[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 13

- 11744 Non

- Argument Calendar

________________________ D.C. Docket No. 9:09

- cv
- 80706

- KAM ANDREW PRETKA , PAUL LITVAK, MICHELLE LITVAK, PETER O’CONNELL , HARRIET DINARI , on behalf of themselves and others similarly situated, et al.
Plaintiff s
- Appellants ,

versus KOLTER CITY PLAZA II, INC. , Defendant

- Appellee

.

________________________ Appeal from the United States Distric t Court for the Southern District of Florida

________________________ (December 26, 2013) Case: 13-11744 Date Filed: 12/26/2013 Page: 1 of 102 Before CARNES , Chief Judge, WILSON and ANDERSON , Circuit Judges.
PER CURIAM: This case is before this Court a second time. The first time we address ed jurisdictional and procedural issue s about whether it sh ould be h eard in state or
federal court

. See Pretka v. Kolter City Plaza II, Inc. , 608 F.3d 744 (11th Cir. 2010)

. This time w e address the merits

. The plaintiffs , all of whom contracted
with Kolter City Plaza II, Inc. to buy condominium units , want to rescind those agreement s
. T hey first contend that the contract s violated the Florida
Condominium Act by omitting a disclosure that the Condominium Act requires
and , second , that Kolter breached the contracts by not timely completing
construction

. I. During the span of 2004 and 2005 , t he plaintiffs separately entered into agreements with Kolter to buy some of the luxury condominium units that it was build ing in West Palm Beach, Florida. B efore that , Kolter had given the plaintiffs

“ property report s” that estimated , but did not guarantee, a July 2007 completion
date

. The contracts they signed said much the same: “ T he Developer agrees that it will use commercially reasonable efforts to complete construction by [July 31, 2007] , but actual completion as of this date is not guaranteed.” I n 2005 and 2006
H urricane Wilma, permitting issues, and a labor shortage caused delay s in the

Case: 13-11744 Date Filed: 12/26/2013 Page: 2 of 103 condominium’s construction. Kolter sent written notices to the plaintiffs in September of 2006 stating that the completion date had been pushed back to July 31, 2008

. O n August 8, 2008, a little more than one week after th e anticipated completion date in the notice , Kolter completed the plaintiffs’ units and obtained a conditional certificate of occupancy

. At no point before then had the plaintiffs
notif ied Kolter that it was failing to properly perform under their agreements

. 1

In April 2009, after the housing market slumped , the plaintiffs sued Kolter to rescind their contracts

. In their complaint , t hey asserted two grounds for rescission, first that Kolter had violated the Florida Condominium Act and , second,
that Kolter had breached the contract s . The claim under the Condominium Act
was based on Kolter’s failure to include a statutoril y - required disclosure on both the front page of the contract and immediately above the buyer’s signature , as Fla.

1 The September 2006 notices even included a provision saying that, if the plaintiffs considered the change in date to be material and adverse to them, they could cancel their contracts by notifying Kolter within 15 days. With the exception of plaintiff Peter O’Connell, none of the plaintiffs contacted Kolter about the new completion date

. O’Connel l , for his part, sent a letter purporting to cancel his contract, but that cancellation was conditioned on the occurrence of other events , which, the record indicates, never came to pass

. Instead, a fter sending his letter , O’Connell continued to perform u nder his contract and, as a result, affirm ed the agreement. See Hendricks v. Stark , 126 So. 293, 296 ( Fla. 1930) (“ Where a party, with knowledge of facts entitling him to rescission of a contract or conveyance, afterward, without fraud or duress, ratifies the same, he has no claim to the relief of cancellation. An express ratification is not required in order thus to defeat his remedy; any acts of recognition of the contract as subsisting or any conduct inconsistent with an intention of avoiding it, have the effect of an election to affirm. ”).

Case: 13-11744 Date Filed: 12/26/2013 Page: 3 of 104 Stat. § 718.202(3) require s
. 2 The plaintiffs’ breach of contract claim stemmed
from Kolter’s allegedly untimely completion of construction

. Kolter moved to dismiss the plaintiffs ’ Condominium Act claim for failure to state a claim on which relief could be granted. The district court denied that motion but found that the plaintiffs had failed to allege any prejudice as a result of
Kolter ’ s omi ssion of the disclosure, which the court concluded was required under § 71 8 .202(3) and related Condominium Act case law . The court gave the plaintiffs an opportunity to amend their complaint to make that allegation. Kolter moved to dismiss the amended complaint, and the court granted that motion, finding that the plaintiffs had still failed to allege any prejudice.
Dis covery proceeded on the breach of contract claim, and then Kolter moved for summary judgment. The district court granted that motion, determining ,

2 Section 718.202(3) provides : If the contract for sale of the condominium unit so provides, the developer may withdraw escrow funds in excess of 10 percent of the purchase price from the special account required by subsection (2) when the construction of improvements has begun. He or she may use the funds in the actual construction and development of the condominium property in which the unit to be sold is located. However, no part of these funds may be used for salaries, commissions, or expenses of salespersons or for advertising purposes. A contract which permits use of the advance payments for these purposes shall include the following legend conspicuously printed or stamped in boldfaced type on the first pag e of the contract and immediately above the place for the signature of the buyer: ANY PAYMENT IN EXCESS OF 10 PERCENT OF THE PURCHASE PRICE MADE TO DEVELOPER PRIOR TO CLOSING PURSUANT TO THIS CONTRACT MAY BE USED FOR CONSTRUCTION PURPOSES BY THE DEVELOPER

. Fla. Stat. § 718.202(3).

Case: 13-11744 Date Filed: 12/26/2013 Page: 4 of 105 among other things, that the plaintiffs had failed to give Kolter notice of the alleged default and an oppor tunity to cure, as the contract required. The plain tiffs appeal the district court’ s judgment on both claims.

II. The Condominium Act Claim

“ We review de novo the district court’ s grant of a motion to dismiss under 12(b)(6) for failure to state a claim, accepting the allegations in the complaint as true and construing them in the light most favorab le to the plaintiff. ” Butler v. Sheriff of Palm Beach Cnty. , 685 F.3d 1261, 1265 (11th Cir. 2012) (quotation marks omitted). “ To survive a motion to dismiss, the plaintiff must plead a claim to relief that is plausible on its face.” Id. “ D etermining whether a complaint states a plausible claim for relief

. . . [is] a context

- specific task that requires the reviewing court to draw on its judicial experience a nd common sense. ” Ashcroft v. Iqbal , 556 U.S. 662, 679, 129 S.Ct. 1937, 1950 (2009)

. W e conclude that a claim is facially plausible “ when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged. ” Id. at 678, 129 S. Ct. at 1949

. But when a complaint permits the court to infer only the mere possibility of misconduct , the plaintiff has fail ed to state a claim on which relief can be granted

. Id. at 679, 129 S.Ct. at 1950.

Case: 13-11744 Date Filed: 12/26/2013 Page: 5 of 106 Florida courts have held that Condominium Act provisions similar to § 718.202(3) require plaintiffs to make a plausible showing of prejudice

. In Bruce
v. O ’ Neill , for example, the condominium seller failed to include statutorily

required clauses in the buyer’s contract , and the buyer sought to rescind the contract on that ground

. 445 So. 2d 379, 380 (Fla. 4th DCA 1984)

. T he trial court
had found that omission to be sufficient to prove a claim for statutory rescission
under the Condominium Act, but t he appeals court disagreed , noting that “ there [was] absolutely no demonstration that the plaintiff/purchaser was even slightly prejudiced by the technical statutory noncompliance of the seller. ” Id. Without a showing of prejudice, the seller’s failure to include a statutorily

- required clause was not grounds for rescission. 3 Id. Based on the Bruce decision, the plaintiffs in this case were required to plead prejudice as well

. See Bravo v. United States , 577 F.3d 1324, 1325 (11th Cir. 2009) (noting that we are “bound by decisions of a

3 An appeals court in Florida’s second district reached a similar conclusion about the need to allege prejudice when bringing a claim under the Florida Condominium Act . In Beach Place Joint Venture v. Beach Place Condo. Ass’n, Inc. , a condominium owners association sought to have an office unit owned by the seller converted into a common element owned by the association. 458 So. 2d 439, 440

– 41 (Fla. 2d DCA 1984). Though the association had already received the interest it had bargained for and even had notice that the office space belonged to the seller, it asserted ownership over the office unit on the ground that a n error in condominium paperwork made ownership of it unclear. Id. at 441. The appeals court rejected that clai m , not ing that even if a n error had occurred, the condominium association had shown no prejudice as a result of it. Id. at 442. B oth parties had instead received the benefits of their bargains. Id. B ecause the seller had made a “good faith attempt to comply with the disclosure requirements of the Condominium Act,” the court held that a “technical error” “should not be used to provide a windfall to the [buyers].” Id. at 441

– 42.

Case: 13-11744 Date Filed: 12/26/2013 Page: 6 of 107 state’ s intermediate appellate courts unless there is persuasive evidence that the highest s tate court would rule otherwise ” ) (quotation marks omitted). 4
I n the prese nt case, the plaintiffs alleg e only the possib i l it y that Kolter caused them prejudice by printing the disclosure once

. They do not allege that they never saw the disclosure; only that they were “ deprived of the benefit of seeing [ it ] a second, re
- emphasized time

. ” Complaint ¶ 56. Had they seen the disclosure twice, the ir argument goes, the added emphasis “would likely have caused [them] to pay much closer attention to [the disclosure] which possibly could have resulted in a number of eventualities.” Complaint ¶ 52 (emphasis added). W e will never know which “ eventualities ” might have come to pass if the plaintiffs had see n the disclosure twice . However , we know the plaintiff s have
fail ed to state a claim by alleging the mere possibility that an act or omission
caused prejudice

. See Bell Atl. Corp. v. Twombly , 550 U.S. 544, 557

– 58, 127 S.Ct. 1955, 1966 (2007) (“[S] omething beyond the mere possibility of loss
causation must be alleged

. . . .’”).
T he plaintiffs’ remaining allegations of prejudice have no basis in law at all

. They allege , for example, that they suffered prejudice because “ they were not

4 T he plaintiffs have cited federal district court and bankruptcy court opinions for the proposition that prejudice need not be alleged in order for them to state a claim under § 718.202(3)

. As our decision in Bravo indicates, we are bound by Florida courts’ interpretation of Florida law , not the decisions of federal district or bankruptcy courts

— especially when those decisions are unpublished, inapposite, or otherwise non

- precedential, as was the case with the plaintiffs’ cited authorities

.

Case: 13-11744 Date Filed: 12/26/2013 Page: 7 of 108 made aware by Kolter that the purpose of Florida Statute 718.202 is to protect purchas ers under preconstruction condominium contracts from loss of their deposits should the developer fail to perform its contractual obligations .” Complaint ¶ 49. But Florida law place s no duty on Kolter to educate the plaintiffs

o n the purpose of § 718.202 or other wise act for the ir benefit

. See Taylor
Woodrow Homes Fla. , Inc. v. 4/46

- A Corp. , 850 So. 2d 536, 541 (Fla. 5th DCA 2003) (“In an arms

- length transaction,

. . . there is no duty imposed on either party
to act for the benefit or protection of the other party, or to disclose facts that the other party could, by its own diligence have discovered.” ) (quotation marks omitted) ; Garcia v. Santa Maria Resort, Inc. , 528 F. Supp. 2d 1283, 1296 (S.D. Fla. 2007) ( “ [A party to a contract] cannot avoid his obligations thereunder by alleging that he did not read the contract, or that the terms were not explained to him, or that he did not understand the provisions.” )

. The district court correctly concluded that the plaintiffs have failed to st ate a claim under § 718.202(3) on which relief

can be granted.
I I I. The Breach of Contract Claim
We review de novo the district court ’ s grant of summary judgment, applying
the same standard as the district court. Burton v. Tampa Hous. Auth. , 271 F.3d 1274, 1276 (11th Cir. 2001) (citation omitted). W e view all evidence in the light

Case: 13-11744 Date Filed: 12/26/2013 Page: 8 of 109 most favorable to the nonmoving party and draw reasonable factual inferences in
their favor

. Id. at 1277. Here, the plaintiffs contend that Kolter breached its contract s by not timely completing construction of the condominium units. Those contracts gave no fixed
deadline for construction , only an estimate

. And t hey did not say that time was of
the essence. As a result, Kolter was simply expected to finish construction in a
reasonable time

. See Greenwood v. Rotfort , 28 So. 2d 825, 831 ( Fla. 1946) (“ The general rule

. . . is that when a contract does not expressly fix the time for performance of its terms, the law will imply a reasonable time. ”)

. If the plaintiffs thought that Kolter was taking an unreasonably long time to
finish construction , paragraph 15 of the contracts required them to notify Kolter
and give it a chance to fix the problem

. It is undisputed that the plaintiffs never provi ded Kolter that type of notice or the opportunity to cure ; n or have they
offered a valid reason for not do ing so. For those reason s , Kolter cannot be held
liable for allegedly taking an unreasonably long time to finish construction

. See,
e.g. , Caronte Enterprises, Inc. v. Berlin , 668 So. 2d 233, 234 (Fla. 3d DCA 1996) (holding that a seller did not breach a contract for the sale of real property by failing to timely repair the property when the contract had set no timeframe for the repairs , the buyers had not demand ed completion of the repairs by a certain date , and time was not stated to be of the essence ); Saunders Leasing Sys., Inc. v. Gulf

Case: 13-11744 Date Filed: 12/26/2013 Page: 9 of 1010 Cent. Distribution Ctr., Inc. , 513 So. 2d 1303, 1307 (Fla. 2d DCA 1987) ( holding
that a defendant was not liable for failure to perform when , despite a contractual requirement to do so, the plaintiff gave neither a notice of default n or an opportunity to cure). As a result, the district court properly granted summary judgment in favor of Kolter on the plaintiff s ’ claim for breach of contract.
AFFIRM ED . Case: 13-11744 Date Filed: 12/26/2013 Page: 10 of 10