           Case: 15-13937   Date Filed: 09/08/2016    Page: 1 of 11


                                                     [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-13937
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:14-cv-23284-AOR



ENERGY SMART INDUSTRY, LLC,

                                     Plaintiff - Counter Defendant - Appellant,

versus

MORNING VIEWS HOTELS-BEVERLY HILLS, LLC,

                                     Defendant - Counter Claimant - Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                            (September 8, 2016))

Before TJOFLAT, WILSON, and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      Plaintiff-Appellant Energy Smart Industry, LLC appeals the district court’s

denial of leave to amend its complaint and award of summary judgment to

Defendant-Appellee Morning View Hotels–Beverly Hills, LLC on Energy Smart’s

claims for breach of contract, unjust enrichment, and quantum meruit. After

thorough review of the record and consideration of the parties’ briefs, we affirm.

                                          I

      The undisputed facts are as follows. Energy Smart and Morning View

entered into a valid contract (the LED Lighting Retrofit Agreement) under which

Energy Smart agreed to retrofit Morning View’s hotel with energy-efficient

lightbulbs. The relevant provisions of the LED Lighting Retrofit Agreement read

as follows:

              1.     CONTRACT DOCUMENTS:                 The contract
              documents shall consist of this Agreement, all exhibits
              attached hereto, any lighting design drawings and
              specifications and any other documents that are
              specifically     incorporated    herein   by     reference
              (collectively, the Contract Documents). The terms of the
              Agreement include Exhibits hereto, which are
              incorporated as part of this Agreement by this reference.
              2. SCOPE OF WORK: The Agreement shall be
              construed in accordance with the IESNA lighting design
              guide, whereby ESI will perform a partial or full lighting
              retrofit of the Project. Client will therefore provide to
              ESI full access to the Project. ESI’s Work shall consist
              of the tasks enumerated in the Contract Documents
              together with such ancillary tasks and services which are
              reasonably inferable there from. . . .


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             3. CONTRACT PRICE: Client agrees to pay ESI, a fee
             for all services and installed property that are the subject
             of this Agreement, as specified hereafter in Exhibit A.
             The Client has chosen the 60/40 program where as they
             will keep 40% of the savings delivered by the lighting
             retrofit and pay ESI 60% of the savings from the Energy,
             Maintenance, federal Tax and Utility rebates generated
             from this project. The annual electric saving for this
             Lighting project is $49,493, the amounts [sic] is pursuant
             to said Exhibit A. The KW/H cost for calculation of the
             saving is $0.12. ESI, payment is annually $44,233.00, in
             Monthly installments of $3,686.00 per month for 60
             months (5 years). In consideration for the performance
             of the Work, Client shall pay ESI an amount equal to
             $3,686.00 per month, each such payment to ESI being
             payable on the first (1st) day of each month during the 60
             months (5) year term of this Agreement following the
             completion of the Work (hereinafter each such payment
             called a “Savings Payment”) . . . ; provided that such
             amounts due ESI may be prepaid in whole or in part
             without premium or penalty but also without discount or
             reduction of any kind. . . .
             ....
             6. CHANGE ORDERS: Any change involving either an
             increase or decrease in the Savings Payment or the
             Contract Time may be accomplished only by a written
             agreement executed by both parties.
             ....
             26. JURISDICTION: Venue and jurisdiction for any
             interpretations or enforcement of this Agreement shall be
             in Courts of the State of Florida located in Miami-Dade
             County, Florida. This Agreement shall be construed and
             enforced in accordance with Florida law.

Exhibit A identifies, inter alia, several areas within the hotel (e.g., lobby), the type

of fixture(s) in each area, the pre-installation maintenance cost of those areas each

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year, and a description of the LED lightbulbs intended to replace the current

lightbulbs in each area. Exhibit A also states that the “KWH cost lighting” is

$0.12, and the annual “savings” anticipated, excluding maintenance savings, will

be $49,493.70. Separately, Exhibit C lists “Mr. C of Beverly Hills (Morning View

Hotels-BH, LLC), 1224 Beverwil Drive, Los Angeles, CA 90035” as the property

to be retrofitted.

       It is also undisputed that the parties agreed to divide the project into five

phases. After Energy Smart completed Phase One of the project, it requested

payment for the work completed. When Morning Star did not pay, Energy Smart

stopped work, deemed Morning Star to be in default, and filed suit for breach of

contract, unjust enrichment, and quantum meruit. Energy Smart did not complete

any other phase of the project.

       Morning View removed the case to federal court and filed a counterclaim for

breach of contract. On November 6, 2014, the district court issued a Trial Order,

which, in relevant part, set a December 5, 2014, deadline for adding parties or

amending pleadings; an April 10, 2015, deadline to complete discovery; and a May

1, 2015, deadline to submit any remaining motions in limine directed to trial

evidence. On May 7, 2015, Energy Smart filed a motion to amend its complaint

and affirmative defenses. Subsequently, on cross-motions for summary judgment




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on Energy Smart’s claims, the district court entered judgment for Morning Star.

Energy Smart filed this timely appeal.

                                         II

      We review a grant or denial of summary judgment de novo. Fla. Evergreen

Foliage v. E.I. Dupont de Nemours & Co., 470 F.3d 1036, 1040 (11th Cir. 2006)

(per curiam). We review for an abuse of discretion the district court’s denial of

leave to amend a complaint. Id.

                                         III

      The gravamen of the parties’ dispute is whether Energy Smart could seek

payment at the time it completed each phase of the project, rather than upon

completion of all phases of the project. The district court determined that,

“because the contract defines ‘the Work’ as ‘the tasks enumerated in the Contract

Documents together with such ancillary tasks and services which are reasonably

inferable there from,’ the ‘Work’ includes all five phases of the project.” Energy

Smart Indus., LLC v. Morning View Hotels-Beverly Hills, LLC, 112 F. Supp. 3d

1330, 1335 (S.D. Fla. 2015). Additionally, “while Morning View was to make

monthly payments of $3,686.00 for a period of five years, the five-year period was

to begin ‘following the completion of the Work.’” Id. (quoting the LED Lighting

Retrofit Agreement). Thus, the district court concluded, because Energy Smart

had not completed all five phases, Morning Star’s contractual obligation to pay the


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agreed upon amount within a five-year period had not been triggered. See id.

Moreover, although Energy Smart claimed the LED Lighting Retrofit Agreement

had been modified to allow for a different payment schedule, the district court

found that Energy Smart had not presented “clear and unequivocal evidence of a

mutual agreement” reflecting that change, such that it would work a fraud on

Energy Smart not to enforce it, as required by Florida law. See id. at 1336–37.

      On appeal, Energy Smart argues that the district court’s interpretation of the

word “Work” in the LED Lighting Retrofit Agreement was unreasonable because

(a) there is no evidence on the face of the contract whether the project was a full or

partial lighting retrofit of the entire hotel, and (b) the parties’ oral agreements and

subsequent conduct constituted enforceable modifications to the payment schedule.

Additionally, Energy Smart seeks review of the district court’s decision to deny

Energy Smart leave to amend its complaint, on grounds that leave should have

been given because the amendments would have allowed Energy Smart to make a

proper showing that the LED Lighting Retrofit Agreement was modified. We

address each issue in turn.

                                           A




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       Under Florida law, a breach of contract arises when there exists (1) “a valid

contract”; (2) “a material breach” of that contract; and (3) resulting “damages.”1

Beck v. Lazard Freres & Co., LLC, 175 F.3d 913, 914 (11th Cir. 1999) (per

curiam). To determine whether a breach occurred, we look to the obligations of

each party under the contract. In Florida, “the actual language used in the contract

is the best evidence of the intent of the parties and, thus, the plain meaning of that

language controls.” Rose v. M/V “Gulf Stream Falcon”, 186 F.3d 1345, 1350

(11th Cir. 1999). Although a contract may contain an express provision that all

modifications must be in writing, Florida law permits enforcement of oral

modifications where there is “clear and unequivocal evidence of a mutual

agreement,” Fid. & Deposit Co. of Md. v. Tom Murphy Constr. Co., 674 F.2d 880,

885 (11th Cir. 1982), that “has been accepted and acted upon by the parties in such

a manner as would work a fraud on either party to refuse to enforce it,” Prof’l Ins.

Corp. v. Cahill, 90 So. 2d 916, 918 (Fla. 1956). A plaintiff only meets this

standard if she has made a showing

               (a) that the parties agreed upon and accepted the oral
               modification (i.e., mutual assent); and (b) that both
               parties (or at least the party seeking to enforce the
               amendment) performed consistent with the terms of the
               alleged oral modification (not merely consistent with
               their obligations under the original contract); and (c) that
               due to plaintiff’s performance under the contract as

   1
     For the reasons stated in the district court’s opinion, we conclude Florida law governs this
contract. See Energy Smart Indus., 112 F. Supp. 3d at 1334.
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             amended the defendant received and accepted a benefit
             that it otherwise was not entitled to under the original
             contract (i.e., independent consideration).

Okeechobee Resorts, L.L.C. v. E Z Cash Pawn, Inc., 145 So. 3d 989, 995 (Fla.

Dist. Ct. App. 2014). Absent such a showing, the plain language of the contract

controls.

      Here, a plain reading of the LED Lighting Retrofit Agreement leads us to the

same construction of the contract as the district court reached. The parties

contracted for Energy Smart to retrofit, in some manner, those areas of Morning

View’s hotel that are listed in Exhibit A. The contract clearly states: “ESI’s Work

shall consist of the tasks enumerated in the Contract Documents together with such

ancillary tasks and services which are reasonably inferable there from. . . .

[Morning View] agrees to pay ESI, a fee for all services and installed property that

are the subject of this Agreement, as specified hereafter in Exhibit A.” Whether

Energy Smart was to partially or fully retrofit each area listed in Exhibit A appears

to be governed by the IESNA lighting design guide, which is not part of the record.

But, even if Energy Smart was only obligated to partially retrofit the hotel,

partially performing the partial retrofit would still fall short of completing the

Work owed under the contract. It is undisputed that Energy Smart only completed

Phase One. The LED Lighting Retrofit Agreement directly ties payment to the

completion of the Work: Morning View “shall pay [Energy Smart] an amount


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equal to $3,686.00 per month . . . during the 60 months (5) year term of this

Agreement following the completion of the Work.” Thus, Morning View did not

breach its obligation by declining to pay Energy Smart following completion of

one portion of the Work.

      We are not persuaded that the LED Lighting Retrofit Agreement was

modified by the parties’ conduct, such that the plain language should not control.

As the district court noted, Energy Smart’s amended complaint does not allege that

the parties’ conduct modified the written contract. Cf. Okeechobee Resorts, 145

So. 3d at 995. At most, the record reflects that the parties agreed to divide the

Work owed under the contract into phases, and that Morning View made some

payments to Energy Smart ahead of the time period in which it was obligated to

pay. However, division of the overall Work owed under the contract into phases of

completion does not affect the total amount or scope of the Work owed. That

organization of the project also does not necessarily alter when the five-year

payment period should begin. And, payment ahead of schedule is consistent with

the LED Lighting Retrofit Agreement, which permits Morning View to “prepa[y]

in whole or in part without premium or penalty.” Consequently, Energy Smart has

not met its burden of showing by clear and unequivocal evidence that the parties

mutually agreed payment was due at the conclusion of each phase. See

Okeechobee Resorts, 145 So. 3d at 995; Fid. & Deposit Co., 674 F.2d at 885.


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       Accordingly, the plain language of the LED Lighting Retrofit Agreement

controls. Morning View did not breach its obligations under that contract because

payment was not owed until all the Work was complete, even if the Work was

divided into phases. It follows, then, that the district court did not err in entering

summary judgment for Morning View on Energy Smart’s claim for breach of

contract.2

                                             B

       Upon review of the record, we conclude that the district court did not abuse

its discretion in denying Energy Smart leave to amend its complaint. Under Rule

15(a) of the Federal Rules of Civil Procedure, a party who wishes to amend its

complaint a second time must seek either the court’s leave to do so or the

permission of the adverse party. See Fed. R. Civ. P. 15(a)(2). Although, as a

general matter, the Rules indicate that leave to amend should be freely granted,

“where a party’s motion to amend is filed after the deadline for such motions, as

delineated in the court’s scheduling order, the party must show good cause why

leave to amend the complaint should be granted.” Smith v. Sch. Bd. of Orange

Cty., 487 F.3d 1361, 1367 (11th Cir. 2007) (per curiam); cf. Fed. R. Civ. P.

15(a)(2). Here, the record reflects that Energy Smart filed its motion for leave to

   2
      Because the parties agree that the LED Lighting Retrofit Agreement is a valid and
enforceable express contract, Energy Smart is foreclosed from bringing claims of quantum
meruit and unjust enrichment. See Ocean Commc’ns, Inc. v. Bubeck, 956 So. 2d 1222, 1225
(Fla. Dist. Ct. App. 2007); Energy Smart Indus., 112 F. Supp. 3d. at 1337.
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amend more than five months after the Trial Order deadline to do so, without

explanation as to why it could not meet the December 5, 2014, deadline—or even

the May 1, 2015, deadline. Therefore, Energy Smart did not make a showing of

good cause for failing to comply with the Trial Order and the district court did not

abuse its discretion in denying leave to amend. See Sosa v. Airprint Sys., Inc., 133

F.3d 1417, 1418 (11th Cir. 1998) (per curiam).

                                         IV

      For the foregoing reasons, we affirm the decision of the district court.

      AFFIRMED.




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