Opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

WES-FLO CO., INC.,

Plaintiff,

v. Case No. 8:24-cv-01482-WFJ-AAS

BALL METAL BEVERAGE

CONTAINER CORP.,

Defendant.

_________________________________/

ORDER

Before the Court are the parties’ cross-motions for summary judgment.

Defendant Ball Metal Beverage Container Corp. (“Ball Metal”) moves for summary

judgment on certain issues stipulated to by the parties, Dkt. 67, Plaintiff Wes-Flo

Co., Inc. (“Wes-Flo”) responded in opposition, Dkt. 73, and Defendant Ball Metal

replied. Dkt. 80. Plaintiff Wes-Flo moves for partial summary judgment on the same

stipulated issues, Dkt. 65, Defendant Ball Metal responded in opposition, Dkt. 75,

and Plaintiff Wes-Flo replied. Dkt. 81. Upon careful consideration, the Court grants

Defendant Ball Metal’s motion and denies Plaintiff Wes-Flo’s motion.

BACKGROUND

Wes-Flo is a Florida corporation with its principal place of business in

Hillsborough County, Florida. Dkt. 65 ¶ 1; Dkt. 76 ¶ 1. Ball Metal is a Colorado

corporation authorized to conduct business in Florida, which produces aluminum

beverage cans and lids (the “products”). Id. A certain Master Warehouse Services

Agreement—and its exhibits—governs this dispute, see Dkt. 65-1, which was

entered into by the parties on July 1, 2017, and subsequently amended (collectively,

the “warehouse agreement”). Dkt. 65 ¶ 2; Dkt. 76 ¶ 2.

Under the warehouse agreement, Plaintiff Wes-Flo would store pallets of

Defendant Ball Metal’s products at warehouses located at 5707 North 5th Street and

5806 North 53rd Street, Tampa, Florida 33610 (the “Warehouses”). Dkt. 65-1 at 8,

9. The Warehouses were owned by non-party G&I IX 5806 N. 53rd Street, LLC

(“G&I”), and leased to Plaintiff Wes-Flo. See Dkt. 66-3. The Parties have stipulated

that Plaintiff Wes-Flo did not have written consent to sublease to Defendant Ball

Metal, as would have been required by the lease between G&I and Plaintiff Wes-Flo.

Dkt. 66 at 3; see Dkt. 66-3 at 5 (“[Wes-Flo] shall not assign this Lease or sublease

the Premises or any part thereof or mortgage, pledge or hypothecate its leasehold

interest or grant any concession or license within the Premises or sublease any

portion thereof without [G&I]’s prior written consent . . . [.] [A]ny attempt to do any

of the foregoing without obtaining [G&I]’s prior written consent shall be void and

of no effect.”).

The warehouse agreement labeled Plaintiff Wes-Flo as the “warehouseman,”

Dkt. 65-1 at 2, and stipulates that Plaintiff Wes-Flo was responsible for the handling

of the pallets, id. at 8, 9 (detailing a handling rate for “Inbound/Outbound Per Pallet

of Cans & [Lids]”), storage of the pallets, id. at 2, and the maintenance of certain

standards. Id. at 10–19.

Specifically, Wes-Flo adopted minimal standards “to prevent contamination

and damage” as “[t]he empty can[s] may absorb strong or pungent odors and will

also be damaged by contaminants such as (but not limited to): dust, water, dirt,

insects, foreign debris, leaking equipment chemicals, etc. The empty cans are also

susceptible to damage from material[,] handling equipment[,] and improper

transporting.” Id. at 10, 31, 35, 41. It is noted that these standards were especially

important to Defendant Ball Metal, as “Ball customers’ products are regulated by the

government and must comply with strict guidelines regarding the package ultimately

provided to the end consumer.” Id. at 30. The standards encompassed a broad range

of requirements, including sanitation of grounds and buildings, maintenance of

building exteriors and interiors, pest control measures, storage practices, and

warehouse security protocols. See id. at 10–19. The maintenance of these standards

was to be verified through quality inspections performed by Defendant Ball Metal

twice per year. Id. at 10.

Furthermore, under the warehouse agreement, Plaintiff Wes-Flo was

established as “solely responsible for providing all personnel . . . , labor, materials,

supplies, equipment, warehousing and other accessories necessary to properly

receive, handle, store, track, and load and secure for shipment all Product.” Id. at 2.

The warehouse agreement also provided procedures for warehousing operations,

including ensuring that the “warehouseman is responsible for a daily inspection of

the warehouse building to ensure proper operating conditions exist for a food grade

and safe environment.” Id. at 32, 36, 41. It is noted that Plaintiff Wes-Flo would be

“expected to make reasonable attempts to backfill any seasonal or available

warehouse space.” Id. at 32, 36, 42.

In exchange for the aforementioned services, Defendant Ball Metal agreed to

certain amounts for handling, storage, and delivery. Id. at 8, 9, 39–40. These amounts

would be invoiced “for Storage Services performed on a weekly basis.” Id. at 2.

The warehouse agreement also provided certain warranties, including that

Plaintiff Wes-Flo’s “execution, delivery or performance of this Agreement does not

constitute an infringement or violation of any proprietary rights, intellectual property

rights, or confidentiality rights of any third party.” Id. at 4. The warehouse agreement

was eventually amended to continue until April 30, 2024. Id. at 39.

On May 2, 2024, Plaintiff Wes-Flo filed this action against Defendant Ball

Metal in the Circuit Court of the Thirteenth Judicial Circuit in and for Hillsborough

County, Florida. Dkt. 1-1. On June 19, 2024, this action was removed to the United

States District Court for the Middle District of Florida. Dkt. 1. Plaintiff Wes-Flo filed

the operative Second Amended Complaint on April 28, 2025, alleging causes of

action against Defendant Ball Metal for breach of contract (Count I) and breach of

account stated (Count II). Dkt. 43. The underlying claim asserted by Plaintiff Wes-

Flo is that Defendant Ball Metal “abruptly vacated” the Warehouses in July 2023,

Dkt. 43 ¶ 11, which Defendant Ball Metal denies. Dkt. 46 ¶ 11. However, Defendant

Ball Metal does admit to refusing to pay ensuing invoices for what Plaintiff Wes-Flo

has subsequently labeled “rent” and “operating costs.” Dkt. 43 ¶ 17; Dkt. 46 ¶ 17.

In an effort to avoid the “costs of expert disclosures and further discovery,”

the parties have “worked in good faith to narrow the issues to be presented in their

competing summary judgment motions.” Dkt. 66 at 2. The parties now seek

summary judgment as to two stipulated issues. Dkts. 67, 65. The first stipulated issue

is: “Whether, under the terms of the [warehouse agreement] and its exhibits, Wes-

Flo was entitled as a matter of law, following Ball Metal’s removal of its products

from the [W]arehouses, to stand by, do nothing to mitigate, and sue for the relief

sought in the Second Amended Complaint?” Dkt. 65 at 2; see Dkt. 66 at 3. Stated

differently, whether “Wes-Flo occupies the legal position of a commercial landlord

for purposes of interpreting and enforcing its rights and remedies against Ball

Metal.” Dkt. 73 ¶ 3. As such, the fundamental question the Court considers is

whether the warehouse agreement was a lease subject to Florida commercial

landlord-tenant law. Regarding this first issue, the parties have agreed “to confine

their arguments solely to addressing the contents of the [warehouse agreement]

itself, and all exhibits to the [warehouse agreement], and the parties will not raise or

rely upon any evidence outside of the literal four corners of that document.” Dkt. 66

at 3 (emphasis omitted); see Dkt. 65 at 2 n.1.

If the Court were to find that the warehouse agreement was a lease as a matter

of law, then the second stipulated issue asks the following: “Whether Ball Metal is

precluded as a matter of law from raising as a defense Wes-Flo’s lack of authority

from [G&I] to enter into the [warehouse agreement]?” Dkt. 65 at 2; Dkt. 66 at 3.

Regarding this second issue, the parties have agreed not to present any facts beyond

the terms of the lease between G&I and Plaintiff Wes-Flo. Dkt. 74 at 3; see Dkt. 66-

3.

LEGAL STANDARD

Summary judgment is only appropriate when there is “no genuine issue as to

any material fact [such] that the moving party is entitled to a judgment as a matter

of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed R. Civ. P. 56(a). An

issue of fact is “material” if it might affect the outcome of the case under the

governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). It is

“genuine” if the evidence could lead a reasonable jury to find for the non-moving

party. See id.; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 587 (1986).

The moving party has the burden of proving the absence of a genuine issue of

material fact, and all factual inferences are drawn in favor of the non-moving party.

See Allen v. Tyson Foods Inc., 121 F.3d 642, 646 (11th Cir. 1997); Pennington v. City

of Huntsville, 261 F.3d 1262, 1265 (11th Cir. 2001) (noting a court must “review the

facts and all reasonable inferences in the light most favorable to the non-moving

party”). Once the moving party satisfies its initial burden, it shifts to the non-moving

party to come forward with evidence showing a genuine issue of material fact that

precludes summary judgment. Bailey v. Allgas, Inc., 284 F.3d 1237, 1243 (11th Cir.

2002); Celotex, 477 U.S. at 324; Fed. R. Civ. P. 56(c), (e). Speculation or conjecture

cannot create a genuine issue of material fact. Cordoba v. Dillard’s, Inc., 419 F.3d

1169, 1181 (11th Cir. 2005). “The court may not weigh evidence to resolve factual

disputes”; if a genuine issue of material fact is present, the court must deny summary

judgment. Hutcherson v. Progressive Corp., 984 F.2d 1152, 1155 (11th Cir. 1993).

Likewise, the court should deny summary judgment “[i]f reasonable minds could

differ on the inferences arising from undisputed facts[.]” Miranda v. B & B Cash

Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir. 1992).

The legal standard for summary judgment is especially important when there

are cross-motions for summary judgment. “[C]ourts should be very careful in their

analysis to ensure that the proper party receives the benefit of the summary judgment

standard.” FCOA LLC v. Foremost Title & Escrow Servs. LLC, 57 F.4th 939, 959

(11th Cir. 2023). “When parties jointly move for summary judgment, the court has

three options: granting summary judgment for the plaintiff under the defendant’s

best case, granting summary judgment for the defendant under the plaintiff’s best

case, or denying both motions for summary judgment and proceeding to trial.” Id.

DISCUSSION

The parties each seek summary judgment as to the two stipulated issues. The

Court considers each issue as follows.

I. First Stipulated Issue: Whether, under the terms of the [warehouse

agreement] and its exhibits, Wes-Flo was entitled as a matter of law,

following Ball Metal’s removal of its products from the warehouses, to

stand by, do nothing to mitigate, and sue for the relief sought in the

Second Amended Complaint?1

The threshold matter for the first stipulated issue is the nature of the

warehouse agreement—that is, whether it should be deemed a lease as a matter of

law.2 This question is dispositive for both motions because under Florida commercial

landlord-tenant law, a lessor may elect upon breach to “stand by and do nothing, and

sue the lessee as each installment of rent matures, or for the whole when it becomes

due.” Hourglass Ent., LLC v. NRG Invs., Inc., 416 So. 3d 1195, 1197 (Fla. 2nd DCA

2025) (quoting Williams v. Aeroland Oil Co., 155 Fla. 114, 20 So. 2d 346, 347–48

1 The Court notes the following in its consideration of the first stipulated issue: “Wes-Flo withdraws paragraph 15 of

its summary judgment motion from consideration, which is related to [the first stipulated issue], and the parties

acknowledge that statements made in that paragraph are in dispute and will be among the facts determined at trial.”

Dkt. 74 at 3.

2 Upon an undisputed factual basis, contractual interpretation is considered a matter of law to be determined by the

Court. See Action Nissan, Inc. v. Hyundai Motor Am., 617 F. Supp. 2d 1177, 1187 (M.D. Fla. 2008) (“When the

language of a contract is clear and unambiguous, its interpretation or construction is a matter of law.” (citing Smith v.

Shelton, 970 So. 2d 450, 451 (Fla. 4th DCA 2007))); see also Sunbelt Cranes Constr. & Hauling, Inc. v. Gulf Coast

Erectors, Inc., 189 F. Supp. 2d 1341, 1347 (M.D. Fla. 2002) (“Ordinary rules of contract construction apply and the

unambiguous terms of the lease must be construed based upon its plain language.” (quoting Dearing v. General Motors

Acceptance Corp., 758 So. 2d 1236, 1239 (Fla. 5th DCA 2000))).

(Fla. 1944)). In contrast, under traditional Florida contract law, a non-breaching

party is subject to the doctrine of avoidable consequences—“also somewhat

inaccurately identified as the ‘duty to mitigate’ damages”—which “prevents a party

from recovering those damages inflicted by a wrongdoer that the injured party could

have reasonably avoided.” Sys. Components Corp. v. Fla. Dep’t of Transp., 14 So.

3d 967, 982 (Fla. 2009) (citation modified). The question of mitigation thus rests

upon whether the warehouse agreement was a lease subject to Florida commercial

landlord-tenant law, or else another type of contract subject to traditional Florida

contract law.

a. Subject matter of the warehouse agreement

To draw out this distinction, the Court first considers the principal subject

matter of the warehouse agreement: either the Warehouses (real property) or

Defendant Ball Metal’s products (personal property). While a lease is concerned

with real property, see Heyman v. Cooper, 31 F.4th 1315, 1320 (11th Cir. 2022)

(citation modified) (defining a “lease” as “a contract by which a rightful possessor

of real property conveys the right to use and occupy the property”), other forms of

contracts—such as bailment contracts—are concerned with personal property. See

Emerson v. Lambert, 374 So. 3d 756, 758 n.1 (Fla. 2023) (citation modified)

(defining a “bailment” as “a delivery of personal property by one person . . . to

another . . . who holds the property for a certain purpose”).

Here, the Master Warehouse Services Agreement is principally concerned

with the storage and handling of Defendant Ball Metal’s products, not the transfer

of any rights to real property. The body of the Master Warehouse Services Agreement

provides that Plaintiff Wes-Flo “shall provide the storage services for [Defendant

Ball Metal’s] beverage containers” and details the manner in which those services

are to be performed. Dkt. 65-1 at 2–6. Notably, the warehouse agreement contains

no explicit grant of use or occupancy rights with respect to the Warehouses.

Instead, the Warehouses are first detailed in the exhibits, where they are

identified as merely the “[l]ocations at which Services will be provided.” Id. at 8, 9;

see also id. at 31, 35, 38. Thus, the Warehouses function within the agreement as the

situs of Plaintiff Wes-Flo’s performance, rather than as the subject of any

conveyance. Viewed as a whole, the warehouse agreement reflects a contractual

arrangement under which Plaintiff Wes-Flo agreed to store and handle Defendant

Ball Metal’s products at designated facilities, not one under which Plaintiff Wes-Flo

conveyed to Defendant Ball Metal a right to use and occupy those facilities. In that

respect, the agreement more closely resembles a contract concerned with the custody

and storage of personal property—such as a bailment contract—than a lease

concerned with the conveyance of interests in real property.

b. Requirements of a lease

To be certain that the warehouse agreement is not a lease, the Court considers

the requirements for a lease. As noted above, the Eleventh Circuit has defined a

“lease” as “a contract by which a rightful possessor of real property conveys the right

to use and occupy the property in exchange for consideration, usually rent.” Heyman,

31 F.4th at 1320 (citation modified) (quoting Lease, Black’s Law Dictionary (11th

ed. 2019)). The Florida Supreme Court has likewise emphasized that a lease involves

the conveyance of the “right to use and occupy the property.” See City of Gulf Breeze

v. Brown, 397 So. 3d 1009, 1017 (Fla. 2024) (quoting Lease, Black’s Law Dictionary

(11th ed. 2019)). Thus, the Court must determine whether the warehouse agreement

conveyed to Defendant Ball Metal “the right to use and occupy” the Warehouses.

Plaintiff Wes-Flo argues that Defendant Ball Metal exercised such a high

degree of control over the Warehouses that it is as if Defendant Ball Metal was

conveyed rights of use and occupancy. Dkt. 73 at 4–6. The Court is not persuaded.

To the extent Plaintiff advances this theory, it conflates the articulation of quality-

control standards over the performed services with the conveyance of rights in real

property. The two are not interchangeable. The portions of the warehouse agreement

cited by Plaintiff Wes-Flo demonstrate that Defendant Ball Metal imposed detailed

standards governing: sanitation of grounds and buildings, maintenance of building

exteriors and interiors, pest control measures, storage practices, and warehouse

security protocols. See Dkt. 65-1 at 10–19.

This arrangement is distinguishable from a recognized commercial warehouse

lease, such as the agreement between G&I and Plaintiff Wes-Flo, wherein Plaintiff

Wes-Flo was conveyed the right to “use” the “[g]eneral office [and] storage and

distribution center” of the Warehouses. See Dkt. 66-3. It is likewise distinguishable

from the authority relied upon by Plaintiff Wes-Flo, in which the agreement was

found to create a lease for a “warehouse-within-a-warehouse.” Dkt. 73 at 2–3 (citing

Assa Compañia de Seguros, S.A. v. Codotrans, Inc., No. 13-23563-CIV, 2015 WL

11202637 (S.D. Fla. Feb. 6, 2015)). There, the tenant was granted clear use and

occupancy of a defined portion of the premises, including the exclusive use of an

office and a fenced-in area within a warehouse. Assa Compañia de Seguros, S.A.,

2015 WL 11202637, at *2.

By contrast, the warehouse agreement merely arranged for the specialized

storage and handling of products at a designated location. See id. at 10–19, 30, 31,

32, 35, 36, 41 (articulating the standards necessary for Plaintiff Wes-Flo to maintain

a “food grade and safe environment” for the storage and handling of Defendant Ball

Metal’s products—cans and lids). The degree of oversight retained by Defendant

Ball Metal with respect to the storage environment does not transform the warehouse

agreement into a conveyance of a right to use and occupy real property.

The operational provisions of the warehouse agreement further confirm that

Defendant Ball Metal did not retain use or occupancy rights in the nature of a lease.

The warehouse agreement expressly established that Plaintiff Wes-Flo was “solely

responsible for providing all personnel . . . , labor, materials, supplies, equipment,

warehousing and other accessories necessary to properly receive, handle, store,

track, and load and secure for shipment all Product.” Dkt. 65-1 at 2 (emphasis

added). Additionally, employees of Defendant Ball Metal visited the Warehouses

only for semiannual quality inspections; otherwise, Plaintiff Wes-Flo would be the

sole entity at the Warehouses. Id. at 10.

Under Plaintiff Wes-Flo’s interpretation of the warehouse agreement as a

lease, it would be unusual for the alleged landlord—Plaintiff Wes-Flo—to be

exclusively responsible for all storage, handling, and day-to-day functions

associated with the products and premises, whereas the alleged tenant—Defendant

Ball Metal—would only access the premises twice a year. The Court accordingly

finds that the warehouse agreement does not convey use and occupancy rights in the

Warehouses.

Notwithstanding the issue of use and occupancy, Plaintiff Wes-Flo cites to

certain Florida case law in an effort to define the elements of a lease. Dkt. 65 at 7

(citing Waveblast Watersports II, Inc. v. UH-Pompano, LLC, 291 So. 3d 657 (Fla.

4th DCA 2020)). The cited authority finds that a lease “must contain the following

essential terms: (1) the names of the parties; (2) a description of the demised realty;

(3) a statement of the term of the lease; and (4) the rent or other consideration.”

Waveblast, 291 So. 3d at 660 (quoting 34 Fla. Jur. 2d Landlord and Tenant § 18).

While Plaintiff Wes-Flo suggests that the presence of these elements is sufficient to

establish a lease, see Dkt. 65 at 7, the cited authority does not hold so. See Waveblast,

291 So. 3d at 660. The court in this case was concerned with whether an agreement

already understood to be a lease contained sufficiently definite terms to be

enforceable. See id. at 660–61. These were thus identified as necessary terms of a

lease, not sufficient ones; while Waveblast identifies certain terms commonly

required for an enforceable lease, it does not hold that the mere presence of those

terms is sufficient to transform any contract into a lease.

However, even if these were understood to be sufficient terms, the warehouse

agreement still fell short of establishing a lease. One of the terms identified by the

Waveblast court is “a description of the demised realty.” Id. at 660 (emphasis added).

Without any relevant precedent defining “demise,” the Court turns to Black’s Law

Dictionary, as the Eleventh Circuit and Florida Supreme Court did to define the term

“lease.” See Heyman, 31 F.4th at 1320 (citation modified) (quoting Lease, Black’s

Law Dictionary (11th ed. 2019)); see City of Gulf Breeze, 397 So. 3d at 1017 (quoting

Lease, Black’s Law Dictionary (11th ed. 2019)). “Demise” is defined as “[t]he

conveyance of an estate usu[ally] for a term of years[.]” Demise, Black’s Law

Dictionary (12th ed. 2024). This term thus requires a description of an estate in real

property that has been conveyed.

Here, although the warehouse agreement identified the Warehouses as the

locations where Plaintiff Wes-Flo would perform storage services, see id. at 8, 9, 31,

35, 38 (describing the Warehouses as the “[l]ocations at which Services will be

provided”), it contained no indication that an estate in the Warehouses was conveyed

to Defendant Ball Metal. Thus, even assuming the warehouse agreement contains

the other terms referenced in Waveblast, it lacks a description of demised real

property; the Court finds references to the locations of performance to be

insufficient. Accordingly, the warehouse agreement did not meet the requirements

of a lease as outlined in caselaw.

c. Language of the warehouse agreement

Aside from the requirements of a lease, Plaintiff Wes-Flo argues that the

warehouse agreement should nonetheless be construed as a lease because there are

instances where its exhibits referred to “leased, rented, or Ball owned warehouses.”

Dkt. 73 at 4 (quoting Dkt. 65-1 at 10). Although a lease—as a type of contract—is

interpreted based upon its plain language, see Sunbelt Cranes Constr. & Hauling,

Inc. v. Gulf Coast Erectors, Inc., 189 F. Supp. 2d 1341, 1347 (M.D. Fla. 2002)

(quoting Dearing v. General Motors Acceptance Corp., 758 So. 2d 1236, 1239 (Fla.

5th DCA 2000)), such interpretation must be done “in the context of the entire [lease]

and construing the [lease] to effectuate the parties’ intent.” Feaz v. Wells Fargo Bank,

N.A., 745 F.3d 1098, 1104 (11th Cir. 2014) (citing Moore v. Pa. Castle Energy Corp.,

89 F.3d 791, 795-96 (11th Cir. 1996)); see Davis v. Valsamis, Inc., 752 F. App’x 688,

692 (11th Cir. 2018) (“The elementary canon of interpretation is, not that particular

words may be isolatedly considered, but that the whole contract must be brought into

view and interpreted with reference to the nature of the obligations between the

parties, and the intention which they have manifested in forming them.” (quoting

O’Brien v. Miller, 168 U.S. 287, 297 (1897))).

Here, when read as a whole, the Court finds that the plain language of the

warehouse agreement unambiguously does not manifest an intent to render it a

lease.3 The agreement is consistent in its terms: Plaintiff Wes-Flo is never referred

to as a lessor, sublessor, or landlord; instead, it is labeled a “warehouseman.” See

Dkt. 65-1. Defendant Ball Metal is also never referred to as a lessee, sublessee, or

tenant. See id. Additionally, rather than granting any possessory interest in the

Warehouses, the warehouse agreement mentions “Storage Services,” see id., and

instead of discussing rent, it mentions a “Storage Rate.” See id. Plaintiff Wes-Flo

recognizes that the warehouse agreement “is not titled as a ‘lease[.]’” Dkt. 81 at 4.

The Court finds that, almost every time the warehouse agreement could have used

3 A district court in this Circuit has found that although nomenclature is persuasive in the determination of a lease, a

limited number of potentially inconsistent terms does not have “thaumaturgical powers” to transmute a contract for

storage services into a lease. Davis Constr. Supply, LLC v. Merchs. Transfer Co., 676 F. Supp. 3d 1192, 1197 (S.D.

Ala. 2023) (interpreting Alabama law).

nomenclature typical of a lease, it instead used language more typical of something

like a services contract.4 Accordingly, the warehouse agreement was not a lease as a

matter of law.

Plaintiff Wes-Flo then contends that, “whether or not it is technically a

landlord and whether or not the [warehouse agreement] is technically a lease, it is

entitled to the same right afforded to commercial landlords to, ‘stand by and do

nothing, and sue the lessee as each installment of rent matures, or for the whole when

it becomes due.’” Dkt. 81 at 4 (quoting Williams v. Aeroland Oil Co., 20 So. 2d 346,

348 (Fla. 1944)). Plaintiff Wes-Flo requests that, if the Court finds the warehouse

agreement is not a lease, it be found to be sufficiently “lease like,” which entitles

Plaintiff Wes-Flo to “stand by and do nothing.” Id. at 4, 6. Plaintiff does not cite—

and the Court cannot find—any authority for this “slight extension of existing law,”

Dkt. 65 at 8, and thus declines to construe the warehouse agreement as such.

Therefore, as a matter of law, Plaintiff Wes-Flo was not entitled to “stand by

and do nothing” prior to the present action. The Court finds that summary judgment

is due to be granted in favor of Defendant Ball Metal as to the first stipulated issue.

4 The Court merely answers the First Stipulated Issue presented to it and only determines whether the warehouse

agreement is a lease or is not a lease. The Court declines to make a holding as to what other form of contract the

warehouse agreement might be.

II. Second Stipulated Issue: Whether Ball Metal is precluded as a matter of

law from raising as a defense Wes-Flo’s lack of authority from G&I to

enter into the [warehouse agreement]?5

As to the second stipulated issue, Plaintiff Wes-Flo argues that “lessees are

estopped from denying their lessors’ title, during the existence of the relationship of

landlord and tenant.” Dkt. 65 at 8 (quoting Avila S. Condo. Ass’n, Inc. v. Kappa

Corp., 347 So. 2d 599, 603 (Fla. 1977)). Specifically, Plaintiff claims that Defendant

Ball Metal is “precluded, as a matter of law on the stipulated record, from asserting

a defense premised on Wes-Flo’s lack of landlord authorization under Section 8 of

the Wes-Flo/G&I lease.” Id. at 10. This issue thus “only becomes material if this

Court . . . finds that the [warehouse agreement] was a lease[.]” Dkt. 67 at 20. Here,

Plaintiff Wes-Flo’s argument is now immaterial because the Court has found that the

warehouse agreement is not a lease as a matter of law. Therefore, this stipulated issue

has been resolved, and the Court grants summary judgment in favor of Defendant

Ball Metal.

5 The Court notes the following in its consideration of the second stipulated issue: “Ball Metal withdraws from

consideration at summary judgment Section VIII of its partial summary judgment motion, which pertains to fraud

and/or fraudulent inducement. Ball Metal withdraws the affidavits filed in support of Section VIII, and the parties

acknowledge that Wes-Flo disputes the facts stated in those affidavits and the reference to or consideration of the same

as ‘Material Undisputed facts’. . . . Ball Metal’s allegations of fraud and fraudulent inducement, along with its other

defenses, are preserved for trial.” Dkt. 74 at 2. Additionally, “Section VII of Ball Metal’s partial summary judgment

motion, which addresses Wes-Flo’s lack of written consent from its landlord and Ball Metal’s contention of a

corresponding breach of Section 10 of the [warehouse agreement], remains properly before the Court at summary

judgment[.]” Id. at 3.

CONCLUSION

Accordingly, it is hereby ORDERED and ADJUDGED that:

1. Defendant Ball Metal Beverage Container Corp.’s Motion for Summary

Judgment, Dkt. 67, is GRANTED in favor of Defendant Ball Metal Beverage

Container Corp. and against Plaintiff Wes-Flo Co., Inc. as to the first stipulated

issue. Plaintiff Wes-Flo Co., Inc.’s Motion for Partial Summary Judgment,

Dkt. 65, is DENIED as to the first stipulated issue.

a. Under the terms of the Master Warehouse Services Agreement and its

exhibits, Plaintiff Wes-Flo Co., Inc. was not entitled as a matter of law,

following Defendant Ball Metal Beverage Container Corp.’s removal

of its products from the warehouses, to stand by, do nothing to mitigate,

and sue for the relief sought in the Second Amended Complaint.

2. Defendant Ball Metal Beverage Container Corp.’s Motion for Summary

Judgment, Dkt. 67, is GRANTED in favor of Defendant Ball Metal Beverage

Container Corp. and against Plaintiff Wes-Flo Co., Inc. as to the second

stipulated issue. Plaintiff Wes-Flo Co., Inc.’s Motion for Partial Summary

Judgment, Dkt. 65, is DENIED as to the second stipulated issue.

3. The case proceeds to trial on all remaining issues.

DONE and ORDERED in Tampa, Florida, on June 9, 2026.

/s/ William F. Jung

WILLIAM F. JUNG

UNITED STATES DISTRICT JUDGE

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