IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

JOSHUA S. FRIEBEL and 

ELIZABETH F. FRIEBEL,

husband and wife,

Plaintiffs,

vs. CASE NO. 5:10-cv-120/RS-EMT

PARADISE SHORES OF BAY COUNTY,

LLC, a Florida limited liability company;

ROBERT E. BLACKERBY, an individual;

MAGNUM CAPITAL, LLC, a Florida limited

liability company; DURDEN ENTERPRISES

II, INC., a Delaware corporation; DURDEN

ENTERPRISES, LLC, a Florida limited

liability company; ESTATE OF KEDRICK

EARL DURDEN; MICHAEL EARL DURDEN,

as Personal Representative of the Estate of

Kedrick Earl Durden; and MH I, LLC, a Florida

limited liability company, 

Defendants.

_________________________________________/

ORDER

Before me are Defendants Paradise Shores of Bay County, LLC, Durden 

Enterprises II, Inc., Durden Enterprises, LLC, Estate of Kedrick Earl Durden, and 

Michael Earl Durden as Personal Representative of the Estate of Kedrick Earl Durden‘s 

Motion for Summary Judgment (Doc. 142) and Plaintiffs‘ Response in Opposition (Doc. 

153). 

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Standard of Review

Summary judgment is appropriate when ―there is no genuine issue as to any 

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

P. 56 (c). In other words, the basic issue before the court is ―whether the evidence 

presents a sufficient disagreement to require submission to a jury or whether it is so onesided that one party must prevail as a matter of law.‖ Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 251, 106 S. Ct. 2505, 2512 (1986). The moving party has the burden of 

showing the absence of a genuine issue as to any material fact, and in deciding whether 

the movant has met this burden, the court must view the movant‘s evidence and all 

factual inferences arising from it in the light most favorable to the nonmoving party. 

Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970); Fitzpatrick v. City of Atlanta, 2 F.3d 

1112, 1115 (11th Cir. 1993). Thus, if reasonable minds could differ on the inferences 

arising from undisputed facts, then a court should deny summary judgment. Miranda v. B 

& B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir. 1992) (citing Mercantile 

Bank & Trust v. Fidelity & Deposit Co., 750 F.2d 838, 841 (11th Cir. 1985)). However, 

a mere  ̳scintilla‘ of evidence supporting the nonmoving party's position will not suffice; 

there must be enough of a showing that the jury could reasonably find for that party. 

Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 

251). 

Background

Plaintiffs, husband and wife, entered into a Purchase and Sale Agreement (―the 

Agreement‖) for Unit 204 at the Paradise Shores Condominiums in Mexico Beach, 

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Florida on July 10, 2005. Plaintiffs signed the agreement, and Defendant Robert 

Blackerby also signed as an authorized agent for Defendant Paradise Shores of Bay 

Count LLC (―Paradise Shores‖) (Doc. 38, Exhibit A). At this time, Paradise Shores was 

co-owned by Defendant Robert Blackerby and Defendant Durden Enterprises LLC.1 

Plaintiffs allege that Kedrick Earl Durden, now deceased, was the sole owner of 

Defendant Durden Enterprises LLC. Plaintiffs also allege that Kedrick Earl Durden was 

the Chairman and CEO of Defendant Durden Enterprises II, Inc. which is now Paradise 

Shore‘s Managing Member (Doc. 123, Exhibit 144). 

Nearly two years after signing the Agreement, the property in question was 

conveyed by warranty deed on June 19, 2007 from the grantor, Paradise Shores, to the 

Plaintiffs. Defendant Robert Blackerby signed the deed on behalf of Paradise Shores in 

his capacity as managing member of Defendant MH I, LLC (―MH I‖) (Doc. 38, Exhibit 

B). By this time, Paradise Shores was co-owned by Defendant MH I, which in turn was 

wholly owned by Defendant Robert Blackerby and Defendant Durden Enterprise LLC.2 

After taking possession of unit 204, the Plaintiffs became aware of numerous 

defects including, among other things, mold, water intrusion, plumbing leaks, and 

structural defects. Plaintiffs allege that all Defendants were aware of the defects prior to 

closing and chose not to inform Plaintiffs. On April 1, 2008, Defendant Paradise Shores 

filed suit in Bay Count Circuit Court against several contractors relating to deficiencies in 

 

1

Plaintiffs allege that Defendant Robert Blackerby was the sole owner of Paradise Shores from its inception until 

April 5, 2005, when Defendant Robert Blackerby conveyed a 50% interest in Paradise Shores to Durden Enterprises 

LLC (Doc. 127, p.5). Plaintiffs also allege that Defendant Durden Enterprises LLC was a managing member of 

Paradise Shores (Doc. 38, p.5). Defendant Durden Enterprises LLC denies this (Doc. 42, p.3). In the light most 

favorable to the non-movant, I will consider Durden Enterprises LLC a managing member. 

2

Plaintiffs allege that on December 7, 2005, Defendant Robert Blackerby assigned his 50% interest in Paradise 

Shores to MH I, which was wholly owned by Defendant Robert Blackerby (Doc. 38, p. 5). 

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the building (Doc. 38, p. 6-7). On May 18, 2010, Plaintiffs filed this case against 

numerous defendants, including those involved in this Motion--Defendants Durden 

Enterprises II, Inc., Durden Enterprises, LLC (―the Durden corporate defendants‖), 

Paradise Shores of Bay County, LLC, Estate of Kedrick Earl Durden, and Michael Earl 

Durden as Personal Representative of the Estate of Kedrick Earl Durden (―the Durden 

estate defendants‖). 

Discussion

A. Claims Against the Estate 

In this circuit, a claim is precluded by the judgment in a prior case when (1) the 

prior judgment was rendered by a court of competent jurisdiction; (2) the judgment was 

final and on the merits; (3) both cases involve the same parties or those in privity with 

them; and (4) both cases . . . involve the same causes of action. Borrero v. United 

HealthCare of N.Y., Inc., 610 F.3d 1296, 1306 (11th Cir. 2010). 

In probate proceedings before the Circuit Court for Bay County, Plaintiffs sought 

relief against the Estate of Kedrick Earl Durden. By Order dated February 1, 2011, the 

Circuit Court denied the Friebels‘ motion for claim extension as untimely and time barred 

(Doc. 155, Exhibit 355). This probate action is currently on appeal. 

―[A] dismissal on statute-of-limitations grounds . . . [is] a judgment on the merits.‖ 

Plaut v. Spendthrift Farm, 514 U.S. 211, 228 (1995). However, in Florida, a judgment 

does not become final where an appeal is taken until the appeal is affirmed and either the 

time for filing motions for rehearing has expired or the motions for rehearing have been 

denied. Larson & Larson, P.A. v. TSE Indus., 22 So. 3d 36, 49-50 (Fla. 2009). The 

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doctrine of claim preclusion is, therefore, not applicable and the ruling by the state

Circuit Court is not binding at this time. 

I may revisit this issue should the state appeal be decided before trial. Also, I may

hear any substantive issues relating to limitations periods for probate proceedings. 

B. Florida Business Organizations 

In Florida, LLCs and corporations (―corporate business organizations‖) can be 

sued and can defend in their own name. FLA. STAT. § 608.404(1); Id. § 6.07.0302(1). As 

a result, managing members, officers, directors and shareholders are shielded from 

personal liability arising from their relationship to the corporate entity. See FLA. STAT. § 

608.4227 (providing that persons ―are not liable, solely by reason of being a member or 

serving as a manager or managing member, under a judgment, decree, or order of a court, 

or in any other manner, for a debt, obligation, or liability of the limited liability 

company‖) (emphasis added); Id. § 607.0831 (providing that directors are ―not 

personally liable for monetary damages to the corporation or any other person for any 

statement, vote, decision, or failure to act, regarding corporate management or policy, by 

a director). 

In certain limited circumstances, liability may attach for acts of malfeasance. A 

managing member of an LLC or a corporate director may be personally liable where:

 (a) The manager or managing member or director breached 

or failed to perform the duties as a manager or managing 

member; and

 (b) The manager's or managing member's or director‘s 

breach of, or failure to perform, those duties constitutes any 

of the following:

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 1. A violation of the criminal law, unless the manager or 

managing member had a reasonable cause to believe his or 

her conduct was lawful or had no reasonable cause to believe 

such conduct was unlawful . . .

 2. A transaction from which the manager or managing 

member derived an improper personal benefit, either directly 

or indirectly.

 3. A distribution in violation . . .

 4. In a proceeding by or in the right of the limited liability 

company to procure a judgment in its favor or by or in the 

right of a member, conscious disregard of the best interest of 

the limited liability company, or willful misconduct.

 5. In a proceeding by or in the right of someone other than 

the limited liability company or a member, recklessness or an 

act or omission which was committed in bad faith or with 

malicious purpose or in a manner exhibiting wanton and 

willful disregard of human rights, safety, or property.

FLA. STAT. § 608.4228; Id. § 607.0831

A second way that a member, shareholder, or other related entity could be found 

liable for the actions of an LLC or corporation is though piercing the corporate veil. ―In 

any case in which a party seeks to hold the members of a limited liability company 

personally responsible for the liabilities or alleged improper actions of the limited 

liability company, the court shall apply the case law which interprets the conditions and 

circumstances under which the corporate veil of a corporation may be pierced under the 

law of this state.‖ FLA. STAT. § 608.701. See also 17315 Collins Ave., LLC v. Fortune 

Dev. Sales Corp., 34 So. 3d 166, 168 (Fla. Dist. Ct. App. 3d Dist. 2010) (finding doctrine 

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applicable to two LLCs in a parent-subsidiary relationship where the two operated as 

alter egos). 

Plaintiffs‘ claims against any defendants acting in their capacity as managing 

members, corporate directors, and/or stockholders are analyzed with these liability 

principles in mind. 

C. Fraud Based Allegations—Counts I, II, and III

Plaintiffs have withdrawn their fraudulent misrepresentation claim, leaving two 

remaining fraud based allegations – fraud and fraudulent concealment. These claims are 

related and cover similar ground.3

Defendant Paradise Shores admits that it is the developer of the condominium 

project (Doc. 142, p. 18). As the developer, its contractual relationship to the Plaintiffs 

along with the facts in dispute make fraud based liability a question for trial. 

The Durden corporate defendants and the Durden estate defendants assert a 

different theory for entry of summary judgment. They suggest that the fraud based 

allegations are without merit because they did not ―owe a duty to disclose‖ to Plaintiffs 

(Doc. 142, p. 6). As for Count I, as a matter of law, a duty to disclose is not an element 

of common law fraud. Supra note 3. That fraud claim requires an affirmative act of 

 

3 Both common law fraud is: (1) A false statement concerning a material fact; (2) Knowledge by the person making 

the statement that the representation is false; (3) The intent by the person making the statement that the 

representation will induce another to act on it; (4) Reliance on the representation to the injury of the other party. 

Compare Tucker v. Mariani, 655 So. 2d 221 (Fla. Dist. Ct. App. 1st Dist. 1995) (discussing common law fraud),

with Butler v. Yusem, 44 So. 3d 102, 105 (Fla. 2010) (discussing fraudulent misrepresentation). Fraudulent 

concealment has the added element of a duty to disclose. See Johnson v. Davis, 480 So. 2d 625, 628 (Fla. 1985). 

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misrepresentation. Fraudulent concealment, on the other hand, is premised on an 

omission and does require a duty to disclose. Id. 

―It is well-settled . . . that individual officers and agents of a corporation may be 

held personally liable for their tortious acts, even if such acts were committed within the 

scope of their employment or as corporate officers.‖ Wadlington v. Cont'l Med. Servs., 

907 So. 2d 631, 633 (Fla. Dist. Ct. App. 4th Dist. 2005) (citation omitted). 

In the light most favorable to the Plaintiffs, the managing members of Paradise 

Shores – including Defendant Durden Enterprises, LLC, and Defendant Durden 

Enterprises II, Inc. -- could be found liable for the alleged fraudulent conduct for 

misrepresentation, or failure to disclose.

Likewise, the Durden Estate Defendants could be found liable for the actions that 

Kedrick Durden may have taken as managing member of the Durden corporate 

defendants in their capacity as managing members or owners of Paradise Shores. To be 

clear, this potential chain of liability— (1) from Paradise Shores to the Durden corporate 

defendants; (2) from the Durden corporate defendants to Kedrick Durden; and (3) from 

Kedrick Durden to the Durden estate defendants—is premised on acting as a managing 

member of the preceding LLC.4 Away from the epicenter, liability is increasingly tenuous 

and will ultimately be more difficult to prove. 

 

 

4

Plaintiffs allege that Kedrick Durden was a managing member of Paradise Shores (Doc. 38, p.3). The weight of 

evidence suggests this to not be true. Taking judicial notice of the Florida Division of Corporations records, the 

filings of Paradise Shores with the Division from 2005-2010 do not indicate that Kedrick Durden was a managing 

member. 

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D. Negligence Based Allegations—Counts IV, V, VI

Plaintiffs allege negligent misrepresentation, negligence, and gross negligence. 

Similar to the fraudulent concealment count, these claims are based upon a failure to 

disclose. 

Plaintiffs‘ negligence and negligent misrepresentation claims are essentially the 

same. They require the following: (1) a statement concerning a material fact that was 

believed to be true but which was in fact false; (2) that defendant was negligent in 

making the statement because he should have known the statement was false; (3) that in 

making the statement, defendant intended, or expected that another would rely on the 

statement; and (4), that claimant justifiably relied on the false statement. In re Std. Jury 

Instructions in Civil Cases -- Report No. 09-01 (Reorganization of the Civil Jury 

Instructions), 35 So. 3d 666, 754 (Fla. 2010). 

Plaintiff also alleges a cause of action for gross negligence. Gross negligence

merely alters the second element above such that ―the defendant's conduct was so 

reckless or wanting in care that it constituted a conscious disregard or indifference to the 

life, safety, or rights of persons exposed to such conduct.‖ FLA. STAT. § 768.72. 

Defendant Paradise Shores admits that it is the developer of the condominium 

project (Doc. 142, p. 18). As the developer, its contractual relationship to the Plaintiffs 

along with the facts in dispute make negligence based liability a question for trial. 

The Durden corporate defendants, as managing members of Paradise Shores, and 

the Durden estate defendants, cannot be held liable for negligent conduct resulting from 

their actions taken on behalf of Paradise Shores. A higher state of culpability is required. 

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See FLA. STAT. § 608.4228. They may, however, be liable for gross negligence. See id.

(―For the purposes of [Section 608.4228], the term  ̳recklessness‘ means acting, or failing 

to act, in conscious disregard of a risk known, or so obvious that it should have been 

known, to the manager or managing member, and known to the manager or managing 

member, or so obvious that it should have been known, to be so great as to make it highly 

probable that harm would follow from such action or failure to act.‖).

E. Statutory Warranty Claim—Count VIII

Florida Statute section 718.203 (1) provides that a ―developer shall be deemed to 

have granted to the purchaser of each [condominium] unit an implied warranty of fitness 

and merchantability. A ― ̳developer‘ means a person who creates a condominium or 

offers condominium parcels for sale or lease in the ordinary course of business.‖ Fla. 

Stat. § 718.103. Here, the Defendant Paradise Shores admits that it is the developer 

(Doc. 142, p.18), but the other defendants deny that they are developers within the 

statutory definition. 

―A condominium is created by recording a declaration in the public records of the 

county where the land is located, executed and acknowledged with the requirements for a 

deed.‖ Fla. Stat. § 718.104 (2). The Declaration of Condominium, which was recorded, 

specifically states that the developer is ―Paradise Shores of Bay County, LLC (Doc. 118, 

Exhibit 1). Likewise, the Purchase and Sale Agreement (Doc. 38, Attach. 1) identifies 

the seller as ―Paradise Shores of Bay County, LLC.‖ From the face of these documents, 

it appears that neither the Durden corporate defendants nor the Durden estate defendants 

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meet the definition of  ̳a person who creates a condominium.‘ The inquiry does not end 

here. 

The second way to be classified as a developer is to offer the condominium for sale in 

the ordinary course of business. As a lender or as a managing member of Paradise 

Shores, neither of the Durden corporate defendants could be said to have been in the 

business of offering the condominium for sale in their own right. Rather, at the time of 

the sale, Durden Enterprises, LLC, acted as an agent of Paradise Shores. And, in the case 

of Durden Enterprises II, Inc., at most, it acted as a related but distinct entity. Neither are 

developers. 

F. Violation of FLA. STAT. § 501.201—Count X

A claim for damages under Florida‘s Deceptive Trade Practices statute has three 

elements: (1) a deceptive act or unfair practice; (2) causation; and (3) actual damages. 

Wright v. Emory, 41 So. 3d 290, 292 (Fla. Dist. Ct. App. 4th Dist. 2010). 

For the reasons detailed in sections B and C, supra, the Durden corporate 

defendants and the Durden estate defendants were, at most, agents of Paradise Shores. 

As such, they are not liable under this act. Plaintiff has brought forth sufficient support to 

allow the claim to go forward as to Paradise Shores. 

IT IS ORDERED that the Motion for Summary Judgment (Doc. 142) is GRANTED 

in part, and DENIED in part. 

1. The relief requested in the Motion is GRANTED as follows: 

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a. Plaintiffs have withdrawn Count III (Fraudulent Misrepresentation). It is, 

therefore, DISMISSED with prejudice as to all defendants. 

b. Counts IV (Negligent Misrepresentation) and V (Negligence) are DISMISSED

with prejudice as to Defendants Durden Enterprises, LLC, Durden 

Enterprises II, Inc., Estate of Kedrick Earl Durden, and Michael Earl Durden as 

Personal Representative of the Estate of Kedrick Earl Durden. 

c. Plaintiffs have represented that Counts VII (Breach of Contract) and XI 

(Recission) are applicable only to Defendant Paradise Shores. To the extent 

that the amended complaint states otherwise, the counts are DISMISSED with 

prejudice as to Defendants Durden Enterprises, LLC, Durden Enterprises II, 

Inc., Estate of Kedrick Earl Durden, and Michael Earl Durden as Personal 

Representative of the Estate of Kedrick Earl Durden. 

d. Count VIII (Breach of Warranty) is DISMISSED with prejudice as to

Defendants Durden Enterprises, LLC, Durden Enterprises II, Inc., Estate of 

Kedrick Earl Durden, and Michael Earl Durden as Personal Representative of 

the Estate of Kedrick Earl Durden. 

e. Plaintiffs have accepted my conclusions regarding Count IX (Violation of F.S. 

Section 553.84) as outlined in my previous Order (Doc. 133). Count IX is, 

therefore, DISMISSED with prejudice in its entirety as to all Defendants. 

f. Count X (Violation of F.S. Section 501.201) is DISMISSED with prejudice 

as to Defendants Durden Enterprises, LLC, Durden Enterprises II, Inc., Estate 

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of Kedrick Earl Durden, and Michael Earl Durden as Personal Representative 

of the Estate of Kedrick Earl Durden. 

2. The Motion for Summary Judgment is DENIED as to:

a. Counts I (Fraud) and II (Fraudulent Concealment) as to Defendants Paradise 

Shores of Bay County, LLC, Durden Enterprises, LLC, Durden Enterprises II, 

Inc., Estate of Kedrick Earl Durden, and Michael Earl Durden as Personal 

Representative of the Estate of Kedrick Earl Durden. 

b. Count VI (Gross Negligence) as to Defendants Paradise Shores of Bay County, 

LLC, Durden Enterprises, LLC, Estate of Kedrick Earl Durden, and Michael 

Earl Durden as Personal Representative of the Estate of Kedrick Earl Durden.

c. Counts IV (Negligent Misrepresentation), V (Negligence), VII (Breach of 

Contract), VIII (Breach of Warranty), Count X (Violation of F.S. Section 

501.201), Count XI (Recission) as to Paradise Shores of Bay County, LLC. 

3. For the purpose of clarity, in light of this Order, and my previous Order (Doc. 133) 

these are the claims that remain open: 

Count I--Fraud Paradise Shores of Bay County, Robert 

Blackerby, Magnum Capital, LLC, 

Durden Enterprises, LLC, Durden 

Enterprises II, Inc., Estate of Kedrick 

Earl Durden, Michael Earl Durden as 

Personal Representative of the Estate of 

Kedrick Earl Durden, and MH I

Count II--Fraudulent Concealment Paradise Shores of Bay County, Robert 

Blackerby, Magnum Capital, LLC, 

Durden Enterprises, LLC, Durden 

Enterprises II, Inc., Estate of Kedrick 

Earl Durden, Michael Earl Durden as 

Personal Representative of the Estate of 

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Kedrick Earl Durden, and MH I

Count III--Fraudulent Misrepresentation 

Count IV--Negligent Misrepresentation Paradise Shores of Bay County, Magnum 

Capital

Count V--Negligence

Paradise Shores of Bay County, Magnum 

Capital

Count VI--Gross Negligence Paradise Shores of Bay County, LLC,

Robert Blackerby, Magnum Capital, 

Durden Enterprises, LLC, Durden 

Enterprises II, Inc., Estate of Kedrick 

Earl Durden, Michael Earl Durden as 

Personal Representative of the Estate of 

Kedrick Earl Durden, MH I 

Count VII--Breach of Contract Paradise Shores of Bay County

Count VIII--Breach of Warranty Paradise Shores of Bay County, Magnum 

Capital

Count IX--Violation of FS § 553.84

Count X--Violation of FS § 501.201 Paradise Shores of Bay County, Magnum 

Capital 

Count XI--Recission Paradise Shores of Bay County 

ORDERED on March 3, 2011

/S/ Richard Smoak 

RICHARD SMOAK

UNITED STATES DISTRICT JUDGE

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