Opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

600 CLEVELAND, LLC,

Plaintiff,

v. Case No. 8:24-cv-1652-KKM-AAS

BANK OF AMERICA, N.A.,

Defendant.

___________________________________

ORDER

Each dissatisfied with the other’s performance under a lease agreement,

600 Cleveland, LLC, and Bank of America, N.A. (BANA), sued one another.

Both move for summary judgment and to disqualify experts. I grant BANA’s

motion for summary judgment as to 600 Cleveland’s sole claim because 600

Cleveland seeks damages barred by Florida law and fails to identify evidence

of causation. Because BANA’s accounting expert, Chelepis, is qualified, uses a

reliable methodology, and would be helpful to the trier of fact, I deny 600

Cleveland’s Daubert motion. In the light of concluding that the statute of

limitations bars BANA from recovering damages incurred before July 18, 2019,

and accepting Chelepis’s testimony, the only evidence for BANA’s counterclaim

for breach of contract establishes that BANA is entitled to judgment as a

matter of law as to its overpayments in 2020 and 2021. Thus, I also grant in

part BANA’s motion for summary judgment as to its counterclaim and grant

in part 600 Cleveland’s motion for summary judgment.

I. BACKGROUND

600 Cleveland owned a commercial office building located at 600

Cleveland Street, Clearwater, Florida 33601 from September 9, 2013, to April

1, 2024. Joint Statement of Undisputed Facts (JSUF) (Doc. 82) ¶ 2. BANA and

600 Cleveland assumed a lease agreement originally entered into by other

parties on December 1, 1986, and both were bound by the agreement. See id.

¶ 1. BANA and its predecessors-in-interest occupied a portion of the building.

Id. ¶ 3. The initial lease term began on December 1, 1986. Id. ¶ 4. The final

term under the lease ended on November 30, 2021. Id. ¶ 6. From 1986 to 2016,

the parties and their predecessors-in-interest executed at least nine

amendments to the lease. Id. ¶¶ 7–12.

The lease required that BANA surrender the premises “broom swept

clean in the same condition as at the commencement of the initial term normal

wear and tear and casualty loss only excepted.” Pl.’s Statement of Undisputed

Facts (Pl.’s SUF) (Doc. 89) ¶ 1.

Under the lease, BANA had to make estimated payments of its share of

the building’s operating costs “simultaneously with the monthly payments of

the basic annual rent.” Lease § 5 (Doc. 82-2) at 5. According to the lease, “[a]fter

the end of each lease year, or such shorter accounting period as [600 Cleveland]

may determine in [its] sole discretion, [600 Cleveland] shall deliver to [BANA]

a statement showing the amount of the Building’s Operating Cost for the

subject period, and further showing [BANA’s] share thereof. Such

determination made in good faith by [600 Cleveland] and not patently

erroneous shall be binding.” Id. The lease then provided directions on how each

party should address inevitable under- or overpayment. See id.

600 Cleveland used a property management company, Jacob Real Estate

Services, Inc. (JRES), to manage the building. JSUF ¶¶ 29, 33. JRES kept 600

Cleveland’s books and records, forecasted operating expenses, and determined

each tenant’s share of the operating costs. Pl.’s SUF ¶ 10.

Around June 2021, BANA notified 600 Cleveland that it would not renew

the lease. JSUF ¶ 31. 600 Cleveland claims damages related to several aspects

of the building that it alleges that BANA failed to restore to the building’s

condition at the start of the initial lease term. See id. ¶¶ 14–27; Pl.’s Suppl.

Resps. to Def.’s Interrog. (Doc. 82-9) at 6–9.

Following BANA’s notice to 600 Cleveland, the parties engaged in a

series of discussions regarding the decommissioning projects and the state of

the leased premises. See Pl.’s SUF ¶¶ 21–38. These discussions included pre-

suit mediation, which did not resolve the dispute. See id. ¶¶ 33–34.

600 Cleveland views the downtown Clearwater area as a declining

commercial real estate market. Def.’s Statement of Undisputed Facts (Def.’s

SUF) (Doc. 83) ¶¶ 37–38. Accordingly, on April 1, 2024, it sold the building on

an “as-is” basis as part of a larger portfolio sale. Id. ¶¶ 41, 45, 49. The building

was not listed for sale when Clearwater Offices, LLC, and CW Downtown

Properties, LLC, made an offer to 600 Cleveland to purchase several parcels of

real property, including the building. Id. ¶¶ 39–40. 600 Cleveland accepted the

first and only offer it received. Id. ¶ 41. The total offer for the real property

portfolio was $57,750,000.00. Id. ¶ 39. Of the total, approximately

$33,200,000.00 was for the building and its adjoining parking lots. Id. ¶ 42.

For perspective, in 2013, 600 Cleveland purchased the building for

approximately $7,350,000.00. Id. ¶ 43.

The purchase agreement for the building listed a few “Disclosed Repairs”

that the purchasers could choose to perform during the pendency of the sale.

See Def.’s SUF ¶¶ 48–49; Ikajevs Dep. (Doc. 82-3) Ex. 4 at § 1.4. If they did so,

the repair costs would be credited against the purchase price. See Def.’s SUF

¶¶ 48–49; Ikajevs Dep. Ex. 4 at § 1.4. The Disclosed Repairs included one

deficient condition that 600 Cleveland complains about in this suit. See Def.’s

SUF ¶ 48; JSUF ¶¶ 14, 24, 45; Ikajevs Dep. Ex. 4 at § 1.4(b)(iv). 600 Cleveland

performed no maintenance or repairs related to any of the deficient conditions

for which it now seeks damages in this lawsuit, and no repairs or alterations

have been made to the building related to any of the alleged deficient

conditions. See Def.’s SUF ¶¶ 50–51.

On May 23, 2024, 600 Cleveland sued BANA for breach of the lease

agreement. See Pl.’s SUF ¶ 42; Compl. (Doc. 1-1). BANA removed the suit to

this Court and then counterclaimed for breach of contract, recoupment, and an

accounting. See Notice of Removal (Doc. 1); Answer & Countercls. (Doc. 9). On

April 28, 2025, I granted in part 600 Cleveland’s motion to dismiss and strike

affirmative defenses and dismissed the accounting counterclaim and struck

one of BANA’s affirmative defenses. Order (Doc. 43) at 32.

BANA moves for summary judgment on 600 Cleveland’s claim and its

own counterclaims. Def.’s MSJ (Doc. 81). BANA also moves to disqualify 600

Cleveland’s experts on the cost of repairing the building’s allegedly deficient

conditions, John Jahreis and Darren Azdell, and to exclude Jahreis’s report.

Def.’s Daubert Mot. (Doc. 80). 600 Cleveland opposes both. See Pl.’s Resp. to

MSJ (Doc. 102); Pl.’s Resp to Daubert Mot. (Doc. 101). 600 Cleveland moves for

summary judgment on BANA’s counterclaims and affirmative defenses. Pl.’s

MSJ (Doc. 85) at 1. 600 Cleveland also moves to disqualify BANA’s appraisal

expert, David Taulbee, Pl.’s Taulbee Daubert Mot. (Doc. 73), BANA’s expert on

the cost of repairing the building, Pasha Ameli, Pl.’s Ameli Daubert Mot.

(Doc. 78), and BANA’s accounting and financial reconciliation expert, Tracy

Chelepis, Pl.’s Chelepis Daubert Mot. (Doc. 79). BANA opposes each. Def.’s

Resp. to MSJ (Doc. 99); Def.’s Resp. to Taulbee Daubert Mot. (Doc. 97); Def.’s

Resp. to Ameli Daubert Mot. (Doc. 95); Def.’s Resp. to Chelepis Daubert Mot.

(Doc. 96). BANA filed a reply in support of its motion for summary judgment.

Reply (Doc. 106). 600 Cleveland did not.

II. LEGAL STANDARD

Summary judgment is appropriate if no genuine dispute of material fact

exists, and the moving party is entitled to judgment as a matter of law. FED.

R. CIV. P. 56(a). A fact is material if it might affect the outcome of the suit

under governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986).

The movant always bears the initial burden of informing the district

court of the basis for its motion and identifying those parts of the record that

demonstrate a lack of genuine issue of material fact. See Clark v. Coats &

Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). When that burden is met, the

burden shifts to the nonmovant to present evidentiary materials (e.g.,

affidavits, depositions, exhibits, and so on) demonstrating that there is a

genuine issue of material fact, which precludes summary judgment. Id. A

moving party is entitled to summary judgment if the nonmoving party “fail[s]

to make a sufficient showing on an essential element of her case with respect

to which she has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317,

323 (1986).

Because this case is “slated for a bench trial[,] where ‘there are no issues

of witness credibility[,]’ [I] may conclude ‘on the basis of the affidavits,

depositions, and stipulations before [me], that there are no genuine issues of

material fact’ and grant summary judgment, ‘even though [my] decision may

depend on inferences to be drawn from what has been incontrovertibly

proved.’ ” Fla. Int’l Univ. Bd. of Trs. v. Fla. Nat’l Univ., Inc., 830 F.3d 1242,

1252 (11th Cir. 2016) (quoting Nunez v. Superior Oil Co., 572 F.2d 1119, 1123–

24 (5th Cir. 1978)). “When ‘there are neither issues of credibility nor

controversies with respect to the substance of the proposed testimony,’ a ‘trial

on the merits would reveal no additional data,’ and ‘[h]earing and viewing the

witnesses subject to cross-examination would not aid [my] determination.’” Id.

(quoting Nunez, 572 F.2d at 1124). Under such circumstances, I am “in a

position to and ought to draw [my] inferences without resort to the expense of

trial,” including, if warranted, inferences against the non-moving party. See id.

(quoting Nunez, 572 F.2d at 1124).

III. ANALYSIS

A. 600 Cleveland’s Breach Claim

BANA argues for summary judgment on 600 Cleveland’s breach claim

on the grounds that there are no genuine issues of material fact, 600 Cleveland

cannot establish recoverable damages as a matter of law, and it has not put

forth evidence from which a reasonable factfinder could conclude that BANA

breached the lease. See Def.’s MSJ at 3–19, 21–23. 600 Cleveland responds that

Florida law allows for the damages it seeks and that it has put forth sufficient

evidence to find that BANA breached the lease. See Pl.’s Resp. to MSJ at 4–15.

Because I agree with BANA’s damages arguments, I need not consider the

breach question and grant BANA’s motion for summary judgment as to 600

Cleveland’s breach claim.

A plaintiff asserting a breach of contract claim must show damages

caused by the defendant’s alleged breach. See, e.g., People’s Tr. Ins. Co. v.

Alonzo-Pombo, 307 So. 3d 840, 843 (Fla. 3d DCA 2020). Further, Florida law

does not allow for windfall recoveries in contract actions. See MCI Worldcom

Network Servs., Inc. v. Mastec, Inc., 995 So. 2d 221, 223–24 (Fla. 2008) (per

curiam) (“A plaintiff, however, is not entitled to recover compensatory damages

in excess of the amount which represents the loss actually inflicted by the

action of the defendant.”); Feldkamp v. Long Bay Partners, LLC, 773 F. Supp.

2d 1273, 1285 (M.D. Fla. 2011) (“[The injured party] is not entitled to be placed,

because of the breach, in a position better than that which he would have

occupied had the contract been performed.”), aff’d, 453 F. App’x 929 (11th Cir.

2012) (per curiam).

600 Cleveland claims that BANA breached the lease agreement by

failing to deliver the premises in the same condition as they existed on

December 1, 1986. Compl. ¶ 11. Because of this alleged breach, 600 Cleveland

seeks to recover the costs of restoring the building to its 1986-condition. See id.

¶¶ 11–15. 600 Cleveland also seeks to recover rent that it claims to have lost

because BANA left the premises in an untenantable condition. Pl.’s Suppl.

Resps. to Def.’s Interrog. at 12–13; Pl.’s Resp. to MSJ at 4–5. It cannot recover

either.

1. Restoration Damages

As a preliminary matter, 600 Cleveland does not seek to recover, and

produces no evidence of, any damages from diminution in the value of the

building from BANA’s actions. Nor does it contest BANA’s argument and

evidence that “[t]here is no diminution in value.” Def’s MSJ at 9; see id. at 5–7

(arguing and presenting evidence of no diminution in value). Instead, 600

Cleveland argues that, under Florida law, it can obtain restoration damages

regardless. See Pl.’s Resp. to MSJ at 5–7.

As BANA points out, 600 Cleveland has no evidence that it could have

sold the building for more had the repairs to the premises that BANA vacated

been made before the sale. See Def.’s MSJ at 5. 600 Cleveland sold the building

“as-is” in an off-market sale of a larger real property portfolio, and it accepted

the first and only purchase offer it received. Def.’s SUF ¶¶ 39–41, 45, 49.

Further, the Disclosed Repairs in the purchase and sale agreement for the

building reveal that the purchaser viewed only one of the conditions that 600

Cleveland complains about—wood paneling in the place of windows where an

ATM was once located—as a potential issue. See id. ¶ 48; JSUF ¶¶ 14, 24, 45;

Ikajevs Dep. Ex. 4 at § 1.4(b)(iv). Ultimately, as BANA argues and 600

Cleveland does not contest, the purchaser chose not to exercise its right to

replace the wood paneling with windows and receive a credit against the

purchase price. Def.’s MSJ at 6. Thus, BANA has shown, and 600 Cleveland

does not contest, that the alleged deficiencies in the condition of the leased

premises caused no devaluation of the building.

Under certain circumstances, Florida law allows for the recovery of the

cost of restoring leased premises to the condition called for in a lease

agreement. See, e.g., Smith v. Austin Dev. Co., 538 So. 2d 128, 129 (Fla. 2d DCA

1989); Cunningham Drug Stores, Inc. v. Pentland, 243 So. 2d 169, 170 (Fla. 4th

DCA 1970). The question here is whether Florida law allows for the recovery

of restoration damages when the plaintiff did not make any of the needed

repairs, sold the premises before bringing suit, the evidence shows that the

allegedly deficient conditions did not diminish the value of the premises, and

the plaintiff does not dispute the defendant’s assertion that “there is no

diminution in value.” Because recovery under such circumstances amounts to

a windfall for the plaintiff, Florida law does not allow it.

In diversity cases, federal courts must “ascertain and apply” state

common law as the state courts declare the law to be. Fid. Union Tr. Co. v.

Field, 311 U.S. 169, 177 (1940). In other words, in “adjudicating a matter of

state law in a diversity suit,” a federal court acts like “only another court of the

State.” King v. Ord. of United Com. Travelers of Am., 333 U.S. 153, 161 (1948)

(quoting Guar. Tr. Co. of N.Y. v. York, 326 U.S. 99, 108 (1945)).

Because the “highest state court is the final authority on state law,”

Field, 311 U.S. at 177, ordinarily a federal court sitting in diversity first looks

to state supreme court precedent, see Guideone Elite Ins. Co. v. Old Cutler

Presbyterian Church, Inc., 420 F.3d 1317, 1326 n.5 (11th Cir. 2005) (“Our

objective is to determine issues of state law as we believe the Florida Supreme

Court would.”). If the state supreme court has spoken, then a federal court

must “follow its rule.” Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d

1330, 1348 (11th Cir. 2011).

Absent state supreme court precedent, a federal court “look[s] to

decisions of the state’s intermediate court of appeals for guidance.” Baldwin v.

Express Oil Change, LLC, 87 F.4th 1292, 1301 n.7 (11th Cir. 2023). Although

these decisions are not binding on a federal court, Comm’r v. Bosch’s Est., 387

U.S. 456, 465 (1967), “[w]here an intermediate appellate state court rests its

considered judgment upon the rule of law which it announces, that is a datum

for ascertaining state law which is not to be disregarded by a federal court

unless it is convinced by other persuasive data that the highest court of the

state would decide otherwise,” West v. Am. Tel. & Tel. Co., 311 U.S. 223, 237

(1940). In reaching that determination, federal courts may consider “such

sources as the Restatements of Law, treatises and law review commentary,

and the majority rule.” Putman v. Erie City Mfg. Co., 338 F.2d 911, 917 (5th

Cir. 1964) (quotation omitted).1 A federal court must “choose the rule which it

believes the state [supreme] court, from all that is known about its methods of

reaching decisions is likely in the future to adopt.” Id. (quotation omitted). This

endeavor requires use of “judicial brains, not a pair of scissors and a paste pot.”

Id. at 918 (quoting Arthur L. Corbin, The Laws of the Several States, 50 YALE

L.J. 762, 775 (1941)).

No Supreme Court of Florida opinion addresses whether recovery of

damages is permissible in this contract context. There is one Florida

intermediate appellate court opinion dealing with a nearly identical question,

and, throughout this litigation, 600 Cleveland has relied on it for support of its

right to recover restoration damages despite never repairing the deficient

conditions, selling the building before suing, and failing to counter the

defendant’s evidence and argument that there is no diminution in value of the

premises. BANA argues that this case, Pomeranc v. Winn-Dixie Stores, Inc.,

598 So. 2d 103 (Fla. 2d DCA 1992), does not control because allowing 600

Cleveland to recover its asserted $2.7 million in restoration damages, under

1 The Eleventh Circuit adopted as binding precedent all decisions rendered by the

United States Court of Appeals for the Fifth Circuit prior to September 30, 1981. See

Bonner v. City of Pritchard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).

such circumstances, would run afoul of Florida’s prohibition on windfall

recoveries in contract actions. Def.’s MSJ at 6–9.

In Pomeranc a lessee failed to leave the premises in good repair upon

termination of the lease. 598 So. 2d at 104. The lessor sold the premises to a

third party and then sued the lessee for damages for leaving the premises in

disrepair. Id. According to the lessee, the purchase price for the property was

contingent on the lessor’s promise that the lessee would either return as a

tenant of the purchaser or restore the property to the condition required by the

former lease. Id. The Fifth District Court of Appeal reversed the trial court’s

grant of summary judgment for the lessee, holding that the proper measure of

damages was the cost of restoration, not diminution in value, regardless of

whether the premises were restored or the terms of the third-party promise

with the purchaser. Id.

Pomeranc is a case forgotten by Florida state courts. None have cited or

discussed it. 600 Cleveland interprets the lack of engagement as proof of

Pomeranc’s authoritativeness: “No court has overruled, questioned, limited or

found other fault with Pomeranc.” Pl.’s Resp. to MSJ at 6. Prior to this

litigation, only one federal court applying Florida law had cited it. See Apple

Glen Invs., L.P. v. Express Scripts, Inc., No. 8:14-CV-1527-T-33EAJ, 2016 WL

909322 (M.D. Fla. Mar. 10), judgment entered, 2016 WL 4702428 (M.D. Fla.

Sept. 8, 2016), and aff’d, 700 F. App’x 935 (11th Cir. 2017) (per curiam). 600

Cleveland makes much of that single favorable treatment of Pomeranc. Pl.’s

Resp. to MSJ at 6. But that action is materially distinguishable from this one.

There, the lessor continued to own the property, and the court did not address

any argument concerning a potential windfall recovery for the plaintiff. See

2016 WL 909322, at *15. Further, the court relied on Pomeranc for the

proposition that a lessor is under no obligation to the former lessee to use

money recovered as damages to repair the property. Id. This is not the key

issue here.

In concluding that the restoration costs were the proper measure of

damages, Pomeranc relied upon older editions of American Jurisprudence and

the American Law Reports. See 598 So. 2d at 104. As BANA points out, current

versions of the treatises clarify that restoration damages are appropriate for

breach of covenants to leave leased property in a particular condition only

when they do not exceed the diminution in value of the property or result in a

windfall to the lessor.2 See 49 Am. Jur. 2d Landlord and Tenant § 707 (2025);

45 A.L.R. 5th 251 (1997). Indeed, the American Law Reports notes multiple

decisions in which the court “denied damages for a lessee’s breach of a covenant

as to repairs where the lessor was subsequently able to sell the premises to a

2 600 Cleveland accuses BANA of misstating the relevant American Jurisprudence

section. Pl.’s Resp. to MSJ at 6. It is 600 Cleveland, not BANA, that omits the relevant

caveat included in the treatise, and thereby misstates the point of law reflected

therein.

third party at a price unaffected by the absence of repairs.” William H. Danne,

Jr., Annotation, Measure and Elements of Damages for Lessee’s Breach of

Covenant as to Repairs, 45 A.L.R. 5th § 11(d) (1997). As such, the sources upon

which Pomeranc relied now undermine the opinion’s reasoning by adopting a

different approach to avoid windfall recoveries.

More importantly, Supreme Court of Florida opinions, both pre- and

post-dating Pomeranc, do not allow windfall recoveries or damages that result

in economic waste in contract actions. See MCI Worldcom Network Servs., Inc.,

995 So. 2d at 223–24; Grossman Holdings Ltd. v. Hourihan, 414 So. 2d 1037,

1039 (Fla. 1982) (holding that “the reasonable cost of construction and

completion in accordance with the contract” is available only if it “is possible

and does not involve unreasonable economic waste”). Those opinions cut

sharply against Pomeranc as evidence of what Florida law permits here. After

Pomeranc, the Fifth District Court of Appeal too has agreed with this principle

in a separate contract context. See Orkin Exterminating Co. v. DelGuidice, 790

So. 2d 1158, 1159–60 (Fla. 5th DCA 2001) (holding that the measure of

damages for breach of a residential services contract is the lesser of the

diminution in value or the cost of repair, and emphasizing that “[t]he purpose

of providing an alternative method of computing damages on the basis of

diminution in value . . . is to prevent economic waste and to prevent, as well,

potential windfalls to plaintiffs.”). Further, in Florida, when a plaintiff seeks

to recover damages for harm to their real property outside the contract context,

the damages are also measured by either the diminution in value or the costs

of restoring the property, and, when one measure exceeds the other, private

plaintiffs are generally limited to recovering the lesser. See Davey Compressor

Co. v. City of Delray Beach, 639 So. 2d 595, 596 (Fla. 1994) (explaining that

this approach prevents overcompensating plaintiffs).

I must “decide novel questions of state law ‘the way it appears the state’s

highest court would.’ ” Freeman v. First Union Nat., 329 F.3d 1231, 1232 (11th

Cir. 2003) (per curiam) (quoting Ernie Haire Ford, Inc. v. Ford Motor Co., 260

F.3d 1285, 1290 (11th Cir. 2001)). Although Pomeranc might provide evidence

as to that answer, in some cases there exists a “persuasive indication that the

state’s highest court would decide the issue otherwise.” Id. (quoting Ernie

Haire Ford, 260 F.3d at 1290). Such is this case. To conclude that Pomeranc

controls and 600 Cleveland may recover restoration damages when the

evidence shows that there is no diminution in value would run counter to the

Supreme Court of Florida’s consistent precedent that Florida law does not

allow for windfall recoveries in contract actions. Thus, plaintiffs must accept

the lesser of diminution in value and restoration damages when they differ.

Because of the above, 600 Cleveland may not recover restoration

damages in this action.

2. Lost Rent

600 Cleveland also seeks to recover rent that it claims it could not collect

over the twenty-eight months from BANA’s vacating the premises to the sale

of the building. See Pl.’s Suppl. Resps. to Def.’s Interrog. at 14. This rent was

lost, 600 Cleveland asserts, because BANA left the premises in an

untenantable state. Pl.’s Resp. to MSJ at 4–5. BANA argues that 600 Cleveland

is not entitled to lost rent damages because the vacancy was not caused by the

alleged deficient conditions and 600 Cleveland failed to mitigate its damages

by not repairing any of the conditions that it claims rendered the premises

untenantable. Def.’s MSJ at 21–23.

In response, 600 Cleveland makes only passing reference to the

argument in what amounts to a summary of its positions in the litigation. See

Pl.’s Resp. to MSJ at 4–5. 600 Cleveland offers the conclusory statement that

the “deficiencies prevented 600 Cleveland from leasing the Leased Premises to

another tenant, and deprived 600 Cleveland of basic rent for all months

beginning December 1, 2021 through March 31, 2024 (28 months).” Id. at 4.

600 Cleveland then states that it is entitled to rent at the rate BANA paid for

those 28 months. Id. at 4–5. 600 Cleveland does not identify evidence that the

alleged deficiencies proximately caused the vacancies. It does not even identify

evidence of any efforts to lease the space to new tenants. 600 Cleveland

essentially ignores BANA’s arguments regarding the lack of causation or

failure to mitigate.

600 Cleveland has conceded the argument regarding the lost rent by

failing to do more than raise a conclusory denial. See FED. R. CIV. P. 56(e)(3);

Jones v. Bank of Am., N.A., 564 F. App’x 432, 432–34 (11th Cir. 2014) (per

curiam) (affirming summary judgment that the trial court granted because the

plaintiffs failed to respond to the defendant’s specific argument for summary

judgment); Schwarz v. Bd. of Supervisors on behalf of Villages Cmty. Dev.

Districts, 672 F. App’x 981, 983 (11th Cir. 2017) (per curiam) (same).

Even if 600 Cleveland had not conceded the argument, its conclusory

statement that the deficiencies prevented it from leasing the premises to a new

tenant would be insufficient. See, e.g., Sumrall v. Georgia Dep’t of Corr., 154

F.4th 1304, 1313 (11th Cir. 2025), petition for cert filed, (No. 25-6517); Evers v.

Gen. Motors Corp., 770 F.2d 984, 986 (11th Cir. 1985) (“This court has

consistently held that conclusory allegations without specific supporting facts

have no probative value [at the summary judgment stage.]”). In response to

BANA’s motion, 600 Cleveland has presented no evidence of a genuine dispute

of material fact regarding causation for its lost rent theory—indeed it has

presented no evidence at all. No reasonable factfinder could find for 600

Cleveland on lost rent damages.

Because 600 Cleveland has no recoverable damages caused by BANA’s

alleged breach of the lease agreement, I grant BANA’s motion for summary

judgment as to 600 Cleveland’s sole cause of action. I deny as moot 600

Cleveland’s Daubert motions regarding Taulbee and Ameli, and its motion for

summary judgment as to BANA’s affirmative defenses. I likewise deny as moot

BANA’s Daubert motion regarding 600 Cleveland’s experts.

B. BANA’s Counterclaims

As a preliminary matter, BANA’s counterclaim for recoupment is

dismissed as moot because 600 Cleveland cannot recover on its claim.

Both parties move for summary judgment on the remaining

counterclaim for breach of the lease agreement. Def.’s MSJ at 23–25; Pl.’s MSJ

at 5–10. BANA’s claim is that the lease required 600 Cleveland to provide end-

of-the-year statements on BANA’s share of the building’s operating costs for

reconciliation purposes. See Am. Answer & Countercls. (Doc. 24) ¶ 30

(Countercls.). BANA asserts that 600 Cleveland did not provide these

statements. Id. ¶ 32 (Countercls.). As a result, 600 Cleveland overcharged

BANA for operating costs and kept these overpayments despite BANA’s

demands that they be returned. See id. ¶¶ 33–34 (Countercls.). Because 600

Cleveland did not provide the required statements and withheld overpayments

from BANA, it allegedly breached the lease. See id. ¶¶ 32, 35 (Countercls.).

BANA argues that 600 Cleveland did not reconcile the operating costs

on an annual basis as the lease required. Def.’s MSJ at 23. BANA relies on its

accounting expert, Chelepis, and avers that he reviewed the relevant records

and determined that 600 Cleveland failed to provide timely reconciliations to

BANA for several years and improperly charged BANA for various costs that

should not have been included according to the parties’ lease agreement. Id. at

23–24. Because 600 Cleveland has not offered its own expert or any

“significant, probative evidence” to demonstrate a triable issue of fact, BANA

contends that it is entitled to summary judgment. Id. at 25.

For its part, 600 Cleveland claims that it provided the required

statements and identifies testimony from James Jacob, Jr., the president of

JRES, in support. Pl.’s MSJ at 5. It also claims that BANA is precluded from

proving that 600 Cleveland failed to provide the statements because, when

asked at his deposition if it was BANA’s position that 600 Cleveland did not

provide the statements, BANA’s corporate representative responded, “I don’t

know.” Id. at 5–6. 600 Cleveland does not identify any precedent holding that

such an answer from a corporate representative precludes the party from

making out its case. It repeats this argument later in its motion and never

explains further. See id. at 7–8. In the absence of developed reasoning,

explanation, or case law in support, I decline to consider this argument. See

U.S. Steel Corp. v. Astrue, 495 F.3d 1272, 1287 n.13 (11th Cir. 2007) (declining

to address a “perfunctory and underdeveloped” argument that the party did

not elaborate on or support with any legal authority). And, in any event, BANA

clarifies in its response that it objected to at least one of these questions as

vague and filed errata sheets to clarify the representative’s answers. Def.’s

Resp. to MSJ at 4–6; id. at 5 n.3.

600 Cleveland continues by averring that JRES, who calculated the

operating costs, did so in good faith and that the calculations were not patently

erroneous. See Pl.’s MSJ at 6–8. Thus, under the terms of the lease, there was

no breach. See id. In support, 600 Cleveland points to Jacob’s declaration,

which describes how he calculated the costs. Id. at 6–7.

Next, 600 Cleveland argues that the terms of the lease limit BANA’s

remedies to applying any overpayment to the next payment for operating costs.

Id. at 8–9. Lastly, 600 Cleveland contends that the statute of limitations bars

collecting damages on any overpayments from before July 18, 2019. Id. at 9–

10.

In its response to BANA’s motion, 600 Cleveland repeats most of the

arguments made in its motion, except for the statute of limitations argument.

See Pl.’s Resp. to MSJ at 15–18. Although 600 Cleveland moves to disqualify

Chelepis, Pl.’s Chelepis Daubert Mot., it does not respond to BANA’s argument

regarding its expert. See Pl.’s Resp. to MSJ at 15–18.

When responding to 600 Cleveland’s motion, BANA puzzlingly attempts

to retreat from its own assertion that there is no genuine dispute of material

fact. See Def.’s Resp. to MSJ at 3, 5–6 (“Plaintiff ignores the mountain of

evidence showing the disputed nature of [the breach] issue . . . .”). Throughout,

BANA casts doubt on the evidence that 600 Cleveland cited in support of its

motion. See id. at 4–5, 7. BANA then argues that 600 Cleveland’s contention

that the sole remedy allowed is to apply any overage to the next payment

“misstates both the Lease and Florida law.” Id. at 7–9. 600 Cleveland’s statute

of limitations argument fails, BANA claims, because the obligation was a

continuing obligation, and the claim did not begin accruing until the lease was

terminated. Id. at 9–11. Thus, it falls within the five-year window to bring

contract actions in Florida. Id.

1. 600 Cleveland’s Sole Remedy Theory

600 Cleveland argues that BANA is precluded from recovering any

damages from overcharges for the building’s operating costs because the lease

states that, “[i]n the event the total monthly payments made by Tenant for the

Building’s Operating Cost . . . exceeds Tenant’s proportionate share . . . then

Landlord will apply any such overage towards the next succeeding monthly

payments of the Building’s Operating Cost due from Tenant.” Pl.’s MSJ at 8;

Lease Agreement § 5 (Doc. 82-2) at 5. In support, 600 Cleveland cites a single,

non-binding case considering a contract for the sale of goods that fell under the

Florida Uniform Commercial Code for the proposition that there need not be

“magic words” such as “sole remedy” to preclude recoveries for breaches of

contract. See Pl.’s MSJ at 8–9; Jet Sales of Stuart, LLC v. Jet Connection

Travel, GmbH, No. 06-80039-CIV, 2006 WL 8435439, at *4 (S.D. Fla. Sept. 19,

2006), aff’d, 240 F. App’x 839 (11th Cir. 2007) (per curiam).

More persuasive is Florida law holding that parties may contract for

exclusive remedies, but the provisions limiting remedies must be “mutual,

unequivocal and reasonable.” Coastal Computer Corp. v. Team Mgmt. Sys.,

Inc., 624 So. 2d 352, 353 (Fla. 2d DCA 1993) (quoting Greenstein v. Greenbrook,

Ltd., 413 So. 2d 842, 844 (Fla. 3d DCA 1982)). Here, there is no such language

limiting the remedies. See Lease Agreement § 5 (Doc. 82-2) at 4–5. Further,

given that the provision in question provides guidance to the parties in the

likely event that estimated operating costs payments would, through no fault

of either party, inevitably prove inaccurate at some point during the decades-

long lease, the better reading of the provision is that it is not specifying a

remedy for breach and is instead providing instructions on what to do under

foreseeable circumstances to avoid unnecessary litigation.

The lease provision does not preclude BANA from recovering damages

for any overcharges.

2. 600 Cleveland’s Statute of Limitations Argument

600 Cleveland argues that, because Florida’s statute of limitations for

contract claims is five years from the date on which the cause of action accrues,

and BANA first asserted its counterclaim on July 18, 2024, BANA is barred

from recovering for any overcharging before July 18, 2019. Pl.’s MSJ at 9. In

response, BANA contends that, by keeping the overpayments instead of

applying them to BANA’s share of the operating costs in subsequent months,

600 Cleveland breached a continuing obligation. Def.’s Resp. to MSJ at 9–11.

Under Florida law, when the breach is of a continuing obligation,

“ongoing nonperformance constitute[s] a continuing breach while the contract

remain[s] in effect,” and the “cause of action is not limited to the [defendant’s]

initial breach.” City of Quincy v. Womack, 60 So. 3d 1076, 1078 (Fla. 1st DCA

2011). Although there appears to be some rhetorical difference in how courts

applying Florida law have treated situations such as this one, the outcome is

the same under either approach. On the one hand, some courts have found

contracts that similarly require repeat future payments to be divisible, with

each obligation or owed payment forming its own cause of action with a

separate limitations period upon breach. See, e.g., Access Ins. Planners, Inc. v.

Gee, 175 So. 3d 921, 924 (Fla. 4th DCA 2015) (holding that contract requiring

periodic payment of commissions upon receipt of premiums was divisible);

Arlaine & Gina Rockey, Inc. v. Cordis Corp., No. 02-22555-CIV, 2004 WL

5504978, at *49 n.15 (S.D. Fla. Jan. 5, 2004) (holding that the obligation to

make periodic royalty payments was not a continuing obligation; instead, the

obligations were severable); Hannett v. Bryan, 640 So. 2d 203, 204 (Fla. 4th

DCA 1994) (holding that a contract for annual syndication fee payments was

divisible). On the other hand, other courts have concluded that analogous

circumstances involved a continuing obligation. See, e.g., Grove Isle Ass’n, Inc.

v. Grove Isle Assocs., LLLP, 137 So. 3d 1081, 1095 (Fla. 3d DCA 2014) (per

curiam) (finding a breach of a continuing obligation when a defendant

repeatedly overcharged for annual fees and dues); Smith v. Casey, No. 1:12-

CV-23795-UU, 2014 WL 11878422, at *5 (S.D. Fla. Oct. 29, 2014) (holding

failure to pay recurring royalties is a breach of a continuing obligation); Bishop

v. State, Div. of Ret., 413 So. 2d 776, 778 (Fla. 1st DCA 1982) (finding breach

of a continuing obligation for failure to make full monthly payments).

This is a distinction without a difference because, even when courts

conclude that there is a continuing obligation, the plaintiff is still limited to

recovering damages that fall within the five-year limitations period from the

date of filing.3 See Grove Isle Ass’n, Inc. 137 So. 3d at 1095; XP Glob., Inc. v.

AVM, L.P., No. 16-CV-80905, 2016 WL 4987618, at *3 (S.D. Fla. Sept. 19,

3 Given that, when the contractual obligation at issue requires repeat future actions

or payments, the outcome is the same under either method, the better approach is to

find such contracts divisible because doing so avoids the confusion that accompanies

considerations of whether something is a continuing obligation.

2016). Under either approach, BANA may recover damages incurred only in

the five years before it filed its counterclaim. Thus, BANA may not recover for

any overpayments before July 18, 2019.

3. 600 Cleveland’s Daubert Challenge to Chelepis

Because BANA relies exclusively on Chelepis’s testimony and report to

prove its counterclaim, should they be inadmissible, 600 Cleveland would be

entitled to summary judgment. Accordingly, 600 Cleveland moves to strike

Chelepis’s Expert Report and to prevent him from testifying at trial. Pl.’s

Chelepis Daubert Mot. at 1–3. In support, 600 Cleveland makes three

arguments: (1) Chelepis’s methodology is unreliable; (2) his opinion is ipse

dixit; and (3) his testimony would not help the trier of fact. See id. at 5–6, 13–

14, 16–17. In response, BANA asserts that 600 Cleveland misapplies the

Daubert standard specific to scientific testimony to Chelepis’s non-scientific

accounting opinion, ignores Chelepis’s testimony regarding his audit process

in favor of cherry-picked quotes from the deposition, and fails to set forth an

actual argument for how Chelepis’s testimony would not help the trier of fact.

Def.’s Resp. to Chelepis Daubert Mot. at 2.

Federal Rule of Evidence 702 governs expert testimony, providing:

A witness who is qualified as an expert by knowledge, skill,

experience, training, or education may testify in the form of an

opinion or otherwise if the proponent demonstrates to the court

that it is more likely than not that:

(a) the expert’s scientific, technical, or other specialized

knowledge will help the trier of fact to understand the

evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and

methods; and

(d) the expert’s opinion reflects a reliable application of the

principles and methods to the facts of the case.

FED. R. EVID. 702.

Trial courts must consider if “(1) the expert is qualified to testify

competently regarding the matters he intends to address; (2) the methodology

by which the expert reaches his conclusions is sufficiently reliable as

determined by the sort of inquiry mandated in Daubert; and (3) the testimony

assists the trier of fact, through the application of scientific, technical, or

specialized expertise, to understand the evidence or to determine a fact in

issue.” Thelen v. Somatics, LLC, 156 F.4th 1115, 1131–32 (11th Cir. 2025)

(quoting United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004)). The

party seeking to introduce the expert at trial bears the burden of establishing

qualification, reliability, and helpfulness. Frazier, 387 F.3d at 1260. An expert

can be qualified to testify about certain matters based on his scientific training,

education, knowledge, or experience in the field. Id. at 1260–61.

To determine whether an expert’s scientific methodology is reliable,

courts consider:

(1) whether the expert’s theory can be and has been tested;

(2) whether the theory has been subjected to peer review and

publication; (3) the known or potential rate of error of the

particular scientific technique; and (4) whether the technique is

generally accepted in the scientific community.

Id. at 1262 (citation omitted). When applicable, these criteria “may be used to

evaluate the reliability of non-scientific, experience-based testimony.” See id.

(citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999)). In other cases,

“[s]tandards of scientific reliability, such as testability and peer review, [will]

not apply to all forms of expert testimony.” Am. Gen. Life Ins. Co. v. Schoenthal

Fam., LLC, 555 F.3d 1331, 1338 (11th Cir. 2009). “For nonscientific expert

testimony, ‘the trial judge must have considerable leeway in deciding in a

particular case how to go about determining whether particular expert

testimony is reliable.’ ” Id. (quoting Kumho Tire Co., 526 U.S. at 152). “A

district court may decide that nonscientific expert testimony is reliable based

‘upon personal knowledge or experience.’ ” Id. (quoting Kumho Tire Co., 526

U.S. at 150).

Expert testimony generally helps the trier of fact to understand evidence

or decide a fact at issue if the testimony “concerns matters that are beyond the

understanding of the average lay person.” Frazier, 387 F.3d at 1262. Expert

testimony generally will not help the trier of fact if it “offers nothing more than

what lawyers for the parties can argue in closing arguments.” Id. at 1262–63.

And, of course, simply because expert testimony meets the Daubert standard

does not mean that the testimony is automatically admitted. See id. at 1263.

Instead, courts must still consider whether that expert testimony satisfies the

other Federal Rules of Evidence. See id. When a case will proceed as a bench

trial, like here, the Court’s gatekeeping function is less of a concern. See United

States v. Brown, 415 F.3d 1257, 1269 (11th Cir. 2005) (“There is less need for

the gatekeeper to keep the gate when the gatekeeper is keeping the gate only

for himself.”).

As a preliminary matter, 600 Cleveland does not contest Chelepis’s

qualifications—nor could it. His extensive education and experience in the

fields of accounting, auditing, and real estate qualify him to testify competently

on the proper calculation of operating costs charges under a lease. See Def.’s

Resp. to Chelepis Daubert Mot. at 12–13 (detailing Chelepis’s education and

work experience); Chelepis Report (Doc. 77-1) at 20–21.

Chelepis opines that 600 Cleveland overcharged BANA by $160,882.01

for operating costs over the course of the lease.4 Chelepis Report at 8. 600

Cleveland attacks his opinion on the basis that his “methodology does not

utilize any accepted industry standards that can be verified or tested.” Pl.’s

Chelepis Daubert Mot. at 6. 600 Cleveland argues that Chelepis should be

4 600 Cleveland did not provide information from which Chelepis could audit the 2020

and 2021 operating costs, so he took the average of the amount that 600 Cleveland

overcharged BANA in the years for which he did have information and projected that

BANA was overcharged by that average amount for the months that BANA occupied

the building in 2020 and 2021. See Chelepis Dep. (Doc. 74-1) 93:4–94:14.

barred from testifying because “lease auditing” does not have “articulated

industry standards,” “peer review processes,” or a “regulatory governing body

to which his opinions can be tested.” Id. at 7. 600 Cleveland, again, takes issue

with Chelepis’s methodology, which essentially boils down to reviewing the

lease and its amendments, establishing what kinds of charges could be billed

as operating costs and what could not, and then comparing the operating costs

invoices to that baseline to see if 600 Cleveland charged BANA contrary to the

lease’s provisions. Id. at 10. 600 Cleveland claims this methodology is

unreliable because, to determine what could be charged as operating costs,

Chelepis interprets terms in the lease, and, when the lease does not address

certain costs, relies on standard industry practices to categorize the costs. See

id. at 10–12. 600 Cleveland contends that Chelepis’s reliance on his knowledge

and experience as a CPA, purportedly without further explanation, makes his

methodology unreliable. See id. at 12–13. 600 Cleveland makes a similar

argument that Chelepis’s opinion is unreliable because it is ipse dixit. Id. at

13. Specifically, 600 Cleveland avers that Chelepis’s opinion is conclusory and

based on nothing more than assumptions and his assurances that the opinion

is accurate. See id. at 13–16.

In response, BANA correctly identifies that, for non-scientific expert

testimony, there need not be articulated industry standards, peer review

processes, or a regulatory governing body. See Def.’s Resp. to Chelepis Daubert

Mot. at 13; Am. Gen. Life Ins. Co., 555 F.3d at 1338 (holding that “standards

of scientific reliability, such as testability and peer review, do not apply to all

forms of expert testimony,” and that “a district court may decide that

nonscientific expert testimony is reliable based upon personal knowledge or

experience” (citation modified)). Nor does the fact that Chelepis’s methodology

requires him to interpret terms in the lease to determine whether certain costs

were properly included make his opinion inherently unreliable. See Maiz v.

Virani, 253 F.3d 641, 666–67 (11th Cir. 2001) (affirming the admission of a

forensic accountant’s testimony regarding provisions in contracts and the

effect of the provisions on the defendants’ entitlements to commissions or

expenses). Because 600 Cleveland merely states in a conclusory fashion that

Chelepis relies on assumptions, it remains unclear which ones 600 Cleveland

contests. In any event, experts are entitled to state and rely on reasonable

assumptions, like Chelepis does here. See id.

Chelepis’s deposition testimony also undermines 600 Cleveland’s

argument that his opinion is ipse dixit. See Pl.’s Chelepis Daubert Mot. at 12–

16. Chelepis explained at length the general process he uses to audit leases.

See Chelepis Dep. (Doc. 74-1) 16:4–21:10. He then reviewed the lease’s

provisions and amendments and explained how he interpreted and applied

them to reach his opinion. See, e.g., id. 26:5–27:11, 31:9–34:5, 37:10–46:17,

49:21–59:17, 61:5–71:15. Chelepis similarly explained his accounting

calculations and his underlying reasonable assumptions. See, e.g., id. 117:4–

130:6. I conclude, given the above, that Chelepis’s methodology is reliable and

his opinion is not ipse dixit.5

600 Cleveland’s conclusory argument that Chelepis’s testimony will not

assist the trier of fact fares no better. Pl.’s Chelepis Daubert Mot. at 16–17. As

the trier of fact, I conclude that Chelepis’s testimony would be helpful in

navigating the numerous financial records and reconciling them, using

accounting principles, with the lease’s guidance for what could properly be

charged as operating costs.

600 Cleveland’s Chelepis Daubert motion is denied.

4. No Genuine Dispute of Material Fact

In the light of considering 600 Cleveland’s other arguments and

admitting Chelepis’s testimony, I must now determine whether there are

genuine disputes of material fact as to any alleged overpayments occurring on

or after July 18, 2019.

The lease required BANA to make estimated payments of its share of the

building’s operating costs “simultaneously with the monthly payments of the

5 Although the Daubert reliability inquiry focuses “on the expert’s principles and

methodology, and not on the conclusions that they generate,” McDowell v. Brown, 392

F.3d 1283, 1298 (11th Cir. 2004), it is worth mentioning that his findings are

consistent with the opinion of JRES’s “accounting employee[,] Yvette.” Upon learning

in February 2019 that BANA sought to reconcile operating costs payments, Yvette

thought that 600 Cleveland was “going to owe [BANA] tens of thousands of dollars.”

See JSUF ¶ 30.

basic annual rent.” Lease § 5 (Doc. 82-2) at 5. The lease obligated 600

Cleveland to, “[a]fter the end of each lease year, or such shorter accounting

period as [600 Cleveland] may determine in [its] sole discretion, [600

Cleveland] shall deliver to [BANA] a statement showing the amount of the

Building’s Operating Cost for the subject period, and further showing [BANA’s]

share thereof.” Id. And any “determination made in good faith by [600

Cleveland] and not patently erroneous shall be binding.” Id. The lease then

provided directions on how each party should address inevitable under- or

overpayment. See id.

BANA alleges that 600 Cleveland is in breach because it withheld

overpayments that BANA made towards its share of the operating costs of the

building. See Am. Answer & Countercls. ¶ 35 (Countercls.). There are two ways

that 600 Cleveland, by not crediting (or repaying) BANA for overpayments,

could potentially be in breach of its obligations in § 5. Under the first, 600

Cleveland fails to provide the reconciliation statement at the end of a given

lease year, resulting in BANA’s overpayment for that year. Under the second,

600 Cleveland provides a reconciliation statement for a given lease year that

it made in bad faith or was patently erroneous, resulting in BANA’s

overpayment. No party puts forth evidence or makes any argument that 600

Cleveland credited or repaid BANA for any overpayments. Both parties

assume and argue that 600 Cleveland did not. Thus, what remains for BANA

to show is that it overpaid for the years in question under either of the above

scenarios. The parties, as explained below, misread the lease. Because the

parties interpret the “good faith” and “not patently erroneous” provision to

apply to estimates of future operating costs, they focus on the first manner in

which BANA might have overpaid.

BANA points to Chelepis’s report and testimony as evidence of its claim.

Def.’s MSJ at 23–25. As part of his audit, Chelepis reviewed all BANA’s

relevant files and those files that 600 Cleveland provided in response to his

repeated requests for documentation related to the lease and the building’s

operating costs. See Chelepis Report at 1–2. After his review, Chelepis

concluded that 600 Cleveland provided the reconciliation statement for 2019

but not for 2020 and 2021. Id.; Chelepis Dep. 96:6–15.

In response, 600 Cleveland argues that BANA cannot prove its

counterclaim and points to Jacob’s declaration and deposition testimony that

he sent statements to BANA detailing its proportion of the building’s operating

costs. See Pl.’s MSJ at 5–6; Pl.’s Resp. to MSJ at 15. But what Jacob sent was

not a statement reconciling the estimated operating costs payments BANA

made over the past year with the actual operating costs. Instead, Jacob sent

“estimates of coming-year [operating costs] in summary.” Jacob Decl. (Doc. 84-

7) ¶ 9. At his deposition, Jacob testified that JRES provided the required

reconciliation statements for each year. See Jacob Dep. (Doc. 84-5) 202:22–

203:24. He then clarified that he sent “what the operating expenses were, so

what the amount of the rent would be for the forthcoming lease year or partial

lease year.” Id. 206:8–10 (emphasis added). The sample statement that 600

Cleveland provides confirms that these statements were estimates of future

rent and operating costs, not reconciliation statements. See Jacob Decl. Ex. 1

(Doc. 84-7) at 7.

Thus, the only evidence offered as to whether 600 Cleveland complied

with its obligations to provide reconciliation statements to BANA is Chelepis’s

expert testimony. There is no genuine dispute of material fact as to whether

600 Cleveland timely provided the reconciliation statements for the years from

which BANA is not time-barred from recovering damages. The evidence is that

600 Cleveland did so only once—in 2019.6

600 Cleveland argues that JRES’s calculations for the estimated

operating costs, which BANA paid, were made through reasonable

calculations, reliance on Jacob’s experience in commercial building

management, and his business judgment. See Pl.’s MSJ at 6–7; Pl.’s Resp. to

MSJ at 16–17. Thus, they were made in good faith and were not patently

6 As one might expect, the amount that Chelepis found that 600 Cleveland

overcharged BANA in 2019 after the reconciliation statement was substantially less

than the amounts in the other years. Chelepis Report at 8. In 2019, 600 Cleveland

purportedly overcharged BANA by only $3,234.04. Id. at 8, 16. The overpayments in

the other years for which Chelepis received documents from 600 Cleveland, see supra

note 4, averaged $20,430.80. See Chelepis Report at 8.

erroneous. See Pl.’s MSJ at 6–7; Pl.’s Resp. to MSJ at 16–17. 600 Cleveland

does not clearly explain this argument; it just states that for these reasons it

is entitled to summary judgment. See Pl.’s MSJ at 6–7, 9; Pl.’s Resp. to MSJ at

16–18. I interpret that argument to mean that, under the terms of the lease,

good faith calculations that are not patently erroneous are still binding. Thus,

according to 600 Cleveland, there could be no breach claim even if 600

Cleveland did not send the reconciliation statements. The problem is that the

“good faith” and “not patently erroneous” provision applies to the reconciliation

statements sent in accordance with § 5 of the lease, not to any estimates of

future costs. Section 5 provides a set estimated payment for operating costs,

and the only “determination” to be made is the amount that BANA truly owed

based on the actual costs of the year and how that compared to the estimated

amount. Outside of defending against any alleged overcharging for operating

costs in 2019, when 600 Cleveland sent a reconciliation statement, this

provision is of no help to 600 Cleveland.

Both parties appear to mistakenly perceive the “good faith” and “not

patently erroneous” provision as applying to future operating costs estimates.

See, e.g., Pl.’s MSJ at 6–7; Def.’s Resp. to MSJ at 5–7. Thus, to the extent that

any evidence exists regarding how 600 Cleveland calculated the 2019

reconciliation statement and whether it was done in good faith, neither party

points to it. Proving entitlement to damages related to overcharging in 2019 is

BANA’s burden, and in the absence of any evidence from which to support that

the amount charged after reconciliation was not made in good faith or was

patently erroneous, 600 Cleveland is entitled to summary judgment as to any

damages from 2019. See Hammer v. Slater, 20 F.3d 1137, 1141 (11th Cir. 1994).

For 2020 and 2021, BANA has put forth uncontroverted evidence that

600 Cleveland failed to timely provide the required reconciliation statements,

and that 600 Cleveland overcharged BANA by a combined $35,063.17. See

Chelepis Report at 8. Thus, BANA is entitled to summary judgment as to its

breach claim but may recover damages only from 2020 and 2021.

IV. CONCLUSION

I grant BANA’s motion for summary judgment as to 600 Cleveland’s

claim because restoration damages are barred by Florida law when higher than

the diminution in value, and 600 Cleveland failed to present evidence of

causation for lost rent damages. Because BANA’s accounting expert, Chelepis,

is qualified, uses reliable methodology, and would be helpful to the trier of fact,

I deny 600 Cleveland’s Daubert motion. After concluding that the statute of

limitations bars BANA from recovering damages incurred before July 18, 2019,

and accepting Chelepis’s testimony, the only evidence regarding BANA’s

counterclaim for breach of contract establishes that there is no genuine dispute

of material fact, and that BANA is entitled to judgment as a matter of law as

to its overpayments in 2020 and 2021. Thus, I grant in part BANA’s motion for

summary judgment as to its counterclaim and grant in part 600 Cleveland’s

motion for summary judgment.

The following is therefore ORDERED:

1. BANA’s Motion for Summary Judgment (Doc. 81) is GRANTED

IN PART. Specifically, the Court grants the motion regarding 600

Cleveland’s sole claim and BANA’s breach of contract counterclaim

for lease years 2020 and 2021. BANA’s summary judgment motion

is otherwise denied, including BANA’s recoupment claim, which is

denied as moot. Accordingly, Count II of BANA’s Counterclaims

(Doc. 24) is DISMISSED as moot.

2. 600 Cleveland’s Motion for Summary Judgment (Doc. 85) is

GRANTED IN PART only to the extent of 600 Cleveland’s

arguments that the statute of limitations prevents BANA from

recovering damages from before July 18, 2019, and that BANA

cannot prove its claim for damages from the 2019 lease year. 600

Cleveland’s Motion for Summary Judgment is otherwise

DENIED.

3. 600 Cleveland’s Chelepis Daubert Motion (Doc. 79) is DENIED.

4. BANA’s Daubert Motion (Doc. 80), 600 Cleveland’s Taulbee

Daubert Motion (Doc. 73), and 600 Cleveland’s Ameli Daubert

Motion (Doc. 78) are DENIED as moot.

5. The Clerk is directed to ENTER JUDGMENT, which shall read:

“Judgment is entered in favor of Bank of America, N.A., and

against 600 Cleveland, LLC, in the amount of $35,063.17 and any

prejudgment interest to be determined.”

6. No later than fourteen days after the Clerk’s entry of

judgment in accordance with this order, BANA is directed to file

a motion establishing the amount of prejudgment interest it is

owed, and, if it chooses, for entitlement to—though not the amount

of—attorney’s fees and costs. See Local Rule 7.01.

7. The Clerk is further directed to TERMINATE all deadlines and

to CLOSE this case.

ORDERED in Tampa, Florida, on January 238, 2026.

Kathryn’Kimball Mizelle

United States District Judge

39