[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-10519 ELEVENTH CIRCUIT
SEPT 8, 2008
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D.C. Docket No. 05-01149-CV-WSD-1
BMC-THE BENCHMARK MANAGEMENT COMPANY,
Plaintiff-Appellant,
versus
CEEBRAID-SIGNAL CORPORATION, a Florida corporation,
CEEBRAID ACQUISITION CORPORATION, a Delaware
corporation, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(September 8, 2008)
Before MARCUS, WILSON and COX, Circuit Judges.
PER CURIAM:
This case arises out of a dispute between a hotel management company and a
purchaser of the Georgian Terrace Hotel (“the Hotel”). The Plaintiff BMC-The
Benchmark Management Company (“Benchmark”) had managed the Hotel in Atlanta,
Georgia, since 2002. In the summer of 2004, the “Ceebraid Defendants”1 began
efforts to purchase the Hotel. All the “Fremont Defendants”2 except Fremont
Strategic Property Partners II, LP, the nature of whose involvement in the deal the
parties dispute, were involved in the purchase of the Hotel as either lenders or equity
investors. An entity controlled by the Ceebraid Defendants purchased the Hotel on
March 18, 2005.
In connection with the purchase of the Hotel, Benchmark prepared a two-page
agreement (the “Agreement”) which Ceebraid Acquisition Corporation signed on or
about November 1, 2004. The Agreement stated:
The initial term of this agreement will be six (6) months. During this
time period, it is the intent of both parties to utilize their best efforts to
negotiate and put in place a long term management agreement for the
property.
(R.7-225, Ex. 2.)
1
Ceebraid-Signal Corporation, Ceebraid Acquisition Corporation, Georgian Terrace Limited
Partnership, CSC Georgian Terrace Limited Partnership, CSC Georgian Terrace GP Corporation,
Georgian Terrace GP Corporation, Richard Schlesinger, and Adam Schlesinger.
2
Fremont Realty Capital LP, FSSP II Georgian LLC, Fremont Strategic Property Partners
II, LP, FSSP II Georgian Lender, LLC, and Frederick Zarrilli.
2
The parties ultimately failed to enter into a written agreement for long-term
management.
After the Ceebraid Defendants declined to retain its management services,
Benchmark sued the Ceebraid Defendants on May 2, 2005.3 Benchmark’s principal
claim was that the Ceebraid Defendants committed fraud in inducing the Agreement,
in their refusal to negotiate a long-term management agreement, and in inducing
Benchmark to continue managing the hotel only on an interim basis after the
Agreement was signed. Benchmark also asserted claims of fraud for failure to pay
for goods and services, for civil conspiracy, for aiding and abetting fraud, and for
unjust enrichment.
The Ceebraid Defendants moved to dismiss all counts. The district court
granted that motion as to the fraud count relating to a failure to pay for goods and
services, but denied it as to all other counts.4 On August 1, 2006, Benchmark filed
3
The complaint, a 41-page, 77-paragraph document, is precisely the type of “shotgun”
pleading that we have roundly—and repeatedly—condemned. See, e.g., Davis v. Coca-Cola Bottling
Co. Consol., 516 F.3d 955, 979-83 (11th Cir. 2008); United States ex el. Atkins v. McInteer, 470 F.3d
1350, 1354-55 n.6 (11th Cir. 2006); Ambrosia Coal and Constr. Co. v. Pagés Morales, 368 F.3d
1320, 1330-31 n.22 (11th Cir. 2004); Byrne v. Nezhat, 261 F.3d 1075, 1128-34 (11th Cir. 2001);
Magluta v. Samples, 256 F.3d 1282, 1284-85 (11th Cir. 2001); GJR Invs., Inc. v. County of
Escambia, 132 F.3d 1359, 1368 (11th Cir. 1998); Cramer v. Florida, 117 F.3d 1258, 1263 (11th Cir.
1997); Ebrahimi v. City of Huntsville Bd. of Educ., 114 F.3d 162, 165 (11th Cir. 1997).
4
Benchmark does challenge this order on appeal.
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an Amended Complaint, adding a count against the Ceebraid Defendants for breach
of contract , and adding a tortious interference claim against the Fremont Defendants.
The Ceebraid Defendants and Fremont Defendants moved for summary
judgment. The district court ultimately granted the Defendants summary judgment
with respect to Benchmark’s claims except for an unjust enrichment claim against one
of the Ceebraid Defendants, CSC Georgian Terrace Limited Partnership; this claim
was ultimately settled, and the claim was dismissed.
Benchmark appeals.
DISCUSSION
Benchmark contends that the district court erred in a number of respects in
granting the Defendants’ motions for summary judgment. We consider each
contention in turn.
A. The Ceebraid Defendants
Benchmark contends that the district court erred in ruling that the Agreement
was an agreement to agree and not an enforceable contract. Benchmark argues that
the Agreement incorporated another document, the AGL Agreement, which, together
with the Agreement, contained all the essential elements of a contract to provide
services for five years. Benchmark says that the parties orally agreed to this, and that
this is permitted by Georgia law. The Ceebraid Defendants reply that Benchmark did
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not preserve this issue for appeal, and that any oral agreement is barred by the statute
of fraud and rules restricting parol evidence.
The alleged oral agreement that Benchmark seeks to enforce does not comply
with the requirements of the statute of frauds. “Any agreement that is not to be
performed within one year from the making thereof . . . must be in writing and signed
by the party to be charged.” O.C.G.A. § 13-5-30(5). See Katz v. Custom Spray
Prods., Inc., 309 S.E.2d 663, 664 (Ga. 1983) (“[A] verbal contract for services to
begin in the future and continue for a year is void under the Statute of Frauds.”).
Standing alone, the Agreement is simply an agreement to agree, and it is
unenforceable. It does not incorporate, in writing, the AGL Agreement.
Benchmark also contends that the district court committed reversible error by
granting summary judgment to the Ceebraid Defendants on Benchmark’s fraud
claims. The Ceebraid Defendants counter that fraud cannot be based on
unenforceable promises, and that the district court properly refused to consider parol
evidence that would have supported Benchmark’s fraud claims.
To have a successful fraud claim, a plaintiff must make a showing that the
offending party intended to breach a promise at the time the promise was made.
Brock v. King, 629 S.E.2d 829, 834 (Ga. Ct. App. 2006). There is no evidence that
the Ceebraid Defendants did not intend to take good faith steps to negotiate a deal
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with Benchmark. The district court did not err in granting summary judgment to the
Ceebraid Defendants on Benchmark’s fraud claims.
Benchmark also contends that the district court erred in granting summary
judgment on its claim for civil conspiracy. Because Benchmark cannot establish an
underlying tort, the district court did not err in granting summary judgment against
it on its civil conspiracy claim. See Premier/Georgia Mgmt. Co. v. Realty Mgmt.
Corp., 613 S.E.2d 112, 118 (Ga. 2005) (“To recover damages for a civil conspiracy,
a plaintiff must show that two or more persons, acting in concert, engaged in conduct
that constitutes a tort.”).
Benchmark contends that the district court erred in dismissing its claim for
aiding and abetting fraud. The Ceebraid Defendants argue that this claim fails
because Georgia law does not recognize this claim. The Ceebraid Defendants are
correct. And, even if Georgia law recognized such a claim, Benchmark has failed to
prove the existence of an underlying fraud.
Benchmark argues that the district court erred in granting summary judgment
on its unjust enrichment claims against the Ceebraid Defendants other than the CSC
Georgian Terrace Limited Partnership. Benchmark has not demonstrated that it
conferred a benefit on these Defendants that can be recognized in an unjust
enrichment claim. And, any lost profits based on its alleged oral agreement to
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manage the Hotel for five years are not recoverable under an unjust enrichment
theory.
B. The Fremont Defendants
Benchmark contends that the district court erred by granting summary
judgment on Benchmark’s claim of tortious interference against the Fremont
Defendants, because they say that the Fremont Defendants were a stranger to the
contract. The Fremont Defendants respond that the district court properly held that
they were not strangers to the Agreement or the relationship between the Ceebraid
Defendants and Benchmark.
The Fremont Defendants were not a stranger to any contract between the
Ceebraid Defendants and Benchmark. They had an economic interest in the
Agreement. And, Benchmark’s tortious interference claim also fails because the
Agreement was not a valid and enforceable contract in the first place; it was merely
an agreement to agree. Finally, Benchmark has made no showing that the Fremont
Defendants acted with any intent to harm Benchmark.
Benchmark further contends that the district court erred in dismissing
Benchmark’s claims against Fremont Stratregic Property Partners II, LP (“Fremont
Strategic”) on the basis of lack of jurisdiction. It argues that Fremont Strategic
waived any objection to personal jurisdiction, and that the district court should have
7
allowed Benchmark jurisdictional discovery. Fremont Strategic argues that it did not
waive its jurisdictional challenge, and Benchmark was not entitled to jurisdictional
discovery. The district court did not err in dismissing Fremont Strategic. Benchmark
did not meet its burden of establishing that the district court had personal jurisdiction
over Fremont Strategic. And, Benchmark does not challenge on appeal the substance
of the district court’s jurisdictional finding—that Fremont Strategic completely
lacked contacts to Georgia.
AFFIRMED.
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