Frayman v. Douglas Elliman Realty, LLC

Full title: Alexander FRAYMAN, Plaintiff, v. DOUGLAS ELLIMAN REALTY, LLC; et al.…

Court: United States District Court, S.D. Florida.

Date published: Jan 25, 2021

515 F. Supp. 3d 1262 (S.D. Fla. 2021)

Opinion

CASE NO. 20-23393-CIV-ALTONAGA/Torres

2021-01-25

Alexander FRAYMAN, Plaintiff, v. DOUGLAS ELLIMAN REALTY, LLC; et al., Defendants.

Jeremy L. Kahn, Leon Cosgrove, LLP, Miami, FL, Andrew Benjamin Boese, Leon Cosgrove LLC, Coral Gables, FL, for Plaintiff. Alexander Esteban, Jorge Alejandro Perez, Armando Rosquete, Bell Rosquete Reyes Esteban, PLLC, Coral Gables, FL, for Defendants Douglas Elliman Realty, LLC, Douglas Elliman Florida LLC, Darin Tansey, Raphael Avigdor. Jonathan Smulevich, Lowy and Cook, P.A., Miami, FL, Robert L. Switkes, Switkes & Zappala, P.A., Miami Beach, FL, for Defendants Gregory Mirmelli, Miami Luxury Concierge LLC.

CECILIA M. ALTONAGA, UNITED STATES DISTRICT JUDGE

Jeremy L. Kahn, Leon Cosgrove, LLP, Miami, FL, Andrew Benjamin Boese, Leon Cosgrove LLC, Coral Gables, FL, for Plaintiff.

Alexander Esteban, Jorge Alejandro Perez, Armando Rosquete, Bell Rosquete Reyes Esteban, PLLC, Coral Gables, FL, for Defendants Douglas Elliman Realty, LLC, Douglas Elliman Florida LLC, Darin Tansey, Raphael Avigdor.

Jonathan Smulevich, Lowy and Cook, P.A., Miami, FL, Robert L. Switkes, Switkes & Zappala, P.A., Miami Beach, FL, for Defendants Gregory Mirmelli, Miami Luxury Concierge LLC.

ORDER

CECILIA M. ALTONAGA, UNITED STATES DISTRICT JUDGE

THIS CAUSE came before the Court on Defendants’¹ Motion to Dismiss Plaintiff's Amended Complaint [ECF No. 51], filed on November 30, 2020. Plaintiff, Alexander Frayman, filed a Response to Defendants’ Motion to Dismiss [ECF No. 52] on December 14, 2020. On December 21, 2020, the DE Defendants filed a Reply [ECF No. 53], and the Mirmelli Defendants filed a separate Reply [ECF No. 54]. The Court has carefully considered the Amended Complaint [ECF No. 47], the parties’ written submissions, the record, and applicable law.

1 Defendants are Douglas Elliman Realty, LLC ("DE Realty"), Douglas Elliman Florida LLC ("DE Florida"), Darin Tansey, and Raphael Avigdor (collectively, the "DE Defendants"); and Gregory Mirmelli, and Miami Luxury Concierge LLC ("Miami Luxury") (collectively, the "Mirmelli Defendants").

I. BACKGROUND

This action arises from a dispute involving the rental of luxury residential property in Miami Beach. (See generally Am. Compl.). Frayman is a citizen of Cyprus and Russia. (See id. ¶ 2). Defendant DE Realty is a New York limited liability company with its principal place of business in New York, New York. (See id. ¶ 3). Defendant DE Florida, owned by DE Realty, is a Florida limited liability company with its principal place of business in Miami Beach, Florida. (See id. ¶ 4). "DE Realty is the largest residential real estate brokerage firm in the New York metropolitan area and the fourth largest in the United States[,]" and it "conducts residential real estate brokerage operations in South Florida through DE Florida." (Id. ¶ 24 (alteration added)). Both entities generate revenue through commissions and service fees. (See id. ).

Defendant Avigdor, a citizen of New York, is a licensed associate real estate broker (including in Florida) at DE Realty. (See id. ¶¶ 6, 23). Defendant Tansey, a citizen of Florida and resident of Miami-Dade County, is one of DE Florida's realtor associates. (See id. ¶¶ 5, 31). Defendant Mirmelli, a citizen of Florida and resident of Miami-Dade County, is the owner of the subject rental property. (See id. ¶¶ 7, 45, 59). Defendant Miami Luxury is a Florida limited liability company with its principal place of business in Miami Beach Florida; Mirmelli is its sole member. (See id. ¶ 8).

During the COVID-19 pandemic, Frayman found himself in Philadelphia visiting his son and daughter and was unable to return to his home in Cyprus because Europe was largely closed for travel. (See id. ¶¶ 15–16). Frayman was also concerned about the wellbeing of his other daughter, who was 12 years old and was to return with him to Cyprus, due to the heightened health risks associated with international travel and a mandatory quarantine upon return to Cyprus. (See id. ¶ 17). After staying in hotels in New Jersey and Philadelphia from March 7 to May 29, 2020, "Frayman sought accommodations for himself and his family in Florida to be together with all of his children in a safe, clean, and secure environment and to enjoy time with his family while being largely isolated from third parties during the COVID-19 pandemic." (Id. ¶ 18). Specifically, "Frayman desired to rent an isolated, large, high-quality villa in Miami, Florida for himself and his family." (Id. ¶ 21).

As Frayman is from a foreign country, lacked specific knowledge of the rental market in the Miami area, and had a short time frame in which to find accommodations, he "sought to work with an experienced and knowledgeable broker who could help him find a property that met his specifications." (Id. ¶ 22). Frayman was introduced to Avigdor, the DE Realty broker, through a contact. (See id. ¶ 23).

DE Realty and DE Florida feature luxury property listings for rent in South Florida on the Douglas Elliman website. (See id. ¶ 25). The entities "boast that their ‘agents are relentless advocates for our clients’ and that their ‘team is the top in the industry — they have access to the best and most reliable information and education, allowing them to expertly advise at every stage.’ " (Id. ). On the website, Avigdor made several representations about his experience, knowledge, capabilities, and ethical standards. (See id. ¶¶ 26–28).

On May 19, 2020, Frayman contacted Avigdor to assist him in finding a one-month rental that would meet his specifications — including four to five bedrooms, significant garden territory of 30,000 to 50,000 square feet, a large swimming pool, a gym, and a tennis court — in Miami. (See id. ¶¶ 29, 36). Frayman "told Avigdor that all in-house equipment should be ‘new, ready to use’ and that a cleaning service was ‘highly desirable.’ " (Id. ¶ 29). He "advised that he could go as high as $30,000 to $40,000 for the rental, but he ‘expect[ed] value for this type of money.’ " (Id. (alteration in original)). Avigdor recommended Tansey, a member of his team, as someone who had local expertise and could find a property that fulfilled Frayman's requirements. (See id. ¶ 30). Avigdor advised that he conveyed Frayman's specifications to Tansey, and Tansey was copied on several emails setting out Frayman's specifications. (See id. ).

The Douglas Elliman website described Tansey as focusing on "an exclusive inventory of luxury waterfront properties" in Miami Beach and its surrounding areas; and it touted his high-net-worth clientele and "excellence" in "having the client experience some of the most desirable real estate available, all the while successful to match the perfect property to their needs." (Id. ¶ 31 (quotation marks omitted)). "In his email to Frayman introducing and copying Tansey, Avigdor represented: ‘Darin Tansey is one of the top and premier agents at Douglas Elliman's Miami office. If there is anyone to find this gem, it is him.... While I know the parameters established by [Frayman] will be a tough find, I am confident that [Tansey] will find something to fill the ticket." (Id. ¶ 32 (first alteration in original; other alterations added)). Tansey replied: "I have lived in Miami Beach [ ] for fifteen years now and have a strong sense of the market as well as nuisances [sic]." (Id. ¶ 33 (alteration added)).

According to Frayman, "Tansey and Avigdor knew that Frayman ... was relying on their stated expertise in the South Florida luxury-rental market. In multiple emails and text messages, Frayman made it clear to Tansey that both the cleanliness of the property and the legality of the rental were important to him." (Id. ¶ 34 (alteration added)).

Although Tansey knew Frayman's budget for the one-month rental was $40,000, "Tansey, who is compensated on a percentage commission basis, immediately sent Frayman links to properties that were well above this stated budget and not in line with [Frayman's] specifications. (Id. ¶ 36 (alteration added)). Frayman told Tansey to "kindly stay within the figures I supplied to you in the original email." (Id. (quotation marks omitted)). Tansey sought "to convince Frayman that Tansey's properties were fit for his purposes and of the highest quality" and insisted that Frayman "should only look at ‘A+ properties.’ " (Id. ¶ 38).

One of the properties Tansey originally presented to Frayman was a luxury waterfront villa on Sunset Island located at 2120 Bay Avenue, in Miami Beach, Florida (the "Property"). (See id. ¶ 39). The Property was listed for $85,000 per month, plus a $20,000 security deposit and $500 cleaning fee. (See id. ). Although Frayman rejected the Property at first because it was too expensive, Tansey continued to propose it after Frayman rejected other recommended properties. (See id. ). "[T]o show off the supposed high-end quality of the Property, Tansey emailed and texted Frayman photographs and a video showcasing the Property." (Id. ¶ 40 (alteration added)). "These photographs and video were highly-polished marketing materials showing a well-landscaped exterior." (Id. ¶ 41). Tansey described the Property as having a "charming exterior[.]" (Id. ¶ 43 (alteration added; quotation marks omitted)). Moreover, "to induce Frayman to rent the Property rather than a different property within Frayman's stated budget, Tansey ensured Frayman that ‘[t]he owner Greg and his sister Sara [sic] [are] friends of mine’ and that the owner maintained the Property at extremely high standards." (Id. ¶ 44 (alterations in original)).

Tansey omitted to mention that Mirmelli, the owner, had recently been sued for a refund by a guest "because the Property was not as depicted in promotional materials and was ‘unclean, in disarray and unfit for her family.’ " (Id. ¶ 45; see also id. ¶¶ 55, 102). Tansey also did not reveal that since that lawsuit, Mirmelli was renting the Property through a new shell company, Miami Luxury. (See id. ¶ 45). "Frayman told Tansey on several occasions that it was critical to him that the rental be cleaned and disinfected due to the COVID-19 pandemic. Frayman relied on Tansey's alleged expertise to ensure that his rental would be fully compliant with all legal requirements both related to the COVID-19 pandemic and otherwise." (Id. ¶ 46).

Frayman advised Tansey he would take a charter flight the morning of May 29 and "made clear that ‘the place should be ready to have us’ and that ‘we will come between 11–13:00 on the 29th.’ " (Id. ¶ 47). Tansey relayed this information by text message to Andrea, the property manager, and noted that Mirmelli's sister Sarah would handle the check-in. (See id. ¶¶ 48–49). In his text message to Andrea, Tansey stated: "While there may be a slight crossover on checkout and maid service, please ensure Mr. Frayman receives of [sic] the utmost of care." (Id. ¶ 49 (quotation marks omitted)).

The City of Miami Beach prohibits short-term rentals (i.e. , rentals of six months or less) of single-family homes as well as the advertisement of such rentals. (See id. ¶ 50; see also id. ¶¶ 103, 105). Tansey did not reveal that his promotion of the Property and the rental itself were illegal. (See id. ¶ 50). Tansey also did not reveal that Mirmelli had been fined for renting the Property on a short-term basis "and was engaged in various legal battles with the City of Miami Beach." (Id. ¶ 54; see also id. ¶¶ 104, 106). "Frayman repeatedly alerted Tansey to his concern regarding legality and possible rental prohibitions[,]" including in a May 23 email. (Id. ¶ 51 (alteration added)).

"Around this time, Tansey orally advised Frayman that the use of a ‘guest agreement’ would alleviate any legality issues." (Id. ¶ 52). Tansey also led Frayman to believe that he was marketing properties that were not subject to short-term rental bans. (See id. ¶ 53). For example, in a May 25 email, Tansey assured Frayman that another property he was considering was located in a part of the Venetian Islands where short-term rentals were not prohibited by any rules or regulations. (See id. ).

Tansey confirmed that the owner of the Property agreed to a rental term of May 29, 2020 through June 30, 2020 at a rental price of $65,000, plus a $10,000 security deposit and a $300 exit cleaning fee. (See id. ¶ 56). Frayman agreed to exceed his stated budget and rent the Property for $65,000 (plus the security deposit and cleaning fee) based on Tansey's representations regarding the Property and its owner. (See id. ¶ 57). Tansey sent Frayman a proposed Guest Agreement and invoice. (See id. ¶¶ 58, 62). The Guest Agreement lists Frayman as the "Guest" and Miami Luxury as the "Host." (Id. ¶ 58 (quotation marks omitted)). Miami Luxury in fact has no ownership interest in the Property; Mirmelli himself owns the Property. (See id. ¶ 59). The Guest Agreement does not state Mirmelli owns the Property, nor does it reference Mirmelli at all. (See id. ).

According to Frayman, Miami Luxury is "an alter ego or mere instrumentality of Mirmelli because Mirmelli dominates and controls Miami Luxury to such an extent that its independent existence is in fact nonexistent[,] and Mirmelli formed and uses Miami Luxury as a shell to defraud or evade creditors." (Id. ¶ 60 (alteration added)). Miami Luxury has few or no assets, and Mirmelli used Miami Luxury as the "Host" to conceal his ownership of the Property and obligations for the rental. (Id. ¶ 61 (quotation marks omitted)).

"Relying on Tansey's representations, Frayman executed the Guest Agreement and emailed the signed agreement to Tansey." (Id. ¶ 63). Tansey then sent back a scanned copy of the Guest Agreement "countersigned by an unidentified person (likely Mirmelli) on behalf of Miami Luxury." (Id. ¶ 64; see also id. , Ex. A, Guest Agreement [ECF No. 47-1]). The Guest Agreement states check-in time is 1:00 p.m. unless the guest makes other arrangements with the host, as Frayman did. (See id. ¶¶ 67–68).

Shortly after executing the Guest Agreement, and relying on Tansey's and Avigdor's representations regarding their expertise, the Property, and its owner, Frayman wired $65,000 to Miami Luxury and arranged for a $26,200 chartered flight for himself and his family from Philadelphia to Miami for their stay at the Property. (See id. ¶ 69). "Avigdor confirmed in an email to Tansey and Frayman that the renting of the Property was a collective effort of the various Douglass [sic] Elliman offices, noting that it was a ‘great and successful effort.’ " (Id. ¶ 70).

The night before Frayman's arrival, Tansey texted Frayman and the manager of the Property to confirm that Frayman would be staying at the Property "starting tomorrow 11:00 am thru the end of June." (Id. ¶ 71 (quotation marks omitted)). "Knowing of Frayman's specifications regarding cleanliness, Tansey also reminded the manager that ‘Mr. Frayman will be in need of your housekeeping staff.’ " (Id. ). The same day, Tansey informed Frayman by phone that a tenant decided to stay an additional night at the Property. (See id. ¶ 72). Frayman then texted Tansey saying "I think there is zero chance that something can be cleaned properly before we arrive even if we arrive at 12:00! Consider that I specifically asked when to arrive." (Id. (quotation marks omitted)).

On May 29, 2020, Frayman and his party arrived at the Property at 11:25 a.m. (See id. ¶ 73). "Expecting a five-star, ‘A+’ villa, Frayman ... found the Property to be completely different than what Tansey described and presented in the photographs and video." (Id. ¶ 74 (alteration added)). Frayman observed several high-end cars in the parking lot and a tenant with a large bag and child walking around the Property and going back inside the house, evincing that the prior tenants had not left, and the Property had yet to be vacated for cleaning. (See id. ¶ 75). The Property "did not at all meet the high standards expected of a luxury rental" as it "had not been cleaned from the night before and it appeared that a party had recently taken place (e.g., half-drank [sic] liquor bottles and mixers sitting on an outside bar from the night before, partially filled trash bags on the ground, and a Starbucks cup filled with garbage)." (Id. ¶ 76). And in contrast to the photographs and video sent by Tansey, as well as Tansey's representation of a "charming exterior[,]" "the swimming pool was dirty with plastic cups at the bottom, the outside furniture was run down, there were broken bulbs on the lamp posts[,] many outdoor fixtures appeared old and in need of repair, and the landscaping consisted of many dead spots in the grass, dead leaves on the trees, and dead bushes." (Id. ¶ 77 (alterations added)).

Even given the Guest Agreement's stated check-in time of 1:00 p.m., "it would [have been] impossible to clean and disinfect the entire 5,778 square foot Property to the level required during the COVID-19 pandemic[.]" (Id. ¶ 78 (alterations added)). At the time of Frayman's arrival, the prior tenants were still in the house and the cleaning staff had only just arrived at the Property. (See id. ). "Needless to say, the Property was not close to being in a condition to be handed over to a new tenant as Frayman feared when Tansey informed him at the last minute that the prior tenant was staying an additional night." (Id. ¶ 80).

Frayman texted Tansey and Andrea stating the Property was "an extremely dirty place." (Id. ¶ 79 (quotation marks omitted)). Andrea responded the pool cleaner would come only in the afternoon and a handyman would attend to the broken glass. (See id. ¶ 79). Shortly thereafter, Tansey and Sarah Mirmelli arrived. (See id. ¶ 81). Frayman said "I don't like it[,]" to which Sarah responded, "Sorry." (Id. (alteration added; quotation marks omitted)).

As the condition and quality of the Property were misrepresented to him, and given the Property's unclean state and the disregard of social distancing and disinfection guidelines, Frayman suggested that either (1) the rent be reduced to $55,000 with no security deposit or (2) a full refund of $65,000 be provided. (See id. ¶ 82). "The potential reduction in rent would have been used to ensure that the house was properly cleaned as well as for temporary alternative accommodations during the cleaning if necessary." (Id. ¶ 83).

Sarah, however, expressed no interest in a rent reduction. (See id. ). Sarah walked away from Frayman, made a call to an unidentified person, returned to Frayman, and said, "We will return your money." (Id. ¶ 84 (quotation marks omitted)). Frayman responded, "Thank you, good bye." (Id. (quotation marks omitted)). Frayman "relied on Sarah's undertaking as both the person responsible for check-in and also as sister of the owner as represented by Tansey. Sarah's actions displayed her authority or apparent authority to contractually bind the owner to return his funds." (Id. ¶ 85).

Tansey was present for this discussion, including Sarah's promise the funds would be returned to Frayman. (See id. ¶ 86). Tansey said to Frayman: "I am on your side. I am sorry." (Id. (quotation marks omitted)). Frayman told Tansey he expected the refund by Monday. (See id. ). Tansey once again omitted to mention that Mirmelli previously had been sued for a refund and that the use of his shell company, Miami Luxury, on the Guest Agreement "was a recent innovation by Mirmelli shortly following his dispute with the plaintiff in the prior lawsuit." (Id. ¶ 87). Instead, Tansey assured Frayman that he would "take care of it[,]" in reference to the refund. (Id. (alteration added; quotation marks omitted)). "Relying on Sarah's promise on behalf of Miami Luxury and Mirmelli — as well as Tansey's assurance — Frayman left the Property." (Id. ¶ 88). Distressed, Frayman then "drove from hotel to hotel trying to find one that was open[,]" although many were closed at that time, and he "had no idea how long it would take to identify suitable, COVID-19 compliant accommodations." (Id. ¶ 89). Frayman checked into a hotel on Collins Avenue "at [the] great additional expense of $1,151.12 for three nights given the last-minute nature of the alternative rental." (Id. ¶ 90 (alteration added)). Frayman spent the next few days seeking a more permanent solution and ultimately rented rooms at The Setai through a different broker for $73,536. (See id. ¶ 91). "Although the accommodations were suitable, [Frayman's] goal of spending a month with his family in a semi-isolated environment at a rental house with a private property was not achieved." (Id. (alteration added)).

On May 29, 2020, Frayman emailed Tansey wire instructions for the refund in response to Tansey's request for those details and referred to the oral agreement for the refund, stating: "According to the agreement reached today in your presence, please find attached banking instructions for the return of 65000 (sixty-five thousands) US Dollars in full. I expect that the money will arrive back to my account no later than 11 a.m. Zurich, Switzerland time, June 2nd, 2020." (Id. ¶ 92 (quotation marks omitted)). Tansey replied that he sent the wire instructions and demanded the transmission happen that day. (See id. ¶ 93). "At no time did Tansey refute the existence of an oral agreement reached with Sarah as the owner's representative to have the $65,000 refunded." (Id. ) Tansey assured Frayman he would continue to press for the refund until it was transmitted. (See id. ).

The next day, Avigdor sent an email to Tansey acknowledging the problems with the Property, describing it as "a house in disrepair." (Id. ¶ 94 (quotation marks omitted)). In the same email, Avigdor instructed Tansey to "please refund all monies to [Frayman's] account immediately (the full $65,000) and lets [sic] please avoid an embarrassing law suit [sic]." (Id. ¶ 95 (alteration added)). That day, Tansey emailed Frayman asking, on behalf of "Wide Bay Luxury" (another Mirmelli-owned entity), for additional wiring information, which Frayman provided. (Id. ¶ 96 (quotation marks omitted)).

Frayman did not receive a refund by June 5, 2020, at which point he, through his counsel, sent Tansey, Avigdor, DE Realty, and DE Florida a demand for payment. (See id. ¶ 97). "On June 11, 2020, backtracking from Avigdor's earlier representation, DE Realty's general counsel sent Frayman a letter stating it would not refund any money because it ‘is not responsible for its return.’ " (Id. ¶ 98; see also id. ¶¶ 99–100). To date, no money has been returned to Frayman. (See id. ¶ 101). Hence, this "embarrassing" lawsuit.

As stated, Frayman has since learned that a prior guest sued Mirmelli in 2019 because the Property was "unclean, in disarray and unfit for her family" (id. ¶ 102 (quotation marks omitted)); the rental and advertisement of the Property were illegal under the City of Miami Beach's ordinances (see id. ¶¶ 103, 105); and Mirmelli "has had legal troubles with the City of Miami Beach due to illegal short-term rentals[,]" including being fined $25,000 (id. ¶ 104 (alteration added)) and suing the City of Miami Beach himself for failure to enforce its short-term rental ban against one of his competitors (see id. ¶ 106). The rental was also illegal under the "Phase 1 Reopening Order and Emergency Measures to be Implemented by the City of Miami Beach (Revised May 22, 2020) Effective May 23, 2020, at 12:00 A.M.[,]" which required all commercial lodging establishments, including short-term rentals, to remain fully closed to transient guests and renters and prohibited those establishments from accepting new transient guests or making new reservations until the expiration of the Order. (Id. ¶ 107 (alteration added)). The Reopening Order was in effect at all relevant times. (See id. ).

According to Frayman, the DE Defendants knew or should have known of these material issues, but either (1) fraudulently failed to disclose them or (2) performed no due diligence and negligently misrepresented the condition of the Property in order to "secure their economic gain via a commission[.]" (Id. ¶ 108 (alteration added)). Moreover, Mirmelli had actual knowledge that short-term rentals were prohibited, the promotional materials for the Property were deceptive and misleading, and the Property was poorly maintained; but he nevertheless marketed the Property for a short-term rental. (See id. ¶¶ 109–10).

Frayman filed his Amended Complaint on November 13, 2020, asserting the following 13 claims for relief: (1) violation of duties under section 475.278, Florida Statutes, against the DE Defendants (Count I) (see Am. Compl. ¶¶ 113–26); (2) violation of the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA"), sections 501.201 et seq. , Florida Statutes, against the Mirmelli Defendants (Count II) (see Am. Compl. ¶¶ 127–36); (3) fraudulent inducement against all Defendants (Count III) (see id. ¶¶ 137–46); (4) fraud against all Defendants (Count IV) (see id. ¶¶ 147–56); (5) professional malpractice against the DE Defendants (Count V) (see id. ¶¶ 157–63); (6) negligent misrepresentation against the DE Defendants (Count VI) (see id. ¶¶ 164–73); (7) conversion against the Mirmelli Defendants (Count VII) (see id. ¶¶ 174–80); (8) unjust enrichment against all Defendants (Count VIII) (see id. ¶¶ 181–87); (9) breach of the Guest Agreement against the Mirmelli Defendants (Count IX) (see id. ¶¶ 188–94); (10) breach of contract against the Mirmelli Defendants as to the oral refund agreement (Count X) (see id. ¶¶ 195–200); (11) rescission against Miami Luxury (Count XI) (see id. ¶¶ 201–10); (12) money had and received against the Mirmelli Defendants (Count XII) (see id. ¶¶ 211–14); and (13) promissory estoppel against the Mirmelli Defendants (Count XIII) (see id. ¶¶ 215–22).

Defendants request the Court dismiss all claims except Counts V and IX as to Miami Luxury only under Federal Rules of Civil Procedure 12(b)(6) and 9(b) for failure to state claims for relief. (See generally Mot.).

II. LEGAL STANDARDS

A. Rule 12(b)(6)

"To survive a motion to dismiss [under Federal Rule of Civil Procedure 12(b)(6) ], a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (alteration added; quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Although this pleading standard "does not require ‘detailed factual allegations,’ ... it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. (alteration added; quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). Pleadings must contain "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted). "[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss." Iqbal , 556 U.S. at 679, 129 S.Ct. 1937 (alteration added; citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). To meet this "plausibility standard," a plaintiff must "plead[ ] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678, 129 S.Ct. 1937 (alteration added; citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). "The mere possibility the defendant acted unlawfully is insufficient to survive a motion to dismiss." Sinaltrainal v. Coca-Cola Co. , 578 F.3d 1252, 1261 (11th Cir. 2009) (citation omitted), abrogated on other grounds by Mohamad v. Palestinian Auth. , 566 U.S. 449, 132 S.Ct. 1702, 182 L.Ed.2d 720 (2012). When considering a motion to dismiss, a court must construe the complaint in the light most favorable to the plaintiff and take its factual allegations as true. See Brooks v. Blue Cross & Blue Shield of Fla., Inc. , 116 F.3d 1364, 1369 (11th Cir. 1997) (citing SEC v. ESM Grp., Inc. , 835 F.2d 270, 272 (11th Cir. 1988) ).

B. Rule 9(b)

"In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake." Fed. R. Civ. P. 9(b). "The particularity rule serves an important purpose in fraud actions by alerting defendants to the ‘precise misconduct with which they are charged’ and protecting defendants ‘against spurious charges of immoral and fraudulent behavior.’ " Durham v. Bus. Mgmt. Assocs. , 847 F.2d 1505, 1511 (11th Cir. 1988) (quoting Seville Indus. Mach. Corp. v. Southmost Mach. Corp. , 742 F.2d 786, 791 (3d Cir. 1984) ). A complaint satisfies Rule 9(b) by providing "facts as to time, place, and substance of the defendant's alleged fraud, specifically the details of the defendants’ allegedly fraudulent acts, when they occurred, and who engaged in them." Hopper v. Solvay Pharms., Inc. , 588 F.3d 1318, 1324 (11th Cir. 2009) (quotation marks and citation omitted).

III. DISCUSSION

A. Count I

Frayman alleges the DE Defendants violated their duties under section 475.278, Florida Statutes, as single agents or transaction brokers. (See Am. Compl. ¶¶ 113–26). Defendants contend this claim must be dismissed against the DE Defendants as single agents.² (See Mot. 4–5).

2 Defendants do not challenge Count I as to the DE Defendants’ duties as transaction brokers under section 475.278. (See Mot. 4–5).

Section 475.278 provides that a Florida real estate licensee "may enter into a brokerage relationship as either a transaction broker or as a single agent with potential buyers and sellers." Fla. Stat. § 475.278(1)(a). A single agent is "a broker who represents, as a fiduciary, either the buyer or seller but not both in the same transaction." Id. § 475.01(1)(k); see also id. § 475.278(3)(a) (enumerating "[t]he duties of a real estate licensee owed to a buyer or seller who engages the real estate licensee as a single agent" (alteration added)). By contrast, "[a] transaction broker provides a limited form of representation to a buyer, a seller, or both in a real estate transaction but does not represent either in a fiduciary capacity or as a single agent." Id. § 475.278(2) ; see also id. § 475.01(1)(l).

Although the common law "recognize[d] a fiduciary relationship between transaction brokers and their clients," section 475.278 "replaced the common law fiduciary duty with a more narrowly-defined set of statutory duties." Combe v. Flocar Inv. Grp. Corp. , 977 F. Supp. 2d 1301, 1307 (S.D. Fla. 2013) (alteration added; citing Burchfield v. Realty Execs. , 971 So. 2d 138, 140 (Fla. 5th DCA 2007) ). Transaction brokers’ duties include: dealing honestly and fairly; accounting for all funds; using skill, care, and diligence in the transaction; disclosing all known facts that materially affect the value of the property and are not readily observable to the buyer; presenting all offers and counteroffers in a timely manner; and observing limited confidentiality. See Fla. Stat. §§ 475.278(2)(a)–(f) ; see also Century Land Dev., L.P. v. Weits , No. 07-14377-Civ, 2009 WL 252091, at *2 (S.D. Fla. Feb. 2, 2009) ("In lieu of a fiduciary relationship, [ section] 475.278(2)(a) sets forth specific duties that a transaction broker owes to a principal, including a duty to deal honestly and fairly, use skill, care, and diligence, and to ensure limited confidentiality." (alteration added; citation omitted)).

Section 475.278 creates a presumption that "all licensees are operating as transaction brokers unless a single agent or no brokerage relationship is established, in writing, with a customer." Fla Stat. § 475.278(1)(b). The statute further provides:

Duties of a single agent must be fully described and disclosed in writing to a buyer or seller either as a separate and distinct disclosure document or included as part of another document such as a listing agreement or other agreement for representation. The disclosure must be made before, or at the time of, entering into a listing agreement or an agreement for representation or before the showing of property, whichever occurs first.

Id. § 475.278(3)(b)(1).

Defendants assert "Frayman fails to allege that he and any of the DE Defendants entered into a single agent relationship in writing. Instead, Mr. Frayman alleges that ‘Tansey told Frayman what [sic] he was working on [his] behalf and that he was brokering the deal for [him].’ " (Mot. 5 (alterations added; emphasis in original; quotation marks omitted); see also Am. Compl. ¶ 117 ("Tansey told Frayman what [sic] he was working ‘on your behalf’ and that he was ‘brokering the deal for you.’ ")). Frayman maintains that allegation supports an inference that a single agent relationship was established in writing because the word "told" can mean "communicate[d] information in ... written words." (Resp. 2 (alterations added; emphasis in original; footnote call number omitted)).³ Frayman includes with his Response a text message purportedly from Tansey stating "I am here on your behalf to ensure that you have a smooth process .... I'm here to help and doing my best on behalf of you and [Avigdor]. Please be so kind to understand that I am in the middle here brokering the deal for you."⁴ (Id. , Ex. A, Text Message [ECF No. 52-1] 2–3 (alterations added)).

3 The Court relies on the pagination generated by the electronic CM/ECF database, which appears in the headers of all court filings.

4 "Ordinarily, a court does not consider anything beyond the face of the complaint and documents attached thereto when analyzing a motion to dismiss." Fed. Ins. Co. v. Bonded Lightning Prot. Sys., Inc. , No. 07-80767-Civ, 2008 WL 5111260, at *3 (S.D. Fla. Dec. 3, 2008) (citing Brooks , 116 F.3d at 1368 ). But a court may consider an extraneous document without converting the motion to dismiss into a motion for summary judgment if (1) the document is central to the plaintiff's claim and (2) the document's authenticity is not challenged. See Horsley v. Feldt , 304 F.3d 1125, 1134 (11th Cir. 2002). Here, the text message is central to Frayman's claim of breach of single agent duties because it purportedly demonstrates a single agent relationship was established in writing. The DE Defendants do not challenge its authenticity. (See generally DE Defs.’ Reply). As the message's "contents are alleged in [the] [Amended] [C]omplaint and no party questions those contents," Day v. Taylor , 400 F.3d 1272, 1276 (11th Cir. 2005) (alterations added), the Court considers them in evaluating the Motion.

The Court declines to decide whether Frayman's claim against the DE Defendants as single agents fails at this stage. By providing the text message, Plaintiff successfully rebuts Defendants’ sole argument in their Motion that paragraph 17's allegation does not indicate Tansey's statements were "in writing." In their Reply, the DE Defendants insist the text message does not satisfy the requirements of section 475.278(1)(b), as courts have interpreted the statute to require a written agreement and the writing was not completed at the outset of the relationship in any event. (See DE Defs.’ Reply 2–4). The DE Defendants simply state "the text message does not put anyone on notice that a single agent relationship was intended or formed, and it certainly does not constitute an ‘agreement’ between Tansey and Frayman[,]" citing the elements of contract formation under Florida law.⁵ (Id. 4 (alteration added)). The Court cannot determine whether the text message is sufficient based on this scant analysis.

5 The DE Defendants also argue that Count I should be dismissed as to Avigdor to the extent it alleges Avigdor violated his duties as a single agent because neither the Amended Complaint nor Frayman's Response indicates a writing establishing a single agent relationship exists between Frayman and Avigdor. (See DE Defs.’ Reply 5). As stated, Defendants’ Count I argument in their Motion hinged on whether the Amended Complaint sufficiently alleged a writing in paragraph 17. The DE Defendants may not raise a new argument about the plausibility of the claim against Avigdor in their Reply, when they could have but did not raise and flesh out the same argument in the Motion. See Herring v. Sec'y, Dep't of Corr. , 397 F.3d 1338, 1342 (11th Cir. 2005) ("As we repeatedly have admonished, arguments raised for the first time in a reply brief are not properly before a reviewing court." (alteration adopted; quotation marks omitted; collecting cases)).

Furthermore, the DE Defendants fail to persuade that the writing must be made at the outset of the relationship. While section 475.278(3)(b)(1) requires duties of a single agent be disclosed in writing "before, or at the time of, entering into a listing agreement or an agreement for representation or before the showing of property," it is not clear this timing requirement applies to section 475.278(1)(b) ’s presumption that the licensee is a transaction broker unless a single agent relationship is established in writing. Defendants fail to meet their burden of showing Count I should be dismissed as to the DE Defendants’ alleged breaches of their duties as single agents. See Superior Energy Servs., LLC v. Boconco, Inc. , No. CA 09-1321, 2010 WL 1267173, at *5 (S.D. Ala. Mar. 29, 2010) ("When attacking a complaint in a motion filed pursuant to Rule 12(b)(6), the moving party bears the burden to show that the complaint should be dismissed for failure to state a claim upon which relief may be granted." (citations omitted)). Accordingly, the Motion is denied as to Count I.

B. Count II

Frayman alleges the Mirmelli Defendants violated the FDUTPA by illegally advertising and renting the Property to Frayman; misrepresenting the true condition of the Property; and failing to disclose that (1) renting the Property on a short-term basis was illegal and Mirmelli had been fined for doing so, (2) Mirmelli was sued by a prior guest because the Property was not kept in the represented condition, and (3) Mirmelli started using Miami Luxury to rent out the Property following that lawsuit. (See Am. Compl. ¶¶ 127–36). Defendants argue Frayman has failed to state a FDUTPA claim because he has not alleged a causal connection between his damages and the Mirmelli Defendants’ rental of the Property in violation of a Miami Beach ordinance.⁶ (See Mot. 6).

6 Defendants do not raise arguments regarding "the other FDUTPA violations, such as misrepresenting the true condition of the Property or failing to disclose the illegality of the rental." (Resp. 3).

A FDUTPA claim has three elements: "(1) a deceptive act or unfair practice; (2) causation; and (3) actual damages." McKissack v. Swire Pac. Holdings, Inc. , No. 09-22086-Civ, 2011 WL 1233370, at *4 (S.D. Fla. Mar. 31, 2011) (citations omitted). To show causation, "a plaintiff must simply [allege] that ‘the alleged practice was likely to deceive a consumer acting reasonably in the same circumstances.’ " BPI Sports, LLC v. Labdoor, Inc. , No. 15-62212-Civ, 2016 WL 739652, at *5 (S.D. Fla. Feb. 25, 2016) (alteration added; quoting Cold Stone Creamery, Inc. v. Lenora Foods I, LLC , 332 F. App'x 565, 567 (11th Cir. 2009) ); see also State, Off. of Att'y Gen., Dep't of Legal Affs. v. Commerce Com. Leasing, LLC , 946 So. 2d 1253, 1258 (Fla. 1st DCA 2007) (citation omitted).

"The measure of actual damages is the difference in the market value of the product or service in the condition in which it was delivered and its market value in the condition in which it should have been delivered according to the contract of the parties." Rollins, Inc. v. Butland , 951 So. 2d 860, 869 (Fla. 2d DCA 2006) (alteration adopted; quotation marks and citations omitted). "A notable exception to the rule may exist when the product is rendered valueless as a result of the defect — then the purchase price is the appropriate measure of the actual damages." Best Fabrications, Inc. v. Navistar, Inc. , No. 8:19-cv-815, 2019 WL 9089595, at *2 (M.D. Fla. June 3, 2019) (quoting Rollins, Inc. v. Heller , 454 So. 2d 580, 585 (Fla. 3d DCA 1984) ).

Defendants’ argument regarding causation fails to persuade. Certainly, the rental of a property that is in fact illegal would deceive a consumer acting reasonably in the same circumstances into entering into a rental agreement, believing the rental was legal. As Frayman states, he "would not have departed with his $65,000" had the Mirmelli Defendants not illegally advertised the Property or illegally rented the Property to him. (Resp. 4; see also Am. Compl. ¶ 34 (alleging the legality of the rental was important to Frayman); id. ¶ 51 (alleging Frayman had concerns about the legality of the rental and possible rental prohibitions)). Moreover, while the issue of actual damages is not addressed in Defendants’ Motion or the Mirmelli Defendants’ Reply (see generally Mot.; Mirmelli Defs.’ Reply), it appears Frayman allegedly suffered actual damages from the "illegal — and thus worthless — rental" in the amount of the rent (Resp. 4; see also id. 5); cf. Debernardis v. IQ Formulations, LLC , 942 F.3d 1076, 1085 (11th Cir. 2019) (finding the plaintiffs sufficiently alleged injuries in fact because the illegally adulterated dietary supplements sold to them had no value).

In short, "[i]t is not much of an inferential leap to come to the conclusion that but for [the Mirmelli Defendants’] alleged actions, [Frayman] would not be engaged in [this] lawsuit[ ] with Defendants." Allstate Ins. Co. v. Auto Glass Am., LLC , 418 F. Supp. 3d 1009, 1023 (M.D. Fla. 2019) (alterations added; footnote call numbers omitted); see also id. (denying motion to dismiss FDUTPA claim where the plaintiffs sufficiently alleged the defendants’ deceptive and unfair practices caused their damages). Consequently, the Motion is denied as to Count II. C. Counts III, IV, and VI

Frayman asserts a fraudulent inducement claim against all Defendants (Count III),⁷ a claim of fraud against all Defendants (Count IV),⁸ and a negligent misrepresentation claim against the DE Defendants (Count VI).⁹ (See Am. Compl. ¶¶ 137–56, 164–73). Defendants argue these claims must be dismissed because they fall short of Rule 9(b) ’s heightened pleading standard, and the alleged misrepresentations were not material in any event. (See Mot. 6–10).

7 To state a fraudulent inducement claim, "a plaintiff must allege (1) a misrepresentation of a material fact; (2) knowledge by the person making the statement that the representation is false; (3) intent by the person making the statement that the representation would induce another to rely and act on it; and (4) that the plaintiff suffered injury in justifiable reliance on the representation." Sea Shelter IV, LLC v. TRG Sunny Isles V, Ltd. , No. 08-21767-Civ, 2009 WL 692469, at *5 (S.D. Fla. Mar. 17, 2009) (citing Fixel v. Rosenthal & Rosenthal, Inc. , 842 So. 2d 204, 209 (Fla. 3d DCA 2003) ).

8 The elements of Florida common law fraud are: "(1) the defendant made a false statement or omission of material fact; (2) the defendant knew the statement was false; (3) the statement was made for the purpose of inducing plaintiff to rely on it; (4) plaintiff's reliance was reasonable; and (5) plaintiff suffered damages." Broadway Gate Master Fund, Ltd. v. Ocwen Fin. Corp. , No. 16-80056-Civ, 2016 WL 9413421, at *3 (S.D. Fla. June 29, 2016) (citing Arnold v. McFall , 839 F. Supp. 2d 1281, 1289 (S.D. Fla. 2011) ).

9 To state a negligent misrepresentation claim, a plaintiff must allege: "(1) the defendant made a misrepresentation of material fact; (2) the defendant either knew of the misrepresentation, made the misrepresentation without knowledge of its truth or falsity, or should have known the representation was false; (3) the defendant intended to induce another to act on the misrepresentation; and (4) an injury resulted to the plaintiff who acted in justifiable reliance upon the misrepresentation." Broadway Gate Master Fund, Ltd. , 2016 WL 9413421, at *3 (citing Arnold , 839 F. Supp. 2d at 1289 ).

Claims that sound in fraud, including negligent misrepresentation claims, must be stated with particularity. See Fed. R. Civ. P. 9(b) ; see also Broadway Gate Master Fund, Ltd. , 2016 WL 9413421, at *3 (stating negligent misrepresentation claims are subject to Rule 9(b) ’s heightened pleading requirements).

Rule 9(b) is satisfied if the complaint sets forth (1) precisely what statements were made in what documents or oral representations or what omissions were made, and (2) the time and place of each such statement and the person responsible for making (or, in the case of omissions, not making) same, and (3) the content of such statements and the manner in which they misled the plaintiff, and (4) what the defendants obtained as a consequence of the fraud.

Mizzaro v. Home Depot, Inc. , 544 F.3d 1230, 1237 (11th Cir. 2008) (quotation marks and citations omitted). "However, alternative means are also available to satisfy the rule" as long as the defendants receive "fair notice" of the bases for the claims against them. Brooks , 116 F.3d at 1371, 1381 (quotation marks and citations omitted).

Defendants contend Counts III, IV, and VI do not distinguish which Defendants made what statement(s) and fail to meet Rule 9(b) ’s particularity requirements. (See Mot. 8–9). Defendants are incorrect.

As Frayman points out, Defendants focus on "allegations that summarize already-pled misrepresentations and omissions by Defendants." (Resp. 5–6 (emphasis in original)). The Amended Complaint incorporates by reference the general allegations into each claim. (See Am. Compl. ¶¶ 137, 147, 164). A review of the Amended Complaint shows that Frayman has clearly delineated the statements or omissions that are attributable to each Defendant.

Frayman alleges Tansey misrepresented the condition of the Property by sharing "highly-polished marketing materials showing a well-landscaped exterior" and describing the Property as an "A+ property" with a "charming exterior" (Am. Compl. ¶¶ 38, 41, 43 (quotation marks omitted)) and misrepresented the legality of the rental by telling Frayman that "the use of a ‘guest agreement’ would alleviate any legality issues" (id. ¶ 52).^{10 , 11} Frayman alleges the Mirmelli Defendants misrepresented, "through Tansey," the true condition of the Property and the legality of the rental (id. ¶¶ 141, 151), especially because the Mirmelli Defendants presumably provided the promotional materials (see Resp. 7 n.5); and misrepresented, "through Sarah," their intention to refund Frayman's money if he left the Property¹² (Am. Compl. ¶¶ 142, 152; see also id. ¶¶ 84–85 ("Sarah walked away from Frayman, made a call to an un-identified person, returned to Frayman, and said, ‘We will return your money.’ ... Frayman relied on Sarah's undertaking as both the person responsible for check-in and also as sister of the owner ...." (alterations added))).

10 Frayman asserts that Tansey was "acting for others" and his misrepresentations are thus attributable to the other Defendants, including Avigdor and the Mirmelli Defendants. (Resp. 7–8). The DE Defendants maintain Frayman has not alleged any false statements made by Avigdor, and Tansey's statements in paragraphs 38 and 40 through 44 cannot be attributed to Avigdor because Tansey is not Avigdor's agent. (See DE Defs.’ Reply 6 & n.3). Similarly, the Mirmelli Defendants state Tansey was acting as an "independent contractor" and Frayman therefore cannot impute any of Tansey's alleged misrepresentations to the Mirmelli Defendants." (Mirmelli Defs.’ Reply 3).
It is not appropriate to address, at this early stage and based on minimal analysis by the parties, whether there are enough allegations that Tansey acted as Avigdor's or the Mirmelli Defendants’ agent in making the alleged misrepresentations. In any event, the Court need not address this argument, as the Amended Complaint has sufficiently stated claims of fraudulent inducement, fraud, and negligent misrepresentation against Avigdor and the Mirmelli Defendants based on the alleged omissions and other misrepresentations.

11 The DE Defendants take issue with Tansey's statements that the Property was an "A+ property" with a "charming exterior" because they "are statements of opinion, which are not actionable as fraud[,]" and they assert Tansey's statement regarding the use of a guest agreement "was not the cause of Frayman's damages." (DE Defs.’ Reply 6–8 (alteration added; quotation marks omitted)). The Court will not address arguments that were available to the DE Defendants at the time the Motion was filed, as the Amended Complaint clearly alleges the statements regarding the quality of the Property form the basis of Frayman's fraudulent inducement, fraud, and negligent misrepresentation claims. (See Am. Compl. ¶¶ 143, 153, 168); see also Townhouses of Highland Beach Condo. Ass'n, Inc. v. QBE Ins. Corp. , 504 F. Supp. 2d 1307, 1312 (S.D. Fla. 2007) ("Since Defendant did not raise this argument in its Motion to Dismiss, the argument has been waived ...." (alteration added; citations omitted)).

12 The Mirmelli Defendants challenge Frayman's reliance on Sarah Mirmelli's statements for purposes of his fraud claim because he has not alleged that "Sarah Mirmelli knew her statements were false or that the claimed fraud is anything more than a mere promise not performed." (Mirmelli Defs.’ Reply 4 (footnote call number omitted)). The Mirmelli Defendants could have raised this argument earlier because the Amended Complaint clearly alleges as a basis for the fraud claim that Sarah represented the Mirmelli Defendants’ intention to refund Frayman's money. (See Am. Compl. ¶ 152). The Court declines to consider it.

Finally, Frayman alleges all Defendants, including the DE Defendants, did not disclose that (1) the rental of the Property was illegal, (2) Mirmelli had been fined for illegally renting the Property as a short-term rental, (3) Mirmelli had been sued by a guest for a refund because the Property was not kept in the represented condition, and (4) Mirmelli started using Miami Luxury to rent out the Property following that lawsuit. (See id. ¶¶ 141, 143, 151, 153, 168). Frayman explains the importance of these omissions is made clear in the context of other statements made by Defendants (see Resp. 8–9), including that (1) DE Realty and DE Florida feature luxury property listings for rent in South Florida on their websites and state their agents "have access to the best and most reliable information and education" (id. ¶ 25); and (2) Avigdor told Frayman that Tansey has Miami-area expertise and is one of the top agents in Douglas Elliman's Miami office (see id. ¶¶ 30–32). Frayman further asserts "the omitted information independently should have been revealed by any of the Defendants, not just Tansey. Thus, the omissions are pled as to all Defendants." (Resp. 9).

Considering these allegations, the Amended Complaint meets Rule 9(b) ’s particularity standard as it sets forth precisely (and often verbatim) the statements that were made and their content; the time, place, and speaker of the statements; and the parties responsible for making the alleged misrepresentations and omissions. See Mizzaro , 544 F.3d at 1237. Frayman has certainly provided "fair notice" by "reasonably notify[ing] the [D]efendants of their purported role in the scheme" and "inform[ing] each [D]efendant of the nature of his [or its] alleged participation in the fraud."¹³ Brooks , 116 F.3d at 1381 (alterations added; quotation marks and citations omitted).

13 In their Reply, the DE Defendants insist Counts III, IV, and VI are "shotgun" claims because they "incorporate[ ] paragraphs 1–112 ... without delineating which allegation supports which count or is against which Defendant." (DE Defs.’ Reply 5 (alterations added)). As with the particularity standard, the cornerstone of the prohibition against shotgun pleadings is "adequate notice" to the defendants "of the claims against them and the grounds upon which each claim rests." Weiland v. Palm Beach Cnty. Sheriff's Off. , 792 F.3d 1313, 1323 (11th Cir. 2015) (footnote call number omitted). The Amended Complaint clearly summarizes the relevant allegations in each count (see Am. Compl. ¶¶ 141–43, 151–53, 168) and thus provides Defendants adequate notice of which alleged misrepresentations and omissions form the bases of these claims.

Next, Defendants submit the alleged misrepresentations and omissions regarding (1) the true condition of the Property as "unclean, in disarray, and unfit for a family" and (2) Mirmelli's lawsuit with a former guest who sought a refund based on a misrepresentation of the Property's condition, were not material to the transaction because Frayman was nonetheless willing to stay at the Property for a reduced price.¹⁴ (Mot. 9–10). Yet, as Frayman aptly notes, that he "was willing to stay at the Property for a different price than agreed upon does not somehow transform things that were material to the original agreement into things that are no longer material." (Resp. 10–11 (emphasis in original)).

14 Defendants do not challenge the materiality of the other alleged misrepresentations and omissions supporting the claims in Counts III, IV, and VI. (See Resp. 10).

Rather, "[u]nder Florida law, a fact is material if, but for the misrepresentation, the aggrieved party would not have entered into the contract." Ribak v. Centex Real Estate Corp. , 702 So. 2d 1316, 1317 (Fla. 4th DCA 1997) (citations omitted). Frayman maintains he would not have rented the Property to begin with had he known the information at the time of contracting. (See Resp. 10–11). He further supports this point by stating: (1) he was willing to enter into a new contract at a different price upon seeing the Property's true condition (see Am. Compl. ¶ 83), where "[a] fact that affects the value of a property is material" (Resp. 11 (emphasis in original; citing Johnson v. Davis , 480 So. 2d 625, 629 (Fla. 1985) )); and (2) the savings from the price reduction would have been used to properly clean and disinfect the house — i.e. , to change the condition of the Property (see Am. Compl. ¶ 83; Resp. 11–12). Moreover, Frayman asserts the omitted information that a prior guest sued Mirmelli for a refund was material not only to the first deal to rent the Property, but also to the second deal to leave the Property for a full refund. (See Resp. 12).

The Court agrees with Frayman. Frayman alleges the cleanliness of the Property was important to him. (See, e.g. , Am. Compl. ¶ 29 ("[Frayman] [ ] told Avigdor that all in-house equipment should be ‘new, ready to use’ and that a cleaning service was ‘highly desirable.’ " (alterations added)); id. ¶ 34 ("In multiple emails and text messages, Frayman made it clear to Tansey that both the cleanliness of the property and the legality of the rental were important to him."); id. ¶ 46 ("Frayman told Tansey on several occasions that it was critical to him that the rental be cleaned and disinfected due to the COVID-19 pandemic."); id. ¶ 55 ("Tansey did not reveal that the owner of the Property, Mirmelli, had recently been sued for a refund by a prior guest because the Property was not depicted in promotional materials and was ‘unclean, in disarray and unfit for her family.’ ")).

Frayman further alleges: "Relying on Tansey's representations regarding the Property ..., Frayman agreed to ... rent the Property for $65,000 (plus the $10,000 security deposit and $300 exit cleaning fee." (Id. ¶ 57 (alterations added); see also id. ¶¶ 82–83). According to Frayman, Tansey "[o]nce again ... omitted that Mirmelli had previously been sued for a refund" when Frayman requested a refund upon discovering the Property's true condition; and relying in part on "Tansey's assurance" that he would take care of the refund, Frayman left the Property. (Id. ¶¶ 87–88 (alterations added)). Thus, the Amended Complaint plausibly alleges Frayman would not have entered into the Guest Agreement or the alleged oral agreement for a refund if he had known about the true condition of the Property and Mirmelli's lawsuit with a former guest regarding the same issue.

In their Reply, the DE Defendants argue "the purported omissions alleged in Counts 3, 4, and 6 (i.e. , failing to disclose the legality of short-term rentals, failing to disclose that Defendant[ ] Mirmelli had previously been sued by a guest, etc.) cannot support Frayman's fraud-based claims against the DE Defendants because those omissions were not the cause of Frayman's damages. Rather, [the] Mirmelli Defendants’ breach of the agreement to refund $65,000.00 caused Frayman's damages." (DE Defs.’ Reply 9 (alterations added)). The DE Defendants’ attempt to shift the blame to the Mirmelli Defendants is unavailing. As discussed, Frayman has sufficiently alleged that "the purported omissions alleged ... in Frayman's fraud-based claims" were material to his decision to rent the Property.¹⁵

15 The DE Defendants cannot now take issue with the materiality of the "fail[ure] to disclose the legality of short-term rentals" when they did not address that alleged omission in the Motion. (DE Defs.’ Reply 9 (alteration added)). Again, the Court will not consider an argument raised for the first time in a reply memorandum.

The DE Defendants also challenge Frayman's reliance on Johnson v. Davis , arguing they "did not have any obligation to disclose that a prior guest had previously sued Defendant Mirmelli, as that is not a fact that materially affected the value of the Property as set forth in Johnson v. Davis ." (DE Defs.’ Reply 9 (alterations added; emphasis in original)). In that case, the Florida Supreme Court held "where the seller of a home knows of facts materially affecting the value of the property which are not readily observable and are not known to the buyer, the seller is under a duty to disclose them to the buyer." Johnson , 480 So. 2d at 629.

The DE Defendants give "[e]xamples of facts that courts have found materially affect the value of [a] property" and conclude "[t]hat Mirmelli was sued by a prior guest is not the sort of fact that requires disclosure[ ] under Johnson v. Davis ." (DE Defs.’ Reply 9 (alterations added)). As the DE Defendants do not adequately explain why this is so, the Court is presently unable to determine whether this fact is "the sort of fact that requires disclosure[.]" (Id. (alteration added)). In any event, Frayman relies on Johnson to rebut Defendants’ argument that his price reduction proposal shows the Property's condition was immaterial to him; and he has otherwise sufficiently alleged the materiality of Defendants’ alleged misrepresentations and omissions to his decision to enter into the Guest Agreement and refund agreement.

In sum, the Motion is denied as to Counts III, IV, and VI.

D. Count VII

Frayman brings a conversion claim against the Mirmelli Defendants. (See Am. Compl. ¶¶ 174–80). Defendants submit this claim is improper under Florida law because it seeks to recover the $65,000 allegedly owed to Frayman under a contract. (See Mot. 11–12).

"Conversion is defined as ‘an act of dominion wrongfully asserted over, and inconsistent with, another's possessory rights in personal property.’ " Joseph v. Chanin , 940 So. 2d 483, 486 (Fla. 4th DCA 2006) (quoting Goodwin v. Alexatos , 584 So. 2d 1007, 1011 (Fla. 5th DCA 1991) ). In Florida, "[a] mere obligation to pay money may not be enforced by a conversion action." Belford Trucking Co. v. Zagar , 243 So. 2d 646, 648 (Fla. 4th DCA 1970) (alteration added; citations omitted); see also Rosen v. Marlin , 486 So. 2d 623, 625 (Fla. 3d DCA 1986) ("A debt which may be discharged by the payment of money in general cannot form the basis of a claim for conversion." (citations omitted)). Nonetheless, "the general rule does not foreclose a claim for civil theft or conversion under certain limited circumstances." Walker v. Figarola , 59 So. 3d 188, 190 (Fla. 3d DCA 2011).

For a plaintiff to succeed on a claim of conversion of money, "the ... conversion must go beyond, and be independent from, a failure to comply with the terms of a contract." Gasparini v. Pordomingo , 972 So. 2d 1053, 1055 (Fla. 3d DCA 2008) (alteration added; citation omitted). Money may be a proper "subject of conversion so long as it consists of specific money capable of identification." Belford Trucking Co. , 243 So. 2d at 648 (citation omitted). In other words, "there must be an obligation to keep intact or deliver the specific money in question, so that such money can be identified." Id. (citation omitted). Florida courts have generally found conversion claims constitute "more than mere breach of contract" in two situations: where defendants have stolen or embezzled funds entrusted to them by the plaintiffs for the defendants’ own benefit, and where defendants refuse to return funds owned by the plaintiffs and given to the defendants to hold temporarily in a segregated and identifiable account. Cabana on Collins, LLC v. Regions Bank , No. 11-21204-Civ, 2011 WL 13223712, at *3 (S.D. Fla. June 7, 2011) (quotation marks omitted; collecting cases).

Frayman maintains he has properly pleaded conversion of an identifiable sum of money. (See Resp. 13). He asserts: "Independent of the refund agreement , the Mirmelli Defendants exercised dominion and control over specific, identifiable funds that belong to Frayman and intend to permanently deprive him of those funds." (Id. 14 (emphasis in original)). These contentions are unpersuasive.

Frayman has not alleged his $65,000 are sufficiently identifiable to sustain a conversion claim. "The ‘identification requirement ensures that a fund of money actually exists to pay a specific debt owed and the claimant is not merely transforming a contract dispute into a conversion claim.’ " Intertech Trading Corp. v. JP Morgan Chase Bank, N.A. , No. 17-21091-Civ, 2017 WL 7792705, at *5 (S.D. Fla. Aug. 28, 2017) (quoting Tambourine Comercio Internacional SA v. Solowsky , 312 F. App'x 263, 272 (11th Cir. 2009) ). "The fact that the amount is certain does not make an ‘identifiable fund.’ " Fla. Desk, Inc. v. Mitchell Int'l, Inc. , 817 So. 2d 1059, 1061 (Fla. 5th DCA 2002). Rather, Frayman must "show that the same monies paid to [the Mirmelli Defendants] were to be held by [the Mirmelli Defendants] for the benefit of [Frayman]." Id. (alterations added).

Defendants maintain that once Frayman's $65,000 "was wire[d] to an account of the Mirmelli Defendants and commingled with other monies, it immediately lost its separate character which could support a conversion action." (Mot. 11 (alteration added; citing Abdnour v. Abdnour , 19 So. 3d 357, 364 (Fla. 2d DCA 2009) )). Frayman insists this assertion "must be ignored as outside the pleadings[,]" and in any event, "that the Mirmelli Defendants commingled funds does not negate their obligation not to do so" under sections 83.49(1)(a) and (b), Florida Statutes. (Resp. 13 (alteration added; emphasis in original)). But Frayman's assertion is similarly "outside the pleadings." (Id. ). The Amended Complaint makes no mention of a separate account for Frayman's $65,000 or "any obligation on [the Mirmelli Defendants’] part to keep intact or hold a specific fund to deliver to [Frayman]." Fla. Desk, Inc. , 817 So. 2d at 1061 (alterations added).

Instead, Frayman allegedly wired the $65,000 to Miami Luxury under the Guest Agreement (see Am. Compl. ¶ 69), which he alleges was breached or should be rescinded (see id. ¶¶ 188–94, 201–10). While Frayman allegedly "made a demand" to the Mirmelli Defendants for the return of his funds for purposes of his conversion claim (id. ¶ 178), this demand can only refer to his offer to leave the Property in exchange for the $65,000 which purportedly gave rise to the oral agreement for a full refund (see id. ¶¶ 82–84, 195–200). "This is not a case where a party intentionally received a specifically identifiable sum of money knowing that he had no right to take it and who refused to give it back[,]" nor is it "a case where a party refused to pay over to the demanding party a specific fund capable of separate identification required to be deposited into a special account[.]" Rosen , 486 So. 2d at 625–26 (alterations added). Frayman has failed to adequately plead a conversion claim independent of any contract, and so Defendants’ Motion is granted as to Count VII.

E. Counts VIII and XII

Frayman asserts a claim of unjust enrichment against all Defendants (Count VIII) (see Am. Compl. ¶¶ 181–87) and a claim of money had and received against the Mirmelli Defendants (Count XII) (see id. ¶¶ 211–14). Defendants maintain these claims should be dismissed because Frayman has alleged the existence of express contracts concerning the same subject matter.¹⁶ (See Mot. 12–13, 16; see also Mirmelli Defs.’ Reply 4–6).

16 This argument can only apply to the Mirmelli Defendants as to the unjust enrichment claim, given that "Frayman does not allege an express contract with any DE Defendant." (Resp. 15; see also DE Defs.’ Reply 9 ("[T]he DE Defendants have not moved to dismiss any of Frayman's contract claims." (alteration added))). Thus, the unjust enrichment claim may proceed against the DE Defendants.

"Under Florida law, a plaintiff may recover money paid by mistake of fact to a defendant if, in equity and good conscience, the defendant should not be allowed to keep the money. The form of such a cause of action is alternatively referred to as one for restitution, unjust enrichment, quasi-contract, or an action for money had and received." Equilease Corp. v. Hentz , 634 F.2d 850, 853 (5th Cir. 1981) (citations omitted); see also Spencer v. Wachovia Bank, N.A. , No. 05-81016-Civ, 2006 WL 3408043, at *8 (S.D. Fla. May 10, 2006) ("In Florida, causes of action for money had and received and unjust enrichment are virtually interchangeable. Unjust enrichment is the modern version of the common law action for money had and received." (citations omitted)). Both claims provide for "quasi-contractual" remedies based on an implied promise to pay. Kaye v. Ingenio, Filiale De Loto-Quebec, Inc. , No. 13-61687-Civ, 2014 WL 2215770, at *9 (S.D. Fla. May 29, 2014) (citation omitted); Berry v. Budget Rent A Car Sys., Inc. , 497 F. Supp. 2d 1361, 1370 (S.D. Fla. 2007) (footnote call number omitted; citation omitted). Thus, the Court analyzes Frayman's unjust enrichment and money-had-and-received claims similarly.

Generally, "[n]o cause of action in unjust enrichment can exist where the parties’ relationship is governed by an express contract. This is because the theory of unjust enrichment is equitable in nature and is, therefore, not available where there is an adequate legal remedy." Zarrella v. Pac. Life Ins. Co. , 755 F. Supp. 2d 1218, 1227 (S.D. Fla. 2010) (quotation marks and citations omitted); see also Berry , 497 F. Supp. 2d at 1370 ("[T]he presence of an express contract precludes recovery on a quasi-contractual remedy such as money had and received." (alteration added)).

Nonetheless, "[t]he Florida Supreme Court has previously stated that it is customary to join claims for unjust enrichment and express contract in a single complaint ... so that a plaintiff who fails to prove the existence of an express contract may still recover for an implied contract." Transcon. Ins. Co. v. L.F. Staffing Servs., Inc. , No. 07-80865-Civ, 2008 WL 11333473, at *6 (S.D. Fla. Aug. 13, 2008) (alterations added; citing Hazen v. Cobb , 96 Fla. 151, 117 So. 853, 857–58 (1928) ). "It is only upon a showing that an express contract exists that the unjust enrichment ... count fails. Until an express contract is proven, a motion to dismiss a claim for ... unjust enrichment on these grounds is premature." Mobil Oil Corp. v. Dade Cnty. Esoil Mgmt. Co. , 982 F. Supp. 873, 880 (S.D. Fla. 1997) (alterations added; citation omitted); see also Stock Fraud Prevention, Inc. v. Stock News Info, LLC , No. 11-80764-Civ, 2012 WL 664381, at *10 (S.D. Fla. Feb. 28, 2012) ("At the pleading stage, Plaintiff is not precluded from pleading claims for both breach of contract and money had and received." (citations omitted)). Accordingly, Defendants’ Motion must be denied as to Counts VIII and XII.

In any event, a plaintiff may plead an unjust enrichment claim in the alternative to a breach-of-contract claim where "one or more of the parties contest the existence of an express contract governing the subject of the dispute[.]" In re Managed Care Litig. , 185 F. Supp. 2d 1310, 1337–38 (S.D. Fla. 2002) (alteration added; footnote call number and citations omitted). Frayman alleges the existence of the Guest Agreement and brings a claim for breach of that contract. (See Am. Compl. ¶¶ 188–94). Yet, he also seeks rescission of the Guest Agreement against Miami Luxury (see id. ¶¶ 201–10), and he alleges the Guest Agreement is void for purposes of Count VIII (see id. ¶ 186) and of an "illegal nature" for purposes of Count XII (id. ¶ 213). He further points out the Mirmelli Defendants dispute whether Frayman had any contract with Mirmelli at all. (See Resp. 15; see also Mot. 13–15).

Moreover, Frayman alleges breach of the refund agreement between him and the Mirmelli Defendants (see Am. Compl. ¶¶ 195–200), but Defendants argue the parties never entered a valid, enforceable agreement with respect to the refund (see Mot. 14–15). Thus, both contracts concerning the same subject matter as the unjust enrichment and money-had-and-received claims are challenged by the parties. Counts VIII and XII may proceed.

F. Count IX

Frayman alleges breach of the Guest Agreement against the Mirmelli Defendants. (See Am. Compl. ¶¶ 188–94). Defendants ask the Court to dismiss this claim as to Mirmelli because Mirmelli is not a party to the Guest Agreement, and Frayman's allegation in Count IX that Mirmelli entered into the Guest Agreement "by extension" is insufficient to show that an agreement between Frayman and Mirmelli exists. (Mot. 13 (quotation marks omitted)). Frayman points out that he alleges Miami Luxury is Mirmelli's mere instrumentality or alter ego, thus binding Mirmelli to any contracts to which Miami Luxury is a party. (See Resp. 16).

To pierce the corporate veil, Florida law requires that a plaintiff show: (1) the shareholder dominated and controlled the corporation to such an extent that the corporation's independent existence was in fact nonexistent and the shareholder was in fact the alter ego of the corporation; (2) the corporate form was used fraudulently or for an improper purpose; and (3) the fraudulent or improper use of the corporate form caused injury to the claimant. See Molinos Valle Del Cibao, C. por A. v. Lama , 633 F.3d 1330, 1349 (11th Cir. 2011) (citing Gasparini , 972 So. 2d at 1055 ; other citation omitted). At the motion-to-dismiss stage, a plaintiff need only allege facts that support a plausible basis for alter ego as a theory of liability. See Georgetown Trading Co., LLC v. Venturi Spirits, LLC , No. 14-62277-cv, 2015 WL 11197790, at *2 (S.D. Fla. Mar. 16, 2015) (finding allegations that the defendants directed and controlled the alleged alter ego, which were made only on information and belief, were sufficient to survive a motion to dismiss).

Frayman has sufficiently alleged facts supporting each of these three elements. First, Frayman alleges Mirmelli is Miami Luxury's sole member (see Am. Compl. ¶ 8); Miami Luxury has few or no assets (see id. ¶ 61); and Miami Luxury is Mirmelli's mere instrumentality or alter ego because Mirmelli dominates and controls Miami Luxury to such an extent that its independent existence is nonexistent (see id. ¶ 60). See also Upfitters, L.L.C. v. Brooking , No. 3:18-cv-496, 2020 WL 954984, at *5 (M.D. Fla. Feb. 27, 2020) (denying motion to dismiss a claim for alter ego liability alleging in part that the entities were the members’ mere instrumentalities, the members dominated the entities to such an extent that the entities lacked an independent existence, and the entities were severely undercapitalized). Second, Frayman alleges Mirmelli formed Miami Luxury as a shell to defraud and evade creditors after he was sued by a former guest and entered into the Guest Agreement via Miami Luxury in order to conceal his ownership of the Property and obligations for the rental. (See Am. Compl. ¶¶ 45, 60–61, 87); see also Woods v. Jorgensen , 522 So. 2d 935, 937 (Fla. 1st DCA 1988) (affirming denial of motion to dismiss where the plaintiff alleged the defendant corporations were merely shells that acted as financial conduits for shareholder's business ventures). Finally, Frayman alleges he was injured because Mirmelli and Miami Luxury "breached the Guest Agreement by failing to provide a legal rental, acting in bad faith, failing to have the Property cleaned and ready at the agreed upon check-in time of 11:00 a.m., and failing to maintain the Property [at] ordinary, normal standards reasonably to be expected of living quarters of comparable kind and quality." (Id. ¶ 193 (alteration added)).

As Frayman points out (see Resp. 16), the Mirmelli Defendants do not directly challenge the alter ego theory of liability alleged in the Amended Complaint (see generally Mot.; Mirmelli Defs.’ Reply). Because Frayman has adequately pleaded the requirements for alter ego liability, Count IX may proceed against Mirmelli.

G. Count X

Frayman alleges breach of contract against the Mirmelli Defendants regarding the oral agreement to refund his $65,000 if he left the Property. (See Am. Compl. ¶¶ 195–200). Defendants argue this breach-of-contract claim fails because Frayman has not alleged a valid, enforceable agreement with the Mirmelli Defendants to refund the $65,000. (See Mot. 14–15).

"For a breach of contract claim, Florida law requires the plaintiff to plead and establish: (1) the existence of a contract; (2) a material breach of that contract; and (3) damages resulting from the breach." Vega v. T-Mobile USA, Inc. , 564 F.3d 1256, 1272 (11th Cir. 2009) (citing Friedman v. N.Y. Life Ins. Co. , 985 So. 2d 56, 58 (Fla. 4th DCA 2008) ). "To prove the existence of a contract, a plaintiff must plead: (1) offer; (2) acceptance; (3) consideration; and (4) sufficient specification of the essential terms." Id. (citing St. Joe Corp. v. McIver , 875 So. 2d 375, 381 (Fla. 2004) ). "The definition of ‘essential term’ varies widely according to the nature and complexity of each transaction and is evaluated on a case-by-case basis." Nichols v. Hartford Ins. Co. of the Midwest , 834 So. 2d 217, 219 (Fla. 1st DCA 2002) (citations omitted).

Defendants contend the Amended Complaint fails to specify the essential terms of the alleged agreement, such as "the timing of the obligations of the parties, or who were the parties to that purported agreement." (Mot. 14). Frayman points out that he has alleged the agreement was with Mirmelli and Miami Luxury (see Resp. 18; see also Am. Compl. ¶ 197 ("Frayman agreed with Mirmelli and Miami Luxury that he would be refunded his $65,000 if he left the Property.")), and he maintains timing was not an essential term that renders the alleged agreement unenforceable (see Resp. 18).

Plaintiff has the stronger position. There is no indication that timing of payment is essential per se to every contract under Florida law. See Broadnax v. Sand Lake Cancer Ctr., P.A. , 819 F. App'x 799, 802 (11th Cir. 2020) (footnote call number omitted; citing Lanza v. Damian Carpentry, Inc. , 6 So. 3d 674, 676 (Fla. 1st DCA 2009) ). Nor do Defendants argue that "the ‘nature and complexity’ of this case [should] lead [the Court] to conclude that the term[ ] concerning the timing of payment ... [is] essential to this [ ] agreement." Id. (alterations added; emphasis in original; citing Lanza , 6 So. 3d at 676 ). The Mirmelli Defendants do not further explain their position in their Reply. (See generally Mirmelli Defs.’ Reply).

Defendants also insist "Frayman's allegations are completely contradictory where Frayman references the Guest Agreement and an invoice concerning the transaction, yet Frayman is seeking to sue upon a separate alleged agreement between the parties for the return of the $65,000.00." (Mot. 14–15). Defendants fail to explain how these allegations are so "confusing" as to warrant dismissal of the claim. (Id. 15). As Frayman notes, he is permitted to plead overlapping and/or inconsistent claims under Rule 8(d)(3) in any event. (See Resp. 18 n.7). Consequently, the Motion is denied as to Count X.

H. Count XI

Frayman asserts a rescission claim against Miami Luxury as to the Guest Agreement. (See Am. Compl. ¶¶ 201–10). Defendants request dismissal of this claim. (See Mot. 15–16).

"Rescission is an equitable remedy wherein the goal is to place the parties in the position that each enjoyed before the contract was executed." Belaire at Boca, LLC v. Associations Ins. Agency, Inc. , No. 06-80887-Civ, 2007 WL 1812218, at *4 (S.D. Fla. June 22, 2007) (citing Billian v. Mobil Corp. , 710 So. 2d 984, 990 (Fla. 4th DCA 1998) ). To state a claim for rescission,

a party must allege six elements: (1) the character or relationship of the parties, (2) the making of the contract, (3) the grounds for rescission, (4) that the party seeking rescission has done so and informed the other party to the contract, (5) if the rescinding party has received benefits from the contract, that the party has offered to restore the benefits if possible, and (6) that no adequate remedy is available at law.

SureTec Ins. Co. v. Nat'l Concrete Structures, Inc. , No. 12-60051-Civ, 2012 WL 12860161, at *4 (S.D. Fla. July 3, 2012) (citations omitted).

Defendants contend Frayman has an adequate remedy at law because he seeks to recover $65,000 in money damages that he paid for the rental. (See Mot. 15; see also Mirmelli Defs.’ Reply 6 ("Frayman's Amended Complaint admits that an adequate remedy at law exists because the money damages he seeks to recover in the amount of $65,000.00 are the funds that Frayman claims to have paid for renting the Property pursuant to an agreement." (capitalization omitted))). Plaintiff maintains that "[t]he simultaneous assertion of a breach-of-contract claim is not a valid basis for dismissing a rescission claim" because "it is common for parties to plead alternative equitable and legal claims" and "[i]t is also premature at this stage to determine whether an adequate remedy at law exists." (Resp. 19 (alterations added; emphasis in original)).

"It is axiomatic that equitable relief is only available where there is no adequate remedy at law; cases in which the remedy sought is the recovery of money damages do not fall within the jurisdiction of equity." Rosen v. Cascade Int'l, Inc. , 21 F.3d 1520, 1527 (11th Cir. 1994) (footnote call number omitted). "This is not to say that a legal remedy must succeed to be adequate. The law is plain that inadequacy means only that in its nature or character it is not fitted or adapted to the end in view; inadequacy does not mean that the remedy is ineffectual." Justice v. United States , 6 F.3d 1474, 1482 n.16 (11th Cir. 1993) (citations omitted).

As with his unjust enrichment and money-had-and-received claims, however, Frayman alleges the Guest Agreement is "void as illegal and/or because it could not be performed without violating the law." (Am. Compl. ¶ 206; see also Resp. 19 n.9 ("Frayman also pleads the rental agreement was illegal, rendering it void ab initio. If it was void ab initio (i.e., no contract exists), then a breach-of-contract claim might not be available.")). Consequently, the Court agrees with Frayman that it is premature to determine at this stage whether an adequate remedy is available at law, and so Frayman may plead a rescission claim in the alternative to his breach-of-contract claim. See Wycap Marine Corp. v. Wycap Design, LLC , No. 18-62226-Civ, 2018 WL 7287086, at *3 (S.D. Fla. Dec. 18, 2018) (denying motion to dismiss rescission counterclaim where the claimant "sufficiently alleged misrepresentation of material facts perpetrated on the buyer in agreeing to the contractual provision" at issue and thus whether the claimant had an adequate remedy at law was "an issue of fact" (footnote call number omitted)).

Defendants also maintain Count XI should be dismissed because rescission would not afford Frayman the relief sought (i.e. , the rental amount of $65,000), as the Guest Agreement does not mention any rental amount. (See Mot. 16). Instead, Defendants state the alleged invoice "would presumably contain the terms and conditions of any payments made by Frayman to Miami Luxury[,]" but "Frayman does not seek rescission based on the invoice[.]" ( Id. (alterations added)).

This argument is unpersuasive. Frayman alleges he wired $65,000 to Miami Luxury "shortly after executing the Guest Agreement[.]" (Am. Compl. ¶ 69 (alteration added)). The parties do not sufficiently discuss the terms of the invoice and the Guest Agreement or whether these two documents constitute one contract to permit the Court to properly assess Defendants’ argument. Moreover, Frayman explains "Defendants’ view of the relief sought is not an element of a rescission claim[,]" and "[r]escission would require the return of the money he paid" under the Guest Agreement because "rescission unwinds a transaction and restores the parties to the position that each enjoyed before the contract was executed." (Resp. 20 (alterations omitted; quotation marks omitted)). Frayman's rescission claim may proceed.

I. Count XIII

Finally, in Count XIII, Frayman asserts a claim of promissory estoppel against the Mirmelli Defendants. (See Am. Compl. ¶¶ 215–22). Defendants argue that, like Frayman's unjust enrichment and money-had-and-received claims, this claim should be dismissed because Frayman has alleged the existence of an express contract. (See Mot. 16).

"A cause of action for promissory estoppel contains three elements: that the plaintiff detrimentally relied on the defendant's promise, that the defendant reasonably should have expected the promise to induce reliance in the form of action or forbearance by the plaintiff, and that injustice can only be avoided by enforcement of the promise." Morse, LLC v. United Wis. Life Ins. Co. , 356 F. Supp. 2d 1296, 1300 (S.D. Fla. 2005) (citing W.R. Townsend Contracting, Inc. v. Jensen Civil Constr., Inc. , 728 So. 2d 297, 302 (Fla. 1st DCA 1999) ). "Promissory estoppel is a quasi-contract claim that is generally considered an alternative to a breach of contract claim, allowing a party to enforce a promise not supported by consideration." Martin v. Creative Mgmt. Grp., Inc. , No. 10-cv-23159, 2013 WL 12061809, at *4 (S.D. Fla. July 26, 2013) (citations omitted). Thus, "[t]he doctrine of promissory estoppel is unavailable when there is a written contract between the parties covering the disputed promises." Hartel v. Unity Recovery Ctr., Inc. , No. 16-80471-Civ, 2017 WL 1291952, at *4 (S.D. Fla. Jan. 26, 2017) (alteration added; quotation marks and citation omitted).

As with a claim of unjust enrichment or money had and received, however, "[i]t is only upon a showing that an express contract exists that the ... promissory estoppel count fails. Until an express contract is proven, a motion to dismiss a claim for promissory estoppel ... on these grounds is premature." Mobil Oil Corp. , 982 F. Supp. at 880 (alterations added; citation omitted); see also JI-EE Indus. Co. v. Paragon Metals, Inc. , No. 09-81590-Civ, 2010 WL 1141103, at *1 (S.D. Fla. Mar. 23, 2010) ("Plaintiff is not prevented from pursuing the alternative claims of breach of contract, unjust enrichment and promissory estoppel in separate counts." (citations omitted)). Accordingly, Defendants’ Motion is denied as to Count XIII.

In any event, Frayman does not allege a written contract regarding the refund of his $65,000. And Frayman has sufficiently alleged the elements of a promissory estoppel claim. Frayman alleges Sarah Mirmelli made an oral promise to refund the rental amount, the Mirmelli Defendants reasonably should have expected the promise would induce action or forbearance on Frayman's part, and Frayman reasonably relied on this representation to his detriment. (See Am. Compl. ¶¶ 215–22). And, as stated, the Mirmelli Defendants argue the parties never entered a valid, enforceable agreement with respect to this alleged promise. (See Mot. 14–15). Frayman alleges "[t]o the extent a contract was not formed when Frayman and Miami Luxury agreed to the terms of the refund, injustice can be avoided only by enforcement of the promise through the doctrine of promissory estoppel." (Am. Compl. ¶ 222 (alteration added)). Count XIII may proceed.

IV. CONCLUSION

For the foregoing reasons, it is

ORDERED AND ADJUDGED that Defendants’ Motion to Dismiss the Amended Complaint [ECF No. 60] is GRANTED in part as follows:

1. Count VII is DISMISSED without prejudice .

2. The Motion is DENIED as to Counts I, II, III, IV, VI, VIII, IX, X, XI, XII, and XIII.

3. Defendants have until and including February 3, 2021 to file their answers to the Amended Complaint.

DONE AND ORDERED in Miami, Florida, this 25th day of January, 2021.