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UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

BARBARA ANN KELLY,

Plaintiff,

v. Case No. 3:10cv392-MCR/EMT

ROBERT DAVIS, et al.,

Defendants

_______________________________/

ORDER

Plaintiff Barbara Ann Kelly brought suit against several individuals, including Robert 1

Davis and Doris Goldstein; the Seaside Community Development Corporation (“SCDC”),

Seaside Community Realty, Inc. (“SCRI”); Seaside I Homeowners’ Association, Inc.

(“Seaside I”), and Town Council, Inc. (“Town Council”). Kelly’s claims arise out of her 2

purchase of an undeveloped lot of real estate in a subdivision purportedly annexed to

Seaside, Florida; she alleges that various documents governing the subdivision and its

annexation are invalid. In a lengthy First Amended Complaint (doc. 31), Kelly brings

counts of breach of contract, promissory estoppel, fraud in the inducement, negligent

misrepresentation, conspiracy, negligence, violation of Florida’s Deceptive and Unfair

Trade Practices Act (“FDUTPA”), Fla. Stat. § 501.201, et seq., violation of Florida’s

Consumer Collection Practices Act, Fla. Stat. § 559,72(9), and she seeks a declaratory

judgment regarding the validity of certain documents at issue, alleging that they have

Kelly alleges that this court has jurisdiction based on diversity: the plaintiff is a resident of the state

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of Maryland, the defendants are residents of, or have their principal place of business in, Florida, and the

amount in controversy exceeds $75,000, estimated to be the diminution in value of her land. See 28 U.S.C.

§ 1332.

Defendants Dean Burgis, Bruce Noonan, and Emerald Coast Associates, Inc. have been voluntarily

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dismissed. (Docs. 75, 77).

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caused uncertainty regarding her ability to develop and convey her lot. She alleges that

her property has decreased in value in excess of $75,000, that she continues to incur

damages through wrongful property assessments, and that her ability to develop and

convey her property has been frustrated. Currently pending are several motions to 3

dismiss on multiple grounds. (See Docs. 52, 53, 54, 55). Having fully considered the

arguments of the parties, the court concludes that the motions are due to be granted in part

and denied in part as follows. The request for oral argument is denied at this time. 

Davis, SCDC, SCRI, Seaside I, and Town Council argue that Kelly lacks standing. 

The court disagrees at this juncture. Taking as true the allegations of the First Amended

Complaint, the court finds that Kelly has sufficiently alleged a property interest and an

injury that is traceable to the defendants. Kelly alleges she was injured in contract and that

the value of her property was diminished by fraud and conspiracy through acts and

omissions of Davis, SCDC, SCRI, Goldstein and others; she asserts injury from the Town

Council’s allegedly illegal collection of assessments; and she asserts her injury, the

diminution of value to her property, was a reasonably foreseeable consequence of

Seaside I’s alleged negligence with regard to the annexation. As to the declaratory

judgment count, the documents she challenges impact her property and according to their

terms and conditions, they run with the property and inure to the benefit of heirs and

successors. The court accepts these allegations as true for purposes of the motion to

dismiss, recognizing that standing is a threshold issue that can be raised at any time and

may be reasserted on a more complete record. 

Seaside I and Town Council argue that Kelly has failed to allege facts sufficient to

establish jurisdiction on counts against them. Kelly has set forth general allegations that

In the First Amended Complaint, Kelly references several documents, notices, and Chapter 10 of

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the W alton County Land Development Code, but she did not attach them to the complaint. They have been

attached as exhibits to the motions to dismiss, and the court has reviewed them. A document referenced in

the complaint and “attached to a motion to dismiss may be considered by the court without converting the

motion into one for summary judgment only if the attached document is (1) central to the plaintiff's claim; and

(2) undisputed.” Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005) (citing Horsley v. Feldt, 304 F.3d 1125,

1134 (11th Cir. 2002)). In this context, a document is undisputed if its authenticity has not been challenged.

Id. The plaintiff has not challenged the contents or authenticity of the documents.

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her property’s value has diminished in excess of $75.000 as the result of the improper

development of Seaside 15, the invalidity of the Seaside 15 Declaration, the invalidity of

the Seaside 15 Supplement, and the failure to properly annex Seaside 15. “Generally, it

must appear to a legal certainty that the claim is really for less than the jurisdictional

amount to justify dismissal.” Federated Mut. Ins. Co. v. McKinnon Motors, LLC, 329 F.3d

805, 807 (11th Cir. 2003) (internal marks omitted). However, “‘[i]n an action against

multiple unrelated defendants, a plaintiff relying on § 1332 must satisfy the

amount-in-controversy requirement with respect to each individual defendant, unless the

defendants may be held jointly liable to the plaintiff.’” Seguros Comercial America v. Hall,

115 F.Supp.2d 1371, 1376 (M.D. Fla. 2000) (quoting Jewell v. Grain Dealers Mutual Ins.,

290 F.2d 11, 13 (5th Cir.1961) ). Kelly has lumped together multiple actions as having

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caused the diminution in value to her property, but there is no basis alleged for holding

Seaside I and the Town Council jointly liable with Davis and the other defendants, and

there is no independent basis supporting the requisite amount in controversy as to these

counts. Accordingly, the general allegation of amount in controversy is not sufficient for

the counts against Seaside I and the Town Council. Therefore, Count VII and Count VIII

will be dismissed with leave to amend. 

The defendants assert that the plaintiff’s claims are barred by the applicable statute

of limitations. Kelly purchased Lot 13 of Subdivision 15 on March 24, 2004, and by that

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date, all of the actions alleged and governing documents had been completed (with the

exception of the ongoing property assessments and collection efforts). However, Kelly has

asserted an equitable estoppel defense to the limitations bar based on letters and actions

of the defendants, which the court finds raise issues of fact that cannot be resolved absent

See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) (adopting the case

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law of the former Fifth Circuit developed before October 1, 1981, as precedent in this circuit).

The breach of contract claim is subject to a five-year statute of limitations, Fla. Stat. § 95.11(2)(b);

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rescission, negligence, fraud, conspiracy, and FDUTPA are subject to a four-year statute of limitations, Fla.

Stat. § 95.11(3); and the consumer debt collection claim must be asserted within two years, Fla. Stat.

§559.77(4).

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a fully developed record. Moreover, the statute of limitations for the fraud-based claims 6

is subject to the discovery doctrine, and plaintiff asserts she did not discover the material

facts until 2010, which the court must accept as true in the context of a motion to dismiss. 

Accordingly, the statute of limitations defense does not require dismissal at this stage of

the proceedings.

Davis, SCDC and SCRI argue that Kelly has failed to exhaust administrative

remedies, asserting that the challenged county actions or decisions are quasi-judicial in

nature, not legislative as Kelly has characterized them in the complaint. Kelly argues that

the purchase agreement characterized the Seaside Development as a "Planned Unit

Development," which is legislative in nature under the express terms of the Walton County

Code. The court finds that more factual context is needed to determine how the

challenged documents and decisions are appropriately characterized underthe county land

development code.7

The court agrees with SCDC’s assertion that Kelly has failed to adequately allege

grounds for the remedy of rescission for purposes of the breach of contract claim or

promissory estoppel. Placing the other party back in status quo is a prerequisite to

Equitable estoppel "comes into play only after the limitations period has run and addresses itself

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to the circumstances in which a party will be estopped from asserting the statute of limitations as a defense

to an admittedly untimely action because his conduct has induced another into forbearing suit within the

applicable limitations period." Major League Baseball v. Morsani, 790 So. 2d 1071, 1079 (Fla. 2001). The

doctrine "presupposes an act of wrongdoing – such as fraud and concealment – that prejudices a party's

case" and that is "directly attributable to the opposing party's misconduct." Fla. Dep't of Health and Rehab.

Servs. v. S.A.P., 835 So. 2d 1091, 1097 (Fla. 2002).

"A legislative action by a local governing body is one that results in the formulation of a general rule

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of policy. On the other hand, a quasi-judicial action results in the application of a general rule of policy." D.R.

Horton, Inc. v. Peyton, 959 So. 2d 390, 393 (Fla. 1st DCA 2007). The character of the hearing must be

considered to determine whether a decision is quasi-judicial or legislative. Id. (finding a comprehensive land

use plan to be legislative). Defendants cite Vanderbilt Shores Condo. Ass'n, Inc. v. Collier County, 891 So.

2d 583, 584 (Fla. 2nd DCA 2004), in which a claim for declaratory relief was dismissed for the failure to pursue

administrative procedures before challenging the issuance of a building permit: “A party must exhaust its

administrative remedies before challenging the issuance of a building permit.” Id. But, the case at hand does

not challenge a building permit, and the court finds that more facts are needed to understand the nature of

the claim and the challenged documents in this instance in order to determine whether administrative

remedies needed to be exhausted before bringing suit.

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rescission, and the right to rescind is subject to waiver if the party retains the benefits of

a contract after discovering the grounds to rescind. Mazzoni Farms, Inc. v. E.I. DuPont de

Nemours and Co., 761 So. 2d 306, 313 (Fla. 2000). Kelly has not alleged that she notified

the other party of a decision to rescind, that she offered to restore any benefits received

from the contract, or that a remedy at law is inadequate. See Capital Factors, Inc. v. Heller

Fin’l, Inc., 712 F. Supp. 908, 915 (S.D. Fla. 1989). 

Davis, SCDC and SCRI argue that Kelly’s claims are precluded because the facts

on which she relies would have been matters of public record on or before March 24, 2004,

when Kelly purchased Lot 13, and the development decisions were approved by the

county. Although information in the public record that is obvious from a chain of title

examination is properly imputed to the purchaser of real estate, see M/I Schottenstein

Homes, Inc. v. Azam, 813 So. 2d 91, 95 (Fla. 2002), Kelly’s allegations are not the type of

straightforward matters of public record that a title examination necessarily would have

revealed. See id. at 93-96 (finding that whether a cause of action for fraudulent

misrepresentation exists where the putatively misrepresented information is contained in

the public record is a question of fact that should not be resolved through a motion to

dismiss). Questions exist on this record regarding uncertainties in the public record, what

statements were made or omitted, and whether the purchaser’s reliance was justifiable

under the totality of the circumstances. Id. at 94.

Goldstein is not a proper party to the conspiracy count because it is well-established

that an employee cannot be a conspirator with her employer. See Lipsig v. Ramlawi, 760

So. 2d 170 (Fla. 3d DCA 2000); Rivers v. Dillards Dep’t Store, Inc., 698 So. 2d 1328, 1333

(Fla. 1st DCA 1997). The First Amended Complaint alleges that Goldstein was the

attorney for Davis, SCDC and SCRI and prepared some documents for them in that

capacity; Kelly does not allege any actions by Goldstein outside her employment nor does

she allege that Goldstein had some personal stake in the matters. Kelly argues in

opposition to the motion to dismiss that Goldstein has a personal stake, but there are no

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such allegations of fact in the First Amended Complaint. Accordingly, the conspiracy count

against Goldstein will be dismissed. Further, the court agrees that there is no basis for

including Goldstein in the declaratory judgment count because there is no allegation that

Goldstein has any interest in the validity of the documents with respect to which Kelly

seeks declaratory judgment.

In all other respects, the court concludes without discussion that the allegations of

the First Amended Complaint are sufficient to state a plausible claim. See Fed. R. Civ. P.

8(a)(2); see also Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009).

Accordingly:

1. DefendantsRobert DavisSeaside CommunityDevelopmentCorporation, and

Seaside Community Realty, Inc.’s Motion to Dismiss the First Amended Complaint (doc.

52) is GRANTED in part and DENIED in part as follows: The request for rescission in

Count I and Count II shall be dismissed, and in all other respects the motion is DENIED. 

2. Defendant Doris Goldstein’s Motion to Dismiss Plaintiff’s First Amended

Complaint (doc. 53) is GRANTED, with leave to amend within 14 days.

3. Defendants Emerald Coast Associates, Inc. and Dean Burgis’s Motion to

Dismiss the First Amended Complaint (doc. 54) is DENIED as MOOT.

4. Defendants Seaside I Homeowners’ Association, Inc. and Seaside Town

Council, Inc.’s Motion to Dismiss Plaintiff’s First Amended Complaint (doc. 55) is

GRANTED as to Count VII and Count VIII, with leave to amend within 14 days, and

DENIED as MOOT as to Bruce Noonan. The motion to strike is DENIED. 

 DONE AND ORDERED on this 22nd day of March, 2012.

 s/ M. Casey Rodgers

M. CASEY RODGERS

CHIEF UNITED STATES DISTRICT JUDGE

Case No. 3:10cv392/MCR/EMT

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