[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 16

- 15358 Non

- Argument Calendar

________________________ D.C. Docket No. 3:14

- cv - 01402

- MMH

- JBT

ALDORA ALUMINUM & GLASS PRODUCTS, INC., Plaintiff

- Appellant,

versus POM A GLASS & SPECIALTY WINDOWS, INC. , Defendant

- Appellee.

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

________________________ ( March 27, 2017 )
Be fore JORDAN , ROSENBAUM , and BLACK Circuit Judges.
PER CURIAM:

Case: 16-15358 Date Filed: 03/27/2017 Page: 1 of 122 Aldora Aluminum & Glass Products, Inc. (Aldora) appeals from the dismissal of its breach of contract claim following the d istrict c ourt’s grant of summary judgment in favor of Poma Glass & Spec ialty Windows, Inc. (Poma). Aldora asserts the d ist rict c ourt misapplied controlling Florida law and erred in finding the agreement between the parties, as reflected in t heir Memorandum of Understanding (MOU) , was unenforceable. Aldora further contends t he d istrict

c ourt improperly resolved a factual dispute when it found the parties continued negotiation of a material term in the MOU after signing the document. Finally, Aldora insists Poma breached its duty to act in good faith and otherwise failed to

m eet Aldora’s reasonable commercial expectations under the MOU. After review ,

we affirm

. 1
I. B ACKGROUND
A. Facts Poma operated several commercial glass fabrication plants across the United States, including a facility located in Jacksonville, Florida. Aldora, another glass manufacturer, was interested in purchasing manufacturing equipment from Poma and taking over the lease of Poma’s Jacksonville manufacturing plant in the

1 We review a “district court’s grant of summary judgment de novo applying the same legal standards used by the district court.” Galvez v. Bruce , 552 F.3d 1238, 1241 (11th Cir. 2008). “Summary judgment is appropriate where ‘there is no genuine issu e as to any material fact and the moving party is entitled to a judgment as a matter of law.’” Wooden v. Bd. of Regents of the Univ. Sys. of Ga. , 247 F.3d 1262, 1271 (11th Cir. 2001) (quoting Fed. R. Civ. P. 56(c)).

Case: 16-15358 Date Filed: 03/27/2017 Page: 2 of 123 process. To that end, Leon Silverstein, Aldora’s CEO, began negotiating a deal t o purchase the needed equipment with Christopher Correnti, a vice

- president at
Poma. During these preliminary discussions , Aldora reached out to Poma’s landlord at the Jacksonville facility, William “Mac” Eason, to discuss taking over the lease for the bu ilding

. On September 4, 2014, the parties executed a MOU in which Poma agreed to sell Aldora its glass fabrication equipment at the Jacksonville plant for $825,000. 00. The MOU indicate d it was legally binding on the parties, but it also provided the eq uipment sale was subject to several conditions. In particular, the sale was conditioned on “Poma and Aldora individually working out acceptable agreements to transition the Jacksonville Site and prov ide a lease thereof to Aldora and to allow Poma to exit the facility with the landlord for that site prior to closing.” ( emphasis added ). The MOU did not define “acceptable agreements,” nor did it provide any guidance identifying relevant lease criteria for the respective parties. The parties did not even di scuss what each might consider an acceptable
lease transition agreement for the Jacksonville plant. The MOU also specified a closing date for the transaction, October 31, 2014. 2 Neither party disputes that reaching an “acceptable arrangement” to
transiti on the lease of the Jacksonville facility was a material part of their

2 The parties eventually agreed to exte nd this deadline to November 7, 2014. Case: 16-15358 Date Filed: 03/27/2017 Page: 3 of 124 agreement. Mr. Silverstein testified that Aldora was not “just going to buy the equipment assets and not end up operating and leasing the building.” Indeed, he
indicated that Aldora “would not have even pursued the MOU if [it] didn’t think [ it ] could get a lease.” For its part, Poma explained in email communication with Aldora “[s]elling just the equipment is not why we made this proposed deal.” Prior to signing the MOU, Aldora independently communicate d proposed lease terms to Eason, the landlord of the Jacksonville facility. These terms included, among other things, six months of rent free tenancy and a $150,000.00 tenant improvement allowance. Aldora apparently hoped that th e costs of these terms could be incorporated into any early lease termination deal Eason might reach with Poma. When the MOU was signed, Poma had about 18 months left on its existing rent agreement, and began negotiating early exit terms with Eason.
Thes e negotiations went poorly , and when the MOU deadline expired Poma was offering about $400,000 .00 less than Eason was demanding to terminate the lease early. 3 No agreement between Poma and the landlord was ever reached. As the negotiations between Poma and Aldora over the Jacksonville facility progressed , Poma’s parent company, AG C Glass Company North America ( AGC), was negotiati ng with Trulite Glass Company ( Trulite) to purchase AGC’s entire

3 Aldora eventually agreed to pick up the difference, but failed to communicate this commitment until November 14, 2014, a full week after the MOU ’s extended closing deadline had lapsed. Case: 16-15358 Date Filed: 03/27/2017 Page: 4 of 125 North American commercial glass fabrication business. 4 On Oc tober 27, 2014, representatives for Trulite’s parent company Sun Capital Partners, Inc. (Sun Capital) indicated t hey expected Poma’s Jacksonville facilities and equipment to be included in the broader sale. O n November 3 , 2014 , Trulite reached a prelimina ry agreement with AGC regarding the Jacksonville plant and equipment , formally concluding the deal a few weeks later

. 5
B. Procedural History Aldora filed suit against Poma in the Middle District of Florida on November 11, 2014 asserting claims for breach of contract claim , breach of the implied covenant of good faith and fair dealing, and promissory estoppel . On December 22, 2014 , Poma moved to dismiss Aldora’s claims under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Poma asserted that an essential term of the MOU, the requirement that the parties reach “acceptable” lease transition agreement s , was indefinite rendering the document legally unenforceable. Relying solely on the pleadings, t he d istrict c ourt denied Poma’s motion on July 6 , 2015 finding the material terms of the MOU were clearly defined and enforceable.

4 Deposition testimony indicated that although they were technically separate entities , AGC and Poma were considered identical by management of the company. 5 Aldora continually emphasizes the influence the pending deal with Trulite had on Poma’s conduct following the execution of the MOU. Indeed, communications between Trulite and AGC do suggest that Poma was attempting to “kill” the deal with Aldora. But, as we will discuss, these backchannel dealings have no impact on whether Poma was legally bound by the MOU. Because we determine Poma was not so bound, the company’ s go od faith performance, or lack thereof, is irrelevant to the instant dispute.

Case: 16-15358 Date Filed: 03/27/2017 Page: 5 of 126 After extensive discovery , Poma filed a motion for summary judgment on March 16, 2016 again arguing the MOU was unenforceable because a material provision of the agreement was never adequately defined

. This time, t he d istrict

c ourt agreed, finding the undisputed evidence showed that reaching an acceptable agreement to transition the lease from Poma to Aldora was a material term of the

contract. Because this material term was left undefined and open to further negotiations between the parties, the d istrict c ourt held that MOU was not legally enforceable and dismissed Aldora’s claims against Poma. This appeal follows.
II. DISCUSSION In Florida, an enforceable contract exists only if, among other things, the parties to the contract have sufficiently defined all essential terms of the agreement. Vega v. T

- Mobile USA, Inc. , 564 F.3d 1256, 1272 (11th Cir. 2010). 6

“ T he creation of a contract requires that there be mutual assent to a certain and definite proposition.” ABC Liquors, Inc. v. Centimark Corp. , 967 So. 2d 1053, 1056 (Fla. 5th DCA 2007). “If the essential terms [of the contract ] are so uncertain that there is no basis for deciding whether the agreement has been kept or broken , there is no contract.” David v. Richman , 568 So. 2d 922, 924 (Fla. 1990) (quoting Restatement (Second) of Contracts § 33 cmt. a (Am Law Inst. 1981)); see also Irby

6 The plain terms of the MOU provide that “Florida law will govern this sale excluding its conflict of laws provision.” Here, both parties accept that Florida law governs our interpretation of the MOU

.

Case: 16-15358 Date Filed: 03/27/2017 Page: 6 of 127 v. Memorial Healthcare Grp. , 901 So. 2d 305, 306 (Fla. Dist. Ct. App. 2005) (noting that “[w] hile it is not necessary that all details of an agreement be fixed in order to have a binding agreement between parties, if there has been no agreement as to essential terms, an enforceable contract does not exist”) (quotations omitted)

. There is no dispute that negotiating acceptable agreements for transitioning the commercial lease between Poma and Aldora was an essential term of the MOU. Neither par ty contends the MOU was intended to memorialize a simple asset sale. Instead, the glass fabrication assets were primarily valuable to Aldora because they would enable the firm to more quickly bring the Jacksonville facility online. And, similarly, those assets held the most value to Poma as leverage to enable them to more easily terminate their lease of the Jacksonville plant. In short, the undisputed evidence reveals that the MOU was intended to outline both a simple asset sale, and a more complex lease transition agreement between the two parties.
T he enforceability of the MOU depends entirely upon whether the lease
transition provision provided a sufficiently definite basis to determine whether the agreement had been kept or broken. A mere agree ment to agree “is unenforceable as a matter of law.” ABC Liquors , 967 So. 2d at 1056 . And, similarly, a contract containing ambiguous material terms is unenforceable because “t he parties never reached a meeting of the minds regarding an essential term of the agreement. ”

Case: 16-15358 Date Filed: 03/27/2017 Page: 7 of 128 King v. Bray , 867 So. 2d 1224, 1227 (Fla. 5th DCA 2004). Here, the undisputed facts show the parties realized the lease agreements required under the MOU were “linked to one another,” but still failed to set parameters for what might con stitute mutually “acceptable” lease agreements. The record reveals the parties did not

even discuss how the complex commercial lease transition could be accomplished
and conclusively establishes the parties did not “mutual [ly] assent to a certain and defi nite proposition” as required by Florida law. ABC Liquors, Inc. , 967 So. 2d at
1056. We conclude the terms of the MOU are indefinite , at best constituting a mere agreement to agree in the future, rendering the agreement un enforceable as a matter of law. It is true that the MOU indicates the parties intended the document to be “legally binding.” It is also true that “[w]here the parties have intended to conclude a bargain, uncertainty as to incidental or collateral matters is seldom fatal to the existen ce of the contract.” David , 568 So. 2d at 924 (quotations omitted)

. 7

7 Aldora contends that because reaching ex ante lease transition agreements was impossible, and the MOU clearly reflected the parties’ intent to be bound, the MO U adequately defined all essential terms and should be enforced. See Blackhawk Heating & Plumbing Co. v. Data Lease Fin. Corp. , 302 So. 2d 404, 408 (Fla. 1974) (explaining that “[e]ven though all the details are not definitely fixed, an agreement may be b inding if the parties agree on the essential terms and seriously understand and intend the agreement to be binding on them”). We agree with Aldora that reaching “acceptable” lease transition agreements without first negotiating with the landlord, Mr. Easo n, was impossible. Indeed, Aldora helpfully lists a whole string of possible considerations that might have influenced the landlord’s approach to lease negotiations and impacted the ability of the parties to reach “acceptable” transition agreements. But these difficulties do not suggest the MOU was enforceable because the parties defined their obligations as best they could under the circumstances. Instead, these myriad factual possibilities suggest

Case: 16-15358 Date Filed: 03/27/2017 Page: 8 of 129 But, the terms of the lease transition are not a collateral or incidental matter. Instead, as the parties both accept, the lease transition lies at the very core of their negotiation. And, the parties agree that they did not even discuss what might constitute an “acceptable” lease transition agreement under the MOU. This is not a case where the parties provide the broad parameters of an agreement but include
room for discretion in fulfilling particular contractual duties . The MOU is simply silent regarding the critical information needed to conclude a vital aspect of the parties’ agreement. The undefined term “acceptable agreement” simply provides “no basis for deciding whether th e [MOU] has been kept or broken.” David , 568 So. 2d at 924. At most, this language represents an agreement to agree on lease terms at some point in the future: a proposition that we can afford no legal remedy because “t here [is] no way to determine wheth er the parties would have reached an agreement.” 8 State, Dept. of Corr. v. C & W Food Serv. Inc. , 765 So. 2d 728, 730 (Fla. 1st DCA 2000); see also CSX Transp., Inc. v. Professional Transp., Inc. , 467

the parties were simply not in a position to reach a le gally binding agreement because they lacked sufficient information to adequately define a material element of the deal. The “unimaginable number of possible scenarios” stemming from potential lease negotiations with the landlord serves only to highlight t hat the MOU could serve only as an unenforceable agreement to agree at some future time. 8 The d istrict c ourt found that not only were the lease terms insufficiently definite for enforcement, Poma and Aldora actually continued to negotiate the l ease transition indirectly via the landlord, Mr. Eason. Aldora contends this finding was error and improperly resolved a disputed material fact in favor of the moving part y . However, this factual finding is not necessary to our conclusion regarding the MOU ’s enforceability , and so we do not address this argument. Case: 16-15358 Date Filed: 03/27/2017 Page: 9 of 1210 F. Supp. 2d 1333, 1339

– 40 (M.D. Fla. 2006) (explaining a mere agreement to negotiate something in the future gives rise to no enforceable obligations because it is impossible to determine what agreement, if any, would have been reached). Aldora seeks to avoid this commonsense conclusion by arguing the lease

t ransition term in the MOU represents a routine condition precedent sufficiently
definite to bind Poma despite retaining some room for the exercise of discretion during performance

. And, consequently, Poma was bound to negotiate in good faith with the land lord to satisfy the condition and meet Aldora’s reasonable contractual expectation under the MOU. T his argument fails for two reasons

. First, it never address es the core question presented in this case: whether an enforceable contract exist ed in the first instance. Aldora is c orrect to argue that contracts requiring negotiations with third parties and affording broad discretion in the performance of specific contractual duties are commonly enforced. See Martorella v. Deutsche Bank Nat ’l Trus t Co. , 931 F. Supp. 2d 1218, 1226 (S.D. Fla. 2013) (enforcing a contract that afforded the parties “discretion in determining whether to purchase . . . insurance after a policy had lapsed, and under what terms”); Seaside Cmty. Dev. Corp. v. Edwards , 573 So . 2d 142, 145

– 47 (Fla. Dist. Ct. App. 1991) (enforcing a contract that required third party financing approvals as a condition precedent to rendering performance under the contract). But, in all of the cases relied on by Aldora, there is no question that an enforceable contract

Case: 16-15358 Date Filed: 03/27/2017 Page: 10 of 1211 exists. Here, the MOU simply lacks “ sufficient specification of the essential terms” to qualify as an enforceable agreement under Florida law. Vega , 564 F.3d at 1272. And, Aldora pr esents no case law suggest ing otherwise

. S econd, Florida law does not recognize a claim for the breach of the implied covenant of good faith and fair dealing absent the existence of a valid contract.
I nstead the duty only “attaches to the performance of a specific contractual obligation.” Centur ion Air Cargo, Inc. v. United Parcel Serv., Co. , 420 F.3d 1146,
115 1 (11th Cir. 2005) ; Hospital Corp. of Am. v. Florida Med. Ctr., Inc. , 710 So. 2d 573, 575 (Fla. 4th DCA 1998) (assuming the existence of an enforceable contractual obligation before applying the duty of good faith)

. 9 Because we have determined the MOU was not a legally binding contract imposing specific obligations on the parties , Poma was not bound by th e implied covenant of good faith and fair dealing under Florida law

. I II

. CONCLUSION It is undisputed that a material part of the contemplated transaction between Aldora and Poma required the early termination of Poma’s commercial lease to its Jacksonvi lle facility and Aldora’s subsequent acquisition of a new lease to th e property. It is also undisputed that the MOU between the parties specified they

9 Aldora seems to recognize this basic precept of Florida law by explaining that “under Florida law, a party’s failure to engage in ‘fair dealing’ in carrying out a contractual duty in itself constitutes breach of an otherwise enforceable contract.”

Case: 16-15358 Date Filed: 03/27/2017 Page: 11 of 1212 must reach “acceptable” lease transition agreements before any deal could move forward. The record refl ects neither Poma nor Aldora discussed the terms of potentially “acceptable” lease arrangements , or defined criteria for such arrangements in the MOU itself . Even though the parties may well have intended to be bound by the MOU, there is no way for us to enforce the obligation to reach an “acceptable” lease transition agreement without any parameters at all regarding the content of such an agreement . As the d istrict c ourt explained “[t]he terms of the [MOU] simply provide no basis for the Court or a jury to determine what terms Poma would be required to pay the landlord to terminate the lease, or what Aldora should have to offer the landlord to take over the lease , in order to satisfy an obligation that the parties reach ‘acceptable agreements.’” Indeed, “there [is] no way to [even] determine whether the parties would have reached ” acceptable lease agreements in the first instance. C & W Food Serv. , 765 So. 2d at 730. At best, the MOU constitutes a mere agreement to agree and is unenforceable as a matter of Florida law. ABC Liquors , 967 So. 2d at 1056. And, since we find that no enforceable contract ever existed, the fact that Poma may or may not have acted in good faith following execution of the MOU is of no legal significan ce . W e affirm the d istrict c ourt’s grant of summary judgment in favor of Poma.
AFFIRMED . Case: 16-15358 Date Filed: 03/27/2017 Page: 12 of 12