      IN THE SECOND DISTRICT COURT OF APPEAL, LAKELAND, FLORIDA

                                 November 16, 2018


                                           IN THE DISTRICT COURT OF APPEAL

                                           OF FLORIDA

                                           SECOND DISTRICT


FL-7, INC.,                           )
                                      )
                 Appellant,           )
                                      )
v.                                    )              Case Nos. 2D17-1231
                                      )                        2D17-2475
SWF PREMIUM REAL ESTATE, LLC          )
d/b/a ENGEL & VOLKERS, LLC, a Florida )
limited liability company,            )
                                      )
                 Appellee.            )
                                      )
                                      )
SGM BUILDING GROUP, INC., a Florida )
profit corporation,                   )
                                      )
                 Appellant,           )
                                      )
v.                                    )              Case No. 2D17-2557
                                      )
SWF PREMIUM REAL ESTATE, LLC          )
d/b/a ENGEL & VOLKERS, LLC, a Florida )
limited liability company,            )
                                      )
                 Appellee.            )              CONSOLIDATED
                                      )
                                      )

BY ORDER OF THE COURT.

              Appellant, SGM Building Group, Inc., and Appellee, SWF Premium Real

Estate, LLC, d/b/a Engel & Volkers, LLC, have filed a Joint Motion for Rehearing and
Clarification. We grant the motion for clarification and deny the motion for rehearing.

The prior opinion dated October 3, 2018, is accordingly withdrawn, and the attached

opinion is issued in its place. No further motions for rehearing will be entertained.

I HEREBY CERTIFY THE FOREGOING IS A
TRUE COPY OF THE ORIGINAL COURT ORDER.




MARY ELIZABETH KUENZEL, CLERK




                                            -2-
                                             IN THE DISTRICT COURT OF APPEAL

                                             OF FLORIDA

                                             SECOND DISTRICT


FL-7, INC.,                           )
                                      )
                 Appellant,           )
                                      )
v.                                    )             Case Nos. 2D17-1231
                                      )                       2D17-2475
SWF PREMIUM REAL ESTATE, LLC          )
d/b/a ENGEL & VOLKERS, LLC, a Florida )
limited liability company,            )
                                      )
                 Appellee.            )
                                      )
                                      )
SGM BUILDING GROUP, INC., a Florida )
profit corporation,                   )
                                      )
                 Appellant,           )
                                      )
v.                                    )             Case No. 2D17-2557
                                      )
SWF PREMIUM REAL ESTATE, LLC          )
d/b/a ENGEL & VOLKERS, LLC, a Florida )
limited liability company,            )
                                      )
                 Appellee.            )             CONSOLIDATED
                                      )
                                      )

Opinion filed November 16, 2018

Appeals from the Circuit Court for Collier
County; James R. Shenko, Judge.

Kelsey L. Hazzard, J. Michael Coleman,
and Christyna M. Torrez of Coleman,
Hazzard, Taylor & Diaz, P.A., Naples,
for Appellant FL-7, Inc.
Ian T. Holmes and David P. Fraser of
Holmes Kurnik, P.A., Naples; and Andrew
B. Greenlee of Andrew B. Greenlee, P.A.,
Sanford, for Appellant SGM Building Group,
Inc.

Nicholas W. Long, Stanley A. Bunner, Jr.,
Peter J. Cambs, and Brian O. Cross of
Goede, Adamczyk, Deboest & Cross,
PLLC, Naples, for Appellee.


LUCAS, Judge.

              In these consolidated appeals, we are called upon to review a final

summary judgment entered in favor of SWF Premium Real Estate, LLC, d/b/a Engel &

Volkers, LLC (Engel & Volkers), a real estate broker. We need not recount all the

details of the underlying real estate transaction that gave rise to this litigation, a

transaction that, one could say, remained somewhat fluid throughout its execution.

Briefly put, when SGM Building Group, Inc. (SGM) assigned its rights and obligations as

a purchaser under two sale agreements to FL-7, Inc. (FL-7) shortly before closing,1 and

FL-7 subsequently closed on the properties without paying Engel & Volkers'

commissions, Engel & Volkers sued both SGM and FL-7 to recover the commissions it

claims it was owed.




              1The  document that purported to effectuate this assignment between FL-7
and SGM was not actually executed by SGM but rather by Garsy Hadi Karimnejad,
individually (who is, apparently, the owner and principal of SGM). Neither of the
documents were executed by the seller in the sale agreements. We tend to agree with
Engels & Volkers' observation that SGM's argument in the litigation below and on
appeal (that SGM was relieved of its liability for the brokerage commissions by virtue of
an "assignment") rests on the mischaracterization of these documents as being a
novation of the purchase and sale agreements.

                                             -2-
              Engel & Volkers' claim against SGM was fairly straightforward: it alleged

that SGM had breached a provision to pay Engel & Volkers' commissions pursuant to a

brokerage commission agreement following the closings on the two sale agreements.

Engel & Volkers' claim against FL-7, however, was not at all clear from its pleading.

Counts I and III of the complaint, each of which named SGM and FL-7 together as

defendants, claimed that the commission provision in the sale agreements (which,

again, Engel & Volkers was not a party to) had been breached when FL-7 closed on the

properties after SGM assigned the sale agreements to FL-7. Conspicuously absent

from Engel & Volkers' complaint is the term "third-party beneficiary."

              Engel & Volkers eventually filed a motion for summary judgment on its

claims against FL-7. In that motion, Engel & Volkers appeared to assert that because

the pertinent sale agreements referred generically to the "Buyer's" obligation to pay the

brokerage commission, and because FL-7 was an "assignee" of the rights and

obligations of the sale agreements, FL-7 somehow became directly liable to Engel &

Volkers when it closed on the properties without paying the commission. At the

summary judgment hearing, Engel & Volkers stated that it was not claiming "that FL-7 is

obligated under the assignment -- or the buyer agreements for broker compensation

[but] that their obligation is under the plain language of the contracts themselves that

they closed as assignor of the original buyer. The brokerage agreements are just a

second line of obligation for SGM." In that respect, it would appear that Engel & Volkers

was proceeding under the theory that FL-7 "stepped into the shoes" of SGM's obligation

pursuant to the sales agreements to pay the brokerage commissions as SGM's

assignee. Cf. State v. Family Bank of Hallandale, 667 So. 2d 257, 259 (Fla. 1st DCA




                                           -3-
1995) ("The law is well established that an unqualified assignment transfers to the

assignee all the interests and rights of the assignor in and to the thing assigned. The

assignee steps into the shoes of the assignor and is subject to all equities and defenses

that could have been asserted against the assignor had the assignment not been

made." (citing Dependable Ins. Co. v. Landers, 421 So. 2d 175, 179 (Fla. 5th DCA

1982))). Engel & Volkers did not explain why, under the theory of liability it was

advocating, it had not pleaded a breach of third-party beneficiary cause of action.

              Nevertheless, the trial court granted the motion for summary judgment and

entered a final judgment in favor of Engel & Volkers, in which the court ruled:

"Defendant, SGM Building Group, Inc., and Defendant, FL-7, Inc. materially breached

its [sic] obligation to pay commissions pursuant to Sales Contract 1 . . . and Sales

Contract 2." The final judgment decreed that SGM and FL-7 would be jointly and

severally liable under the two contracts for a judgment of $142,500, plus postjudgment

interest. How FL-7 came to share in SGM's liability to Engel & Volkers under two sales

contracts to which Engel & Volkers was not a party was an issue the court's judgment

did not expound upon. In case numbers 2D17-1231 and 2D17-2475, FL-7 appeals the

final judgment against it, as well as the imposition of joint and several liability for that

judgment.

              Our review of a circuit court's entry of summary judgment is de novo.

Herendeen v. Mandelbaum, 232 So. 3d 487, 489 (Fla. 2d DCA 2017) (citing Volusia

County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000)). A

moving party is entitled to summary judgment "if the pleadings and summary judgment




                                             -4-
evidence on file show that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law." Fla. R. Civ. P. 1.510(c).

              Engel & Volkers was a stranger to the sales contracts it sought to enforce

against FL-7. Unless it could demonstrate it was a third-party beneficiary under these

contracts, Engel & Volkers had no basis to assert a claim for a breach of either of the

agreements.2 See Caretta Trucking, Inc. v. Cheoy Lee Shipyards, Ltd., 647 So. 2d

1028, 1030–31 (Fla. 4th DCA 1994) ("A person who is not a party to a contract may not

sue for breach of that contract where that person receives only an incidental or

consequential benefit from the contract. The exception to this rule is where the entity

that is not a party to the contract is an intended third party beneficiary of the contract."

(first citing Metro. Life Ins. Co. v. McCarson, 467 So. 2d 277 (Fla. 1985); and then citing

Jacobson v. Heritage Quality Constr. Co., 604 So. 2d 17 (Fla. 4th DCA 1992))). From

our review of the record before us, we cannot agree that Engel & Volkers met the

"heavy burden" of proving there was no genuine issue of material fact in dispute about

the existence (much less a breach) of a purported third-party beneficiary contract

between Engel & Volkers and FL-7, because Engel & Volkers has not even pleaded a

viable breach of third-party beneficiary cause of action against FL-7 under Florida law.

See Mendez v. Hampton Court Nursing Ctr., LLC, 203 So. 3d 146, 148 (Fla. 2016) ("To

establish an action for breach of a third party beneficiary contract, [the third-party

beneficiary] must allege and prove the following four elements: (1) existence of a

contract; (2) the clear or manifest intent of the contracting parties that the contract



              2Engel & Volkers did not argue to the trial court, nor does it assert on
appeal, that the brokerage compensation agreement between SGM and Engel &
Volkers was assigned to FL-7.

                                             -5-
primarily and directly benefit the third party; (3) breach of the contract by a contracting

party; and (4) damages to the third party resulting from the breach." (alteration in

original) (quoting Found. Health v. Westside EKG Assocs., 944 So. 2d 188, 194-95 (Fla.

2006))); Jacobson, 604 So. 2d at 18 (reversing and remanding for opportunity to amend

to "properly allege a contractual cause of action under a third party beneficiary theory").

Thus, "the pleadings and summary judgment evidence" do not establish Engel &

Volkers' entitlement to summary judgment "as a matter of law." Accord Fla. R. Civ. P.

1.510(c).

              As the First District explained in Meigs v. Lear, 191 So. 2d 286, 289 (Fla.

1st DCA 1966), the summary judgment proceeding "was certainly not designed to be

used as a substitute for the parties' pleadings." See also Mark Leach Health Furniture

Co. v. Thal, 143 So. 2d 64, 66 (Fla. 2d DCA 1962) ("The efforts of the defendant to raise

the affirmative defense of failure of consideration to prevent the entry of the summary

judgment was ineffective. This affirmative defense was not pleaded in the answer and

there was no request to amend."). So, too, in the case at bar we cannot affirm a

summary judgment that could only have been entered on an as-yet unpled cause of

action.

              We find no merit in any of the other issues raised in these appeals or in

case number 2D17-2557 and affirm the trial court's rulings in all other respects.

However, as it pertains to FL-7, we must reverse the trial court's final judgment and

remand the case for further proceedings consistent with this opinion.

              Affirmed in part; reversed in part; remanded.




                                            -6-
VILLANTI and BADALAMENTI, JJ., Concur.




                                    -7-
