to illegally restrain competition. Instead, the
record shows that Amphitheatre’s venue burned down, and so its
pursuit of Ritz was simply because it needed a new venue to stay
afloat.5
5 Hallucination makes arguments, for the first time in its reply brief, related to
the merits (1) of its Count III claim against the Amphitheatre defendants for
self-help eviction in violation of Florida Statute § 83.05, and (2) its Count V
USCA11 Case: 24-10194 Document: 34-1 Date Filed: 08/22/2024 Page: 20 of 21
20 Opinion of the Court 24-10194
C. Motions for reconsideration
Hallucination argues that the bankruptcy court abused its
discretion in denying its motions for reconsideration.
“The only grounds for granting a Rule 59 motion [for
reconsideration] are newly-discovered evidence or manifest errors
of law or fact. A Rule 59(e) motion cannot be used to relitigate old
matters, raise argument or present evidence that could have been
raised prior to the entry of judgment.” Arthur v. King, 500 F.3d
1335, 1343 (11th Cir. 2007) (alterations adopted) (internal citation
and quotations omitted). Here, the crux of Hallucination’s
motions for reconsideration merely quarreled with the outcome
and attempted to relitigate the matters decided adversely to them,
which is not a proper ground for a motion for reconsideration. Id.
Although Hallucination asserted errors of law in the bankruptcy
court’s decisions, the bankruptcy court explained why
Hallucination was incorrect, and why summary judgment
remained appropriate. Given that we agree with the district court’s
summary judgment decision, as discussed above, the district court
did not abuse its discretion in denying the motions for
reconsideration.
For all the reasons discussed above, we affirm.
claim for fraudulent inducement against the Ritz defendants. But “[w]e
decline to address an argument advanced by an appellant for the first time in
a reply brief.” Big Top Koolers, Inc. v. Circus-Man Snacks, Inc., 528 F.3d 839, 844
(11th Cir. 2008).
USCA11 Case: 24-10194 Document: 34-1 Date Filed: 08/22/2024 Page: 21 of 21
24-10194 Opinion of the Court 21
AFFIRMED.