Budzinski v. Mystic Powerboats, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

ANDREW BUDZINSKI,

Plaintiff,

v. Case No: 6:23-cv-1039-JSS-UAM

MYSTIC POWERBOATS, INC.,

JOHN COSKER, MARINEX

INTERNATIONAL, INC., and MARK

BELISLE,

Defendants.

___________________________________/

ORDER

In this case about the purchase of a boat, four summary judgment motions

(Dkts. 82, 83, 84, 85) pend before the court. In two motions, Defendants, Mystic

Powerboats, Inc., John Cosker, Marinex International, Inc., and Mark Belisle, seek

summary judgment as to the claims that Plaintiff, Andrew Budzinski, asserts against

them. (Dkts. 82, 83; see Dkts. 91, 92.) In addition, Budzinski moves for partial

summary judgment as to his claims of unjust enrichment and money had and received

against Marinex International and Belisle, (Dkt. 85; see Dkt. 93), and Mystic

Powerboats and Cosker move for partial summary judgment as to Marinex

International’s liability to them on their indemnification cross-claim, (Dkt. 84; see Dkt.

90). All four motions are opposed. (Dkts. 86, 87, 88, 89.) Upon consideration, for

the reasons outlined below, the court grants in part and denies in part Defendants’

motions for summary judgment as to the claims against them and denies the remaining

motions for partial summary judgment.

BACKGROUND1

Budzinski is the chief executive officer (CEO) of a financial company. (Dkt. 81

¶ 1.) Mystic Powerboats is a boat manufacturer, and Cosker is its founder and CEO.

(Id. ¶¶ 2–3.) Marinex International is a business selling luxury boats in foreign

markets, and Belisle is its founder, president, and shareholder. (Dkt. 82-1 ¶¶ 1, 3.)

Alfred Zurhausen is a German national who has occasionally worked with Belisle to

sell boats since approximately 2012. (Dkt. 81 ¶ 16.) Zurhausen’s company is Marine

Partner Network GmbH & Co KG (MPN). (Id. ¶ 23.) In 2021, Mystic Powerboats

allowed Belisle to promote the sale of its boats internationally. (Id. ¶¶ 4–5.)

Accordingly, Mystic Powerboats furnished Marinex International with price lists

suggesting retail prices for boats. (Id. ¶¶ 10, 15.) In March 2022, Zurhausen asked

Belisle about the pricing on Mystic Powerboats’ boats, and Belisle got price lists from

Cosker, which he sent to Zurhausen. (Id. ¶ 17.)

On April 2, 2022, Mystic Powerboats and Marinex International entered into a

contract whereby Marinex International bought the boat at issue in this case: a 2023

Mystic 5200. (Id. ¶ 8.) Marinex International purchased the boat from Mystic

Powerboats for the discounted price of $1,641,449 to resell the boat internationally.

(Id. ¶¶ 8–9, 11.) Marinex International funded its contractual payments with

promissory notes. (Id. ¶¶ 13–14.) On October 28, 2022, Budzinski used Zurhausen’s

1 In general, the court draws the facts from the parties’ joint stipulation of agreed material facts (Dkt.

81).

website to inquire into buying a boat. (Id. ¶ 18.) Zurhausen confirmed with Belisle

that a boat was available, (id. ¶ 19), and sent Belisle a price list that had been altered

from the version created by Mystic Powerboats, (id. ¶ 21). On November 3, 2022,

Budzinski contracted with MPN to buy the boat for $2,590,000. (Id. ¶ 22.) The next

day, MPN received an initial deposit of $1,000,000 for the boat. (Id. ¶ 24.) Three days

after that, on November 7, MPN contracted with Marinex International to buy the

boat for $2,100,000 ($2,163,576 with options added). (Id. ¶ 23.) Over the next two

days, MPN wired $800,000 ($500,000 one day plus $300,000 the next) to Marinex

International under the November 7 contract. (Id. ¶¶ 25–26.)

On November 21, 2022, Budzinski and Zurhausen visited Mystic Powerboats’

factory in DeLand, Florida, to view the boat. (Id. ¶ 27.) Belisle was not present at this

visit, but Cosker was. (Id. ¶¶ 27–28.) After the visit, MPN gave Budzinski a price list

purporting to state pricing for additional options on the boat, and Budzinski began to

suspect that Zurhausen had misrepresented the price of the boat to him. (Id. ¶¶ 29–

30.) After Budzinski expressed his concerns to Zurhausen, Zurhausen arranged for

Mystic Powerboats to add options to the boat at no cost to Budzinski. (Id. ¶¶ 31–33.)

By early February 2023, Marinex International had finished paying Mystic

Powerboats for the boat and had paid a total of $1,774,228 for it including the options.

(Id. ¶¶ 38–39.) As required under his contract with MPN, Budzinski paid MPN

$813,000 on December 19, 2022. (Id. ¶ 34.) The same day, MPN paid Marinex

International $500,000 under the November 7 contract. (Id. ¶ 35.)

Budzinski had not communicated with, or even heard of, Marinex International

or Belisle until Belisle was copied on a December 21, 2022 email. (Id. ¶ 37.) On March

6, 2023, Belisle and Budzinski spoke about the boat. (See id. ¶ 40.) According to

Budzinski, he called Belisle over the telephone to “understand his involvement” in the

sale of the boat, and Belisle told him that the boat was then “selling for” $3,000,000,

that Budzinski was getting “a very good deal,” that the inflation rate was increasing,

and that Belisle could “sell [the boat] tomorrow” to a potential “buyer with”

$3,000,000. (Dkt. 82-6 at 12.) Allegedly, when Budzinski responded that Belisle was

not making sense because “other people [we]re selling” the same type of boat “for

much lower prices,” Belisle reassured him that he was “getting a great deal”

considering the American inflation rate. (Id.) In the days following this telephone

conversation, MPN informed Budzinski that he would be in default under his contract

with it if he did not pay $770,000 within three working days, and he responded through

counsel disputing the default and demanding a refund of the $1,813,000 he had paid

at that point. (Dkt. 81 ¶¶ 43–44.)

On May 1, 2023, Marinex International contracted to sell the boat to third party

JS Watersports II for $1,500,000. (Id. ¶ 46.) When JS Watersports II bought the boat,

it arranged (at its own expense) for Mystic Powerboats to repaint the boat. (Id. ¶ 50.)

That same month, Budzinski sued Zurhausen, MPN, and an MPN affiliate in a

German court. (Id. ¶ 51.) A month later, in early June 2023, Budzinski initiated this

case by moving for a temporary restraining order to enjoin the transfer of the boat to

JS Watersports II, (Dkt. 1), and then filed a complaint for injunctive relief and

damages, (Dkt. 5). The court denied the motion because the relief requested in the

complaint, including a refund of the $1,813,000, could adequately remedy Budzinski’s

injury. (Dkt. 6.) On June 7, 2023, Cosker emailed JS Watersports II that “the

gentleman who defaulted on the [Mystic] 52[00] overseas” had requested “a temporary

restraining order on the boat.” (Dkt. 81 ¶ 53.)

On May 31, 2024, the German court entered judgment against MPN and its

affiliate but denied judgment against Zurhausen personally. (Id. ¶ 55.) On October 1,

2024, Budzinski filed the operative third amended complaint in this case. (Dkt. 70.)

In it, he brings seven counts against Defendants: FDUTPA violations against all

Defendants (counts one and two), unjust enrichment and money had and received

against Marinex International and Belisle (counts three and four), negligent selection

and supervision of independent contractors against all Defendants (counts five and

six), and libel against Cosker (count seven). (Id. ¶¶ 154–200.) The complaint contains

but one ad damnum clause, which appears at the end and presumably states the relief

pursued through each count. (See id.) In the clause, Budzinski requests injunctive

relief requiring Defendants to furnish him with the boat in accordance with his

purchase agreement, as well as monetary damages encompassing the actual damages

and legal fees he incurred and punitive damages. (Id. at 35.) Budzinski also asks for

“statutory damages and penalties as provided by FDUTPA.” (Id.) In a cross-claim,

Mystic Powerboats and Cosker sue Marinex International for indemnification

pursuant to the terms of the contract under which Mystic Powerboats sold the boat to

Marinex International. (Dkt. 38 at 14–15; see Dkt. 5-7 at 12.)

APPLICABLE STANDARDS

“A party may move for summary judgment, identifying each claim or defense—

or the part of each claim or defense—on which summary judgment is sought.” Fed.

R. Civ. P. 56(a). Summary judgment is appropriate if the moving party “shows that

there is no genuine dispute as to any material fact and the [moving party] is entitled to

judgment as a matter of law.” Id. The party seeking summary judgment must “cit[e]

to particular parts of materials in the record, including depositions, documents,

electronically stored information, affidavits or declarations, stipulations . . . ,

admissions, interrogatory answers, or other materials” to support its position that it is

entitled to summary judgment. Fed. R. Civ. P. 56(c)(1)(A). “The court need consider

only the cited materials” when resolving the motion. Fed. R. Civ. P. 56(c)(3); see

HRCC, Ltd. v. Hard Rock Cafe Int’l (USA), Inc., 703 F. App’x 814, 817 (11th Cir. 2017)

(“This rule was implemented so that a court may decide a motion for summary

judgment without undertaking an independent search of the record.” (quotation

omitted)).

A factual dispute is “genuine” only if “a reasonable jury could return a verdict

for the non[-]moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

A fact is “material” if the fact could affect the outcome of the lawsuit under the

governing law. Id. The moving party bears the initial burden of identifying those

portions of the record showing a lack of a genuine factual dispute. Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986); Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260

(11th Cir. 2004). If the moving party shows that no evidence supports the non-moving

party’s case, the burden then shifts to the non-moving party to show that there are, in

fact, genuine factual disputes which preclude judgment as a matter of law. Porter v.

Ray, 461 F.3d 1315, 1320 (11th Cir. 2006).

To satisfy its burden, the non-moving party “must do more than simply show

that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, the non-moving party must

go beyond the pleadings and “identify affirmative evidence” that creates a genuine

dispute of material fact. Crawford-El v. Britton, 523 U.S. 574, 600 (1998); see also HRCC,

703 F. App’x at 816–17 (“Presenting arguments in opposition to a motion for summary

judgment is the responsibility of the non-moving party, not the court.” (alteration

adopted) (quoting Blue Cross & Blue Shield of Ala. v. Weitz, 913 F.2d 1544, 1550 (11th

Cir. 1990))). In determining whether a genuine dispute of material fact exists, the court

must view the evidence and draw all factual inferences in the light most favorable to

the non-moving party and must resolve any reasonable doubts in that party’s favor.

Skop v. City of Atlanta, 485 F.3d 1130, 1136 (11th Cir. 2007). The court will not weigh

the evidence or make findings of fact. Morrison v. Amway Corp., 323 F.3d 920, 924

(11th Cir. 2003). Summary judgment should be granted only “[w]here the record

taken as a whole could not lead a rational trier of fact to find for the non[-]moving

party.” Matsushita, 475 U.S. at 587.

ANALYSIS

Because the court sits in diversity jurisdiction, Florida substantive law applies.

Sutton v. Wal-Mart Stores E., LP, 64 F.4th 1166, 1168 (11th Cir. 2023). “Where the

Supreme Court of Florida has not addressed a particular issue, federal courts

are . . . bound by the decisions of the Florida district courts of appeal that address the

disputed issue, unless there is an indication that the supreme court would not adhere

to the district court’s decision.” Geary Distrib. Co. v. All Brand Imps., Inc., 931 F.2d

1431, 1434 (11th Cir. 1991). In applying Florida substantive law, the court examines

Budzinski’s FDUTPA claims, claims of unjust enrichment and money had and

received, claims of negligent selection and supervision of independent contractors, and

libel claim. The court then considers Mystic Powerboats and Cosker’s indemnification

cross-claim against Marinex International.

1. FDUTPA

FDUTPA makes “unlawful” “[u]nfair methods of competition, unconscionable

acts or practices, and unfair or deceptive acts or practices in the conduct of any trade

or commerce.” Fla. Stat. § 501.204(1). “[C]overage [under FDUTPA] is ‘extremely

broad.’” Harris v. Nordyne, LLC, No. 14-CIV-21884-BLOOM/Valle, 2014 WL

12516076, at *6, 2014 U.S. Dist. LEXIS 189248, at *15 (S.D. Fla. Nov. 14, 2014)

(quoting Citibank (S.D.) N.A. v. Nat’l Arb. Council, Inc., Nos. 3:04-cv-1076-J-32MCR,

3:04-cv-1205-J-20MCR, 2006 WL 2691528, at *3, 2006 U.S. Dist. LEXIS 67133, at

*11 (M.D. Fla. Sept. 19, 2006)). FDUTPA defines “[t]rade or commerce” expansively

as “the advertising, soliciting, providing, offering, or distributing, whether by sale,

rental, or otherwise, of any good or service, or any property, whether tangible or

intangible, or any other article, commodity, or thing of value, wherever situated.” Fla.

Stat. § 501.203(8). This definition encompasses “the conduct of any trade or

commerce, however denominated, including any nonprofit or not-for-profit person or

activity.” Id. Moreover, FDUTPA applies to even a single deceptive or unfair act

“involv[ing] only a single party, a single transaction, or a single contract.” PNR, Inc.

v. Beacon Prop. Mgmt., Inc., 842 So. 2d 773, 777 (Fla. 2003). “[A]nyone aggrieved by a

violation of [FDUTPA] may bring an action to obtain a declaratory judgment that an

act or practice violates [FDUTPA] and to enjoin a person who has violated, is

violating, or is otherwise likely to violate [FDUTPA].” Fla. Stat. § 501.211(1).

Additionally, “a person who has suffered a loss as a result of a [FDUTPA]

violation . . . may recover actual damages, plus attorney[] fees and court costs,” in an

action. Id. § 501.211(2).

The elements of a FDUTPA claim are “(1) a deceptive act or unfair practice,

(2) causation, and (3) actual damages or aggrievement.” Third Party Verification, Inc. v.

SignatureLink, Inc., 492 F. Supp. 2d 1314, 1326 (M.D. Fla. 2007), report and

recommendation adopted by 492 F. Supp. 2d at 1319. An act is “deceptive” if it is “‘likely

to mislead’ consumers.” Rollins, Inc. v. Butland, 951 So. 2d 860, 869 (Fla. Dist. Ct.

App. 2006) (quoting Davis v. Powertel, Inc., 776 So. 2d 971, 974 (Fla. Dist. Ct. App.

2000)). A practice is “unfair” if it “offends established public policy” and is “immoral,

unethical, oppressive, unscrupulous[,] or substantially injurious to consumers.”

Marrache v. Bacardi U.S.A., Inc., 17 F.4th 1084, 1098 (11th Cir. 2021) (quoting PNR,

842 So. 2d at 777); Bechor v. Simcenter, Inc., 394 So. 3d 666, 669 (Fla. Dist. Ct. App.

2024) (quoting same); contra Porsche Cars N. Am., Inc. v. Diamond, 140 So. 3d 1090,

1092, 1096 (Fla. Dist. Ct. App. 2014) (rejecting this definition of “unfairness” as

“outdated” and applying a “three-pronged test” instead). “Whether particular conduct

constitutes . . . an unfair or deceptive trade practice [under FDUTPA] is a question of

fact” for the jury. Siever v. BWGaskets, Inc., 669 F. Supp. 2d 1286, 1293 (M.D. Fla.

2009) (citing Suris v. Gilmore Liquidating, Inc., 651 So. 2d 1282, 1283 (Fla. Dist. Ct.

App. 1995)). “To decide whether a FDUTPA violation has occurred, [the jury] must

evaluate [the] entire consumer transaction, taking into consideration all of the parties’

dealings . . . .” Dorestin v. Hollywood Imps., Inc., 45 So. 3d 819, 831 (Fla. Dist. Ct. App.

2010) (Gross, C.J., concurring specially). To hold a corporate officer individually

liable under FDUTPA, the plaintiff must show that the officer “was a direct participant

in the [allegedly] improper dealings.” Bechor, 394 So. 3d at 669 (quoting KC Leisure,

Inc. v. Haber, 972 So. 2d 1069, 1074 (Fla. Dist. Ct. App. 2008)).

Budzinski alleges that Defendants violated FDUTPA in eight ways—the first

five associated with the general nature of the sale of the boat and the last three tied to

specific events. First, Defendants employed Zurhausen in the sale of the boat even

though they knew or should have known that he was “likely to engage in deceptive

and unfair sales practices on their behalf.” (Dkt. 70 ¶¶ 158a, 165a.) Second,

Defendants used “a complex multi-party contractual arrangement” to avoid liability

and obscure ownership and value related to the boat. (Id. ¶¶ 158b–d, 165 b–d.) Third,

Defendants “[f]acilitat[ed] the overcharging of” Budzinski. (Id. ¶¶ 158e, 165e.)

Fourth, Marinex International and Belisle took Budzinski’s money and gave him

“nothing of value in return.” (Id. ¶ 158f.) Fifth, Defendants sold, or facilitated the sale

of, the boat to JS Watersports II even though they knew that Budzinski had an interest

in the boat. (Id. ¶¶ 158g, 165f.) Sixth, Defendants failed to disclose information to

Budzinski in November 2022, January 2023, and February 2023. (Id. ¶¶ 157a, e–g,

164a, e–i.) Specifically, during Budzinski’s November 2022 visit to Mystic

Powerboats’ facilities, Defendants failed to disclose to Budzinski the price paid for the

boat and failed to inform him that Zurhausen was not an agent for Mystic Powerboats,

that Mystic Powerboats had sold the boat to Marinex International, and that the boat

“would transfer through Marinex [International] to MPN and only then

to” Budzinski. (Id. ¶¶ 157a, 164a.) Further, during conversations in January and

February 2023, Defendants failed to share with Budzinski Cosker’s opinion that in

Zurhausen’s transaction with Budzinski, Zurhausen “had engaged in ‘criminal’

conduct . . . ‘reek[ing] of greed,’” and they failed to inform Budzinski that Cosker “had

chastised Belisle for selecting and retaining Zurhausen as a representative” and

“ordered Belisle to keep a closer eye on Zurhausen’s dealings,” that Belisle “had

chastised Zurhausen for unethical business conduct,” and that Marinex International

had purchased the boat from Mystic Powerboats. (Id. ¶¶ 157e–g, 164e–i.) Seventh,

during the March 2023 telephone call, Belisle misrepresented to Budzinski that

Budzinski “had gotten a ‘great deal’” on the boat and that Belisle “had other interested

buyers who would have willingly paid” $3,000,000 for the boat. (Id. ¶¶ 108–11, 156.)

Eighth, in the June 2023 email, Cosker misrepresented to JS Watersports II the reason

that Budzinski had not completed the transaction to buy the boat. (Id. ¶¶ 135–36, 163,

195.) The court addresses these eight ways in turn. The court then examines Mystic

Powerboats and Cosker’s arguments that Budzinski’s damages are too speculative to

support his FDUTPA claims and that no evidence establishes Cosker’s individual

involvement in the alleged misconduct underlying the claims. (Dkt. 83 at 19–20.)

a. Employing Zurhausen

In their motions for summary judgment, Defendants briefly argue that no

evidence establishes either Zurhausen’s employment with them as an independent

contractor or a broker or their knowledge that he was likely to engage in deceptive or

unfair practices on their behalf. (Dkt. 82 at 15; Dkt. 83 at 16.) The court discusses

these arguments below in connection with Budzinski’s claims of negligent selection

and supervision of independent contractors. For the reasons explained below, the

court rejects the arguments.

b. Using the Complex Contractual Arrangement

Defendants dispute that the structure of the contractual arrangement is

deceptively or unfairly complex and challenge Budzinski’s characterization of it as

such by stating that the characterization lacks a basis in fact and by pointing to

Budzinski’s status as a sophisticated boat buyer. (Dkt. 82 at 15–16; Dkt. 83 at 16–17.)

Defendants’ motions do not support their assertions in this regard with necessary legal

authorities. (See Dkt. 82 at 15–16; Dkt. 83 at 16–17.) See United States v. Markovich, 95

F.4th 1367, 1379 (11th Cir. 2024) (holding that a party forfeited its position when it

“cite[d] no legal authority to support it”). Moreover, the court previously determined

that the structure of the contractual arrangement could support a FDUTPA claim, (see

Dkt. 69 at 37–38), and in so doing, the court noted that the deceptive or unfair nature

of conduct under FDUTPA is often a question of fact, (id. (citing Suris, 651 So. 2d at

1283)). Because Defendants have not given the court a legally supported reason to

remove the factual issue from the jury’s consideration, the court denies their motions

as to the FDUTPA claims based on the structure of the contractual arrangement.

c. Facilitating the Overcharging of Budzinski

According to Defendants, the record does not support that they facilitated the

overcharging of Budzinski because he negotiated the price of the boat with MPN

without their input or involvement and because he suspected that he had been

overcharged before he made his second payment to MPN. (Dkt. 82 at 16–18; Dkt. 83

at 17–18.) The latter contention is unpersuasive because Defendants do not offer legal

authorities for it and do not otherwise explain how Budzinski’s suspicion defeats these

FDUTPA claims. (See Dkt. 83 at 18.) See Markovich, 95 F.4th at 1379. As to the

former contention, Budzinski responds that the record would allow a reasonable jury

to find that Defendants not only “partnered with” Zurhausen despite his history of

unethical business practices—and even equipped him with “a price list that gave him

a deceptive credibility”—but also “hid the true price” of the boat, and thus, the record

supports the alleged facilitation. (Dkt. 88 at 15–16.) Viewing the record in the light

most favorable to Budzinski, a reasonable jury could conclude that Defendants

facilitated the overcharging in these ways. Accordingly, the court denies summary

judgment on this issue.

d. Taking Budzinski’s Money and Giving Nothing of Value in Return

Marinex International and Belisle contend—without citing any legal authority,

see Markovich, 95 F.4th at 1379—that “there is no evidence that [they] took any money

at all from Budzinski.” (Dkt. 82 at 18–19.) However, as Budzinski observes, “[w]ithin

days of [his] paying separate deposits of [$1,000,000] and $813,000 to MPN, MPN

transferred $800,000 and $500,000 to Marinex” International. (Dkt. 88 at 16; see Dkt.

81 ¶¶ 24–26, 34–35.) This closeness in time supports that $800,000 of the $1,000,000

and $500,000 of the $813,000 went to Marinex International and Belisle. See

Liquidation Comm’n of Banco Intercontinental, S.A. v. Renta, 530 F.3d 1339, 1346 n.6

(11th Cir. 2008) (finding “evidence from which the jury could” conclude that notes

corresponded to bank transfers when “the notes were dated to appear close in time to

the transfers”), abrogated on other grounds by Morrison v. Nat’l Austl. Bank Ltd., 561 U.S.

247, 255 (2010). Further, Belisle admitted during his deposition that it would have

been reasonable to assume that the $500,000 paid to Marinex International came from

Budzinski. (Dkt. 85-1 at 31.) Because a reasonable jury viewing the evidence in the

light most favorable to Budzinski could determine that Marinex International and

Belisle ended up in possession of Budzinski’s money, the court denies summary

judgment on this issue.

e. Selling the Boat Despite Knowing of Budzinski’s Interest in It

Defendants assert that “[t]here is no evidence that Budzinski ever acquired an

ownership interest” in the boat. (Dkt. 82 at 19; accord Dkt. 83 at 18.) In response,

Budzinski states: “[T]he question is not the extent of [his] legal interest in the [boat;]

rather, the question is whether it was unfair or deceptive for . . . Defendants to help

resell the [boat] to a third party[] when they knew that their [agents] had taken

[$1,813,000] from [him] for that [boat].” (Dkt. 89 at 17 (internal quotation marks

omitted).) In this lawsuit, Budzinski has alleged numerous FDUTPA theories and

other claims in line with this general theme. (See Dkt. 70.) However, the specific

theory at issue is that Defendants sold, or facilitated the sale of, the boat “to another

party despite actual knowledge of [his] interest in” it. (Id. ¶¶ 158g, 165f.) Budzinski’s

legal interest in the boat matters because the theory relies on it and on Defendants’

actual knowledge of it. (See id.) Although a plaintiff is “the master of the complaint”

in that he “selects the claims that will be alleged” therein, United States v. Jones, 125

F.3d 1418, 1428 (11th Cir. 1997), he “may not amend [his] complaint through

argument in a brief opposing summary judgment,” Gilmour v. Gates, McDonald & Co.,

382 F.3d 1312, 1315 (11th Cir. 2004). At this stage, Budzinski bears the burden of

“identify[ing] affirmative evidence” as to his interest in the boat and Defendants’

actual knowledge thereof, see Crawford-El, 523 U.S. at 600, but he does not satisfy that

burden, (see Dkts. 88, 89). Consequently, Defendants are entitled to summary

judgment with respect to this FDUTPA theory.

f. Failing to Disclose Information

Regarding the failure to disclose information to Budzinski, Defendants mainly

argue that they did not owe Budzinski a duty to disclose under Florida law. (Dkt. 82

at 12–15; Dkt. 83 at 13–14.) However, as the court explained in a prior order, (Dkt.

69 at 29), it “is not clear whether [a] plaintiff[] must establish an independent duty to

disclose on a FDUTPA claim based on an omission affirmatively used to mislead,”

Coffey v. WCW & Air, Inc., No. 3:17-cv-90-MCR-CJK, 2018 WL 4154256, at *4, 2018

U.S. Dist. LEXIS 148122, at *11 (N.D. Fla. Aug. 30, 2018). Compare White v. Grant

Mason Holdings, Inc., 741 F. App’x 631, 637 n.1 (11th Cir. 2018) (“[The defendant]

makes no suggestion that Florida’s general law on the duty to disclose differs in the

FDUTPA context, and [the court is] not aware of any reason those doctrines should

differ.”), with Virgilio v. Ryland Grp., Inc., 680 F.3d 1329, 1338 (11th Cir. 2012)

(declining to decide whether a duty to disclose is an element of a FDUTPA count but

concluding that the FDUTPA count at issue was properly dismissed for failure to state

a claim because the count was predicated solely on the breach of an “affirmative duty

of disclosure”), and Morris v. ADT Sec. Servs., 580 F. Supp. 2d 1305, 1310 (S.D. Fla.

2008) (determining that “a duty to disclose is not an element of FDUTPA” because

Florida law requires FDUTPA to “be construed liberally” to protect the public from

deceptive and unfair business practices (quoting Fla. Stat. § 501.202(2))).

FDUTPA instructs courts to construe its prohibition on “unfair or deceptive

acts or practices” by affording “due consideration and great weight . . . to the

interpretations of the Federal Trade Commission [(FTC)] and the federal courts

relating to [section] 5(a)(1) of the Federal Trade Commission Act [(FTCA)] . . . as of

July 1, 2017.” Fla. Stat. § 501.204. This instruction makes sense in light of the

statutes’ similar language. Compare id. § 501.204(1) (“Unfair methods of competition,

unconscionable acts or practices, and unfair or deceptive acts or practices in the

conduct of any trade or commerce are hereby declared unlawful.”), with 15 U.S.C.

§ 45(a)(1) (“Unfair methods of competition in or affecting commerce, and unfair or

deceptive acts or practices in or affecting commerce, are hereby declared unlawful.”).

When examining the FTC’s authority to determine the unfairness of commercial

conduct under section 5(a) of the FTCA, the Supreme Court explained: “[T]he [FTC]

does not arrogate excessive power to itself if, in measuring a practice against the

elusive, but congressionally mandated standard of fairness, it, like a court of equity,

considers public values beyond simply those enshrined in the letter or encompassed in

the spirit of the antitrust laws.” Fed. Trade Comm’n v. Sperry & Hutchinson Co., 405 U.S.

233, 244 (1972). The Seventh Circuit described this case as recognizing the FTC’s

“authority to prohibit conduct that, although legally proper, was unfair to the public”

and more broadly noted that “[a] business practice which is not in violation of the

common law or the criminal statutes may still be prohibited if it is contrary to public

policy.” Spiegel, Inc. v. Fed. Trade Comm’n, 540 F.2d 287, 292, 295 n.10 (7th Cir. 1976).

Given this guidance, this court agrees with the Morris court that the duty to disclose

required for common law fraud claims, see TransPetrol, Ltd. v. Radulovic, 764 So. 2d

878, 879–80 (Fla. Dist. Ct. App. 2000), is not an element of a FDUTPA claim based

on an omission. See 580 F. Supp. 2d at 1310. This outcome finds support in another

“critical difference” between FDUTPA and fraud claims: whereas a party asserting a

fraud claim must establish reliance, a “party asserting a [FDUTPA] claim need not

show actual reliance on the representation or omission at issue.” Davis, 776 So. 2d at

973. Accordingly, the court rejects Defendants’ arguments as to the duty to disclose.

Mystic Powerboats and Cosker additionally maintain that the alleged

nondisclosures did not cause Budzinski damages cognizable under FDUTPA because

the November 2022 factory visit and January and February 2023 conversations

occurred after Budzinski’s contract with MPN and the first payment made under that

contract. (Dkt. 83 at 15.) Budzinski responds that he was damaged when Mystic

Powerboats and Cosker assisted Marinex International and Belisle in “transfer[ring]

ownership of the [boat] to JS Watersports” II, which happened after the visit and

conversations, because this conduct kept Budzinski from the boat for which he had

paid. (Dkt. 89 at 11–12.) Because a reasonable jury viewing the evidence in the light

most favorable to Budzinski could agree with him, Mystic Powerboats and Cosker are

not entitled to summary judgment on the FDUTPA claims related to nondisclosure.

g. Belisle’s March 2023 Statements to Budzinski

Marinex International and Belisle assert that Belisle’s March 2023 statements

about the boat’s value and the great deal that Budzinski had gotten are inactionable

puffery rather than deceptive or unfair practices. (Dkt. 82 at 11.) Budzinski counters:

“[W]hile . . . Belisle’s purported statement that . . . Budzinski was getting a great deal

might be construed as a statement of opinion, his alleged factual statement—that he

had a buyer willing to pay [$3,000,000] for the [boat]—was not puffery at all.” (Dkt.

88 at 9 (internal quotation marks and emphasis omitted).) As Budzinski all but admits,

even in the light most favorable to him, the statement about the great deal he had

gotten is inactionable puffery. See Silver v. Countrywide Home Loans, Inc., 760 F. Supp.

2d 1330, 1342–43 (S.D. Fla. 2011) (deeming inactionable puffery statements that a

loan was a “good deal” for the plaintiff); see also Perret v. Wyndham Vacation Resorts,

Inc., 889 F. Supp. 2d 1333, 1341–42 (S.D. Fla. 2012) (in a timeshare case, dismissing

a FDUTPA count with prejudice because the relied-on misrepresentations—“that the

purchase price for the timeshare was reasonable, that the units were worth more than

what [a defendant] was charging for them, that [the d]efendants’ management and

maintenance fees were reasonable, and that the units were desirable”—were “nothing

more than opinion or puffery”). Consequently, Marinex International and Belisle are

entitled to summary judgment as to this statement. However, the statement that

Belisle had another interested buyer who would have paid $3,000,000 for the boat is

not puffery but a verifiable factual assertion. See United States v. Martinelli, 454 F.3d

1300, 1317 (11th Cir. 2006) (contrasting the puffery of “exaggerated opinions or

hyped-up sales pitches” with “verifiably refutable” “factual statements”).

In their motion, Marinex International and Belisle argue that the statement

about another buyer is insufficient to support a FDUTPA claim for two additional

reasons, (Dkt. 82 at 12), but neither reason persuades. First, these Defendants quote

Chicken Unlimited, Inc. v. Bockover, 374 So. 2d 96, 97 (Fla. Dist. Ct. App. 1979)—and

only that case—for the proposition that “a plaintiff cannot prove FDUTPA causation

if the evidence shows [that] the plaintiff actually ‘knew of the possible falsity of those

statements which he later claimed were misrepresentations.’” (Dkt. 82 at 12

(alteration adopted).) However, Chicken Unlimited does not support that proposition.

See 374 So. 2d at 97. Rather, the case confirms that where “competent substantial

evidence” allows a jury to decide that a FDUTPA plaintiff “knew of the possible falsity

of those statements . . . which he later claimed were misrepresentations[,] . . . the jury

[i]s entitled”—not required—“to find that the[] alleged misrepresentations were not

the cause of any damages.” Id. Second, Marinex International and Belisle contend,

the March 2023 statements could not have harmed Budzinski because Belisle made

them months after Budzinski paid MPN. (Dkt. 82 at 12.) This contention is

unsupported by caselaw, (see id.), and in any event, the court agrees with Budzinski

that “[t]here is at least a question of fact on whether [he] was harmed by” what a

reasonable jury could find to be Defendants’ “stalling tactics” related to keeping the

boat from him, (Dkt. 88 at 11–12; see Dkt. 82-6 at 12). See Markovich, 95 F.4th at 1379;

Yvon v. Baja Marine Corp., 495 F. Supp. 2d 1179, 1184–85 (N.D. Fla. 2007) (holding

that a FDUTPA count stated a claim for relief when the alleged violations “involved

[the] defendants’ ‘stalling’ and attempting ‘to avoid their obligation’ to [the] plaintiffs”

(alteration adopted)). Therefore, with respect to the March 2023 statements, the court

grants summary judgment only as to the statement about Budzinski’s great deal.

h. Cosker’s June 2023 email to JS Watersports II

Mystic Powerboats and Cosker maintain that any misrepresentations in his

June 2023 email to JS Watersports II could not have caused Budzinski damages under

FDUTPA because the email was sent after Budzinski’s contract with MPN, after the

payments made under that contract, and after Marinex International’s sale of the boat

to JS Watersports II. (Dkt. 83 at 12–13.) This argument is essentially the same as the

unavailing nondisclosure argument advanced by Mystic Powerboats and Cosker, (see

id. at 15), and it fails for the same reason, discussed above.

i. Speculative Damages

In their motion for summary judgment against Budzinski, Mystic Powerboats

and Cosker cite two non-binding cases to support that Budzinski’s alleged damages

are too speculative to sustain a FDUTPA claim because Mystic Powerboats and

Cosker did not set the price that Budzinski paid for the boat. (Dkt. 83 at 19–20.) See

Lombardo v. Johnson & Johnson Consumer Cos., 124 F. Supp. 3d 1283, 1290; Knowles v.

McDonald’s USA, LLC, No. 16-81657-CIV-MARRA, 2018 WL 8244277, at *5, 2018

U.S. Dist. LEXIS 232744, at *12–13 (S.D. Fla. Feb. 9, 2018). These cases are

distinguishable from this case on the basis of the key business relationships involved.

Lombardo dealt with an undisputed manufacturer-retailer relationship between the

defendants, who made, distributed, marketed, and sold sunscreens, and retailers like

the Walmart department store/supermarket where the plaintiff bought sunscreens.

124 F. Supp. 3d at 1284–85. Knowles dealt with an undisputed fast-food franchisor-

franchisee relationship. 2018 WL 8244277, at *5, 2018 U.S. Dist. LEXIS 232744, at

*12–13. In contrast, as the court addresses below in connection with Budzinski’s

claims of negligent selection and supervision of independent contractors, the business

relationships in this case are disputed: although Defendants argue otherwise, a

reasonable jury could find independent contractor relationships. Moreover, in

response to the speculative damages argument, Budzinski states that he “has never

argued that [Mystic Powerboats and Cosker] set MPN’s price[; r]ather, [they]

participated in a broader scheme that allowed the true price, the real buyer, and the

parties’ relationships to be hidden.” (Dkt. 89 at 17.) Because a reasonable jury could

agree with Budzinski on this point, Mystic Powerboats and Cosker are not entitled to

summary judgment based on their speculative damages argument.

j. Cosker’s Individual Involvement

Cosker requests that the court grant summary judgment as to the FDUTPA

claims against him individually because, “[o]ther than a single statement to JS

Watersports [II] made after this lawsuit was filed,” no evidence supports that he was

“involved in any of the actions underlying” the FDUTPA claims. (Dkt. 83 at 20.) See

Bechor, 394 So. 3d at 669. Because the FDUTPA claims based on Cosker’s June 2023

email have not been dismissed, Cosker’s single statement suffices to establish his

individual involvement such that the court must deny his request. See PNR, 842 So.

2d at 777.

2. Unjust Enrichment and Money Had and Received

Budzinski sues Marinex International and Belisle for unjust enrichment and

money had and received under the theory that these Defendants have benefited from

$1,300,000 of the funds that he paid for the boat but have not delivered the boat to

him. (Dkt. 70 ¶¶ 168–77.) In Florida, claims of unjust enrichment and money had

and received have the same elements: “(1) [the plaintiff] conferred a benefit on the

[defendant,] (2) the [defendant] appreciated [the] benefit[,] and (3) acceptance and

retention of [the] benefit by the [defendant] under the circumstances would be

inequitable without [the defendant] paying for [the benefit].” Kelly v. Palmer, Reifler &

Assocs., P.A., 681 F. Supp. 2d 1356, 1384 (S.D. Fla. 2009) (citing Challenge Air Transp.,

Inc. v. Transportes Aereos Nacionales, S.A., 520 So. 2d 323, 324 (Fla. Dist. Ct. App. 1988);

Moore Handley, Inc. v. Major Realty Corp., 340 So. 2d 1238, 1239 (Fla. Dist. Ct. App.

1976)); accord Pincus v. Am. Traffic Sols., Inc., 986 F.3d 1305, 1317 n.13 (11th Cir. 2021)

(“Under Florida law, money had and received is synonymous with unjust

enrichment . . . .” (internal quotation marks omitted)).

The first element requires the plaintiff to “directly confer a benefit to the

defendant.” Marrache, 17 F.4th at 1101 (quoting Kopel v. Kopel, 229 So. 3d 812, 818

(Fla. 2017)). However, a plaintiff may directly confer a benefit to a defendant through

an intermediary, as “it would not serve the principles of justice and equity to preclude

an unjust enrichment claim merely because the benefit passed through an intermediary

before being conferred on a defendant.” Cape, LLC v. Och-Ziff Real Est. Acquisitions LP,

370 So. 3d 1010, 1017 (Fla. Dist. Ct. App. 2023) (cleaned up); accord Tooltrend, Inc. v.

CMT Utensili, SRL, 198 F.3d 802, 806 (11th Cir. 1999) (“Florida courts have made

clear that an unjust enrichment claim may be brought whether or not the parties had

any previous contact at all.” (citing Commerce P’ship 8098 Ltd. P’ship v. Equity Contracting

Co., 695 So. 2d 383, 386 (Fla. Dist. Ct. App. 1997))); Shelor v. Jaguar Land Rover N. Am.

LLC, No. 3:23-cv-908-WGY-PDB, 2025 U.S. Dist. LEXIS 19700, at *134 (M.D. Fla.

Jan. 31, 2025) (in a report and recommendation, analyzing unjust enrichment cases

from Florida appellate courts and “predict[ing that] the Florida Supreme Court would

hold that a plaintiff may directly confer a benefit on a defendant through an

intermediary” provided that the benefit is “fully and directly traceable from the

plaintiff to the defendant” (internal quotation marks omitted)).

When a company is unjustly enriched, an individual’s position within the

company, standing alone, is insufficient to satisfy the first element for an unjust

enrichment claim against the individual. See SIG, Inc. v. AT&T Digit. Life, Inc., 971 F.

Supp. 2d 1178, 1192 (S.D. Fla. 2013) (“[T]he benefits [the p]laintiffs allegedly

conferred . . . were all bestowed on [the corporation], as they relate[d] to the

marketing, selling, installing, and servicing of [the corporation’s] products and the

building of [the corporation]’s brand. . . . [A]ny benefits the [individual defendants]

would have received would have been derived indirectly by virtue of their role[s] in

the corporation . . . .”); Alt. Materials, LLC v. Monroe, No. 5:20-cv-239-AW/MJF, 2023

WL 2410928, at *7, 2023 U.S. Dist. LEXIS 38650, at *17 (N.D. Fla. Jan. 23, 2023)

(“Merely demonstrating that a defendant was a director, officer, or shareholder of a

corporation that was unjustly enriched is insufficient . . . .”), report and recommendation

adopted by Alt. Materials, LLC v. TCH Constr. Grp., Inc., No. 5:20-cv-239-AW-MJF, 2023

WL 2403777, at *1, 2023 U.S. Dist. LEXIS 38352, at *1 (N.D. Fla. Mar. 8, 2023).

Also, typically in the unjust enrichment context, when a defendant cashes a plaintiff’s

check and retains the resulting funds, the plaintiff confers a benefit on the defendant

in the form of the funds and the defendant appreciates this benefit. See Encore Enters.

v. Roberts Hotels Fort Myers, LLC, No. 2:09-CV-118-FTM-36SPC, 2011 WL 5357533, at

*4, 2011 U.S. Dist. LEXIS 125618, at *9 (M.D. Fla. Oct. 31, 2011) (holding that the

defendant received a benefit when it cashed a check for $160,169.74 and that it

appreciated the benefit because it retained the funds); Reliastar Life Ins. Co. v. Kiel, No.

3:08-cv-751-J-34MCR, 2010 WL 11507705, at *3–4, 2010 U.S. Dist. LEXIS 149252,

at *8–10 (M.D. Fla. July 29, 2010) (granting summary judgment on an unjust

enrichment claim to the plaintiff when the defendant “received a check for $149,576.89

from [the p]laintiff, which [the defendant] subsequently cashed,” and the defendant

“refused to return the funds” to the plaintiff).

Budzinski maintains that he is entitled to summary judgment on his claims of

unjust enrichment and money had and received because it “would be utterly

inequitable to permit” Marinex International and Belisle to benefit from his money

“where they provided nothing of value in exchange for it.” (Dkt. 85 at 8–9.) In

Budzinski’s words, these “Defendants’ creative employment of [MPN as] an

intermediary does not render them immune from suit for their unjust enrichment.”

(Dkt. 93 at 5.) However, in his opposition to Marinex International and Belisle’s

motion, Budzinski also argues that issues of material fact preclude summary judgment

on the claims. (See Dkt. 88 at 19.) For their part, Marinex International and Belisle

contend that they are entitled to summary judgment on the claims because Budzinski

did not directly confer a benefit on them when he paid MPN and because they “had

no knowledge of any benefit from” him. (Dkt. 82 at 23–25 (emphasis omitted); accord

Dkt. 92 at 6–7 (focusing on the direct conferral requirement).) However, in opposing

Budzinski’s motion, Marinex International and Belisle list factual disputes allegedly

barring summary judgment. (Dkt. 87 at 17.)

Given the factual disputes remaining in this case, summary judgment as to the

claims of unjust enrichment and money had and received is improper. Marinex

International and Belisle are not entitled to summary judgment because a reasonable

jury could find in Budzinski’s favor. Belisle’s deposition testimony supports that

Marinex International and Belisle knew that money was passing from Budzinski

through MPN to Marinex International for the boat. (See Dkt. 93 at 1–3 (citing Dkt.

93-1).) Based on this testimony and other record evidence regarding payments made,

(e.g., Dkt. 81 ¶¶ 22–26, 34–36), a reasonable jury could find that Budzinski directly

conferred a benefit to Marinex International through MPN. See Tooltrend, Inc., 198

F.3d at 806; Cape, LLC, 370 So. 3d at 1017. Further, although Belisle’s position within

Marinex International in and of itself would not satisfy the claims’ direct conferral

requirement, see SIG, Inc., 971 F. Supp. 2d at 1192; Alt. Materials, LLC, 2023 WL

2410928, at *7, 2023 U.S. Dist. LEXIS 38650, at *17, Belisle’s deposition testimony

supports that he benefited from the money not merely as an officer of the company but

as the signer of a promissory note that personally indebted him regarding the purchase

of the boat, (see Dkt. 93 at 3–4 (citing Dkt. 85-1 at 18–19)). A reasonable jury could

determine that Budzinski directly conferred a benefit to Belisle in the form of money

with which Belisle could pay down this personal debt. See Agritrade, LP v. Quercia, 253

So. 3d 28, 33 (Fla. Dist. Ct. App. 2017) (concluding that a plaintiff “clearly conferred

a benefit on” a defendant when the defendant used the plaintiff’s money to pay down

a loan).

In addition, a reasonable jury could conclude that the claims’ other elements

are met. A reasonable jury could find that Marinex International and Belisle

appreciated the benefit of Budzinski’s money because they retained the money. Cf.

Encore Enters., 2011 WL 5357533, at *4, 2011 U.S. Dist. LEXIS 125618, at *9;

Reliastar, 2010 WL 11507705, at *3–4, 2010 U.S. Dist. LEXIS 149252, at *8–10.

Moreover, a reasonable jury could deem it inequitable under the circumstances for

Marinex International and Belisle to keep the money, which Budzinski paid for the

boat, without giving Budzinski the boat. See Hikmatullaev v. Villa, No. 23-cv-22338-

ALTMAN/REID, 2023 WL 4373225, at *2, 2023 U.S. Dist. LEXIS 111619, at *6

(S.D. Fla. June 28, 2023) (“[The p]laintiffs have proffered evidence demonstrating that

they transferred $812,086 [United States Dollar Tokens (USDT)] to [the d]efendants

in exchange for [a w]atch. [The p]laintiffs have alleged that despite this payment[,]

they never received the [w]atch or a refund for the $812,086 USDT [that a defendant]

retained. These facts establish a prima facie case for . . . unjust enrichment.”), report

and recommendation adopted by 2023 WL 4363566, at *1, 2023 U.S. Dist. LEXIS

116139, at *3 (S.D. Fla. July 6, 2023).

Alternatively, a reasonable jury could find in favor of Marinex International

and Belisle. For example, a reasonable jury could determine from the business

relationships between Budzinski, MPN, and Marinex International that Budzinski did

not directly confer a benefit to Marinex International or Belisle when Budzinski paid

MPN. Cf. Marrache, 17 F.4th at 1102 (affirming the dismissal of customers’ unjust

enrichment claims against a gin producer when the customers bought the gin from a

supermarket because the customers directly conferred a benefit on the supermarket,

not on the gin producer). Accordingly, Budzinski is not entitled to summary judgment

on his claims of unjust enrichment and money had and received, and in general,

summary judgment concerning these claims is denied.

3. Negligent Selection and Supervision of Independent Contractors

Florida law recognizes a cause of action against “the employer of an

independent contractor” for “negligence in selecting, instructing, or supervising the

contractor.” McCall v. Ala. Bruno’s, Inc., 647 So. 2d 175, 177 (Fla. Dist. Ct. App. 1994);

accord Aspen Am. Ins. Co. v. Landstar Ranger, Inc., 65 F.4th 1261, 1270 (11th Cir. 2023)

(“Florida law . . . recognizes an action for negligent selection of an independent

contractor, which may be brought against a principal who fails to exercise reasonable

care to employ a competent and careful contractor.” (alteration adopted and

quotations omitted)). “[A]n independent contractor is one who, in the exercise of an

independent employment, contracts to do certain work according to his own methods,

and without being subject to the control of his employer except as to the product or

result of his work.” Wilson v. Sandstrom, 317 So. 2d 732, 739 (Fla. 1975) (quotation

omitted), superseded by statute on other grounds as stated in Cole v. Wells Fargo Bank Nat’l

Ass’n, 201 So. 3d 749, 750 n.1 (Fla. Dist. Ct. App. 2016). Negligent selection of an

independent contractor has three elements: “(1) the contractor was incompetent or

unfit to perform the work[,] (2) the employer knew or reasonably should have known

of the particular incompetence or unfitness[,] and (3) the incompetence or unfitness

was a proximate cause of the plaintiff’s injury.” Davies v. Com. Metals Co., 46 So. 3d

71, 73–74 (Fla. Dist. Ct. App. 2010). Insofar as Budzinski brings negligent supervision

claims distinct from negligent selection claims, the parties agree that all the

independent contractor claims have these three elements. (See Dkt. 82 at 21 & n.34;

Dkt. 83 at 21 & n.26; Dkt. 88 at 16–17; Dkt. 89 at 19.) Because the law does not

compel a different conclusion, the court analyzes all the independent contractor claims

in light of these elements.

Defendants make three arguments for summary judgment on the independent

contractor claims. (Dkt. 82 at 21–23; Dkt. 83 at 21–23; Dkt. 91 at 5–6; Dkt. 92 at 4–

6.)2 First, according to Defendants, no reasonable jury could conclude from the

summary judgment record that MPN or Zurhausen was an independent contractor

working for Marinex International or Belisle; that Marinex International, Belisle,

MPN, or Zurhausen was an independent contractor working for Mystic Powerboats

or Cosker; that Marinex International, Belisle, MPN, or Zurhausen was incompetent

or unfit by virtue of engaging in deceptive and unfair trade practices, such as fraud; or

that any Defendant knew or should have known of the alleged incompetence or

unfitness of its independent contractors. (Dkt. 82 at 21–22; Dkt. 83 at 21–23; Dkt. 91

at 5–6; Dkt. 92 at 5.) Second, Belisle and Cosker argue, their lack of involvement in

the purported misconduct means that Budzinski cannot establish the knowledge

2 Although Budzinski in his response, (Dkt. 89 at 19–20), and Mystic Powerboats and Cosker in their

reply, (Dkt. 91 at 6 n.21), discuss whether Florida law requires physical harm for claims of negligent

selection and supervision of independent contractors, Mystic Powerboats and Cosker explicitly

“assume for purposes of” their summary judgment motion “that Florida law . . . recognize[s] a claim

for negligent selection or supervision of an independent contractor in the absence of physical harm,”

(Dkt. 83 at 21 n.25). Therefore, the court does not consider an argument related to a physical harm

requirement. See United States v. Batmasian, 66 F.4th 1278, 1281 (11th Cir. 2023) (declining to address

a jurisdictional issue related to an argument that the moving party “expressly disclaim[ed]”); cf.

Quinlan v. Sec’y, U.S. Dep’t of Lab., 812 F.3d 832, 837 (11th Cir. 2016) (applying a legal test that the

parties assumed in their briefs applied). In any event, there is authority against a physical harm

requirement. See Van Vechten v. Elenson, 920 F. Supp. 2d 1284, 1295 (S.D. Fla. 2013) (“[T]his [c]ourt

does not agree that Florida requires ‘physical harm’ as a prerequisite to liability for negligent

selection.”). Furthermore, to the extent that Defendants raise any arguments for the first time in their

replies, (see Dkts. 91, 92), the court disregards such arguments, see United States v. Montenegro, 1 F.4th

940, 944 n.3 (11th Cir. 2021) (“[Courts] do not consider arguments presented for the first time

in . . . reply brief[s].”).

required under Florida law to hold corporate officers liable through negligent

employment claims. (Dkt. 82 at 22 n.35; Dkt. 83 at 23.) Third, Defendants invoke

the doctrine of collateral estoppel and contend that the judgment entered by the

German court precludes Budzinski from claiming that MPN or Zurhausen’s

incompetence or unfitness harmed him. (Dkt. 82 at 23; Dkt. 83 at 22–23; Dkt. 91 at

6; Dkt. 92 at 6.) The court rejects all three arguments.

As to the first argument, Defendants assert that no evidence supports an

independent contractor relationship, their contracts disclaim such a relationship, and

no evidence shows that they knew or should have known of their independent

contractors’ incompetence or unfitness. (Dkt. 82 at 21–23; Dkt. 83 at 21–23.) These

assertions are unavailing. To begin with, under Florida law, real estate brokers act as

independent contractors for homeowners selling homes, Smith v. Mayes, 851 So. 2d

785, 786 (Fla. Dist. Ct. App. 2003), and the court agrees with Budzinski, (see Dkt. 89

at 18), that by analogy, a reasonable jury viewing the record in the light most favorable

to him could find the necessary independent contractor relationships to hold

Defendants liable for negligent selection and supervision. (See, e.g., Dkt. 81 ¶¶ 1–11,

16–17, 19, 23, 25–29, 32–33, 35–36, 38–39, 41–42, 46, 50.) Further, Defendants

cannot disclaim independent contractor relationships by contract in contradiction to

facts supporting those relationships because “the nature and extent of the relationship

of parties with regard to agency presents a question of fact and is not controlled by

descriptive labels employed by the parties” in contracts. Villazon v. Prudential Health

Care Plan, Inc., 843 So. 2d 842, 854 (Fla. 2003) (describing the holding of Parker v.

Domino’s Pizza, Inc., 629 So. 2d 1026, 1027 (Fla. Dist. Ct. App. 1993)). Finally,

Budzinski advances evidence from which a reasonable jury could find the requisite

incompetence or unfitness and could conclude that Defendants knew or should have

known of same. (See, e.g., Dkt. 88-1 at 3–5; Dkt. 88-2 at 2–19; Dkt. 89-1 at 1–3, 5–7,

29–33.) See Harvey Bldg., Inc. v. Haley, 175 So. 2d 780, 782 (Fla. 1965) (“The existence

of express or implied knowledge is usually a problem for the jury to resolve.”).

As to the second argument, Belisle and Cosker note, (Dkt. 82 at 22 n.35; Dkt.

83 at 23), that under Florida law, negligent employment claims against company

officers in their individual capacities require that the officers possess “at least

knowledge amounting to acquiescence” in the complained-of misconduct, Jones v.

Vasilias, 359 So. 3d 10, 14 (Fla. Dist. Ct. App. 2023) (emphasis omitted) (quoting Costa

Inv’rs, LLC v. Liberty Grande, LLC, 353 So. 3d 627, 634 (Fla. Dist. Ct. App. 2022)).

However, as stated above, the record contains evidence from which a reasonable jury

could determine that Belisle and Cosker had such knowledge. (See, e.g., Dkt. 88-1 at

3–5; Dkt. 88-2 at 2–19; Dkt. 89-1 at 1–3, 5–7, 29–33.) See Harvey Bldg., 175 So. 2d at

782. They are therefore not entitled to summary judgment on this basis.

As to the third argument, about collateral estoppel, Defendants bear the burden

of satisfying the elements of the doctrine. See In re McWhorter, 887 F.2d 1564, 1566

(11th Cir. 1989) (“The party seeking to invoke collateral estoppel bears the burden of

proving that the necessary elements have been satisfied.”). Defendants fail to meet

this burden. They make conclusory mention of collateral estoppel in footnotes in their

summary judgment motions. (Dkt. 82 at 23 & n.37; Dkt. 83 at 22 & n.27.) Such

passing references do not suffice to bring the issue before the court. See U.S. Sec. &

Exch. Comm’n v. Big Apple Consulting USA, Inc., 783 F.3d 786, 811–12 (11th Cir. 2015)

(holding that the defendants forfeited arguments when the defendants “failed to flesh

out [the] arguments, except by referring to them in a footnote” (citing Sapuppo v.

Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014))). Defendants’ replies

elaborate on the collateral estoppel issue, again in footnotes, (Dkt. 91 at 6 & n.22; Dkt.

92 at 6 & nn.17–19), but this elaboration “come[s] too late,” Moore v. Cecil, 109 F.4th

1352, 1366 (11th Cir. 2024) (quoting Sapuppo, 739 F.3d at 683); accord Purcell v. City of

Fort Lauderdale, 753 F. Supp. 3d 1308 n.8 (S.D. Fla. 2024) (“Arguments not properly

presented in a party’s initial brief or raised for the first time in the reply brief are

deemed waived.” (quoting Bank of Am., N.A. v. Mukamai (In re Egidi), 571 F.3d 1156,

1163 (11th Cir. 2009))). Accordingly, Defendants’ collateral estoppel argument fails.

In light of the above, Defendants are not entitled to summary judgment on

Budzinski’s independent contractor claims. Their motions are thus denied with

respect to these claims.

4. Libel

As indicated above, the parties have stipulated that on June 7, 2023, Cosker

emailed JS Watersports II: “I want to give you a heads-up that the gentleman who

defaulted on the 52 overseas has filed a temporary restraining order on the boat.” (Dkt.

81 ¶ 53.) Budzinski alleges that through this email, Cosker committed libel by falsely

informing JS Watersports II that Budzinski had defaulted on the boat. (Dkt. 70

¶¶ 195–200.) According to Budzinski, although he “was not identified by name” in

the email, “he could have been readily identified by a review of public records,

including this [c]ourt’s docket.” (Id. ¶ 197.) Budzinski claims that the email injured

him by, “[a]mong other things,” facilitating the boat’s sale and delivery to JS

Watersports II such that Budzinski could not recover the boat. (Id. ¶ 200.) Budzinski

also alleges that statements like that in Cosker’s email “would tend to hold [an]

allegedly ‘defaulting’ purchaser [like Budzinski] up to ridicule and disrepute in the

community.” (Id. ¶ 199.) Cosker moves for summary judgment on the libel count

arguing only that Budzinski cannot establish an injury caused by the email. (Dkt. 83

at 23–24.) In Cosker’s view, the record does not support Budzinski’s theory of injury—

facilitating the boat’s sale and delivery to JS Watersports II—because the email was

sent after Budzinski terminated his agreement with MPN, after Marinex International

sold the boat to JS Watersports II, and after Budzinski filed the complaint in this

action. (Id. at 24.) Budzinski responds that the reputational harm he testified to

suffering as a result of Cosker’s email suffices to establish the injury for the libel count.

(Dkt. 89 at 20.)

“Under Florida law, libel is defined as the unprivileged written publication of

false statements that cause injury.” Dunn v. Air Line Pilots Ass’n, 193 F.3d 1185, 1191

(11th Cir. 1999). “To recover for libel . . . under Florida law, a plaintiff must

demonstrate that . . . the defendant published a false statement . . . about the

plaintiff . . . to a third party” and that the plaintiff “suffered damages as a result of the

publication.” Thompson v. Orange Lake Country Club, 224 F. Supp. 2d 1368, 1376 (M.D.

Fla. 2002). Florida law recognizes two theories of libel: libel per se and libel per quod.

See Barry Coll. v. Hull, 353 So. 2d 575, 578 (Fla. Dist. Ct. App. 1977) (“Under Florida

law, false written statements may be either libel per se or libel per quod.”). Although

damages must be proven for libel per quod, they may be presumed for libel per se in

cases not involving media defendants. See Alan v. Wells Fargo Bank, N.A., 604 F. App’x

863, 865 (11th Cir. 2015) (“Per se defamatory statements are ‘so obviously defamatory’

and ‘damaging to reputation’ that they ‘give rise to an absolute presumption both of

malice and damage.’” (alteration adopted) (quoting Wolfson v. Kirk, 273 So. 2d 774,

776 (Fla. Dist. Ct. App. 1973))); Harris v. Plapp, 386 So. 3d 185, 190 (Fla. Dist. Ct.

App. 2022) (“In the case of words actionable per se[,] their injurious character is a fact

of common notoriety established by the general consent of men[,] and the court

consequently takes judicial notice of it. They necessarily import damage[,] and[]

therefore, in such cases[,] general damages need not be pleaded or proved but are

conclusively presumed to result[,] and special damages need not be shown to sustain

the action.” (quoting Joopanenko v. Gavagan, 67 So. 2d 434, 436 (Fla. 1953))); Blake v.

Ann-Marie Giustibelli, P.A., 182 So. 3d 881, 884–85 (Fla. Dist. Ct. App. 2016)

(indicating that libel per se, including the presumption of damages, “still exists in

Florida” after Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), in cases not involving

media defendants).

Libel per se requires that the published material, “considered alone without

innuendo, . . . tends to subject one to hatred, distrust, ridicule, contempt[,] or

disgrace,” “to injure one in [one’s] trade or profession,” or to “impart[] conduct,

characteristics[,] or a condition incompatible with the proper exercise of [one’s] lawful

business, trade, profession, or office.” Harwood v. Bush, 223 So. 2d 359, 361 (Fla. Dist.

Ct. App. 1969); accord Walsh v. Mia. Herald Publ’g Co., 80 So. 2d 669, 671 (Fla. 1955)

(“So far as is relevant here, a publication is per se libe[l]ous if it tends to subject one to

distrust, ridicule, contempt[,] or disgrace[] or tends to injure one in his trade or

profession.”). However, libel per se does not require that the published material

identify the plaintiff by name so long as it “contains matters of description or reference

to facts and circumstances from which others may understand that [the plaintiff] is the

person referred to.” Harwood, 223 So. 2d at 362 (quoting O’Neal v. Tribune Co., 176 So.

2d 535, 548 (Fla. Dist. Ct. App. 1965)).

The complaint does not specify a theory for the alleged libel. (See Dkt. 70

¶¶ 195–200.) Cosker asserts that the complaint pleads libel to the exclusion of pleading

libel per se, and he supports this assertion by noting that Budzinski claims a particular

injury related to the boat. (Dkt. 91 at 7 (citing Dkt. 70 ¶ 200).) Viewing the record in

the light most favorable to Budzinski, see Skop, 485 F.3d at 1136, the court disagrees

with Cosker’s assertion for two reasons. First, libel and libel per se are not opposites:

as explained above, libel per se is a theory of libel, and libel per quod is the opposite

theory. See Barry, 353 So. 2d at 578. Second, Budzinski’s allegation that statements

like Cosker’s “would tend to hold [an] allegedly ‘defaulting’ purchaser up to ridicule

and disrepute in the community,” (Dkt. 70 ¶ 199), is close enough to the description

of certain per se libelous statements as “tend[ing] to subject one to hatred, distrust,

ridicule, contempt[,] or disgrace,” Harwood, 223 So. 2d at 361, that Budzinski has

sufficiently pleaded libel per se. See GRLPWR, LLC v. Rodriguez, No. 3:23cv16480-

TKW-HTC, 2023 WL 5666203, at *4, 2023 U.S. Dist. LEXIS 156928, at *9–10 (N.D.

Fla. Aug. 25, 2023) (deeming “sufficient to state a plausible claim for defamation per

se” allegations that the “[d]efendant’s accusations . . . subjected [the plaintiff] to ‘ill

repute’ with the general public” and reasoning that “being held in ‘ill repute’ is akin to

being subjected to distrust, contempt, or disgrace”).

If Budzinski proceeds under the theory of libel per se, he does not need to

support his damages with evidence because they are presumed, provided that Cosker

is not a media defendant, see Alan, 604 F. App’x at 865; Harris, 386 So. 3d at 190; Blake,

182 So. 3d at 884–85, and Cosker does not argue that he is such a defendant, (see Dkts.

83, 91). See Greenbriar, Ltd. v. Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989)

(indicating that in general, unargued issues are forfeited). Cosker also does not argue,

see id., that statements falsely accusing individuals of defaulting on payments for boats

do not amount to libel per se, (see Dkts. 83, 91), and the law supports that they may,

see Vinson v. Ford Motor Credit Co., 259 So. 2d 768, 770 (Fla. Dist. Ct. App. 1972)

(deeming libel per se, when the plaintiff had a history of working as a credit manager,

incorrect statements to a credit bureau that the plaintiff’s car had been repossessed and

that his payment record had been unsatisfactory); cf. Klein v. Receivable Mgmt. Grp., Inc.,

595 F. Supp. 3d 1183, 1191 (M.D. Fla. 2022) (“A plaintiff suffers a concrete injury

when a credit reporting agency violates the Fair Credit Reporting Act by releasing

‘untruthful disclosures’ about the plaintiff because that new harm is similar enough to

the old harm ‘at issue in common-law causes of action like defamation or libel per se.’”

(quoting Robins v. Spokeo, Inc., 867 F.3d 1108, 1115 (9th Cir. 2017))). In addition,

Budzinski testified during his deposition that the email caused him “reputational

harm” and that he “los[t] money as a result of” the email because of Cosker’s role in

preventing recovery of the boat. (Dkt. 89-3 at 8.) For all these reasons, Cosker is not

entitled to summary judgment on the libel count against him.

5. Indemnification

Mystic Powerboats’ sales agreement with Marinex International contains an

indemnification provision stating that Marinex International

indemnifies, releases[,] and holds [Mystic Powerboats] and its [a]ffiliates,

owners, officers, directors, employees, and agents harmless from and

against any and all claims, liabilities, expenses, costs, and damages,

including attorney[] fees, alleged against or incurred by [Mystic

Powerboats] in connection with or arising out of . . . the negligence,

carelessness, or any action or inaction of [Marinex International].

(Dkt. 84-2 at 20.) Based on this provision, Mystic Powerboats and Cosker assert a

contractual indemnification cross-claim against Marinex International “for any

damages stemming from the underlying suit in this matter.” (Dkt. 38 at 14; accord id.

at 15 (alleging that “to the extent that any damages, costs, expenses, [or] attorney[]

fees are assessed against [Mystic Powerboats and Cosker] in the underlying matter,

Marinex [International] is responsible for indemnifying them as to any such damages,

costs, expenses, [and] attorney[] fees.”).) Marinex International denies liability on the

cross-claim. (See Dkt. 46 ¶ 20.)

Mystic Powerboats and Cosker move for summary judgment as to Marinex

International’s liability. (Dkt. 84.) They argue that by its plain language, the

indemnification provision requires Marinex International to indemnify not only

Mystic Powerboats but also Cosker as Mystic Powerboats’ CEO. (Id. at 8.) They

further maintain that the provision is unambiguous and is enforceable under Florida

law because it does not seek to indemnify Mystic Powerboats for Mystic Powerboats’

own wrongful conduct. (Id. at 8–9.) According to Mystic Powerboats and Cosker,

Budzinski’s claims against them—“including allegations of an improper broker

arrangement, an artificially complex sales structure, and price inflation—arise directly

from” Marinex International’s conduct: Mystic Powerboats and Cosker “played no

role in selecting MPN as a buyer, no role in MPN’s price manipulation, and no role

in the eventual resale of the [v]essel.” (Id. at 9; accord Dkt. 90 at 2–5.) Marinex

International responds that because Budzinski’s claims against Mystic Powerboats and

Cosker are based on their own alleged wrongful conduct rather than on vicarious

liability for Marinex International’s misconduct, the court cannot conclude as a matter

of law that the indemnification provision applies. (Dkt. 86 at 2, 8–10.) The court

agrees with Marinex International on this point.3

3 Marinex International’s other argument—that Budzinski’s claims against Mystic Powerboats and

Cosker fall outside the indemnification provision’s scope because they do not arise out of Marinex

International’s actions, (Dkt. 86 at 2, 10–12)—is unpersuasive, in part because in focusing on the

“arising out of” language in the provision, it overlooks the “in connection with” alternative, (see Dkt.

84-2 at 20.) As Mystic Powerboats and Cosker indicate, (Dkt. 90 at 4–5), the phrase “arising out of”

carries a broad meaning associated with causation. See Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co.,

913 So. 2d 528, 539 (Fla. 2005) (“The term ‘arising out of’ is broader in meaning than the term ‘caused

by’ and means ‘originating from,’ ‘having its origin in,’ ‘growing out of,’ ‘flowing from,’ ‘incident to[,]’

or ‘having a connection with.’” (quotation omitted)). The phrase requires “some causal connection[]

or relationship” rather than “a mere coincidence” but “does not require proximate cause.” Id. at 539–

40 (quotation omitted). In contrast, “the phrase ‘in connection with[]’ . . . does not ordinarily refer to

causal connection” alone. Jacksonville Terminal Co. v. Ry. Express Agency, Inc., 296 F.2d 256, 260 (5th

Cir. 1961), abrogated on other grounds as stated in Nw. Nat’l Ins. Co. v. Dade County, 461 F.2d 1158, 1163

(5th Cir. 1972); see United States v. James, No. 23-11972, 2025 WL 1242792, at *4, 2025 U.S. App.

In Florida, indemnity provisions “are subject to the general rules of contractual

construction” and, as such, are “construed based on the intentions of the parties.”

Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 643 (Fla. 1999). However,

indemnity provisions that “attempt to indemnify a party against its own wrongful

conduct will be enforced ‘only if they express an intent to indemnify against the

indemnitee’s own wrongful acts in clear and unequivocal terms.’” Cox Cable Corp. v.

Gulf Power Co., 591 So. 2d 627, 629 (Fla. 1992) (quoting Charles Poe Masonry, Inc. v.

Spring Lock Scaffolding Rental Equip. Co., 374 So. 2d 487, 489 (Fla. 1979)); accord Gibbs

v. Air Canada, 810 F.2d 1529, 1534 (11th Cir. 1987) (“Under Florida law, agreements

to indemnify parties against their own wrongful acts are not favored and will be

enforced only if they express such an intent in clear and unequivocal terms.”). “[T]he

public policy disfavoring contractual indemnification for one’s own negligence applies

with equal force in instances where the indemnitor and indemnitee are jointly liable.”

Battle v. Gold Kist, Inc., No. 3:06-cv-782-J-32TEM, 2008 WL 8833747, at *2, 2008 U.S.

Dist. LEXIS 50384, at *7–8 (M.D. Fla. July 1, 2008) (citing Cox Cable, 591 So. 2d at

629). Absent “a clear and unequivocal contractual expression of intent, any fault of

the indemnitee that is a legal cause of its own loss will negate the contractual

indemnitor’s obligation.” Gibbs, 810 F.2d at 1534–35.

LEXIS 10414, at *10 (11th Cir. Apr. 30, 2025) (interpreting a federal sentencing guideline provision

and explaining that “a person possesses a firearm ‘in connection with’ another offense if the firearm

possession is contextually, causally, or logically related to that offense” (emphasis added)); see also Cooper

v. Meridian Yachts, Ltd., 575 F.3d 1151, 1162 (11th Cir. 2009) (applying admiralty law when explaining

that a provision referring to “‘all disputes arising out of or in connection with’ [an]

agreement . . . purports to govern all disputes having a connection to the agreement” (internal

quotation marks omitted)).

Mystic Powerboats and Cosker do not contend that the indemnification

provision attempts to indemnify them against their own wrongful conduct in clear and

unequivocal terms; indeed, they assert the opposite: that “the indemnity

provision . . . does not seek to indemnify Mystic [Powerboats] for its own wrongful

conduct.” (Dkt. 84 at 8–9; see Dkt. 86 at 8 (pointing out that Mystic Powerboats and

Cosker “acknowledge that the [provision] does not indemnify them for their own

wrongful conduct”).) The court agrees that the provision does not clearly and

unequivocally express an intent to indemnify Mystic Powerboats and Cosker for their

own misconduct. See Cox Cable, 591 So. 2d at 629 (explaining that general “from and

against any and all claims” language does not clearly and unequivocally demonstrate

an intent to indemnify a party for its own wrongful acts).

Budzinski does not pursue a theory of vicarious liability against Mystic

Powerboats and Cosker. (See Dkt. 70.) Instead, he seeks to hold them directly liable

for their own alleged misdeeds. (See id.) Although they maintain that they “played no

role in” the complained-of scheme against him, (Dkt. 84 at 9), the record viewed in

the light most favorable to Marinex International, see Skop, 485 F.3d at 1136, supports

that they did in fact play a role, (see, e.g., Dkt. 81 ¶¶ 5–8, 11, 15; Dkt. 86-1 at 8; Dkt.

86-2 at 7). Because Mystic Powerboats and Cosker’s liability, if any, to Budzinski

would be based on their own misconduct rather than “on the basis of vicarious liability

for [Marinex International]’s conduct,” Mystic Powerboats and Cosker are not entitled

to summary judgment on the indemnification issue. See Battle, 2008 WL 8833747, at

*2, 2008 U.S. Dist. LEXIS 50384, at *8; see also Gibbs, 810 F.2d at 1534–35.

CONCLUSION

Accordingly:

1. Defendants’ motions for summary judgment as to the claims against them

(Dkts. 82, 83) are GRANTED in part and DENIED in part as set out in this

order.

2. The remaining motions for partial summary judgment (Dkts. 84, 85) are

DENIED.

ORDERED in Orlando, Florida, on May 6, 2025.

JUKIE S. SNEED

UNITED STATES DISTRICT JUDGE

Copies furnished to:

Counsel of Record

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