1 

UNITED STATES COURT 

SOUTHERN DISTRICT OF FLORIDA 

JAY MOLBOGOT, 

Plaintiff, 

Case No.: 9:20-cv-081254 

v. 

MARINEMAX EAST, INC. 

Defendant. 

_________________________/ 

DEFENDANT, MARINEMAX’S, MOTION FOR SUMMARY JUDGMENT 

Defendant, MARINEMAX EAST, INC. ("MarineMax"), pursuant to FRCP 56, files its 

Motion for Summary Judgment on the claims of Plaintiff, JAY MOLBOGOT, ("Plaintiff"), and 

states: 

SUMMARY OF THE ARGUMENT 

This case stems from Plaintiff’s purchase of a new vessel from MarineMax on October 31, 

2018. Plaintiff’s 40 page Complaint asserts three causes of action: 1) Fraud in the Inducement; 2) 

Violation of Florida Deceptive and Unfair Practices Act; and 3) Negligence. Plaintiff alleges 

certain representations made by George Smith, MarineMax's employee, were fraudulent and 

induced Plaintiff to purchase a 2017 Sea Ray 400DA Sundancer, Hull ID: SERP8959C717 (the 

"Vessel"). He also alleges MarineMax negligently maintained the Vessel after the sale. 

Plaintiff primarily complains about his frustrations with the Vessel’s generator and 

electrical components. Thus, Plaintiff makes the condition of the generator and electrical system 

and the information that was provided to him the focus of the lawsuit. 

Summary judgment should be entered in MarineMax's favor for multiple reasons, 

including: 

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 Plaintiff was specifically aware that the generator and air conditioning system were 

not functioning before he purchased the Vessel. 

 Plaintiff entered into a Purchase Agreement with MarineMax that specifically 

disclaimed any oral representations made to Plaintiff prior to signing the same. 

 The alleged fraudulent statements by MarineMax’s employee, George Smith, were 

not actionable misrepresentations. Rather they were statements of opinion and 

“puffery.” 

 Plaintiff has not provided evidence substantiating his damages and seeks damages 

that are not available to him. 

Id. at 2. 

MEMORANDUM OF LAW1

Summary Judgment should be entered against Plaintiff on his Fraudulent Inducement, 

Florida Deceptive and Unfair Trade Practices Act, and Negligence claims because, although he 

now claims his sales representative should have told him about prior issues with the generator, he 

was aware that the generator was not functioning properly before he purchased the Vessel. 

Furthermore, any alleged misrepresentations that were made prior to the purchase were properly 

disclaimed by the terms of the Purchase Agreement. Moreover, the alleged misrepresentations 

were mere statements of opinion or “puffery” that do not support claims of fraud. In addition, 

Plaintiff did not rely on any alleged misrepresentations to his detriment. It is undisputed that the 

Vessel was sold to Plaintiff as a new vessel with accompanying manufacturers’ warranties, and 

pursuant to those warranties, the problems complained of by Plaintiff were addressed at little or 

1

 Please also see Defendant’s Statement of Undisputed Material Facts filed contemporaneously herewith pursuant to 

Local rule 56.1. 

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no cost to Plaintiff. Plaintiff’s own expert witness acknowledges as much. Finally, Plaintiff seeks 

damages that are not legally available to him and has not substantiated the damages he seeks. 

Thus, even if Plaintiff’s claims are not disposed of in their entirety, the Court should enter an order 

granting partial summary judgment limiting Plaintiff to the legally recognized damages available 

for the causes of action asserted. 

I. Summary Judgment Standard 

Summary judgment should be entered if "the movant shows that there is no genuine dispute 

as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 

56(a). The existence of a factual dispute is not by itself sufficient grounds to defeat a motion for 

summary judgment; rather, "the requirement is that there be no genuine issue of material fact." 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). 

A dispute is genuine if "a reasonable trier of fact could return judgment for the non-moving party." 

Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 1243 (11th Cir. 2008) (citing 

Anderson, 477 U.S. at 247-48). A fact is material if "it would affect the outcome of the suit under 

the governing law." Id. (citing Anderson, 477 U.S. at 247-48). 

In evaluating whether summary judgment is appropriate, the Court views the facts in the 

light most favorable to the non-moving party and draws all reasonable inferences in that party's 

favor. See Davis v. Williams, 451 F.3d 759, 763 (11th Cir. 2006). The Court should not weigh 

conflicting evidence. See Skop v. City of Atlanta, 485 F.3d 1130, 1140 (11th Cir. 2007). 

II. Plaintiff's claims fail as a matter of law because the Purchase Agreement 

adequately addressed and/or contradicted any alleged misrepresentations 

made concerning the condition of the Vessel. 

a. As to Count I - Fraudulent Inducement 

In order to recover for fraud in the inducement, Plaintiff must prove by the greater weight 

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of the evidence that: 1) a false statement was made regarding a material fact; 2) the individual who 

made the statement knew or should have known that it was false; 3) the maker intended that the 

other party rely on the statement; and 4) the other party relied on the false statement to its 

detriment. Taylor Woodrow Homes Fla., Inc. v. 4/46-A Corp., 850 So. 2d 536, 542 (Fla. 5th DCA 

2003). 

On October 31, 2018, Plaintiff signed the Purchase Agreement. The Purchase Agreement 

states, in bold and all caps: 

BUYER ACKNOWLEDGES RECEIVING A FULLY 

COMPLETED COPY OF THIS AGREEMENT. BUYER 

ACKNOWLEDGES READING AND UNDERSTANDING 

ALL OF THE TERMS AND CONDITIONS OF THIS 

AGREEMENT, INCLUDING THE TERMS AND 

CONDITIONS ABOVE. 

[Molbogot Dep. Vol. 1, Ex. H]2

2. DISCLAIMER OF WARRANTIES: THE BOAT, 

MOTOR AND ACCESSORIES BEING 

PURCHASED PURSUANT TO THIS AGREEMENT 

ARE SOLD BY SELLER "AS IS" AND SELLER 

MAKES NO WARRANTIES ON ITS BEHALF, 

EXPRESS OR IMPLIED, INCLUDING THE 

IMPLIED WARRANTIES OF 

MERCHANTABILITY AND FITNESS FOR A 

PARTICULAR PURPOSE[.]... IN ALL CASES, 

SELLER SHALL NOT BE LIABLE FOR ANY INCIDENTAL 

OR CONSEQUENTIAL DAMAGES ARISING FROM THE 

BREACH OF THIS AGREEMENT, ANY EXPRESS OR 

IMPLIED WARRANTY OR OTHERWISE, TO THE 

MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. 

*** 

8. ENTIRE AGREEMENT. This Agreement constitutes the entire 

agreement between the parties and no other verbal, written or 

2

 Plaintiff’s deposition in this case occurred over two days: May 19, 2021 and April 21, 2022. We refer to the 

transcript from May 19, 2021 throughout as “Vol. 1,” and to the transcript from April 21, 2022 as “Vol. 2.” 

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printed representations, claims or inducements are incorporated into 

this Agreement, unless in writing and signed by both parties. This 

agreement supercedes [sic] any prior Purchase Agreement between 

Buyer and Seller for the purchase of a boat, or motor and/or 

accessories that had not been consummated. Except as specifically 

set forth in this Agreement, Seller disclaims any representations or 

statements by any agents, employees or representative, whether 

verbal or in writing, in advertisements or brochures, and Buyer has 

not relied upon any such representations or statements. 

Id. 

Although there is a split of authority in Florida’s courts on the application of written 

disclaimers in purchase agreements to preclude fraud claims, the better approach favors holding 

the parties to their contractual promises. 

In Elbow River Mktg. Ltd. P'ship v. Clean Fuel Lakeland, LLC, No. 8:10-cv-628-T-30AEP, 

the court granted summary judgment for alleged misrepresentations that were made regarding 

regulatory compliance and production capabilities, and that some of the assets listed under an asset 

Purchase Agreement were not transferred to the defendant. 2010 U.S. Dist. LEXIS 133483, at *3-

4 (M.D. Fla. Dec. 16, 2010). The court determined that the Asset Purchase Agreement 

contradicted the alleged representations made prior to signing the agreement. Specifically, the 

court determined facility-related assets were sold in an "as is" condition. 

Specifically, section 3.4 of that Asset Purchase Agreement states in all caps: 

THE ASSETS ARE BEING SOLD TO BUYER BY SELLER IN 

AN "AS IS" CONDITION. SELLER EXPRESSLY DISCLAIMS, 

AND BUYER HEREBY EXPRESSLY WAIVES, ALL 

WARRANTIES RELATING TO THE ASSETS, EXPRESS OR 

IMPLIED, INCLUDING, WITHOUT LIMITATION, 

WARRANTIES OF MERCHANTABILITY, FITNESS FOR A 

PARTICULAR PURPOSE, AND INFRINGEMENT. 

Elbow River, at *9-10.

The Asset Purchase Agreement in Elbow River also contains an integration clause in 

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section 7.1 that states, "[t]his Agreement, together with [its] schedules and exhibits, constitutes the 

entire agreement among the parties pertaining to the subject matter hereof and supersedes all prior 

agreements and understandings of the parties in connection therewith." Id., at *4. 

The court determined the alleged misrepresentations were also contradicted by the 

integration clause. Specifically the court stated, "Florida law is clear that reliance on an alleged 

misrepresentation is unreasonable as a matter of law where the alleged misrepresentation 

contradicts the express terms of the ensuing written agreement." Id. at *10 (citing Garcia v. Santa 

Maria Resort, Inc., 528 F. Supp. 2d 1283, 1285 (S.D. Fla. 207); Mac-Gray Services, Inc. v. 

DeGeorge, 913 So. 2d 630, 634 (Fla. 4th DCA 2005)). Further, the court stated that the 

representations related to the overall condition of the assets, and the "as is" clause made it clear 

that all warranties "relating" to the assets are expressly waived. In addition, the integration clause 

clearly stated it supersedes all prior agreements and "understandings" of the parties. Id., at *10-11. 

Much like the Elbow River Asset Purchase Agreement, the Purchase Agreement in this 

case states that the Vessel is sold "AS IS" and disclaims any warranties and any liability for 

incidental or consequential damages. Specifically, this Purchase Agreement states, in all caps, and 

bold: 

2. DISCLAIMER OF WARRANTIES: THE BOAT, 

MOTOR AND ACCESSORIES BEING 

PURCHASED PURSUANT TO THIS AGREEMENT 

ARE SOLD BY SELLER "AS IS" AND SELLER 

MAKES NO WARRANTIES ON ITS BEHALF, 

EXPRESS OR IMPLIED, INCLUDING THE 

IMPLIED WARRANTIES OR 

MERCHANTABILITY AND FITNESS FOR A 

PARTICULAR PURPOSE[.]... IN ALL CASES, 

SELLER SHALL NOT BE LIABLE FOR ANY INCIDENTAL 

OR CONSEQUENTIAL DAMAGES ARISING FROM THE 

BREACH OF THIS AGREEMENT, ANY EXPRESS OR 

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IMPLIED WARRANTY OR OTHERWISE, TO THE 

MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. 

[Plaintiff’s Dep., Ex. H] 

The Purchase Agreement also includes an integration clause much like Elbow River Asset 

Purchase Agreement. Specifically, the Purchase Agreement in this case states, "This Agreement 

constitutes the entire agreement between the parties and no other verbal, written or printed 

presentations, claims or inducements are incorporated into this Agreement, unless in writing and 

signed by both parties. This agreement supercedes [sic] any prior Purchase Agreement between 

Buyer and Seller for the purchase of a boat, or motor and/or accessories that had not been 

consummated." Id. 

Further, the Purchase Agreement specifically states, "Except as specifically set forth in this 

Agreement, Seller disclaims any representations or statements by any agents, employees or 

representatives, whether verbal or in writing, in advertisements or brochures, and Buyer has not 

relied upon any such presentations or statements." Id. 

Given, the language of the Purchase Agreement, Plaintiff agreed he was not relying on any 

representations made by Mr. Smith and MarineMax clearly disclaimed any such representations. 

Plaintiff now argues that he relied on misrepresentations made by Mr. Smith regardless of the 

language of this Purchase Agreement. 

It is unreasonable, as a matter of law, for Plaintiff to have relied only on Mr. Smith’s alleged 

representations. It is particularly unreasonable in light of the clear language of the Purchase 

Agreement. Therefore, Plaintiff's fraudulent inducement claim has no merit. See Clear Marine 

Ventures, Ltd. v. Brunswick Corp., No. 08-22418-CIV-MORE, 2009 U.S. Dist. LEXIS 134735, at 

*6-7 (S.D. Fla. Apr. 6, 2009)(dismissing FDUTPA and fraudulent inducement claims where the 

contract contradicted the alleged fraudulent statement); Creative Am. Educ., Ltd. Liab. Co. v. 

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Learning Experience, Ltd. Liab. Co., No. 9:14-CV-80900-ROSENBERG/BRAN, 2015 U.S. Dist. 

LEXIS 61307 (S.D. Fla. May 11, 2015)(entering summary judgment on the fraud and FDUTPA 

claims relating to alleged misrepresentations made prior to executing a contract adequately 

disclaiming prior representations to the agreement itself). 

Plaintiff may argue MarineMax's Motion for Summary Judgment ("Motion") fails because 

of the holding in Global Quest, LLC v. Horizon Yachts, Inc. However, Global Quest is 

distinguishable from this case. While Global Quest and the Florida Supreme Court's decision in 

Oceanic Villas, Inc. v. Godson, 148 Fla. 454, 4 So. 2d 689 (Fla. 1941) focus primarily on an “AS 

IS” provision, neither case discusses or involves contracts with language that state the seller 

specifically disclaims any representations made by the seller or its agents, and more importantly, 

and they don't involve language specifically stating the plaintiff is not relying upon any such 

representations. That is the crux of the case here. Moreover, Global Quest only stands for the 

proposition that an action for fraudulent inducement may be available to a plaintiff, 

notwithstanding certain contract language. Global Quest expressly provides that, despite the 

potential availability of a cause of action, evidence of contract language of the type at issue here 

is fatal to a plaintiff's claim. Further, neither case addresses the long line of cases holding a 

completely contrary position regarding the ability to rely upon a representation made that is 

contradicted by the written terms of a subsequent contract. 

In Billington v. Ginn-LA Pine Island, Ltd., LLLP, 192 So. 3d 77 (Fla. 5th DCA 2016) 

Florida's Fifth District Court of Appeals addressed the courts' split on this issue and the specific 

cases and holdings on the issue of disclaimers and non-reliance language in contracts defeating 

fraud claims. Billington specifically analyzes Oceanic, as well as Cassara v. Bowman, 186 So. 

514 (Fla. 1939). In fact, the court identified the need for clarification of the Florida Supreme 

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Court's holdings in Oceanic and Cassara, and highlighted the inconsistencies in the Court's 

opinion in Oceanic, as well as the history of lower appellate courts' applications of the holdings to 

similar cases. The Fifth DCA affirmed the holding that "non-reliance" and "waiver" components 

of the applicable disclaimer clauses negated the appellant's fraud claims. The contract at issue 

stated that the buyer/appellant specifically acknowledges that it was not relying on any 

representations. Billington, 192 So. 2d at 79-80. Ultimately, after a lengthy discussion and 

thorough analysis, the Billington court held that the appellant could not recant his contractual 

promises that he did not rely upon extrinsic representations. 

The Purchase Agreement's language of this case is also remarkably similar to that of 

Peebles v. Sheridan Healthcare, Inc., 853 So. 2d 559 (Fla. 4th DCA 2003)(holding that the 

agreement stating that the plaintiffs had "not relied upon any representations, warranties or 

agreements of any person other than those set forth in this agreement," precluded the fraud claims 

as a matter of law.) 

In Garcia v. Santa Maria Resort, Inc., 528 F. Supp. 2d 1283 (S.D. Fla. 2007), the court 

held that the following language was sufficient to hold that the plaintiffs could not reasonably rely 

on prior representations, 

Purchaser represents to the Developer that Purchaser has not relied upon any 

prior agreements or representations made by anyone other than Developer, or 

oral statements (including oral statements of sales representatives), except as 

specifically stated in this Contract. 

Garcia, at 1295. Multiple courts have held similar language precludes these claims.3 This 

3

 In Rosa v. Amoco Oil Co., the court specifically stated that the integration clause in the Transfer Agreement was the 

language that precluded plaintiff's reliance on prior representations. 262 F. Supp. 2d 1364, 1367-1368 (S.D. Fla. 2003). 

The other cases supporting MarineMax's position are: Clear Marine Ventures, Ltd. v. Brunswick Corp., Case No. 08-

22418-CIV-MORE, 2009 U.S. Dist. LEXIS 134735, at *6-7 (S.D. Fla. Apr. 6, 2009)(dismissing FDUTPA and 

fraudulent inducement claims where general language that the plaintiff was not relying on representations made to 

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language is similar to the language contained in the Purchase Agreement. Therefore, it was 

unreasonable for Plaintiff to rely upon the alleged representations of Carrie Dennison in light of 

the language contained in the Purchase Agreement. 

This case is also similar to Cassara v. Bowman, 186 So. 514 (Fla. 1939), which, as the 

court in Global Quest noted, was not overruled by Oceanic. In that case, the Court affirmed the 

dismissal of a rescission claim on the basis that the lessor misrepresented the reputation of the 

hotel, which was the subject of the lease. In addition, the lessee claimed the lessor misrepresented 

the amount of profits earned, and the amount for which he leased the penthouse. The court 

dismissed the case because the lease contained a clause indicating that the parties' agreement was 

not based upon any oral representations and that no prior representations or agreement could be 

used to alter the lease terms. The Court focused on whether the reputation of the hotel was as it 

was described and determined that because the appellant made no inquiry as to the character and 

reputation of the hotel, which was readily available through common knowledge. Similarly, in 

this case, Plaintiff knew first hand that the generator was not working before he decided to buy the 

Vessel. Given he had the ability to obtain the information, as did the lease in Cassara together 

with the contract's language, Plaintiff was not fraudulently induced into signing the contract. The 

Global Quest court did not acknowledge this case more than including it in its citation. Due to the 

distinction, Global Quest is inapposite. 

him, accepted the vessel in its "as is" condition, without warranties, and it "constitutes the entire agreement between 

the parties..." contradicted the alleged fraudulent statements); Creative Am. Educ., Ltd. Liab. Co. v. Learning 

Experience, Ltd. Liab. Co., No. 9:14-CV-80900-ROSENBERG/BRAN, 2015 U.S. Dist. LEXIS 61307 (S.D. Fla. May 

11, 2015)(entering summary judgment on the fraud and FDUTPA claims relating to alleged misrepresentations made 

prior to executing a contract adequately disclaiming prior representations to the agreement itself; specifically rejecting 

the plaintiff's contention that the contract had to address the plaintiff's specific claims); Barnes . Burger King Corp., 

932 F. Supp. 1420, 1428 (S.D. Fla. 1996)("it is a basic tenant of contract law that reliance on representations by a 

contracting party in a suit based on the contract is unreasonable where the representations are not contained in the 

subsequent written agreement between the parties.")(citing Pettinelli v. Danzig, 722 F.2d 706, 710 (11th Cir. 1984).

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Further, Plaintiff's reliance upon the representations was unreasonable as a matter of law. 

Garcia v. Santa Maria Resort, Inc., 528 F. Supp. 2d 1283 (S.D. Fla. 2007). In Garcia, the court 

dismissed the fraud claims because the language in the contract specifically stated, 

"Purchaser represents to the Developer that Purchaser has not relied upon any prior agreements 

ore representations made by anyone other than Developer, or oral statements (including oral 

statements of sales representatives), except as specifically stated in this Contract." Based upon that 

language, the court held that no reliance could be reasonable in the face of this express statement. 

Garcia, 528 F. Supp. 2d at 1295. Thus, the non-reliance language of the contract, on its own, is 

enough to defeat Plaintiff's claims and support entry of summary judgment in favor of MarineMax. 

b. As to Count II – Violation of Florida Deceptive Unfair Trade Practices Act.

The same analysis for Count I above applies to the FDUTPA claim warranting summary 

judgment in favor of MarineMax. To state a FDUTPA claim, a plaintiff must allege "(1) a 

deceptive act or unfair trade practice; (2) causation; and (3) actual damages." Dolphin LLC v. WCI 

Cmtys., Inc., 715 F.3d 1243, 1250 (11th Cir. 2013) (citing Rollins, Inc. v. Butland, 951 So. 2d 860, 

869 (Fla. 2d DCA 2006)). Deception occurs "if there is a representation, omission, or practice that 

is likely to mislead the consumer acting reasonably in the circumstances, to the consumer's 

detriment." Zlotnick v. Premier Sales Group, Inc., 480 F.3d 1281, 1284 (11th Cir. 2007) (quoting 

PNR, Inc. v. Beacon Prop. Mgmt., Inc., 842 So. 2d 773, 777 (Fla. 2003)). This standard "requires 

a showing of 'probable, not possible, deception' that is 'likely to cause injury to a reasonable relying 

consumer.'" Id. (quoting Millennium Commc'ns & Fulfillment, Inc. v. Office of the Au'y Gen., 761 

So. 2d 1256, 1263 (Fla. 3d DCA 2000)). An unfair practice is "one that offends established public 

policy and ... [one that] is immoral, unethical, oppressive, unscrupulous or substantially injurious 

to consumers." Maor v. Dollar Thrifty Auto. Grp., Inc., 303 F. Supp. 3d 1320, 1327-28 (S.D. Fla. 

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2017) (quoting Hetrick v. Ideal Image Dev. Corp., 372 F. App'x 985, 992 (11th Cir. 2010) (Samuels 

v. King Motor Co. of Fort Lauderdale, 782 So. 2d 489, 499 (Fla. 4th DCA 2001)) (emphasis 

added). 

In Rosa v. Amoco Oil Co., the court held that reliance on representations was not reasonable 

as a matter of law where the contract stated that the purchaser has not relied upon any prior 

agreements or representations except those specifically stated in the contract. 262 F. Supp. 2d 

1364, 1368-69 (S.D. Fla. 2003). Thus, the claim was dismissed with prejudice. The Rosa contract 

has similar language disclaiming the consumer's reliance upon prior representations. Florida law 

is clear that where a contract's language contradicts the alleged fraudulent statements, the claims 

have no merit. See Topp, Inc. v. Uniden Am. Corp., 513 F. Supp. 2d 1345, 1348 (S.D. Fla. 2007) 

(a fraudulent inducement cannot "lie where the alleged fraud contradicts a subsequent written 

contract."); see also Clear Marine Ventures, Ltd. v. Brunswick Corp., No. 08-22418-CIV-MORE, 

2009 U.S. Dist. LEXIS 134735 (S.D. Fla. Apr. 6, 2009)(dismissing FDUTPA and fraudulent 

inducement claims where the contract contradicted the alleged fraudulent statement); Creative Am. 

Educ., Ltd. Liab. Co. v. Learning Experience, Ltd. Liab. Co., No. 9:14-CV-80900-

ROSENBERG/BRAN, 2015 U.S. Dist. LEXIS 61307 (S.D. Fla. May 11, 2015)(entering summary 

judgment on the fraud and FDUTPA claims relating to alleged misrepresentations made prior to 

executing a contract adequately disclaiming prior representations to the agreement itself); TRG 

Night Hawk Ltd. v. Registry Dev. Corp. 17 So. 3d 782 (Fla. 4th DCA 2009); Eclipse Med., Inc. v. 

Am. Hydro-Surgical Instruments, Inc., 262 F. Supp. 2d 1334, 1342 (S.D. Fla. 1999); Barnes v. 

Burger King Corp., 932 F. Supp. 1420, 1428 (S.D. Fla. 1996); Acquisition Corp. of Am. v. FDIC,

760 F. Supp. 1558, 1561 n.6 (S.D. Fla. 1991). Therefore, summary judgment in favor of 

MarineMax is proper on the FDUTPA claim. 

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III. Plaintiff waived his right to claim he was fraudulently induced into purchasing 

the Vessel. 

Florida courts have expressly held that "[w]aiver of fraud can occur where a party should 

have discovered the fraud through ordinary diligence." 

Al-Ghena Int'l Corp. v. Radwan, 698 F. App'x 997, 1000 (11th Cir. 2017)(quoting Zurstrassen v. 

Stonier, 786 So. 2d 65, 70 (Fla. 4th DCA 2001)). In Florida, courts are clear that if the defrauded 

party has actual or imputed knowledge of the facts constituting the alleged fraud at the time the 

subsequent agreement there is waiver. Amoco Oil Co. v. Gomez, 125 F. Supp. 2d 492, 508 (S.D. 

Fla. 2000) (citing Poole v. Crabtree, 566 So. 2d 597, 598 (Fla. 5th DCA 1990) (holding that 

plaintiff did not waive fraud claim where she did not know of facts that gave rise to the fraud at 

the time she entered into novation). 

In Coral Gables Imported Motorcars, the court disposed of the plaintiff's fraud claim 

because the plaintiff executed a subsequent franchise agreement with the defendant after the first 

contract between the parties had expired. 673 F.2d 1234 (11th Cir. 1982). Prior to the signing the 

second agreement, the plaintiff learned that the defendants had made several false promises. See 

id. at 1240. The court found that plaintiff's knowledge, coupled with the execution of a subsequent 

agreement, effectively waived the plaintiff's fraud claim. Id.

Assuming arguendo, Mr. Smith’s statements were misrepresentations, it is undisputed that 

Plaintiff had knowledge of the alleged misrepresentation. Plaintiff participated in a sea trial of the 

Vessel before he entered into the purchase agreement, and the generator and air conditioning were 

inoperable at that time. [Plaintiff’s Dep. Thus, Plaintiff had knowledge of the alleged 

misrepresentations. Accordingly, summary judgment should be entered in MarineMax's favor on 

Counts I and II. 

IV. The allegedly fraudulent statements made by George Smith are not actionable 

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An action for fraud generally must be based on a statement of fact, and not on statements 

of opinion. Douse v. Boston Scientific Corp., 314 F. Supp. 3d 1251 (M.D. Fla. 2018)(applying 

Florida law). Likewise, a seller’s “puffing” about a product cannot be construed as a fraudulent 

misrepresentation. Wasser v. Sasoni, 652 So.2d 411 (Fla. 3d DCA 1995). A buyer is held 

responsible for for investigating the truth of such “puffing” statements. MDVIP, Inc. v. Beber, 222 

So.3d 555 (Fla. 4th DCA 2017). Furthermore, parties negotiating the sale of personal property are 

given considerable leeway in making representations while negotiating. Tampa Union Terminal 

Co., v. Richards, 146 So. 591 (1933). Generally, such statements do not subject the party making 

them to liability for fraud, except where that party resorts to fraudulent means to prevent the other 

party from investigating. Id.

Here, Plaintiff, in his Complaint (and in his testimony), makes rambling allegations of 

fraudulent misrepresentations. They boil down to statements made by George Smith, a 

salesperson, around the time of the sea trial and purchase of the Vessel by Plaintiff. In his 

Complaint, Plaintiff alleges Smith told him, when the generator did not work during the sea trial, 

that the generator needed “adjustments” and it was not uncommon for new boats to have such 

issues. [D.E. 1, Compl. ¶ 13]. Smith allegedly went on to say the Vessel would be “up and 

running in no time,” Plaintiff would enjoy the comfort of the Vessel, and it would be “extremely 

pleasurable.” [D.E. 1, ¶ 14]. First, Plaintiff offers no solid evidence to demonstrate Smith believed, 

or should have believed, these statements to be untrue. More to the point, however, such 

statements constitute the opinion or “puffing” of Smith – a salesperson. He was not a marine 

technician, and was not a representative of the manufacturer of the new boat or any of its 

components. Comments like these by a salesperson trying to sell a beautiful, new boat to an 

interested buyer are not actionable fraudulent misrepresentations. What’s more, neither Smith nor 

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MarineMax prevented Plaintiff from investigating the quality or condition of the Vessel. Indeed, 

Plaintiff participated in the sea trial and, shortly after the purchase, but before taking delivery of 

the Vessel, he had a marine surveyor inspect it. [Molbogot Dep., Vol. 1, 70:20-25; 81:8-13]. The 

surveyor reported the generator was not tested under load because it was undergoing repair by the 

manufacturer, and he simply suggested that it be serviced and corrected as needed and then tested. 

[Molbogot Dep., Vol. 1, 148:4-7]. There is no indication Plaintiff could not have had the survey 

conducted prior to his purchase if he wished. Indeed, Plaintiff testified that he thinks he should 

have had the Vessel surveyed prior to his purchase. [Molbogot Dep., Vol. 1, 147:1-6]. 

V. Plaintiff seeks damages that are not recoverable and has failed to put forth 

sufficient evidence of his alleged damages 

Plaintiff has the burden of proving his damages in this case. Plaintiff's claims fail as he 

has failed to put forth sufficient evidence to demonstrate the damages he seeks and he seeks 

damages that are unavailable to him. To date, the only evidence of damages set forth by Plaintiff 

has been speculative, unsupported by the evidence, and inconsistent with the measure of damages 

available under each cause of action asserted by Plaintiff. 

a. Damages available for fraud 

In the case of fraud, an injured party may recover either the “out of pocket” loss or the 

“benefit of the bargain” loss. Minotty v. Baudo, 42 So.3d 824 (Fla. 4th DCA 2010). Under the out 

of pocket rule, damages are measured as the difference between the purchase price and actual value 

of the property. Kind v. Gittman, 889 So.2d 87 (Fla. 4th DCA 2004). Damages under the benefit 

of the bargain rule are the difference between the value of the property as represented and the 

actual value of the property on the date of sale. Morgan Stanley & Co., Inc., v. Coleman (Parent) 

Holdings, Inc. 955 So.2d 1124 (Fla, 4th DCA 2007). Plaintiff has put forth no evidence to support 

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his claim under either measure. 

b. Damages available under FDUTPA 

A plaintiff bringing a FDUTPA claim may recover actual damages. Similar to the measure 

of damages available for fraud, actual damages under the Act are the difference in the market value 

of the product in the condition in which it was delivered and the market value in the condition in 

which it should have been delivered. Gastaldi v. Sunvest Resort Comm., LC, 709 F.Supp.2d 1299 

(S.D. Fla. 2010)(applying Florida law). The Act does not provide for recovery of nominal 

damages, speculative losses, or consequential damages. Dorestin v. Hollywood Imports, Inc., 45 

So.3d 819 (Fla. 4th DCA 2010). Again, Plaintiff has failed to put forth evidence of damages 

recoverable under the Act. 

c. Damages for negligence 

Plaintiff’s negligence claim arises from alleged negligent repairs after the purchase of the 

Vessel. Such claims fall under the general maritime law. The damages claimed as a result of 

MarineMax’s alleged negligence are unclear, but Plaintiff seems to seek “loss of use” damages. 

Loss of use damages do not apply to recreational vessels, unless it is demonstrated that they are 

hired out as charter vessels for profit. M/Y P.I.I. LLC v. H&R Marine Engineering, Inc., 544 F. 

Supp.3d 1334 (S.D. Fla. 2021). 

d. The damages claimed 

In this case, Plaintiff present little to no evidence of damages recoverable on the claims 

asserted. He provided a spreadsheet of claimed damages, but he does not relate it to the claims 

asserted. [Molbogot Dep., Ex. E.]. Rather, Plaintiff seeks to claim expenses incurred that he 

cannot relate to any conduct, or lack of action, on the part of MarineMax. Moreover, Plaintiff’s 

Case 9:20-cv-81254-WM Document 114 Entered on FLSD Docket 05/16/2022 Page 16 of 18
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own expert electrical engineer, Steve Hebert, admitted that since the generator in the Vessel was 

replaced, the electrical problems on the Vessel seem to have been resolved. [Hebert Dep. 39:6-

23]. Mr. Could find no electrical problems that have not been resolved and did not offer the 

opinion that MarineMax caused any of the issues experienced by the Vessel. (Hebert Dep. 109:20–

110:9]. 

Finally, regarding the measures of damages available for claims of fraud and FDUTPA, 

Plaintiff acknowledges that he presently lists the Vessel for sale for $499,000. [Molbogot Dep. 

Vol. 2. 60:5-9]. This is after using the Vessel for over three years and putting over 900 hours on 

the engines. Otherwise, he has presented no evidence to establish his “out of pocket” or benefit of 

the bargain” damages. 

CONCLUSION 

Summary Judgment should be entered in favor of MarineMax given the lack of fraudulent 

misrepresentations by MarineMax, Plaintiff’s knowledge of the condition about which he 

complains, Plaintiff’s disclaimer any representations that were made, and Plaintiff’s failure to 

prove his damages. 

WHEREFORE, Defendant, MARINEMAX EAST, INC., respectfully requests this Court 

enter summary judgment against Plaintiff, JAY MOLBOGOT, in favor of MarineMax, on all 

counts of the Complaint, and for such further relief as this Court deems just and proper. 

Respectfully submitted, 

/s/ Michael J. Bradford 

MICHAEL J. BRADFORD 

Florida Bar No. 184314 

MARSHALL DENNEHEY WARNER 

COLEMAN & GOGGIN 

201 E. Kennedy Blvd., Suite 1100 

Tampa, Florida, 33602 

Phone: 813-898-1800 

Case 9:20-cv-81254-WM Document 114 Entered on FLSD Docket 05/16/2022 Page 17 of 18
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Facsimile: 813-221-5026 

Attorneys for Defendant, MarineMax East, Inc. 

CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that on May 16, 2022, I electronically filed with the Clerk of the 

Court via the CM/ECF portal to: Daniel Lustig, Esq., Dominique Torsiello, Esq., Pike and Lustig, 

LLP, 1209 N. Olive Ave., West Palm Beach, FL, at pleadings@pikelustig.com, Counsel for 

Plaintiff.

/s/ Michael J. Bradford 

Attorney 

Case 9:20-cv-81254-WM Document 114 Entered on FLSD Docket 05/16/2022 Page 18 of 18