FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MARCH 19, 2007

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-13305

Non-Argument Calendar

________________________

D. C. Docket No. 06-80091-CV-KLR

PHILIP A. ZLOTNICK, 

Plaintiff-Appellant, 

versus 

PREMIER SALES GROUP, INC., 

BOYNTON WATERWAYS INVESTMENT ASSOCIATES, LLC, 

PANTHER REAL ESTATE PARTNERS, INC., 

Defendants-Appellees. 

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(March 19, 2007)

Before DUBINA, CARNES and HULL, Circuit Judges.

HULL, Circuit Judge:
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Plaintiff Philip A. Zlotnick appeals the district court’s order dismissing his

suit against Premier Sales Group, Inc. (“Premier”), Boynton Waterways

Investment Associates, LLC (“Boynton Waterways”), and Panther Real Estate

Partners, Inc. (“Panther”), filed pursuant to the Florida Deceptive and Unfair Trade

Practices Act (“FDUTPA”), Fla. Stat. Ann. §§ 501.201-.213. After review, we

affirm the dismissal of Zlotnick’s complaint for failure to state a claim.

I. BACKGROUND

On February 23, 2005, Zlotnick, a citizen of Maryland, signed a reservation

agreement with Boynton Waterways, a citizen of Florida, for a unit in a

condominium complex to be built in Boynton Beach, Florida. The reservation

agreement provided that payment of a $15,000 reservation deposit “expresses

Purchaser’s interest in purchasing Unit No. 207N (the ‘Unit’) in the proposed

condominium . . . at a purchase price of $310,000.” The reservation agreement

then stated that Boynton Waterways “assures that the foregoing purchase price will

be the purchase price in the contract for the sale and purchase of the Unit (the

“Contract”) submitted to Purchaser.” 

The reservation agreement also gave both Zlotnick and Boynton Waterways

the option of canceling the agreement at any time prior to entering a purchasing

contract, as follows:
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Purchaser may cancel this Reservation Agreement by notifying Seller

or the Escrow Agent in a signed writing at any time before Purchaser

signs the [purchase contract] . . . . Before both Purchaser and Seller

sign and deliver the [purchase contract], Seller may cancel this

Agreement for any reason whatsoever, by giving written notice

thereof to Purchaser and Escrow Agent, in which event the

Reservation Deposit, together with any interest thereon, shall be

returned to Purchaser, and thereafter Purchaser shall have no claim of

any kind against Seller. 

Moreover, the agreement states, “Purchaser recognizes that this Reservation

Agreement is a reservation solely with respect to a proposed condominium; and,

accordingly, this Reservation Agreement is not an agreement to sell the Unit, nor

does it confer any lien upon or interest in the Unit or on the proposed

Condominium property.”

Zlotnick paid the reservation deposit, which was held in escrow in

accordance with the reservation agreement’s terms. On May 2, 2005, the

contracts administrator for the condominium complex supplied Zlotnick with a

copy of the reservation agreement and indicated that the purchase contracts

would be completed by early June 2005. 

On December 22, 2005, Boynton Waterways sent Zlotnick a letter stating

that because of “meteoric increases in construction costs . . . . in tandem with

worsening labor and material shortages resulting from Hurricanes Katrina, Rita

and Wilma,” Boynton Waterways could not build the condominium development
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at the original reservation prices. As a result, Boynton Waterways canceled all

reservation agreements, including Zlotnick’s, and returned all deposits. The letter

stated, “effective as of the date hereof, your Agreement is hereby terminated and

is deemed null and void.”

On January 6, 2006, Boynton Waterways sent Zlotnick another letter

announcing the reopening of the condominium sales center. The letter indicated

that Zlotnick had an exclusive ten-day window to purchase the same unit he had

previously reserved at the price of $370,000, a $60,000 price increase over the

amount set in the 2005 reservation agreement. Zlotnick alleges that Boynton

Waterways sent similar letters to all previous reservation holders for the 318 units

at the condominium complex.

On January 27, 2006, Zlotnick filed a class action complaint in federal

district court under the FDUTPA on behalf of the previous reservation holders at

the condominium complex. The complaint alleged that Boynton Waterways;

Panther, a Florida-based real estate development company affiliated with

Boynton Waterways; and Premier, a Florida-based company that marketed the

condominium complex, solicited deceptive reservation agreements to secure

financing and then terminated the reservation agreements with the sole purpose of

reaping the benefits of a rising real estate market. 
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Boynton Waterways, Panther, and Premier timely filed motions to dismiss

for failure to state a claim. A copy of the reservation agreement was attached to

the complaint, and the parties at this point do not dispute the facts in the case. 

After hearing oral arguments on the motions, the district court granted the

motions to dismiss on May 10, 2006. See Zlotnick v. Premier Sales Group, Inc.,

431 F. Supp. 2d 1290, 1296 (S.D. Fla. 2006). 

Zlotnick timely appealed.

II. DISCUSSION

The FDUTPA declares that “unfair or deceptive acts or practices in the

conduct of any trade or commerce” are unlawful. Fla. Stat. Ann. § 501.204(1). 

Pursuant to § 501.211, any person who has suffered losses as a result of a

violation may commence a private action to recover actual damages, attorney’s

fees, and costs. Fla. Stat. Ann. § 501.211(2). The Florida Supreme Court has

noted that “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.” PNR, Inc. v. Beacon Prop. Mgmt., Inc., 842 So. 2d 773,

777 (Fla. 2003) (quotation marks and citation omitted). This standard requires a

showing of “probable, not possible, deception” that is “likely to cause injury to a

reasonable relying consumer.” Millennium Commc’ns & Fulfillment, Inc. v.
We review de novo a district court’s dismissal pursuant to Fed. R. Civ. P. 12(b)(6), 1

accepting as true all facts set forth in the plaintiff’s complaint. Thaeter v. Palm Beach County

Sheriff’s Office, 449 F.3d 1342, 1352 (11th Cir. 2006).

There is no dispute that the reservation agreement here satisfied the other requirements 2

of § 718.502(2)(c), which states that such agreements must also include: (1) a statement that the

developer must file condominium documents with the Division of Florida Land Sales,

Condominiums and Mobile Homes prior to entering a binding purchasing agreement; (2) a

statement of the right of the prospective purchaser to receive all required condominium

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Office of the Att’y Gen., 761 So. 2d 1256, 1263 (Fla. Dist. Ct. App. 2000).

Zlotnick claims that the defendants schemed to circumvent the statutory

requirements in Fla. Stat. Ann. § 718.502(2)(c) governing condominium

reservation agreements by canceling the reservation agreements and then offering

the same units at a higher price. See Fla. Stat. Ann. § 718.502(2)(c) (listing terms

that must be included in reservation agreements). We conclude that these

allegations do not state a claim under the FDUTPA and affirm the district court’s

grant of the motions to dismiss.1

It is clear that Zlotnick’s reservation agreement meets all statutory

requirements under Florida law. The only statutory provision at issue is the

requirement that a reservation agreement must include a statement “that the

purchase price represented in . . . the reservation agreement will be the price in

the contract for purchase and sale or that the price represented may be exceeded

within a stated amount . . . or that no assurance is given as to the price in the

contract for purchase or sale.” Fla. Stat. Ann. § 718.502(2)(c)(4). Here, the 2
documents; (3) the name and address of the escrow agent; and (4) a statement that the deposit

must be payable to the escrow agent, who must provide a receipt to the prospective purchaser. 

Fla. Stat. Ann. § 718.502(2)(c).

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reservation agreement states, “[s]eller assures that the foregoing purchase price

will be the purchase price in the contract for the sale and purchase of the Unit

. . . .” This statement almost mirrors the language of Fla. Stat. Ann. §

718.502(2)(c)(4). In his reply brief, Zlotnick concedes that the reservation

agreements are valid. 

However, Zlotnick argues that although the reservation agreements may

have been facially valid, the defendants’ scheme flouted the intent of Fla. Stat.

Ann. § 718.502(2)(c)(4) by canceling the reservation agreements in order to

increase prices above the price established in those initial agreements. He

contends that the circumstances surrounding the reservation agreement would

have misled a reasonable purchaser into believing that the purchase price listed in

the reservation agreement would not be changed.

The express terms of the reservation agreement undermine Zlotnick’s

claim, however. First, the language of the reservation agreement is clear on its

face that it only expressed Zlotnick’s “interest” in purchasing a specific unit and

did not constitute a guaranteed purchase contract. The reservation agreement

stated that it “is not an agreement to sell the Unit, nor does it confer any lien upon
Zlotnick disputes whether Boynton Waterways had any unilateral authority to cancel the 3

reservation agreement. Zlotnick misreads the plain language of the reservation agreement,

which expressly grants the seller the option to cancel “[b]efore both Purchaser and Seller sign

and deliver the Contract.” Moreover, Florida law recognizes the right of both prospective

purchasers and developers to cancel reservation agreements. See Fla. Stat. Ann. § 718.502(2)(a)

(requiring that reservation agreements notify prospective purchasers of their right to a refund of

the reservation deposit “upon written request to the escrow agent by the prospective purchaser or

the developer” (emphasis added)). 

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or interest in the Unit or on the proposed Condominium property.” Furthermore,

Florida courts treat reservation agreements as mere “agreements to agree,” not as

binding purchase contracts. See Portell Int’l Realty, Inc. v. Jacobson, 802 So. 2d

431, 433 (Fla. Dist. Ct. App. 2001). 

Additionally, the reservation agreement gave Boynton Waterways an

opportunity to “cancel this agreement for any reason whatsoever” at any point

prior to entering a purchase contract. While the agreement provided that 3

“[s]eller assures that the foregoing purchase price will be the purchase price in

the contract for the sale and purchase of the Unit,” there are no assurances that

the purchase price would remain the same if Boynton Waterways canceled the

reservation agreement. In light of the broad cancellation provision and express

terms indicating that the agreement conferred no interest in the proposed

condominium unit, no reasonable purchaser would believe that the reservation

agreement set a binding purchasing price unless the agreement was still in effect

when a purchase contract was delivered. 

Zlotnick argues that despite the plain language in his reservation
9

agreement, Boynton Waterways engaged in a deceptive trade practice under

Fendrich v. RBF, L.L.C., 842 So. 2d 1076 (Fla. Dist. Ct. App. 2003). In

Fendrich, a prospective purchaser entered a reservation agreement to purchase a

specific lot, designated as Lot 10A, at a firm purchase price. See Fendrich, 842

So. 2d at 1078. The Fendrich reservation agreement also contained a termination

option, which provided that “Purchaser acknowledges that until both Purchaser

and Seller have executed a Contract . . ., Purchaser is under no obligation to

purchase and Seller is under no obligation to sell such Residence Home(s). This

agreement can be terminated by either party at any time, subject to a refund of

Purchaser’s Deposit . . . .” Id.

In Fendrich, the seller did not cancel the reservation agreement. Instead,

while the reservation agreement in Fendrich was still in effect, the seller allegedly

tendered a purchase contract for a less desirable home, designated as Lot 2C, at a

higher price. Id. The Florida state appeals court concluded that although the

reservation agreement stated that it was not a purchase contract, “[w]hen the

reservation form . . . unequivocally represents that the consumer will be given the

opportunity to purchase a particular lot or unit at a firm price, it can be likely to

mislead.” Id. at 1080. 

The circumstances here differ materially from the scheme in Fendrich,
The district court distinguished Fendrich by noting that Zlotnick’s “Reservation 4

Agreement clearly provides that it is not an agreement to sell a particular unit at a fixed price,

and that the purchaser has only expressed an interest in purchasing a proposed unit.” Zlotnick,

431 F. Supp. 2d at 1295. The reservation agreement in Fendrich contains a fixed price assurance

somewhat similar to the fixed price statement in Zlotnick’s reservation agreement, which

provides, “Seller assures that the foregoing purchase price will be the purchase price in the

contract for the sale and purchase of the Unit . . . submitted to Purchaser.” However, Zlotnick’s

reservation agreement has the additional provision, missing in the reservation agreement in

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however. First, Zlotnick’s reservation agreement included additional language

emphasizing that it did not establish a binding purchase agreement. Zlotnick’s

reservation agreement provided that the deposit only “expresses Purchaser’s

interest in purchasing Unit No. 207N (the ‘Unit’),” and, significantly, further

stated, “this Reservation Agreement is not an agreement to sell the Unit, nor does

it confer any lien upon or interest in the Unit or on the proposed Condominium

property.” The reservation agreement in Fendrich contained no terms similar to

this further statement in Zlotnick’s agreement. 

Second, even though the reservation agreement in Fendrich also allowed

either the developer or the purchaser to terminate the agreement, Zlotnick’s

reservation agreement contained the additional clarification that if Boynton

Waterways canceled the agreement, “thereafter Purchaser shall have no claim of

any kind against Seller.” Accordingly, Zlotnick’s reservation agreement more

clearly expressed that it did not establish a binding purchase price and carried no

more legal significance than an “agreement to agree,” thus diminishing the

likelihood to mislead. 

4
Fendrich, that “this Reservation Agreement is not an agreement to sell the Unit, nor does it

confer any lien upon or interest in the Unit or on the proposed Condominium property.” We

conclude that the additional terms contained in Zlotnick’s reservation agreement, including the

no-claim provision, and Boynton Waterways’ cancellation of the reservation agreement draw

even sharper distinctions with the scheme deemed illegal in Fendrich. 

11

Most importantly, the reservation agreement in Fendrich was still in effect

when the developer furnished a purchase contract for a different lot at a higher

price, but, in contrast, Boynton Waterways canceled its reservation agreement

with Zlotnick and other prospective purchasers. By allegedly agreeing to reserve

one house but then offering a purchase contract for a pricier and less desirable

house, the developer in Fendrich contravened the clear terms of a reservation

agreement that was still in force and thus engaged in a “classic bait and switch.” 

Id. at 1079 & n.1. In this case, however, Boynton Waterways released the “bait”

by canceling the reservation agreement, thus eliminating both the obligations and

liabilities of Boynton Waterways and Zlotnick, as specified in the express terms

of the agreement. Unlike the situation in Fendrich, a reasonable purchaser would

not likely be misled into believing that the price set in the reservation agreement

was binding because Boynton Waterways exercised its contractual right to cancel

the agreement. 

Boynton Waterways canceled the reservation agreement before offering a

purchase contract, as it had the full right to do by the express terms of the

agreement. Upon cancellation, the agreement plainly states that Zlotnick had “no
Zlotnick also claims on appeal that Boynton Waterways improperly canceled the 5

agreement because his reservation deposit allegedly was not returned until months after the

cancellation. It is unclear if Boynton Waterways bears any fault for this alleged delay because

the reservation agreement states that the escrow agent, not Boynton Waterways, is responsible

for the return of the deposit. Regardless, this allegation was not included in Zlotnick’s

complaint, and we thus do not consider this extraneous allegation when we are examining

whether the complaint on its face failed to state a claim. See Brooks v. Blue Cross & Blue

Shield of Fla., Inc., 116 F.3d 1364, 1368 (11th Cir. 1997) (noting that in considering a motion to

dismiss, courts review only “the face of the complaint and attachments thereto”).

Because we conclude that Zlotnick failed to state a claim under the FDUTPA against

6

any party, we do not address whether Zlotnick failed to state a claim against Premier in

particular and whether Zlotnick properly alleged actual damages.

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claim of any kind against Seller” because the reservation agreement did not

“confer any lien upon or interest in the Unit.” Under these circumstances, no 5

reasonable purchaser would believe that a void reservation agreement established

a binding purchase price when it was merely an “agreement to agree.” 

Accordingly, we conclude that Zlotnick failed to state a claim under the

FDUTPA because the cancellation of the reservation agreement eliminated any

possibility that a reasonable purchaser would be misled.

III. CONCLUSION

For the foregoing reasons, we affirm the district court’s dismissal of

Zlotnick’s complaint for failure to state a claim. 6

AFFIRMED.