[DO NOT PUBLISH] 

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 17-11237

________________________

D.C. Docket No. 0:15-cv-61706-UU

VIRIDIS CORPORATION,

a Nevada corporation,

BECK-FORD CONSTRUCTION, LLC,

a Texas corporation, et al.,

 Plaintiffs-Appellants,

versus

TCA GLOBAL CREDIT MASTER FUND, LP,

a Grand Cayman corporation,

ROBERT D. PRESS, individually, et al.

 Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(January 3, 2018)

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Before WILSON and ROSENBAUM, Circuit Judges, and ROBRENO,

* District 

Judge.

ROBRENO, District Judge: 

Viridis Corporation (“Viridis”), Beck-Ford Construction, LLC 

(“Beckford”), LCTI Low Carbon Technologies International, Inc. (“LCTI”), Ideal 

National Mechanical Corporation (“Ideal”), Commercial & Institutional 

Mechanical, Ltd. (“C&I”), Sustainable Energy Properties, Inc. (“SEP”), WK 

Management Services, Inc. (“WKMS”), and Bryan Scott Jarnagin (collectively 

“Appellants” or “Borrowers”), appeal the order of the United States District Court 

for the Southern District of Florida dismissing in its entirety their Third Amended 

Complaint (“TAC”) for failure to state claims upon which relief may be granted. 

TCA Global Credit Master Fund, LP (“Global”), TCA Fund Management Group 

(“Fund Management Group”), TCA Global Credit Fund Group, Ltd, Inc. (“Credit 

Fund Group”), Robert Press, and Donna Silverman (collectively “Appellees”) were 

named as defendants in the TAC, which alleged statutory claims under RICO and 

the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”), and common 

law claims for usury, misrepresentation, conspiracy, and breach of contract. The 

claims all arose from high interest rate financing agreements pursuant to which 

Appellants borrowed significant funds. We have jurisdiction pursuant to 28 U.S.C. 

 * Honorable Eduardo C. Robreno, United States District Judge for the Eastern District of 

Pennsylvania, sitting by designation. 

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§ 1291. Because we conclude that the district court’s dismissal order was too 

broadly drawn, we affirm in part and reverse in part.

I.

The history of the parties’ commercial loan transactions is complex and 

lengthy.

1

 The parties entered into a First Credit Agreement (“FCA”) in November 

2013 providing a credit facility2 in the amount of $10 million secured by a first 

prior security interest in the Borrowers’ collateral.

3

 The FCA contained a 

“lockbox” provision requiring the Borrowers’ receivables to be accumulated in a 

designated account to be used to repay the loan. It also contained a release 

provision purporting to release any and all claims relating to or arising out of any 

of the loan documents executed by the parties and a waiver provision stating that 

each Borrower waived every present and future defense or claim against the 

lenders. 

Unhappy with Global’s failure to advance loan proceeds even though the 

value of the collateral exceeded the amount of the credit facility, in February 2014 

Appellants requested that Global allow them to obtain financing from another 

lender. Global refused the request, and Appellants were unable to complete a

 1 The facts, accepted as true, are taken from the TAC.

2 A “credit facility” refers to a line of credit provided in increments with each incremental 

loan released according to agreed-upon conditions.

3 Only four of the Appellants were parties to the FCA: LCTA, C&I, SEP, and WKMS.

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planned acquisition deal. At this same time, Global allegedly violated the lockbox 

agreement, impaired Appellants’ cash flow, and left them without sufficient funds 

to pay their debts and finance their operations. In May 2014, the parties executed a 

First Amendment to the FCA to provide Appellants with additional working 

capital. This agreement also included release and waiver provisions.

Again unhappy with Global for withholding lockbox funds, Appellants 

sought refinancing of the debt from another lender in the summer of 2014. They 

secured a term sheet for a $6 million revolving credit line to repay the outstanding 

amount owed under the FCA and to cancel Global’s first-priority security interest 

in the Borrowers’ collateral. Global allegedly refused to cooperate with the new 

lender’s due diligence efforts. In September 2014, Global issued a default letter to 

the Borrowers and represented to the new lender that the Borrowers had failed to 

comply with their obligations concerning the lockbox account and their reporting 

duties. Because of the default letter, the new lender refused to close the new loan. 

Appellants allege that one month before it issued the default letter, Global had 

unilaterally closed the lockbox account — making it impossible for the Borrowers 

to direct customer deposits to that account — and did not provide them with timely 

information about a replacement lockbox account established at a different bank.

Notwithstanding these difficulties, Global proposed that the Appellants

accept financing in the form of a $500,000 credit advance from Global to acquire 

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Beckford. Global allegedly required that a new borrower entity, Viridis, be 

incorporated in Nevada to consummate the Beckford acquisition. This resulted in 

the parties’ execution of a Second Amendment to the FCA and a Second 

Replacement Revolving Note on October 24, 2014 in the amount of $3.77 million, 

representing the unpaid principal and interest and other fees due under the FCA, 

plus the new advance. The Second Amendment also contained release and waiver 

provisions. 

In December 2014, Global’s counsel prepared documents for a replacement 

credit facility of $4.1 million under a Second Credit Agreement (“SCA”). This 

was despite the fact that the $500,000 advance evidenced by the Second 

Amendment and the anticipated advance of $4.1 million in additional financing

under the SCA would have been within the amount of credit facility already 

provided by the FCA. Global insisted on the new credit agreement. Shortly before 

closing, Appellant Jarnagin, the principal behind the corporate entity borrowers, 

was presented with numerous documents including a personal guaranty and a 

requirement that the borrowers under the FCA accept liability for the performance 

of the obligations of the borrowers under the SCA and the related loan documents. 

The SCA was executed on December 31, 2014. As a part of the documents 

contained in the SCA, Viridis, Beckford, and Jarnagin agreed to the following 

release provision:

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14.20 Release. In consideration of the mutual promises and covenants 

made herein, and other good and valuable consideration, the receipt 

and sufficiency of which is hereby acknowledged, and intending to be 

legally bound hereby, each Credit Party hereby agrees to fully, 

finally and forever release and forever discharge and covenant not to 

sue the Lender Indemnitees, and each one of them, from any and 

all debts, fees, attorneys’ fees, liens, costs, expenses, damages, sums 

of money, accounts, bonds, bills, covenants, promises, judgments, 

charges, demands, claims, causes of action, Proceedings, suits, 

liabilities, expenses, obligations or contracts of any kind 

whatsoever, whether in law or in equity, whether asserted or 

unasserted, whether known or unknown, fixed or contingent, under 

statute or otherwise, from the beginning of time through the 

Effective Date, including any and all claims relating to or arising 

out of any financing transactions, credit facilities, notes, debentures, 

security agreements, and other agreements, including each of the 

Loan Documents, entered into by the Credit Parties with Lender

and any and all claims that the Credit Parties do not know or suspect 

to exist, whether through ignorance, oversight, error, negligence, or 

otherwise, and which, if known, would materially affect their decision 

to enter into this Agreement or the related Loan Documents. The 

provisions of this Section shall survive the satisfaction and payment of 

the other Obligations and the termination of this Agreement.

SCA ¶ 14.20 (emphasis added).4

 Additionally, as part of the SCA, Appellants 

LCTI, C&I, SEP, WKMS, and Ideal executed a Repayment Agreement containing 

the same release provision, and the following waiver clause:

11.4 WAIVER OF DEFENSES. THE CREDIT PARTIES WAIVE 

EVERY PRESENT AND FUTURE DEFENSE, CAUSE OF 

 4 The release provision contained in the earlier credit facility documents, while 

containing a similarly extensive list of the types of things released, included slightly different 

language. The FCA release, which is materially identical to the releases included in both 

amendments to it, provided that each Borrower “expressly agrees that the foregoing release and 

waiver agreement is intended to be as broad and inclusive as permitted by the laws governing the 

Credit Agreement.” It further provided that, “[i]n addition to, and without limiting the generality 

of foregoing, each of the Borrowers further covenants with and warrants unto the Lender and 

each of the other Lender Indemnitees, that as of the date hereof, there exists no claims. . . .”

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ACTION, COUNTERCLAIM OR SETOFF WHICH THE CREDIT 

PARTIES MAY HAVE AS OF THE DATE HEREOF TO ANY 

ACTION BY LENDER IN ENFORCING THIS AGREEMENT AND 

THE OTHER LOAN DOCUMENTS. THE CREDIT PARTIES 

WAIVE ANY IMPLIED COVENANT OF GOOD FAITH AND 

RATIFIES AND CONFIRMS [sic] WHATEVER LENDER MAY 

DO PURSUANT TO THE TERMS OF THIS AGREEMENT AND 

THE OTHER LOAN DOCUMENTS AS OF THE DATE OF THIS 

AGREEMENT. THIS PROVISION IS A MATERIAL 

INDUCEMENT FOR LENDER GRANTING ANY FINANCIAL 

ACCOMMODATION TO BORROWER.

Repayment Agreement § 11.4 (capitalization and underlining in original).

All proceeds from the SCA, minus the fees deducted by Global, were used 

by Jarnagin and his Nevada entity Viridis to acquire Beckford. As a result of the 

closing, Global obtained a first-priority lien on the Borrowers’ and Beckford’s

assets. Global’s first-lien position, together with the guarantees from Jarnagin, 

allegedly diminished Appellants’ ability to obtain financing from any other lender 

because Global would need to give its express consent.

By February 2015, Global began withholding amounts due to Beckford and 

Ideal from the lockbox without explanation or notice. In March 2015, when 

Jarnagin asked about their alleged misuse of the lockbox, Global began to ask for 

accelerated payments of the principal, despite Jarnagin’s request for an extension 

of the maturity date in accordance with the terms of the SCA. Appellees 

Silverman and Press, Global’s highest-ranking executives, sent an e-mail to 

Jarnagin, stating that they would cause Global to issue default notices, after which 

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they would appoint bankers to take control of the businesses if Jarnagin continued 

to question or object to their use of the lockbox or Global’s request for increased 

payments. In a March 2015 e-mail, Press renewed the threats he made earlier, 

advising Jarnagin that the Borrowers must do what Global demanded because, as 

he told Jarnagin at an earlier meeting, “[t]his is not a discussion of equals” and 

Global “is [as] serious as a tumor.”

Between 2014 and 2015, Jarnagin continued to seek refinancing from 

another lender. In April 2015, Jarnagin requested Silverman provide a payoff 

amount for the SCA in connection with a commitment letter received from a Texas 

lender. Under the SCA, the Borrowers had the right to pay off the outstanding 

balance without penalty, as of April 1, 2015. Immediately following Jarnagin’s 

request for the payoff statement, Silverman informed Jarnagin of an alleged 

default. Also in April 2015, Silverman informed Jarnagin that Press had directed 

that Global was prohibited from reinstating the SCA to a non-default status unless 

Jarnagin signed an audit statement. Jarnagin refused to sign the audit statement 

because there was no default and because the statement was materially false. 

Global then issued a formal notice of default dated May 1, 2015, alleging that a 

failure to pay under the Repayment Agreement triggered the cross-default and 

cross-collateralization provisions of both the SCA and the Repayment Agreement. 

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This notice of default caused the discussions with the other lender to break off. 

Thereafter, Global continued to make collection demands.

The suit was filed on August 14, 2015. The TAC, the fourth iteration of 

Appellants’ complaint, was filed on March 31, 2016, and asserted the following 

claims: (1) Breach and Bad Faith under the FCA against Global; (2) Fraudulent 

Misrepresentation against all Defendants; (3) Breach and Bad Faith under the SCA 

on behalf of Beckford, LCTA, and WKMS against Global; (4) Fraudulent 

Misrepresentation against all Defendants; (5) Tortious Interference against all 

Defendants; (6) Damages for Florida Usury Law Violations against Global; (7) 

Declaratory Relief for Florida Usury Law Violations against Global; (8) Violation 

of the FDUTPA against all Defendants; (9) Damages from Civil Conspiracy 

against all Defendants; (10) Violation of RICO under 18 U.S.C. § 1962(c) against 

Press, Silverman, Global, Credit Fund Group, and Fund Management Group; and 

(11) Violation of RICO 18 U.S.C. § 1962(d) against Press, Silverman, Credit Fund 

Group, and Fund Management Group.

The district court granted Appellees’ motion to dismiss all claims in the 

TAC, holding that “it is clear that Plaintiffs effectively waived and released 

Defendants from any and all claims that arose prior to the execution of each 

agreement.” [ECF No. 171 at 30 (footnote omitted)]. The only claim not covered 

by the release — because it pertained to Appellees’ conduct subsequent to the 

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signing of the final agreement — was the claim in Count Three for Breach of 

Contract and Bad Faith under the SCA. However, the district court found that 

Count Three failed to state a plausible claim. [Id.] Accordingly, the entire TAC 

was dismissed.

II.

We review de novo a dismissal for failure to state a claim. Quality Auto 

Painting Ctr. of Roselle, Inc. v. State Farm Indem. Co., 870 F.3d 1262, 1270 (11th 

Cir. 2017) (citing Spanish Broad. Sys. of Fla., Inc. v. Clear Channel Commc’ns., 

Inc., 376 F.3d 1065, 1070 (11th Cir. 2004)). “We must reverse the dismissal if the 

complaint ‘state[s] a claim to relief that is plausible on its face,’ Ashcroft v. Iqbal, 

556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 

(2007)), after we accept the factual allegations as true and draw all reasonable 

inferences in favor of the claimant. . . .” Id. (citing Spanish Broad. Sys., 376 F.3d 

at 1070).

III.

Appellants argue that the district court erred in finding that, save for Count 

Three, the release and waiver provisions extinguished all of their claims. They 

assert that (1) the releases in the SCA and the Repayment Agreement “were not 

broad enough to cover” their claims related to the FCA; and (2) since all of the 

release provisions were premised upon Global’s performance of its material 

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promises and covenants in the Credit Agreements and Global breached its material 

obligations as lender, none of the claims were barred by the releases.5

 We agree 

with the district court that the release and waiver provisions in the SCA 

extinguished Appellants’ claims pertaining to events that occurred before the 

parties executed the SCA, including the claims in Count One alleging a breach of 

the FCA and Count Five alleging tortious interference with Appellants’ efforts to 

refinance the FCA.

6

 

Appellants first argue that unlike the release in the FCA, the releases in the 

SCA and the Repayment Agreement were too narrow to preclude all of the claims 

they are raising here. They assert that the release in the SCA was materially 

different from the release in the FCA because the SCA release referred to a 

different agreement, a different set of parties, and different loan documents. They 

also contend the SCA release was not as broad. For example, they note that the

releases in the SCA and the Repayment Agreement use the phrase “including” to 

introduce a description of the claims extinguished, but the release in the FCA uses 

the broader phrase, “including, without limiting the generality of the foregoing.” 

 5 Although Appellants discuss the releases and waivers in the FCA and the Amendments 

thereto asserting that those provisions cannot bar their claims, we do not need to address these 

arguments since the district court did not rely upon those provisions. [ECF 171 at 34-35; see 

also id. at 32 (“this Court need not delve into the clauses in all of the agreements since the 

Second Credit Agreement, as well as the related Repayment Agreement, contains provisions 

pursuant to which Plaintiffs purport to waive and release and any and all claims and damages of 

the type asserted in the Third Amended Complaint.”).]

6 We address claims for events happening after the SCA was executed in Section V 

below.

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They contend that the releases in the SCA and Repayment Agreement, according 

to their plain meaning, did not cover the claims related to the FCA. We conclude 

that the district court did not err in finding that there were no material distinctions 

between the releases in the two sets of agreements and that the release in the SCA 

barred in their entirety Count One’s claim for breach of the FCA and Count Five’s 

claim for tortious interference.

The SCA’s use of the word “including” comes after a list of exactly what 

was being released — “causes of action, Proceedings, suits, liabilities, expenses, 

obligations or contracts of any kind whatsoever . . . whether known or unknown”

— and comes before examples of things intended to be on the list, specifically, 

“any and all claims relating to or arising out of any financing transactions . . . 

including each of the Loan Documents.” The FCA contained a similar list of 

exactly what was being released: “any and all . . . promises, judgments, charges, 

demands, claims, causes of action, suits, Proceedings, liabilities, expenses, 

obligations or contracts of any kind whatsoever. . . .” The “including, without 

limiting the generality of the foregoing” clause likewise stated examples of things 

on this list, “including without limitation, each of the Loan Documents, entered 

into by any Borrower with Lender and any and all claims that any Borrower does 

not know or suspect to exist. . . .” The scope of these several releases is equally 

broad. More importantly, the list of examples in each Agreement specifies the 

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very things upon which Appellants sued, i.e., the Loan Documents they were 

signing. Appellants cite no authority to support their assertion that the minor

difference in wording creates a material difference in the construction of the 

clauses, nor do they state any cogent argument that the difference in wording 

changes the fact that by agreeing to the SCA they released the very claims upon 

which they sued.7

 Moreover, their argument that the releases in the SCA and 

Repayment Agreement “according to their plain meaning, did not cover the claims 

related to the First Credit Agreement” is also meritless since the releases 

unambiguously specify that they cover all “causes of action . . . obligations or 

contracts of any kind whatsoever . . . whether known or unknown . . . from the 

beginning of time through the Effective Date . . . .” Appellants’ assertion that the 

SCA release does not reach accrued claims related to the FCA would unreasonably

restrict the meaning of the provision. See Premier Ins. Co. v. Adams, 632 So. 2d 

1054, 1057 (Fla. Dist. Ct. App. 1994) (“an interpretation which gives a reasonable 

meaning to all provisions of a contract is preferred to one which leaves a part 

useless or inexplicable” (citing First Nat’l Bank v. Savannah, F. & W. Ry. Co., 18 

So. 345 (Fla. 1895)); Mohr Park Manor, Inc. v. Mohr, 424 P.2d 101, 111 (Nev. 

1967) (“[A] contract should be construed, if logically and legally permissible, so as 

 7 Whether the “Credit Parties” listed in the FCA and SCA differed is also immaterial

since every individual or entity named as a plaintiff in the TAC was a signatory to the SCA or 

the Repayment Agreement and is bound by the release provisions thereof.

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to effectuate valid contractual relations, rather than in a manner which would 

render the agreement invalid, or render performance impossible); Restatement 

(Second) of Contracts, § 202(2) (1981) (“A writing is interpreted as a whole, and 

all writings that are part of the same transaction are interpreted together.”). 

Appellants also argue that the district court erred in holding that their claims 

were released because it “failed to take into account that all of the releases were 

premised upon the mutual promises and covenants in the Credit Agreements,” 

which “were consideration for the releases.” This argument misstates the district 

court’s holding. It was not ruling on “all of the releases.” It relied only on the 

release in the SCA, which it found released any claim that accrued before that 

agreement was executed. To the extent that Appellants argue that the SCA release 

fails for lack of consideration because of Appellees’ subsequent alleged breach, 

this too is incorrect. In the SCA, Appellants released any accrued claim in 

exchange for the financing the released parties provided. The only claim that the 

SCA was breached, Count Three, does not allege that the released parties failed to 

provide the financing; the only claim of breach concerns their post-execution 

misuse of the lockbox, TAC ¶¶ 204-211, and their refusal to permit the Borrowers 

to arrange an early payoff. Id. ¶¶ 212-214. These allegations do not negate the 

fact that Appellants received the financing provided for in the Agreement and have 

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not sought to rescind the Agreement and repay the amount borrowed. Thus, they 

cannot claim a lack of valuable consideration for the release.

IV.

Appellants next assert that the district court erred in dismissing with 

prejudice the usury claims in Counts Six and Seven based on the releases. They 

argue that while each agreement ostensibly contained a Nevada choice-of-law 

provision, (1) Florida’s usury law was applicable to the credit agreements since the 

TAC alleges that there was no “normal relation” between the parties’ transactions 

and the state of Nevada, see Cont’l Mortg. Investors v. Sailboat Key, Inc., 395 So. 

2d 507, 513 (Fla. 1981) (where usury case involves a conflicts question, Florida 

courts looks to see if a normal relation exists between the transaction and the 

foreign jurisdiction),8 (2) the Nevada choice-of-law clauses were inserted by 

Global into the agreements, and (3) under Florida law, usury claims cannot be 

released or waived in loan documents. We find that the district court did not err in 

dismissing the usury claims regardless of which state’s law applies.

The Agreements all provide that Nevada law controls their interpretation. A 

district court sitting in diversity applies the choice-of-law rules of the state in 

which it sits, in this case Florida. Rando v. Gov’t Employees Ins. Co., 556 F.3d 

 8 While Viridis is incorporated under the laws of Nevada, Appellants nonetheless argue 

that there is no normal relation to Nevada because the state of incorporation was dictated by 

Global for the purpose of justifying the importation of Nevada’s law solely to take advantage of 

its lack of a usury statute.

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1173, 1176 (11th Cir. 2009). Under Florida law, contractual choice-of-law 

provisions are presumptively enforceable.9

 Default Proof Credit Card Sys., Inc. v. 

Friedland, 992 So. 2d 442, 444 (Fla. Dist. Ct. App. 2008). However, a party may 

overcome this presumption by showing that a provision contravenes the strong 

public policy of Florida or is unjust or unreasonable. Id. “The term ‘strong public 

policy’ means that the public policy must be sufficiently important that it 

outweighs the policy protecting freedom of contract. Thus, routine policy 

considerations are insufficient to invalidate choice-of-law provisions in a contract.” 

Walls v. Quick & Reilly, Inc., 824 So. 2d 1016, 1018-19 (Fla. Dist. Ct. App. 2002) 

(citing Mazzoni Farms, Inc. v. E.I. DuPont De Nemours and Co., 761 So. 2d 306, 

312 (Fla. 2000)). Appellants argue that applying Nevada law, which places no 

limit upon the rate of interest that may legally be charged, would violate a strong 

public policy in Florida against usury. We cannot agree.

Florida has a civil usury statute that defines usury as charging more than 18 

percent interest annually on a loan of $500,000 or less. Fla. Stat. § 687.02(1). 

Where, as here, the amount financed exceeds $500,000, the civil statute does not 

apply, but usury is also made a crime in Florida. See id. § 687.071. It is a 

misdemeanor of the second degree to charge between 25 percent and 45 percent 

 9 Under Florida law, a court also “makes a separate choice of law determination with 

respect to each particular issue under consideration.” Trumpet Vine Invs., N.V. v. Union Capital 

Partners I, Inc., 92 F.3d 1110, 1115 (11th Cir. 1996) (citing Dep’t of Corr. v. McGhee, 653 So. 

2d 1091, 1092-93 (Fla. Dist. Ct. App. 1995), aff’d, 666 So. 2d 140 (Fla. 1996); Colhoun v. 

Greyhound Lines, Inc., 265 So. 2d 18, 21 (Fla. 1972)). 

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interest per annum, and a third degree felony to charge higher than 45 percent 

interest per annum. Id. § 687.071(1)(g)(2), (3). Even though usury is a crime, the 

Florida courts have held that usury may be waived in a civil case. Gunn Plumbing, 

Inc. v. Dania Bank, 252 So. 2d 1, 4 (Fla. 1971) (citing Yaffee v. Int’l Co., Inc., 80 

So. 2d 910 (Fla. 1955)). 

In Gunn Plumbing, after the borrowers had failed to repay a loan and the 

defendant bank brought suit, the borrowers raised as an affirmative defense that the 

rate of interest on the debt was usurious. Thereafter, the parties entered into a 

stipulation agreement to refinance the loan that also provided that the borrowers 

“hereby Withdraw the several defenses which they have raised in their answer and 

such defendants do hereby Irrevocably admit each and every allegation in the 

plaintiff’s complaint.” Id. at 2. The loan again fell into arrears, and the bank again 

initiated suit. The borrowers again raised an affirmative defense of usury. 

The Florida Supreme Court held that the stipulation waiving the affirmative 

defense of usury was enforceable in the second lawsuit:

This Court has followed the general rule that usury is purely a 

personal defense created by statute for the protection of borrowers 

and, therefore, any borrower may waive his right to claim the benefit 

of such statute. . . . A stipulation properly entered into and relating to 

a matter upon which it is appropriate to stipulate is binding upon the 

parties and upon the Court. . . . The usury statute in this State does 

not have the effect of invalidating contracts for interest at a rate higher 

than the statutory maximum, but only accords to the obligor the 

privilege of setting up, or waiving, affirmative defenses of usury in 

respect to such contracts. 

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Id. at 4 (citation and paragraph break omitted).

Because usury is waivable under Florida law and does not invalidate an 

otherwise binding contract, Appellants cannot show that deterring usury is a 

“strong public policy.” Without such a showing, there is no cause to disregard the 

parties’ choice of Nevada law to control their agreement irrespective of whether 

there is “normal relation” between the parties’ transactions and Nevada. Further, 

even if we were to conclude otherwise, Appellants’ claims would fare no better 

since the claims were validly released under Florida law.10 Accordingly, the 

district court did not err in determining that the two usury-based claims, Counts 

Six and Seven, were implausible because they were released.

V.

Appellants next argue that, like the claim in Count Three that the district 

court excluded from the reach of the release because it involved conduct occurring 

 10 We also conclude that that there is no conflict between Nevada law and Florida law 

governing the efficacy of the releases with regard to the usury claims since the law of both states 

is essentially the same. Under Nevada law, “release terms are only enforceable against claims 

contemplated at the time of the signing of the release and do not apply to future causes of action 

unless expressly contracted for by the parties.” Clark v. Columbia/HCA Info. Servs., Inc, 25 P.3d 

215, 223-24 (Nev. 2001). A release term, like all contract terms, will be enforced as written 

where the term “is clear on its face.” Canfora v. Coast Hotels & Casinos, Inc., 121 P.3d 599, 

603 (Nev. 2005). Similarly in Florida, a release “will ordinarily be regarded as embracing all 

claims or demands which had matured at the time of its execution.” Hold v. Manzini, 736 So. 2d 

138, 141 (Fla. Dist. Ct. App. 1999) (quotation omitted). Clear and unambiguous release 

provisions are enforceable. Brewer v. Laborfinders of Tampa, 944 So. 2d 1102, 1103 (Fla. Dist. 

Ct. App. 2006); Plumpton v. Cont’l Acreage Dev. Co., Inc., 830 So. 2d 208, 210 (Fla. Dist. Ct. 

App. 2002) (‘“Where the language of the release is clear and unambiguous, we cannot indulge in 

construction or interpretation of its plain meaning.’” (quoting Hury v. Leatherby Ins. Co., 380 

So. 2d 432, 433 (Fla. 1980))).

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after the release was executed, Count Two’s common law claim for fraudulent 

misrepresentation, Count Four’s common law claim for fraudulent

misrepresentation, Count Eight’s claim for violation of the FDUTPA, Count 

Nine’s claim for civil conspiracy, and the two RICO claims in Counts Ten and 

Eleven also involved misconduct after the SCA was executed and should not have

been dismissed. We conclude that most of this argument is not supported by the 

allegations in the TAC; however, there are portions of some of the non-contract 

claims that allege tortious conduct occurring after the execution of the release in 

the SCA, and the district court improperly included those claims within the ambit 

of the release and waiver without distinguishing when they accrued.

11 We also 

agree with Appellants that Counts Two and Four were improperly dismissed. 

 11 As noted above, courts are to undertake a separate choice-of-law analysis for each 

claim. While we remand certain claims and portions of claims that allege conduct occurring 

after the execution of the release in the SCA, unless otherwise specified we express no opinion 

with regard to which state’s law applies to those claims. We note only that our cases hold that a 

choice-of-law provision that by its terms governs only the parties’ contractual relationship may

not provide the choice-of-law for non-contract claims. See Green Leaf Nursery v. E.I. Dupont de 

Nemours & Co., 341 F.3d 1292, 1300-01 (11th Cir. 2003) (finding that a choice-of-law provision 

that stated “this release shall be governed and construed in accordance with the laws of the State 

of Delaware” “calls for the application of the selected law to determine only the scope and effect 

of the release” and not any related tort claims (citing, inter alia, Rayle Tech, Inc. v. DEKALB

Swine Breeders, Inc., 133 F.3d 1405, 1409-10 (11th Cir. 1998)). If the choice-of-law provision 

of the agreement is narrow, it only governs claims relating to the contract. See Cooper v. 

Meridian Yachts, Ltd., 575 F.3d 1151, 1162 (11th Cir. 2009) (“A choice of law provision that 

relates only to the agreement will not encompass related tort claims.”). In Green Leaf Nursery, 

we distinguished more broad choice-of-law provisions such as those that refer “to any and all 

claims or disputes arising out of” an agreement. Id. at 1300. It is for the district court to decide 

in the first instance where the choice-of-law clause in the SCA falls on that spectrum.

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A.

Count Two’s common law claim for fraudulent misrepresentation is based 

on alleged misrepresentations made prior to the execution of the FCA, namely that 

Appellees were ready, willing and able to provide the $10 million in financing and 

would timely transfer excess funds in the lockbox to the Borrowers. TAC ¶ 193.

Count Four’s common law claim for fraudulent misrepresentation is based on 

alleged misrepresentations made prior to the execution of the SCA, namely that 

Appellees would timely transfer loan proceeds and would permit a twelve month 

repayment of amounts due under the SCA. TAC ¶¶ 115-16, 217-24. The district 

court held that this conduct was also covered by the release and waiver in the SAC. 

[ECF 110 at 31 n.2] However, the district court overlooked the fact that both 

Florida and Nevada prohibit a contractual waiver that exculpates a contracting 

party’s fraudulent misconduct. See Oceanic Villas, Inc. v. Godson, 4 So. 2d 689, 

690-91 (Fla. 1941) (holding that a contract provision cannot preclude a fraud claim 

unless the contract expressly states that it is incontestable on the ground of 

fraud);12 Burton v. Linotype Co., 556 So. 2d 1126, 1127 (Fla. Dist. Ct. App. 1989) 

(‘“Fraud is an intentional tort and thus not subject to the cathartic effect of the 

 12 We recently observed that the Florida Supreme Court has not overruled Oceanic Villas, 

explicitly or implicitly, and the Florida intermediate courts of appeal have continued it apply it to 

contractual waivers of intentional misconduct. Global Quest, LLC v. Horizon Yachts, Inc., 849 

F.3d 1022, 1027 (11th Cir. 2017) (citing cases). 

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21

exculpatory clauses found in contracts.’” (quoting L. Luria & Son, Inc. v. 

Honeywell, Inc., 460 So. 2d 521, 523 (Fla. Dist. Ct. App. 1984))); Lawyers Title of 

Nev., Inc. v. Bonar, 381 P.3d 633 (table), 2012 WL 1923697, at *2 (Nev. May 23, 

2012) (holding that an exculpatory clause was ineffective to immunize liability for 

a knowing misrepresentation) (citing Restatement (Second) of Contracts § 195(1) 

(1981) (“A term exempting a party from tort liability for harm caused intentionally 

or recklessly is unenforceable on grounds of public policy.”)). While the release 

and waiver provisions in the SCA are broad in the extreme, they do not state that 

they are incontestable on the ground of fraud. Accordingly, we find the district 

court erred in determining that the common law fraud claims in Counts Two and 

Four were implausible on the strength of the release.

B.

Count Eight asserts as deceptive acts or unfair practices (1) charging of fees 

for “advisory” services that allegedly were not provided, (2) charging usurious 

interest in the FCA, (3) misrepresentations regarding the lockbox created under the 

FCA, and (4) falsely threatening to issue notices of default. TAC ¶¶ 262-65. The 

only substantive references to fees for “advisory” services contained in the TAC 

refer to fees collected at the execution of the First Amendment to the FCA, id. ¶ 

85. Thus, these fees fall within the reach of the release. The lockbox and usury 

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misrepresentation allegations also fall within the release since the allegations limit 

the claim to the lockbox created and the interest charged under the FCA. 

However, the false threats of default mentioned in Count Eight are not as 

narrow. The alleged threats to declare defaults occurred both before and after 

execution of the release in the SCA. While the allegations of such threats 

contained in paragraphs 84, 93-99 and 111 of the TAC refer to defaults of the FCA

and Second Amendment to the FCA, the allegations contained in paragraphs 136-

47 clearly relate to threats to issue default notices of the SCA in order to prevent 

the Borrowers from seeking refinancing of the outstanding debt owed under that 

Agreement. Thus, Count Eight, to the extent it alleges deceptive conduct in 

Appellees’ threats to issue default notices under the SCA in order to prevent the 

Borrowers from seeking refinancing of the outstanding debt owed under that 

Agreement, cannot fall within the release and waiver contained in the SCA since it 

is post-execution conduct. The Borrowers only released claims existing “from the 

beginning of time through the Effective Date,” and only waived claims “WHICH 

THE CREDIT PARTIES MAY HAVE AS OF THE DATE HEREOF.” Similarly, 

since the alleged conspiracy in Count Nine was to commit the acts listed in Counts 

Two, Four, Five, Six and Eight, see id. ¶ 267, Count Nine’s claim of conspiracy to 

commit post-release conduct is also not subject to the release and waiver. Because 

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this aspect of Counts Eight and Nine is not rendered implausible for the reasons 

stated by the district court, it was error to dismiss them with prejudice.13

C.

The RICO claims in Counts Ten and Eleven allege two types of racketeering 

activity: collecting unlawful/usurious debts and wire fraud. Because they are 

based on the usury allegation contained in Count Six, we conclude that the district 

court did not err when it dismissed the RICO usury allegations in Counts Ten and 

Eleven since under the pleadings, it is implausible that Appellees were using 

racketeering activity to commit usury.

The RICO wire fraud claims in Counts Ten and Eleven are based in part on 

allegations that (1) Appellees induced the Borrowers to execute the FCA and 

related Loan Documents through the use of false statements in emails and 

telephone calls; and (2) prior to the execution of the SCA, Appellant Silverman (a) 

represented to Jarnagin in a telephone call that Global would timely transfer 

 13 We note that Count Eight specifies that it is brought pursuant to Florida’s unfair trade 

practices law. To establish a FDUTPA claim, a plaintiff must prove three elements: (i) a 

deceptive act or unfair practice; (ii) causation; and (iii) actual damages. Hetrick v. Ideal Image 

Dev. Corp., 758 F. Supp. 2d 1220, 1229 (M.D. Fla. 2010); Bookworld Trade, Inc. v. Daughters 

of St. Paul, Inc., 532 F. Supp. 2d 1350, 1364 (M.D. Fla. 2007). To establish a claim under the 

analogous Nevada unfair trade practices statute, Nev. Rev. Stat. § 41.600(1), a plaintiff must 

prove that (1) an act of consumer fraud (defined in § 41.600(2)(e) to include a “deceptive trade 

practice”) by the defendant (2) caused (3) damage to the plaintiff. Picus v. Wal-Mart Stores, 

Inc., 256 F.R.D. 651, 658 (D. Nev. 2009). We leave it to the district court to decide in the first 

instance whether the remaining post-release-execution claims should be controlled by the SCA’s 

choice-of-law provision and, if it determines that Nevada law controls the claim, whether leave 

to amend should be freely granted in the district court’s discretion under Rule 15(a)(2) to allege 

the analogous Nevada claim.

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lockbox proceeds, and (b) committed wire fraud to prevent Appellants from being 

able to refinance the outstanding balance of the FCA. TAC ¶¶ 35-36, 92, 114-15, 

283, 285. We find that these allegations are within the reach of the release in the 

SCA.

However, other RICO wire fraud allegations refer to post-release-execution 

racketeering acts. Specifically, the two RICO claims incorporate facts asserting 

wire fraud was committed to prevent Appellants from refinancing the SCA. Id. ¶ 

285. These wire fraud allegations occurred after the release was executed and are 

not, accordingly, within its reach. We reverse the district court’s dismissal order to 

the extent that it reached this portion of the RICO counts.

VI.

Finally, Appellants argue that Count Three’s claim for breach and bad faith 

under the SCA stated a plausible claim, and it was error to dismiss it with 

prejudice. In so dismissing it, the district court held that, while the claim was 

brought in the name of Beckford, LCTI, and WKMS, there were no allegations that 

Global breached an obligation to LCTI and WKMS under the terms of the SCA.

14 

[ECF 171 at 41.] Rather, the TAC alleged that the SCA required Global to make 

 14 Appellants do not appear to raise any specific argument regarding the dismissal of the 

claim of LCTI and WKMS. 

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payment each week of the Net Amount15 due and owed to Beckford under the 

second lockbox agreement and to provide an accounting for the lockbox, and 

Global failed to do so in accordance with the terms of the agreement. [Id.] With 

regard to Beckford’s claim in Count Three, the district court held that the 

allegation of breach was implausible since (1) the terms of the agreement gave 

Global the “sole and absolute” discretion to transfer monies out of the lockbox to 

Beckford, and (2) Beckford failed to plead that it was entitled to the Net Amount 

from the lockbox. [Id. at 41-42.] The court noted that Section 2(2.1)(e)(i)(4)(ii) of 

the SCA provided that Beckford would receive the Net Amount only if (1) six 

conditions precedent are met, (2) Beckford remains in good standing, and (3) no 

Event of Default had occurred under any loan document. However, the district 

court found Beckford failed to allege that it complied with the conditions precedent 

such that it should be entitled to the Net Amount. [Id. 42-43.] 

Under both Nevada and Florida law, every contract contains an implied 

covenant of good faith that requires that parties conform to the standards of good 

faith and fair dealing in order to protect reasonable contractual expectations. 

Hilton Hotels Corp. v. Butch Lewis Prods., Inc., 862 P.2d 1207, 1209 (Nev. 1993);

Centurion Air Cargo, Inc. v. United Parcel Serv. Co., 420 F.3d 1146, 1151 (11th 

 15 The agreements define “Net Amount” as “[t]he amount remaining in the Lock Box 

Account following the payment of the Lock Box Payments on each Payment Date (less any 

amount in the Lock Box Account withheld and applied by Lender to the Reserve Amount) . . . .”

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Cir. 2005) (applying Florida law). Under Florida law, a breach of this covenant, 

however, does not create an independent cause of action. Centurion, 420 F.3d at 

1151. Only when a breach of an express term of the contract is pled can a claim 

for breach of the implied covenant of good faith and fair dealing be maintained. 

Id. at 1152; Snow v. Ruden, McCloskey, Smith, Schuster & Russell, P.A., 896 So. 

2d 787, 792 (Fla. Dist. Ct. App. 2005) (“There can be no cause of action for a 

breach of the implied covenant “absent an allegation that an express term of the 

contract has been breached.”); Barnes v. Burger King Corp., 932 F. Supp. 1420, 

1439 (S.D. Fla. 1996) (claim for breach of the implied covenant of good faith and 

fair dealing cannot be maintained under Florida law absent an allegation that an 

express term of the contract has been breached); Burger King Corp. v. Holder, 844 

F. Supp. 1528, 1530 (S.D. Fla. 1993) (same). Also, applying Florida law, we have 

held that “an implied duty of good faith cannot be used to vary the terms of an 

express contract.” Burger King Corp. v. Weaver, 169 F.3d 1310, 1316 (11th Cir. 

1999) (citing City of Riviera Beach v. John’s Towing, 691 So. 2d 519, 521 (Fla. 

Dist. Ct. App. 1997)). The Weaver court went on to state, 

the Florida courts have refused to allow a cause of action for breach of 

the implied covenant of good faith and fair dealing under two 

circumstances. First, where the party alleged to have breached the 

implied covenant has in good faith performed all of the express 

contractual provisions. [] Second, where the implied duty of good 

faith alleged to have been breached would vary the express terms of 

the contract. [] Under Florida law, therefore, the implied covenant of 

good faith and fair dealing confers limited rights. As this court has 

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previously stated, “the ‘covenant’ is not an independent contract term. 

It is a doctrine that modifies the meaning of all explicit terms in a 

contract, preventing a breach of those explicit terms de facto when 

performance is maintained de jure.” 

Id. at 1316-17 (quoting Alan’s of Atlanta, Inc. v. Minolta Corp., 903 F.2d 1414 

(11th Cir. 1990) (applying Georgia law) (other citations omitted).

Nevada law, however, treats this type of claim differently. In Hilton Hotels 

v. Butch Lewis Prods., 808 P.2d 919, 922 (Nev. 1991), the Nevada Supreme Court 

stated that a plaintiff “may still be able to recover damages for breach of the 

implied covenant of good faith and fair dealing” even though there was no actual 

breach of the agreement. Later, in Morris v. Bank of Am. Nev., 886 P.2d 454 (Nev. 

1994), the Court stated that “[w]here one party to a contract deliberately 

countervenes the intention and spirit of the contract, that party can incur liability 

for breach of the implied covenant of good faith and fair dealing.” Id. at 457 

(citation and internal quotation marks omitted). 

We conclude that the district court erred in its consideration of Count Three 

with regard to Beckford’s bad faith claim when it dismissed the claim under 

Florida law without determining which state’s law applied to the claim. Under the 

SCA’s choice-of-law provision, the law of Nevada governed the contract. Since 

Nevada permits an independent claim for breach of the duty of good faith and fair 

dealing there appears to be no need to prove an actual breach under Nevada law. 

On remand, the district court should address this apparent conflict, conduct a 

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choice-of-law analysis, and determine whether the allegations in the TAC state a 

plausible claim for breach of the SCA and breach of the duty of good faith and fair 

dealing.

VII.

For the reasons stated in full above, the district court’s order is affirmed or 

reversed as follows: 

1. The dismissal of Count One’s claim for breach of the First Credit 

Agreement (misuse of the lockbox, bad faith in approving requests for advances, 

refusal to permit a payoff) is AFFIRMED since all alleged conduct is covered by 

the release in the Second Credit Agreement. The dismissal of Count Five’s claim 

for tortious interference (with the third party lender commitment to provide 

financing to pay off the First Credit Agreement), Count Six’s claim for damages 

for violation of Florida Usury Law (interest rates charged under all agreements), 

and Count Seven’s claim for declaratory relief under Florida’s Usury Law is 

AFFIRMED for the same reason.

2. The dismissal of Count Two’s claim for fraudulent misrepresentation and 

Count Four’s claim for fraudulent misrepresentation is REVERSED because the

release and waiver do not state that they are incontestable on the ground of fraud. 

3. The dismissal of Count Three’s claim for breach of the Second Credit 

Agreement (misuse of the lockbox, refusal to permit a payoff) is REVERSED

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because the district court failed to conduct a choice-of-law analysis before 

applying Florida law to the claim.

4. The dismissal of Count Eight’s claim for violation of the Florida 

Deceptive and Unfair Trade Practices Act (charging fees for services that were not 

performed, charging usurious interest, misrepresentations regarding the lockbox, 

falsely threatening to issue default notices) is AFFIRMED IN PART AND 

REVERSED IN PART. The order of dismissal is reversed to the extent the claim 

is based on conduct allegedly occurring after the execution date of the Second 

Credit Agreement (threats to issue default notices of the Second Credit Agreement 

in order to prevent borrowers from refinancing; misuse of lockbox) and affirmed in 

all other respects.

5. The dismissal of Count Nine’s claim for damages from civil conspiracy 

(conspiracy to commit the act described in Counts Two, Four, Five, Six, and Eight)

is AFFIRMED IN PART AND REVERSED IN PART. The order of dismissal 

is reversed to the extent the claim is based upon an alleged conspiracy to commit

(1) the conduct described in Counts Two and Four and (2) the conduct in Count 

Eight that is alleged to have occurred after the execution date of the Second Credit 

Agreement and affirmed in all other respects.

6. The dismissal of Count Ten’s claim for violation of RICO (collecting 

unlawful/usurious debts, wire fraud committed to prevent refinancing of the 

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Second Credit Agreement) and Count Eleven’s claim of RICO conspiracy is

AFFIRMED IN PART AND REVERSED IN PART. The order of dismissal is 

reversed to the extent the RICO claims are based on the wire fraud allegations and 

affirmed with regard to usury allegations.

16

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

 16 Because we reverse a portion of the district court’s decision on the federal RICO 

claims, we do not reach Appellants’ argument that the district court should have declined to 

exercise supplemental jurisdiction over the state law claims under 28 U.S.C. § 1367(c).

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